What’s the legality of mandating a COVID-19 vaccine?

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COVID-19 Dashboards

SYRACUSE, N.Y. (WSYR-TV)– As COVID-19 vaccine mandates are becoming a reality at the federal and state level, many are asking whether this could happen at their own place of employment. 

The legality of these mandates has been a heated debate across the country for months. Lawyers like litigation attorney Adam Mastroleo from Bond, Schoeneck, and King law firm said there have been a few hurdles in figuring out whether this is legal or not.

The first hurdle was the concern that vaccine mandates violated the anti-discrimination statutes in the Americans with Disabilities Act or title seven of the Civil Rights Act of 1964. However, this was quickly proven wrong by the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing these anti-discrimination statutes. 

According to Mastroleo EEOC put out guidance in December of 2020 saying that mandating vaccines does not violate these anti-discrimination statutes as long as employers provide reasonable accommodations for individuals with medical or religious exemptions. 

The second hurdle that lawyers have been struggling with for months however is whether the vaccine can be mandated if it’s not fully approved by the U.S. Food and Drug Administration. The three vaccines currently in circulation only have Emergency Use Authorization (EUA) from the FDA. 

However, the Office of Legal Counsel for the Department of Justice recently published an opinion letter stating that vaccine mandates are considered legal even for COVID-19 vaccines with EUA approval. 

“So although the Department of Justice opinion isn’t dispositive, it’s not conclusive, it provides a lot more support for employers who are thinking about mandating the vaccine. There are still some other challenges that have been filed in courts across the country, and we’ll have to wait to see what courts do in those cases, but you know, it’s becoming more and more clear that employers can legally mandate vaccines for employees.”

Litigation Attorney Adam Mastroleo

And if you’re an employer thinking about imposing a mandate, Mastroleo said to think about the pros and cons for your specific business and if you do decide to go through with it you have to have a written policy explaining what exactly you’re requiring. 

“So the written policy should say things like what type of proof you’re going to require, how to submit the proof, to whom to submit it, and potential consequences if proof of vaccination is not submitted,” he said. “The policy should also make it clear that individuals with medical or sincerely held religious beliefs that prohibit them from receiving the vaccine can receive potential accommodations or exemptions.” 

If you’re an employee wondering when a vaccine mandate could come to your workplace, Mastroleo said it all depends on the business, but in theory, it could happen tomorrow. 

“It depends on the business, so some businesses are more deliberative in making these decisions, some are more reactionary. If you have a small business you know only one person might have to make the decision and it could be implemented very quickly,” he said. 

A decision more and more employers are facing as concerns over the delta variant continues to rise. 

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