Article: Can Employers Mandate a Vaccine Authorized for Emergency Use?

By: Lisa Nagele-Piazza, J.D., SHRM-SCP

August 12, 2021


As employers considered whether to encourage or require workers to get vaccinated against the coronavirus, many had concerns about the legal risks associated with a mandate, particularly since the approved vaccines only have emergency use authorization (EUA). Employment law attorneys said that recent developments may alleviate some of those concerns.


"Consensus in the legal community has been that employers may require at-will employees to be vaccinated, subject to accommodations that may be required for medical or religious reasons," said Kevin Troutman, an attorney with Fisher Phillips in Houston, and Richard Meneghello, an attorney with Fisher Phillips in Portland, Ore.


"No decision is 'risk proof,' but we do not believe EUA status diminishes an employer's authority to require a vaccine," they said in a joint statement.


Brett Coburn, an attorney with Alston & Bird in Atlanta, said there's been a sea change in employer attitudes regarding vaccine mandates in the past few weeks following changes to mask guidelines from the U.S. Centers for Disease Control and Prevention (CDC). Additionally, the federal government and some state governors and large employers announced that they are mandating vaccines or requiring employees either to be fully vaccinated or submit to regular testing. 


"Many employers seem to have reached their breaking point with soft efforts to encourage vaccination, and they are now starting to think much more seriously about … mandates," Coburn said.


Here's what employers should know as they consider whether to revise their COVID-19 vaccination and workplace safety policies.


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