According to the Centers for Disease Control and Prevention’s (CDC) COVID Data Tracker, more than 80% of new coronavirus cases in the United States are caused by the B.1.617.2 variant. More commonly known as “Delta,” this mutation of the coronavirus is more contagious than previous coronavirus strains.
Medical experts agree that getting vaccinated is important to be at least partially protected from the Delta variant. Dr. Rochelle Walensky, who is the director of the CDC, stated that “this is becoming a pandemic of the unvaccinated.” With infections rising and vaccination rates slowing down, employers (including the federal government) have been looking for ways to convince their workers to get the coronavirus vaccine.
On July 29, 2021, President Biden announced additional efforts to get more people vaccinated. His announcement represents a strategic shift in how the White House (and many employers) may take with workers who still haven’t gotten vaccinated against the coronavirus.
In this article, I’ll discuss what these changes are and how they fit into an overall trend concerning vaccination efforts. I’ll also explain the underlying legal reasoning that supports these changes as well as real-world considerations that employers must confront when trying to get their workforce vaccinated.
President Biden’s Coronavirus Vaccine Announcement
When it comes to federal employees and onsite contractors, President Biden’s announcement to unvaccinated federal workers was effectively this:
- You’ll have to wear a mask on the job no matter where you’re located;
- You must socially distance yourself from all other employees and visitors;
- You agree to be tested for the coronavirus at least once a week; and
- You will have restrictions on work-related travel.
This plan isn’t revolutionary, as it’s similar to what New York is doing. But while neither reaches the level of a vaccine mandate, they’re getting close.
However, the Biden administration has imposed a coronavirus vaccine mandate for federal workers, but it’s been limited to health workers from the U.S. Department of Veterans Affairs.
President Biden also indicated that his administration would encourage private employers to employ this model for encouraging workers to get vaccinated.
The July 29 announcement represents a significant shift in how the federal government (and many employers) will approach getting their workers vaccinated.
How the Drive to Vaccinate Americans Against the Coronavirus Has Changed
Currently, there are three coronavirus vaccines authorized for use in the United States:
All three of these have received emergency use authorizations (EUA) from the U.S. Food and Drug Administration (FDA). I’ll discuss the significance of that fact later in this article.
When these vaccines were first introduced, there weren’t enough to go around, at least with respect to the Modern and Pfizer-BioNTech versions. But as more people became vaccinated and production of the vaccines ramped up (and the Johnson & Johnson version also gained its EUA), it became evident that some additional means of persuasion would be needed to convince hesitant individuals to get their coronavirus vaccine.
So out came the carrots. Some states ran a variety of incentive programs, including those that offered guns, a $1 million lottery or college scholarships.
Employers also offered incentives to their employees. Benefits ranged from paid time off to $200 in extra pay to $125 in gift cards. Although depending on how these employer-incentive programs worked, employers needed to be careful not to violate federal anti-discrimination laws.
But as the Delta variant continues to spread, it’s become clear that carrots haven’t been enough to get a sufficient number of people vaccinated. So now the sticks have come out, with the most notable being President Biden’s July 29 announcement concerning federal workers.
If this current plan doesn’t work, a hypothetical vaccine mandate would be the next option. However, the Biden administration has so far made clear that there will be no nationwide federal coronavirus vaccine mandate.
You’ll notice that there’s been a progression in how vaccination efforts can occur. They start with no real effort needed, as demand easily exceeds the vaccine supply.
Then things flip, with more doses available than people who want them. Employers and the government start with rewards, but if they don’t produce the required results, a more aggressive approach is used.
It can begin with a “get vaccinated or wear a mask, socially distance and get tested often” approach. And if that still doesn’t work, the ultimate option is possible: “get vaccinated or you’re fired.”
Can employers do that? In many cases, yes. But there are two major legal exemptions. If someone has a medical or religious reason for not getting vaccinated, Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990 may allow them to forego an employer’s vaccination requirement.
But there’s another potential exception that could limit an employer’s ability to impose a vaccine mandate. It’s the fact that none of the three available vaccines in the United States have been approved by the FDA. Instead, they’re being administered pursuant to the Emergency Use Authorizations I mentioned earlier in this article.
