As an addendum to our earlier blog post about mandatory vaccination policies, we should note that the Pfizer vaccine has received only emergency use authorization (EUA) from the FDA, and it is anticipated that the Moderna vaccine will be in the same category. We have learned that the federal statute providing for the emergency use allows the FDA to establish conditions on administering the vaccine. One condition is to inform a person receiving the vaccine of “the option to accept or refuse administration of the product”.
It is not clear whether the statute prevents private (non-governmental) employers from disciplining employees who refuse to be vaccinated while the vaccine is still in the emergency use authorization status. The “at-will” employment rule in Virginia would seem to allow private employers to impose that discipline. It is probably advisable, however, for private employers to be cautious and wait until the FDA completes the entire vaccine approval process before imposing a mandatory vaccination requirement for the new Covid vaccines.
We will advise you of any updates or clarification from the FDA on this subject.
Feel free to contact us if you have questions about this matter.