Employers can’t require Covid-19 vaccination under an EUA
Abstract: Organizations are free to encourage Covid-19 vaccination by employees and others, but federal law prohibits them from requiring it.
Even though the FDA granted [emergency use authorizations](www.statnews.com/2020/12/11/fda-grants-historic-authorization-to-a-covid-19-vaccine-setting-stage-for-rollout/) for the [Pfizer/BioNTech](www.fda.gov/media/144412/download) and [Moderna](www.fda.gov/media/144636/download) vaccines in December 2020, the clinical trials the FDA will rely upon to ultimately decide whether to license these vaccines are still underway and are designed to last for approximately [two](media.tghn.org/medialibrary/2020/11/C4591001_Clinical_Protocol_Nov2020_Pfizer_BioNTech.pdf) [years](www.modernatx.com/sites/default/files/mRNA-1273-P301-Protocol.pdf) to collect adequate data to establish if these vaccines are safe and effective enough for the FDA to license.
The abbreviated timelines for the emergency use applications and authorizations means there is much the [FDA](www.fda.gov/media/144245/download) [does](www.fda.gov/media/144434/download) [not](www.fda.gov/media/144416/download) [know](www.fda.gov/media/144673/download) about these products even as it authorizes them for emergency use, including their effectiveness against asymptomatic infection, death, and transmission of SARS-CoV-2, the virus that causes the disease.
Given the uncertainty about the two vaccines, their EUAs are explicit that each is “an investigational vaccine not licensed for any indication” and require that all “promotional material relating to the Covid-19 Vaccine clearly and conspicuously … state that this product has not been approved or licensed by the FDA, but has been authorized for emergency use by FDA” (emphasis added).
EUAs are clear: Getting these vaccines is voluntary
The [same section](www.law.cornell.edu/uscode/text/21/360bbb-3) of the Federal Food, Drug, and Cosmetic Act that authorizes the FDA to grant emergency use authorization also requires the secretary of Health and Human Services to “ensure that individuals to whom the product is administered are informed … of the option to accept or refuse administration of the product.”
Likewise, the [FDA’s guidance](www.fda.gov/media/97321/download) on emergency use authorization of medical products requires the FDA to “ensure that recipients are informed to the extent practicable given the applicable circumstances … That they have the option to accept or refuse the EUA product …”