It turns out that the legality of mandatory employee COVID-19 vaccination may depend on the unapproved or approved status of COVID-19 vaccines. On this website in a March 15, 2021 post titled, “Can Employers Require Employees To Get A Covid Vaccine,” the position was taken that based on recent guidance published by the U.S. Equal Employment Opportunity Commission (“EEOC”) and California’s Department of Fair Employment and Housing (“DFEH”), employers in California could probably lawfully force an employee to take a COVID-19 vaccine as a condition of employment or continued employment unless the employee refuses to vaccinate because of a disability or sincere religious belief.
However, another perspective which may become a growing battle ground for legal disputes inside and outside of the employment context is that the Federal Food, Drug, and Cosmetic Act which authorizes the Food and Drug Administration (“FDA”) to grant emergency use authorization (“EUA”) of an unapproved product including a drug, device, or biological product, such as the COVID-19 vaccines currently in circulation, also provides that individuals must have the option to accept or refuse the unapproved product. Note that the option to refuse administration in the law does not specify the context, such as for the application to employer and employee relationships.
Nevertheless, the apparent prohibition against mandatory EUA administration may provide legal protection to an employee who reports to their employer a belief that it is illegal to require an employee to take a COVID-19 vaccine which only has EUA but is still unapproved. Further, if the employer retaliates against or terminates that employee, the employee may have a legal basis for whistleblower, retaliation, and wrongful termination claims against that employer. But navigating this new workplace issue appears to be uncertain and cloudy at best for both employers and employees. Finally, it follows that the right that the Federal Food, Drug, and Cosmetic Act may give an employee to refuse to take an unapproved COVID-19 vaccine that only has received EUA would disappear if and when the FDA approves the vaccine in question.
(See Link(s): 21 U.S.C. Section 360bbb-3(e)(1)(A)(ii)(III))