While many employers initially were hesitant to institute mandatory COVID vaccinations, the recent surge driven by the Delta variant and announcements from large organizations—including the U.S. military, United Airlines, and major health care systems across the country—have caused many employers to revisit mandatory vaccination policies.
The Equal Employment Opportunity Commission and U.S. Department of Justice (DOJ) have made clear that, absent a contrary state or local law that prohibits mandatory vaccines (as we previously blogged about for Oregon’s restrictions for health care employers here, with accompanying regulations available here), employers may require employee vaccination as a condition of employment. This is true notwithstanding the current Emergency Use Authorization (EUA) status of the COVID vaccine, which may have led some employers to hesitate in issuing a vaccine mandate. In a recent written memorandum, the DOJ explained that the EUA status does not affect whether such a mandate is lawful:
Section 564(e)(1)(A)(ii)(III) of the Food, Drug, and Cosmetic Act concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.
For employers considering implementing a mandatory vaccination policy, below are some factors to consider: