US Update: Employer Vaccination Policies Will Continue to Gain Momentum as DOJ Offers New Guidance and Federal Employers Impose New Vaccine Requirements

With the Delta variant on an upswing and COVID-19 vaccines widely available, more and more employers are considering implementing mandatory COVID-19 vaccination policies in the workplace. This is especially true for employers in healthcare settings, but vaccine mandates are not limited to this setting. Within the past week, several large employers, including Walmart, Disney and Uber, have announced mandatory vaccination policies for certain categories of employees. The Equal Employment Opportunity Commission has opined that such policies are not prohibited by federal Equal Employment Opportunity law, provided that reasonable accommodations are provided pursuant to the Americans with Disabilities Act and the religious discrimination provisions of Title VII of the Civil Rights Act to those employees who cannot be vaccinated due to a disability or sincerely held religious belief or practice.

One area of concern for some employers, universities, and other organizations considering mandatory vaccination policies has been the fact that the three vaccines currently available in the United States all currently have “Emergency Use Authorization” (EUA) status. The Food and Drug Administration requires that when vaccines that are authorized under an EUA are administered, the recipient receive a Fact Sheet containing information about the vaccine that includes the statement, “It is your choice to receive or not receive the COVID-19 Vaccine. Should you choose not to receive it, it will not change your standard medical care.” Some have questioned whether it is appropriate to mandate a vaccine in an employment or university setting given that the vaccines are not yet fully authorized. In fact, this argument was raised by a class of employees at Houston Methodist Hospital who objected to the employer’s vaccine mandate, as reported on this blog. The plaintiffs argued that because the vaccines were subject to the EUA, it would be improper to force them to receive the vaccines. The court rejected this argument summarily.

In response to these concerns, the U.S. Department of Justice (DOJ) has issued a memorandum analyzing whether the vaccines’ EUA status prohibits vaccination requirements. The DOJ Memorandum, issued July 6, 2021, notes that many entities have imposed vaccine requirements in order to attend in-person events, school, or to return to work, and addresses the questions that have been raised as to whether the EUA “option to accept or refuse” language would prohibit such vaccine mandates. The DOJ concludes that the vaccine’s EUA status does not prohibit organizations from imposing vaccination requirements:

As access to the COVID-19 vaccines has become widespread, numerous educational institutions, employers, and other entities across the United States have announced that they will require individuals to be vaccinated against COVID-19 as a condition of employment, enrollment, participation, or some other benefit, service, relationship, or access…. Some have questioned whether such entities can lawfully impose such requirements in light of the fact that section 564 [of the FDCA] instructs that potential vaccine recipients are to be informed that they have the ‘option to accept or refuse’ receipt of the vaccine.… We conclude that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.

The DOJ Memorandum, while lacking the force of law, nevertheless should provide some measure of assurance to those employers and other organizations considering vaccination requirements.

On a related note, the Department of Veterans Affairs (VA) issued a press release on July 26, 2021 announcing that COVID-19 vaccination will be mandatory for VA healthcare personnel who work in Veterans Health Administration (VHA) facilities, visit VHA facilities, or provide direct care to those VA services. Employees covered by the mandate will have eight weeks to be fully vaccinated.

Similarly, on July 29, 2021, the Biden administration announced that federal workers and contractors will be required to attest to their vaccination status. Those who do not do so will be required to wear a mask on the job, physically distance from other employees and visitors, comply with a screening testing requirement, and be subject to restrictions on official travel.

It is clear that the Biden administration is sending a strong signal in support of vaccination requirements in employment and other settings. The combined force of the DOJ Memorandum supporting vaccination requirements despite EUA status, the VA healthcare personnel vaccine mandate, and the new federal worker vaccination attestation policy, will likely provide additional momentum to vaccination requirements in the workplace.

By Tanya Salgado, White and Williams, US, a Transatlantic Law International Affiliated Firm. 

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