Another Twist to the Legality of Mandatory COVID-19 Vaccination Policies
By Joe Murray
While we’re all aware of the EEOC’s position on employers implementing mandatory COVID-19 vaccination policies — if not, take a minute to read the EEOC’s guidance — be aware that other laws may affect these policies. Specifically, because the current vaccines are authorized under emergency use authority, and not full FDA approval, there may be limits on the use of the vaccines.
In Legaretta v. Macias, Legaretta sued to stop his employer’s mandatory vaccination policy based on 21 U.S.C. § 360bbb–3, (Authorization for medical products for use in emergencies). Legaretta v. Macias, Case No. 21-cv-179 MV/GBW (D.N.M. Feb. 26, 2021). Specifically, the employee alleges that because Section 360bbb-3 requires persons receiving the vaccine to be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks,” that his employer violated Section 360bbb-3 by failing to inform him that he could refuse the COVID-19 vaccine. See 21 U.S.C. § 360bbb–3(e)(1)(A)(ii)(III). While the employer has not answered yet (as of this writing), the court has already denied the employee’s request for a preliminary injunction.
Legaretta’s Section 360bbb-3 claim seems to face an uphill battle since the specific provision he cites undercuts his argument. Note that the cited section states a person must be informed “of the consequences, if any, of refusing administration of the product,” which the employer did — get vaccinated or face disciplinary action. If an employer’s policy gives employees an option to accept or refuse and informs them of the consequences of refusal, alternatives, and the risk benefits, then the employer’s policy meets the requirements of Section 360bbb-3. (This is assuming that Section 360bbb-3 applies to employers.)
As employers and employees seek out guidance on mandatory vaccination policies, keep in mind that the EEOC’s guidance may not be the final or only word.