When the EEOC confirmed months ago that employers could mandate Covid-19 vaccines without violating employment laws, the agency did not answer a lingering question regarding a non-employment statute, section 564 of the Food, Drug & Cosmetic Act (Section 564) which governs the vaccines' emergency use status. Section 564 contains an "option to accept or refuse" condition, and some employees have relied on that condition in arguing that it allows them to refuse the vaccine mandated by their employer.
The Department of Justice (DOJ) recently cleared up any confusion in issuing an opinion explaining that the "option to accept or refuse" condition applies only to those entities actually administering the vaccine, and it simply requires that specific information be provided to individuals receiving the vaccine. The DOJ explained that the condition does not prohibit entities – public or private – from imposing vaccination requirements. This opinion cleared the way for the Department of Veterans' Affairs to mandate vaccines for its employees.
The DOJ opinion is just one example of how the rules and guidelines for how employers navigate the pandemic are ever-changing. The CDC's latest recommendation that people in areas with "high" or "substantial" Covid-19 transmission should wear masks when indoors – regardless of their vaccination status – is another example. The takeaway from both is that employers must stay alert to what is required on a local, state and national level and be ready to make quick changes.
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