LEXINGTON, Ky. (LEX 18) — Whether or not an employer can require the COVID-19 vaccine hinges on the category of approval by the Food and Drug Administration.
As it stands, the Pfizer, Moderna and Johnson & Johnson coronavirus vaccine are all only approved under an emergency use authorization.
Attorney Chris Wiest explained the emergency authorization is, "designed almost for this, you know, for the situation where there's you know a public health crisis, perhaps like COVID-19. We want to get this stuff to market quicker and so we might short circuit some of all the data, you know, the periods of data that we're collecting data to get this into the, into the public."
Wiest said the emergency use denotation does not allow the COVID-19 vaccine to be mandated but that at least one of the vaccines could be soon categorized with full approval in the next 60 to 90 days as Pfizer has already submitted to the FDA for the higher denotation.
"So, what we're talking about today may not be accurate in 60 to 90 days," Wiest said.
"Once it goes to full approval the legal landscape changes," said Wiest. "I think the full approval may be a little bit delayed because if they fully approve Pfizer that could have the effect of ending the emergency use authorization for J&J and Moderna because one of the criteria for emergency use authorizations is there's not an effective fully approved vaccine," he added. "Well, if you fully approved Pfizer, what does that do to Moderna and J&J?"
But, until full approval is granted for any of the vaccines, Wiest has a message for employers.
"Do not mandate or coerce employees right now. To obtain vaccines, I think you can encourage, I think encouraging is OK; it can't mandate [and] shouldn't penalize," he said. "And understand that, you know, you may be able to mandate as a condition of employment, you know, after full approval subject to obviously the ADA and possibly religious freedom issues under Title Seven."
To employees, Weist emphasized the importance of knowing your rights.
"I've always been a proponent of people doing their own research on all of this kind of stuff...I think everybody needs to make their own decision on it, but, you know, if there's an employer that's mandating [right now], that's a problem right for that employer."
