In recent weeks we have seen a number of large employers begin to mandate that their staff be vaccinated against COVID-19 and be able to demonstrate proof of vaccination either by a cut-off date or prior to returning to work. Those telling their corporate staff they must get vaccinated or risk losing their job or submitting to regular testing and social distancing measures includes such companies as Walmart, United Airlines, Facebook, Cisco, Tyson Foods, Walt Disney and Walgreens.

A study by Tinypulse found that less than 10% of companies have created such mandates due to a general reluctance to alienate their workforce, however as the Delta variant spreads, larger employers in various industries are setting their own guidelines that very well may be copied and implemented by smaller companies in their sector.

So the question becomes, is it legal?

Since vaccination status can feel like a private health matter to many, can an employer legally require their staff to get vaccinated, especially with a non-FDA fully approved vaccine, and do they risk being sued if they do?

The answer is:

Thus far, it appears that the courts are upholding the choice of public, private, and government entities in doing what they deem best protects their total employees, customers, and organization. We have seen this at a high level with President Biden announcing a “vaccine or test often” mandate for federal government employees and all companies that work on federal contracts, as well as city governments such as New York City. With that said, we will look at a few of the potential challenges.

Lawsuits based on the vaccine lacking full FDA approval

There have been several lawsuits that have made the case that employers cannot mandate a vaccine that only has Emergency Use Authorization from the Food and Drug Administration. In those cases they argue that the lack of this official approved status means the vaccine is essentially “unapproved” and “experimental.”

In a series of cases including Bridges v. Houston Methodist Hospital, California Educators for Medical Freedom v. Los Angeles Unified School District, and Legaretta v. Macias, the employee groups are arguing that the staff being required to get the COVID-19 “unapproved” vaccine or face termination is essentially requiring them to participate in a medical experiment which violates their federal rights.

The reason these cases have not thus been successful, and others like it will likely not stand up in the courts is due to the fact that the Centers for Disease Control and Prevention, as well as the Equal Employment Opportunity Commission, both recognize that federal law does not prevent employers from imposing vaccine mandates.

In fact, the CDC website states that “The FDA does not mandate vaccination. However, whether a state, local government, or employer, for example, may require or mandate COVID-19 vaccination is a matter of state or other applicable law.” Meanwhile, in the 1905 Supreme Court decision in Jacobson v. Massachusetts, the court upheld a state law requiring smallpox vaccination, stating that the Constitution did not provide a right to opt out of vaccine mandates during a public health crisis.

The only catch:

While there are lots of ways this issue could change, the two most important to watch are based around what the state of Missouri does, and claims around religious freedoms and disability discrimination.

While these are moving targets at the moment, the Missouri Chamber of Commerce has recently come out against Missouri legislators taking up bills that limit companies’ ability to control vaccinations among staff, and any showdown between legislators and other parties would most certainly go to a Missouri legal system that has until now displayed an unwillingness to get involved. We will be keeping our eyes on what happens.

If you have questions about the legality of any issues in the workplace, related to COVID-19, workplace safety, or discrimination, please reach out to the Liberty Trial Law Group to understand your rights.