Americans have begun to receive Pfizer’s emergency-use coronavirus vaccine, the first to be administered outside of a clinical trial. But approval for emergency use does not mean it’s fully approved. Does that matter now that Americans are starting to get it? It could make a difference when it comes to vaccine mandates.
ROBERT FIELD: Full approval means the FDA has spent months, sometimes even years going through all the data on safety and effectiveness. Emergency use means they can kind of short circuit that, so before they’ve completed their full review, if there’s an emergency, they can allow use of the product in advance. And there’s certainly an emergency right now.
But before the vaccine has been fully approved, the legal ground is shakier. It’s not clear that emergency use can be mandated. There’s an ambiguity in the law.
If an employer were to mandate that a worker take the vaccine under emergency use authorization, as opposed to full approval, the biggest risk is that the employee could sue for unfair termination. And depending on the state’s laws, they might be able to get back wages, and even prospective wages. It also would not look very good for that employer.
They would also have a legal risk that perhaps they were discriminating based on disability, if a worker for instance, were allergic to the vaccine. And we’ve seen that allergies would be a reason not to take it. A worker could claim that that was a disability. If there were a discriminatory impact of taking the vaccine, that would also be a claim. Or if there were a union contract that were being violated. But for the most part, it would be an employee suing for a work condition that was not reasonable and that was contrary to law, in terms of the state of approval of the vaccine.
Employers can require employees to take a vaccine that’s been fully approved as a condition of employment. That the basic law in most states is what’s called employment at will, where the employee can quit at any time, the employer can terminate them at any time, unless it’s a prohibited reason, discrimination or a disability or a union contract. But in the absence of one of those, the employer can set conditions on working. If you are in an industry with a lot of contact with the public, like health care, like retail, it would be perfectly reasonable to ask employees to be vaccinated so that there’s no risk to them and no risk to the customers. If there’s a likelihood that the employee would suffer medical complications from taking the vaccine, then they would be in their rights to refuse it.
For religious reasons, that would depend on the state. The Supreme Court has held, at least for childhood vaccines, that religious exemptions do not have to be provided. So the employee could make a claim on those grounds. They might be able to use OSHA regulations or state laws. But they would be on shakier grounds than if it were a medical issue.
The two areas where we have seen broad-based vaccine mandates in the United States are for schoolchildren. It’s for the common diseases of childhood, polio, diphtheria, measles and so forth. For hospital workers, we’re talking about the flu. And we’re talking about the danger of a health care worker transmitting the flu to a patient, perhaps an immunocompromised patient. That would be analogous to the COVID situation, where if you are infectious and you’re work at a hospital, you could easily spread it to patients.
I don’t think we need to be overly concerned with mandates right now. My guess is also that if the vaccines prove themselves to be as safe and effective as they seem to be, I don’t think we’re going to have to force people to take them. I think people are in fact, going to be lining up and clamoring for them.