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Health Law Faculty Provide Insights on Employer COVID-19 Vaccine Mandates

Coronavirus illustration courtesy of the CDC

December 09, 2020

As the world breathes a sigh of relief due to the rapid development of several promising COVID-19 vaccines, new questions arise in the United States. Chief among them are: who will get the vaccine first and, perhaps more troubling, what happens if the U.S. cannot get a high enough percentage of its population to take the vaccine?

While a national vaccine mandate is unlikely—President-elect Joe Biden has spoken against such a mandate—mandates are more likely to be created at the state, local, or institutional level.

However, Professor Robert I. Field suggested that companies considering vaccine mandates for their employees wait to establish them until a vaccine has full approval from the Food and Drug Administration (FDA).

“Employers are on shakier grounds because of the emergency use authorization,” Field said in an AS article published on December 2, referencing the FDA’s expected approval of a vaccine for emergency use.

In a USA Today article published on December 5, Field noted that once a vaccine is licensed, employers in service industries that require the vaccine would “have a strong argument that termination would be objectively fair” for employees who don’t adhere to the mandate.

Professor Barry R. Furrow recommended that employers avoid creating vaccine mandates, but rather “fold vaccination programs into their own wellness programs, figure out incentives to get workers to cooperate, [and] make workers have to justify reasons for resisting being vaccinated.”

Update: The FDA approved the Pfizer-BioNTech COVID-19 vaccine for emergency use on December 11, 2020.