Despite scientific evidence regarding the success of Pfizer-BioNTech’s and Moderna’s COVID-19 vaccines under “Operation Warp Speed,” and a U.S. government thrust to inoculate the public, employers still should exercise care when implementing vaccine policies for the workplace. Vaccine mandates have long been controversial, and unfortunately a uniform public opinion on the necessity of COVID-19 vaccines remains unclear. Thus, without a decisive legal pronouncement by the federal government permitting employers to institute a mandate, employers should exercise caution to avoid potential legal pitfalls when devising a vaccine policy and potential mandate by allowing for legal exceptions and anticipating possible resistance based on language in FDA Emergency Use Authorizations (EUAs) for vaccine manufacturers. As discussed in this article, a successful workplace vaccination policy uses pre-existing legal frameworks and ad hoc regulatory guidance to balance employee rights with novel business realities facing COVID-19.

Drafting a Vaccination Policy

A complication for employers generally to institute workplace compliance programs stems from the patchwork of federal, state and local legal frameworks—and a steady flow of COVID-19 informal government agency guidance. For instance, issues of workplace health and safety related to a vaccination policy may implicate the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), the Occupational Safety and Health Act (OSHA), the Family and Medical Leave Act (FMLA), the National Labor Relations Act (NLRA), the Fair Labor Standards Act (FLSA) and various state and local laws including workers’ compensation laws.

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