COVID Vaccination Mandate?

Tammy McCutchen

Disability accommodation and collective bargaining entanglements certainly matter, but there probably are better explanations for the lack of news about employers requiring COVID vaccination as a condition of employment.

In most states, employers that provide workers’ compensation coverage get, in exchange, a promise from the state that the workers’ compensation benefits payable to the employee (if any) will be the employee’s exclusive remedy – i.e., the employer is immune to tort claims arising from employee injuries attributable to employer negligence. Other employer insurance policies commonly exclude coverage for employee injury claims that avoid this “exclusive remedy” bar.

The U.S. Food and Drug Administration (FDA) approves COVID vaccines under an unusual statutory process called “Emergency Use Authorization” (EUA). Congress instructed the FDA, in 21 U.S.C. §360bbb-3(e)(1)(A)(ii)(III), to condition each EUA on assurance that vaccination subjects are informed “of the option to accept or refuse administration of the [vaccine] . . . .” The FDA does this by incorporating the informed consent condition in the EUA by reference to an appended Fact Sheet that must be provided to vaccination subjects. See Pfizer’s and Moderna’s. Each Fact Sheet also warns of adverse reaction risks and other possibly harmful side effects, known and unknown, because a vaccine safe and effective for almost everyone nevertheless may be harmful or deadly for some.

Might the FDA—because of the COVID pandemic—relax its view that the recipient’s advance, express, genuine informed consent is an EUA issuance condition? That wouldn’t be the worst regulatory contortion, and it would do much good in some situations. But Congress knew how to make this exception, and did so in 10 U.S.C. §1107(a), which allows the President to waive the informed consent requirement in order to mandate armed forces vaccinations. The FDA may reasonably view the lack of other statutory exceptions to foreclose its option to create exceptions by rule or guidance.

Now, where were we? Ah, yes. Commonly, workers’ compensation exclusive remedy statutes don’t bar tort claims that arise from intentional or reckless employer conduct that causes an employee to suffer a foreseeable bodily injury, and such claims tend to fall into an insurance coverage crack. Expecting that some recipients will be disabled by COVID vaccination, and that many more will claim to have been disabled by COVID vaccination, few employers want to fund the exclusive remedy test case, accused of intentionally denying the employee her FDA-mandated free choice, leading to her grievous injury.

But suppose that an employer is willing to run that risk due to the vaccination imperative facing its business. Are there other risks lurking in the shadows? Yes, as bad luck would have it.

A wide range of federal and state remedies are available to today’s whistleblowers. One common claim is that the employer fired the employee because the employee refused to participate in or reported the employer’s illegal act. For this purpose, does an employer commit an illegal act when it ignores the recipient’s statutory right of refusal? If so, this claim, too, might fall between employer insurance coverages.

The lack of news about employer-mandated COVID vaccination isn’t fake.

Tammy McCutchen

Principal

Littler Mendelson P.C.


Labor & Employment

Federalist Society’s Labor & Employment Law Practice Group

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