Can employers require workers to receive the COVID-19 vaccine before full approval?

Kate Murphy
·Producer

“I feel hopeful today, relieved. I feel like healing is coming,” said Sandra Lindsay, a critical care nurse at Long Island Jewish Medical Center in Queens, N.Y., who became one of the first Americans to receive Pfizer’s coronavirus vaccine outside of a clinical trial on Monday.

“I want to instill public confidence that the vaccine is safe,” she said. “We’re in a pandemic and so we all need to do our part.”

But what if she wasn’t confident the vaccine was safe? As a critical care nurse, she is at high risk of infection, and her hospital has an interest in keeping her healthy. Could she have refused to take the vaccine? Could her hospital require its staff to take it?

The Food and Drug Administration granted emergency use authorization (EUA) of the vaccine in the U.S. on Friday. An EUA is not a full FDA approval, which could affect how those decisions play out.

Sandra Lindsay, left, a nurse at Long Island Jewish Medical Center, is inoculated with the Pfizer-BioNTech COVID-19 vaccine by Dr. Michelle Chester, Monday, Dec. 14, 2020, in the Queens borough of New York. (AP Photo/Mark Lennihan, Pool)
Sandra Lindsay, left, a nurse at Long Island Jewish Medical Center, is inoculated with the Pfizer-BioNTech COVID-19 vaccine by Dr. Michelle Chester, Monday, Dec. 14, 2020, in the Queens borough of New York. (AP Photo/Mark Lennihan, Pool)

“Full approval means the FDA spent months, sometimes even years, going through all the data on safety and effectiveness. Emergency use means they can short-circuit that,” Robert Field, professor of law and public health at Drexel University, told Yahoo News.

Under EUA, Americans can start receiving the Pfizer COVID-19 vaccine, but the initial supplies of it will be reserved for vulnerable groups like health care workers and nursing home residents before it becomes more widely available in the U.S.

But recent polls have shown Americans have mixed feelings about getting a coronavirus vaccine. A recent AP-NORC poll conducted Dec. 3-7 found that only about half of American adults plan to get the vaccine, while a Gallup poll released Dec. 8 found that 63 percent of Americans say they are willing to be inoculated against the disease, up from 50 percent in September.

Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, told Facebook CEO Mark Zuckerberg that “75 percent to 85 percent” of the population needs to get vaccinated in order to achieve herd immunity. With that consideration, could COVID-19 vaccine mandates be put in place at workplaces outside of the health care industry?

“Employers can require employees to take a vaccine that’s been fully approved as a condition of employment,” Field said. “The basic law in most states is 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, a disability or a union contract.”

A quick reminder: The Pfizer coronavirus vaccine has not yet been fully approved by the FDA. Can employers still mandate it at this point? “Before the vaccine has been fully approved, the legal ground is shakier,” Field said. “It’s not clear that emergency use can be mandated. There’s an ambiguity in the law.”

What would happen if employers terminated employees for not getting an EUA vaccine, as opposed to one that was fully approved? According to Field, “the biggest risk is that the employee could sue for unfair termination, and depending on the state’s laws they may be able to get back wages and prospective wages ... 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.”

Vaccine mandates have a long history in the U.S., where schools often require that students be inoculated against infections such as polio, diphtheria and measles. Hospital workers may be required to get a flu vaccination. “There are a few states now that have mandated it for hospital workers. Both of those have stood the test of time. They have held up in court cases, including some cases up to the Supreme Court. So it’s likely that requirements for the COVID vaccine would have the same legal green light,” said Field.

The landmark Supreme Court decision on mandatory vaccinations was Jacobson v. Massachusetts in 1905. A smallpox epidemic was sweeping eastern Massachusetts, and the city of Cambridge mandated that all citizens must be vaccinated or face a $5 fine. A man named Henning Jacobson refused to get vaccinated and refused to pay the fine. Jacobson took his case all the way to the Supreme Court — where he lost.

“They said in an emergency such as a smallpox epidemic, the government, in this case the state government, could mandate vaccination in order to protect the population. It was more a matter of protecting the others you might infect than protecting yourself, but smallpox is highly infectious. That holding has been applied to school vaccinations for schoolchildren and it would apply to COVID as well,” said Field.

For now, Field says we shouldn’t be overly concerned about COVID-19 vaccine mandates until the FDA fully approves the vaccine. Another vaccine, from Moderna, is awaiting emergency use authorization, which will be discussed by the FDA on Dec. 17. “My guess is also that 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.”

Content concerning legal matters is for informational purposes only, does not constitute legal advice, and should not be relied upon in making legal decisions.