Date: December 22, 2020Attorney: Steven I. Adler

We write to clarify our last employment law blog article concerning whether employers can mandate that employees take the COVID-19 vaccine as a condition to returning to their places of employment.

Our last article set forth the issues facing employers under a scenario where the FDA gives its full approval licensing the vaccine. Currently, however, the FDA is making Pfizer’s and Moderna’s vaccines available under an Emergency Use Authorization (“EUA”).

Under an EUA, the FDA has an obligation to ensure that eligible vaccine recipients are informed of the vaccine’s known and potential benefits and risks, of any available alternatives to the product, and that those eligible have the option to accept or refuse the vaccine. Does this also mean that employers cannot require the vaccine? The EEOC does not specifically address this issue in its most recent Guidance.

Regardless, as we previously wrote, there are still issues employers must consider before any termination decision should be made. This includes whether to accommodate under the ADA and state disability laws an employee who refuses the vaccine, including possibly allowing the return to the office with a mask and proper social distancing or allowing the employee to work remotely. Employers should also consider their obligations under federal and state leave laws.

In summary, employers will be on more solid ground to demand vaccines once the FDA gives them their full licensing approval but, even when that occurs, employers must carefully walk the minefields before making any termination decision.