Federal law allows employers to mandate COVID-19 vaccines for employees who’ve been infected with COVID-19 and those who haven’t, legal experts say.
Although COVID-19 vaccination continues to be a polarizing issue in the U.S. as a whole, private employers that wish to require employees to be vaccinated for COVID-19 can do so with little legal risk, provided they comply with accommodation, confidentiality and any other legal obligations. Currently, there aren’t valid legal arguments forbidding private employers from requiring vaccinations against COVID-19, except that legally required accommodations must be provided.
Court cases have held that the federal Food, Drug and Cosmetic Act (FDCA) does not grant an employee subject to an employer’s vaccine mandate the right to sue that business, despite the vaccines having received only emergency use authorization.
Employers have the legal right to require employees to be vaccinated, but each employer must decide whether a requirement — rather than encouragement — is the right choice for them. The more people who are vaccinated, the sooner life and work can return to normal. an employee subject to an employer’s vaccine mandate the right to sue that business, despite the vaccines having received only emergency use authorization
Employers should monitor state and local developments. Equal Employment Opportunity Commission (EEOC) guidance in favor of mandatory vaccinations does not address state and local law.
In addition, the U.S. Justice Department stated in a July 6 opinion that the FDCA doesn’t bar public or private entities from imposing vaccination requirements, even when the only vaccines available are those authorized under emergency use.
Objections based on a previous COVID-19 infection would have to be made through the reasonable accommodation request process, and the employer should then follow its normal accommodation procedures to determine if the following applies:
- The employee has a disability under the Americans with Disabilities Act (ADA) that conflicts with the employment policy. While COVID-19 that lasted a short time and didn’t substantially limit a major life activity would not be an ADA disability, a “COVID-19 long-hauler” may have an ADA disability that must be reasonably accommodated.
- A reasonable accommodation can be provided without an undue hardship on the employer.
In some cases, it would be difficult to know whether an employee had COVID-19, particularly if that person’s infection occurred before testing was available and was identified solely based on the presence of antibodies or self-reported symptoms. Legal experts advise employers who require employees to be vaccinated not to distinguish between those who were previously infected and those who were not with regard to the vaccination protocol.