NACE Journal, May 2021

In “The Next COVID-19 Issue: Mandating the Vaccine,” which appeared in the February 2021 issue of the NACE Journal, we attempted to answer questions related to whether employers can mandate the COVID-19 vaccine. Given the nature of the issue, the article created additional questions for employers, career centers, and applicants. This articles addresses the most commonly asked questions that arose.

Question: How can an employer mandate a vaccine when the FDCA states that an emergency use authorization vaccine cannot be mandatory?

Answer: This is the biggest question currently being asked by employers, applicants, and career centers. Tellingly, this question is also the subject of a lawsuit in federal court in New Mexico.

The confusion over this issue lies with what many perceive to be conflicting information provided by the Equal Employment Opportunity Commission (EEOC) when compared to language in the Food, Drug, and Cosmetic Act (FDCA).

The EEOC issued guidance that indicates that an employer is permitted to mandate the COVID-19 vaccine, provided it complies with the requirements of the applicable federal anti-discrimination laws. As a reminder, if an employer is going to mandate the COVID-19 vaccine, it must provide exceptions for individuals with medical or religious reasons for refusing to receive the vaccination. Based on that guidance, and the years of case law interpreting the rules regarding mandatory vaccinations, most individuals who provide recommendations on this matter have stated that employers are permitted to mandate the COVID-19 vaccine.

What many people have now questioned is language in the FDCA that relates specifically to medical products authorized under an Emergency Use Authorization (EUA). Regarding EUAs, the FDCA specifically states as follows:

“(ii) Appropriate conditions designed to ensure that individuals to whom the product is administered are informed—

‘‘(I) that the Secretary has authorized the emergency use of the product; ‘‘(II) of the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown; and ‘‘(III) of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.” 

21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III)

Many individuals, including the plaintiff in the New Mexico lawsuit, have used the foregoing language to form the belief that the FDCA somehow prohibits private employers from mandating the COVID-19 vaccine. Specifically, those individuals have relied on the following language: “… of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product …”

As an initial matter, the FDCA does not apply to or govern employer/employee relationships. As such, the language in the FDCA, in our opinion, does not impact an employer’s right to mandate the COVID-19 vaccine. The EEOC, which has indicated in its guidance that the COVID-19 vaccine may be mandated, is the entity that enforces laws that impact employer/employee relationships.

Additionally, if the entirety of the foregoing language is used to analyze the issue, it indicates that an individual must be provided with the “option to accept or refuse” the vaccine and of the consequences, if any, of refusing administration. Even if the FDCA would be applicable to the employer/employee relationship, an employer can comply with its requirements by adopting a policy that specifically informs an individual of the consequences if they refuse the vaccine (without an approved exception as stated herein).

Based upon the foregoing, it is our opinion that the language in the FDCA is not in conflict with the guidance provided by the EEOC, and an employer may mandate the COVID-19 vaccine in accordance with applicable laws. It should be noted, however, that some states, including California, recently provided guidance pertaining to mandatory vaccinations. Employers must be mindful to adhere to all state law requirements in addition to the federal laws noted here.

Question: In the interview, can employers ask if the applicant received the vaccine?

Answer: Based upon guidance and information from the EEOC, the simple answer is “yes.”  As an initial matter, it must be determined if the question is permissible under the Americans With Disabilities Act (ADA). The ADA restricts the ability of employers to require job applicants to undergo medical examinations or answer questions about medical conditions, with certain exceptions.

Courts and the EEOC have stated a test or procedure is more likely to be a medical examination under the ADA if it is administered by a health care professional; interpreted by a health care professional; designed to reveal an impairment to physical or mental health; designed to measure physiological responses when performing a task; normally given in a medical setting; or performed using medical equipment.

Regarding the vaccine, the EEOC specifically stated that merely questioning whether someone has received a vaccine is not a medical inquiry. The issue for an employer would arise if follow-up questions are posed as to the reason someone did or did not receive a vaccination. For example, if an employer asks, “Why did you choose to receive the vaccine?,” it may elicit a variety of responses that indicate an individual’s medical condition (or age in violation of the Age Discrimination in Employment Act) that would subsequently run afoul of the applicable laws. However, if an employer solely poses the question, “Did you receive a COVID-19 vaccine?” without any initial or follow-up questions, the inquiry would be permissible by law. To the extent the questioning elicits information about an individual’s medical condition, it would potentially be in violation of the ADA.  

Question: During the employment process, can an employer tell job candidates that employees are required to be vaccinated, and do they have to accommodate someone who doesn’t want to be vaccinated either for personal or health reasons?

Answer: As noted in the second question, the vaccine itself is not a medical exam or inquiry. As such, an employer can provide that information at the outset of the employment process if it so chooses.

The second part of this question is more complicated. If an employer mandates a vaccine, it must provide a waiver process for individuals who are unable to receive the vaccination for medical reasons or due to closely held religious beliefs. Employers must adopt a written policy that informs employees of their rights to request a waiver, the time period to provide such a waiver request, the information that must be provided, and the consequences for failing to receive the vaccination if the waiver is not obtained.

The only exceptions provided by law are for religious or medical reasons. An individual’s personal beliefs about the vaccine are not covered by applicable federal laws, although employers are free to consider such concerns in their own internal policies if they wish to do so. As such, if an individual merely does not want to get the vaccine because they do not agree with the process for approval, that is not a covered exception by law.

Question: How can an employer mandate the vaccine if not everyone can receive it yet?

Answer: If an employer is going to mandate the vaccine, it must do so when the vaccine is available to all those who it wants the mandate to apply to are eligible. In other words, an employer could not enforce a mandatory policy if half of its workforce is unable to receive the vaccine due to availability. Once the vaccine is available to all employees and applicants, the mandatory policy could become enforceable.

Question: Can employers require interns to be vaccinated?

Answer: As with other individuals who work for a company, an employer can mandate a vaccine for an intern if it is a condition of employment. Whether the intern is provided the same protections under the laws discussed in this article is an issue of fact. By way of example, unpaid interns may not be considered employees and therefore not afforded the protections set forth in the ADA. It is recommended, however, that employers provide interns the ability to be excluded from the mandatory vaccination policy for religious or medical reasons in the same manner it would for regular employees.