COVID Vaccination Update—in light of the vaccine’s “Emergency Use Authorization” status

Yesterday’s post highlighting the one in five employees who refuse a vaccination forth comments spanning the spectrum of individuals who insist vaccination become mandatory to those who had “wicked” reactions to prior vaccinations and don’t want to risk a “rushed to market” vaccination.

The most interesting observation came from Michael O’Brien, Senior Labor and Employment Counsel at Perkins Coie LLC in Anchorage. O’Brien noted the friction between the Federal Drug Administration (FDA) and the federal Equal Employment Opportunity Commission (EEOC)’s guidance to employers.

While the EEOC suggests that employers can implement mandatory COVID-19 vaccination policies with certain exceptions and caveats, the FDA’s “emergency use authorization” rules point out that this may not be currently viable. According to O’Brien, the two vaccines available are “Emergency Use Authorized vaccines, and the FDA requires that recipients of the vaccine under an EUA are informed, among other things, that they have the option to accept or refuse the vaccination.” 

As I outlined in my December 21 January 18 posts, the exceptions and caveats noted by the EEOC include that employers need to ensure their polices comply with the Americans with Disabilities Act (ADA), federal and state anti-discrimination laws (in which religion is a protected category) and any other state or local workplace laws and regulations. Additionally, employers that elect to require vaccinations as a condition of employment need to ensure these requirements are both job-related and a business necessity.

According to O’Brien, “It will be difficult to reconcile the EEOC and FDA’s positions until regularly authorized vaccines are released as the EEOC hasn’t commented on the FDA’s language requiring those receiving the vaccine to be told that they have the option to refuse it.”

© 2020, Lynne Curry

Lynne Curry, Ph.D., SPHR, is the author of “Beating the Workplace Bully” (AMACOM, 2016, and “Solutions”, (both books are rated 4.8 out of 5 stars on Send your questions to her at or follow her on twitter @lynnecurry10.

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