Forcing Employees to Take a Vaccine That’s Subject to an Emergency Use Authorization
The law concerning employers mandating the vaccinations of their employees is pretty clear. But the law largely revolves around vaccines that have been fully approved by the FDA.
While it’s expected that the Pfizer-BioNTech and Moderna vaccines will get full FDA approval, it’s unclear as to when. However, some medical experts believe it could arrive over the next few months. As for the Johnson & Johnson/Janssen vaccine, there’s been no application filed with the FDA to obtain full approval.
But why does any of this matter? It matters because when the FDA granted EUA for the Pfizer-BioNTech and Moderna vaccines, it came with the condition that the vaccines’ fact sheets would include language that gave the individuals the “option to accept or refuse” the vaccine.
Does this language mean private and public entities, such as private and government employers, can’t impose a vaccine mandate on their workers? According to the Office of Legal Counsel (which is part of the Department of Justice), the answer to that question is “no.”
In a July 6, 2021 legal opinion, the Office of Legal Counsel (OLC) concluded that private and public entities, such as employers, could impose the vaccine mandate on their workforce even if the vaccine only had an EUA. The OLC reached this conclusion for several reasons, including:
- The law that outlines how EUAs can be used doesn’t apply to the vast majority of employers. Rather, the law only applies to entities that carry out an activity for which the FDA has issued the EUA.
- If a school, employer or other entity imposes a vaccine mandate, there’s no direct legal requirement that an individual get vaccinated. The individual is still free to refuse the vaccine, although they’d have to deal with the consequences, such as getting fired or barred from attending class.
Whether this legal opinion could survive judicial scrutiny remains to be seen, although it’s relying on fairly well-established legal principles and case law. Assuming its conclusions are upheld by a federal judge, there are still real-world considerations employers must face.
Practical Factors that Employers Must Consider
With the law likely on their side, why don’t more employers require their employees to get the coronavirus vaccine? There are a plethora of reasons.
First, what happens if the employee gets sick from the vaccine? The employer could potentially be at risk of getting sued by the employee. This is another reason why the FDA’s full approval of the coronavirus vaccines is important. It would be more difficult for the employee to successfully sue his or her employer for injuries from an FDA-approved vaccine compared to a vaccine that’s only been authorized for emergency use.
Second, most employers would have difficulty enforcing the mandate. It might require intrusive inquiries into the employee’s medical history that could invoke other legal protections of the employee. Or perhaps the employer would just take the employee’s word with no process of verifying the employee’s vaccination status.
Third, there are collective bargaining considerations that might restrict the employer’s ability to impose or enforce a vaccine mandate on unionized workers.
Fourth, there are racial disparities in those who have received the coronavirus vaccine. If punishments for not being vaccinated were to disproportionately impact employees of a certain race, this could result in unlawful racial discrimination based on disparate impact.
Fifth, the coronavirus and its vaccines are politically charged issues. By imposing a vaccine mandate, employers potentially enter this political fray.
If they haven’t already done so, it’s likely some employers will soon require their workers to get vaccinated. But other employers may take the “option” approach that’s similar to what President Bidden announced on July 29.
Why might some employers choose the option approach as opposed to insisting their employees get vaccinated? There are two major reasons.
By allowing employees to choose between getting a vaccine or something else (like wearing a mask, socially distancing at work and/or getting tested regularly), it becomes harder for the employee to claim their religious or medical rights are being violated.
Another advantage of the option approach is that it makes it easier for employers to get their employees back to the office. Employers with remote workers due to the coronavirus are well aware of the challenges they face in getting the workers back into the office. The last thing employers want to do is give workers more reason to stay home.
Providing an option appeases the remote workers who want to avoid having to get the coronavirus vaccine. But it also works for workers who might have concerns about their safety when returning to the office that has no vaccine requirement or alternative precautions in place.
Bottom Line
Employers face a delicate balance in trying to keep their workers safe, complying with the law and staying out of the political spotlight. As more incentives are offered for vaccination, alongside rising case numbers from the Delta variant, when our pandemic society will come to an end—if at all—remains to be seen.
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