Laws Affecting Employer COVID-19 Vaccination Mandates

COVID-19 vaccination is affected by several laws. First, these vaccines have Emergency Use Authorization (EUA) under the federal Food, Drug, and Cosmetic Act, which provides that “individuals to whom the product is administered are informed… of the option to accept or refuse administration of the product.” Until the vaccines have full approval by the Food and Drug Administration (FDA), an employer’s right to terminate employees under the “at-will doctrine” in many states may not supercede the employee’s rights under EUA rules. To learn more, visit https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization.

After full FDA approval, other laws come into play. Under the Americans with Disabilities Act (ADA), a Dec. 16 guidance by the Equal Employment Opportunity Commission (EEOC) says employers requiring vaccination or proof of vaccination must document that these inquiries are job related and consistent with business necessity to prevent a “direct threat” to health or safety of employees. Even then the ADA still provides accommodations for sincerely-held religious beliefs and disabilities that employers can override only by proving “direct threat” or “undue hardship.” To learn more, visit https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#K.2.

The Dec. 16 EEOC guidance also stated that administering a COVID-19 vaccine to employees or requiring proof of vaccination does not involve the use of genetic information to make employment decisions nor the acquisition or disclosure of genetic information. Consequently, the Genetic Information Nondiscrimination Act (GINA) is not triggered by those requirements. However, vaccination pre-screening questions that ask about genetic information may violate GINA, the EEOC guidance stated. If an employer requires employees to provide proof of vaccination, “the employer may want to warn the employee not to provide genetic information as part of the proof,” the EEOC noted. When this warning is provided, any information received in response would be considered not unlawful under GINA, the agency added. To learn more, visit https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#K.9.

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