On March 4, 2021, the Department of Fair Employment and Housing (DFEH) released an updated FAQ regarding DFEH Employment Information on COVID-19. The DFEH stated that “an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection,” subject to reasonable accommodations for those with disabilities or sincerely-held religious beliefs or practices that prevent the employee from being forced to take the vaccine.

The DFEH then misleadingly stated that the FDA “authorized and recommended three vaccines against COVID-19 infection, and the FDA may approve other vaccines for use in the United States.”

Employers, take note: There is not a single FDA-approved COVID-19 vaccine available!

The Pfizer-BioNTech COVID-19 Vaccine, Moderna COVID-19 Vaccine, and Janssen COVID-19 Vaccine all received only Emergency Use Authorization (EUA).

Additionally, on February 4, 2020, Health and Human Services Secretary Alex Azar invoked the Public Readiness and Emergency Preparedness Act (PREP Act).  The PREP Act empowers the HHS secretary to provide legal protection to companies making or distributing critical medical supplies, such as vaccines and treatments, unless there is “willful misconduct” by the company.  The protection lasts until 2024.

This means that the vaccine manufacturers cannot be held liable for injuries caused by their vaccine.  Thus, if an employee is required to take any of the EUA vaccines, the employee cannot sue the vaccine manufacturer.  Their only option would then be to go after their employer that required they take the EUA vaccine.

Therefore, until the FDA formally approves a COVID-19 vaccine, employers should not mandate that their employees be forced to take a COVID-19 vaccine.

Under the EEOC, can employers require employees to receive the COVID-19 vaccine?

The EEOC issued guidance in December 2020 regarding ADA, Title II, and Title II of the Genetic Information Nondiscrimination Act (GINA) concerns when requiring employees to receive an FDA approved or authorized vaccine. The language used by the EEOC heavily implies that employers may be able to require the COVID-19 vaccine.

However, the EEOC also makes clear that the current COVID-19 vaccines are not FDA approved or authorized vaccines, but are instead are only available to the public for the foreseeable future under the EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA requires that recipients of the vaccine under an EUA are informed that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, to the extent to which such benefits and risks are unknown, that the recipient has the option to accept or refuse the vaccine, and of any available alternatives to the vaccine.

As such, employers cannot require employees to receive an EUA COVID-19 vaccine such as those that are currently available. Once the FDA has officially approved a COVID-19 vaccine, an employer will likely be able to require its employees to receive the vaccine, subject to the usual ADA, Title VII, and GINA exceptions.

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Raimondo & Associates will continue to monitor these mandates and guidance and provide updates as necessary.