Opinions from the Office of Legal Counsel (OLC) are not typically of much interest to private employers. (You may or may not have even heard of the OLC). After all, the Office’s role is to advise the Executive branch. However, a recently released OLC opinion addresses a question preying on many minds: Is it lawful for employers to mandate a COVID-19 vaccine even when the vaccine has not received full approval from the Food and Drug Administration, the federal agency responsible for the safety and efficacy of vaccines?

Without much fanfare, the OLC decided to tackle this question head-on. Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an Emergency Use Authorization. Specifically, the OLC opinion explores the question of whether the current Emergency Use Authorization (EUA) status of the COVID-19 vaccines would preclude public or private entities from mandating those vaccines. OLC concludes that it does not.