Since COVID-19 vaccine distribution began in December 2020, millions of people across the United States have been vaccinated. Still, a large percentage of people remain unvaccinated, which creates challenges for employers who view the COVID-19 vaccine as a key protective measure for maintaining a safe and healthy workplace. Moreover, some employers are worried that, if they do not mandate or encourage the COVID-19 vaccine in their workplaces, employees may invoke the general duty clause under section 5(a)(1) of the Occupational Safety and Health Act (OSH Act) to support a claim that the employer failed to provide a safe and healthy work environment. Now that the vaccine is widely available for adults in most states and many employees are still deciding to forgo the vaccine, employers are grappling with whether to adopt a policy requiring the COVID-19 vaccine. Before adopting a mandatory vaccine policy, employers should recognize and evaluate the many legal and practical risks associated with such policies.
At this point, relevant legal precedent and guidance surrounding an employer’s ability to mandate the COVID-19 vaccine is minimal and legally untested, especially since the COVID-19 vaccine thus far has been authorized by the Food and Drug Administration (FDA) pursuant to an Emergency Use Authorization (EUA), rather than complete FDA approval. In fact, lawsuits challenging employers’ ability to mandate the vaccine, based on the vaccine’s EUA status, already have been filed. Several states also have proposed bills which, if passed, would prohibit mandatory vaccination policies.