It appears most employers are not mandating Covid-19 vaccines, but a mandatory vaccination policy may be defensible under federal, state, and local employment laws if certain conditions are met.
It is against this background that the Dona Ana County Detention Center in Las Cruces, N.M., mandated Covid-19 vaccines. From an employment perspective, the policy generally was well drafted and communicated.
But an employee challenged the mandate under the Federal Food, Drug, and Cosmetic Act (FDCA)—not under any employment law. This appears to be the first court case challenging a vaccine mandate.
It is interesting to read some of the comments to newspaper or social media postings. The significance of the case has been both over- and under-stated. To understand its significance, we need to start with the complaint
Claims of Preemption
The gravamen of the complaint, filed in the U.S. District Court for the District of New Mexico, is that the detention center’s mandate is preempted by the FDCA. More specifically, the lawsuit alleges that the “state” action is preempted by federal law relative to emergency use authorizations (EUA), and because the vaccine was approved under an EUA, federal law dictates it cannot be mandated.
The issue raised by the case should not be dismissed by state and local governmental entities. As to actions taken by state and local government entities, preemption may be a private cause of action.
However, there is no issue of preemption when it comes to private sector employers. Plus, generally, there is no private right of action for violation of the FDCA. But that does not mean the case is irrelevant to private sector employers .
Public Policy Exceptions
The interesting twist is that many states have “public policy” exceptions to the at-will principle. Even though, generally, only state laws can be the basis for state law public policy claims, one can anticipate an argument that the FDCA standards relative to EUA creates a public policy that should be the basis for an exception. Here’s the irony: States that have defined the public policy exception more narrowly may be more likely to embrace such an exception here and vice versa.
The potential for a public policy claim under state law based on the FDCA is no reason to refrain from a mandate where the mandate otherwise may be defensible. But it is one factor for employers to consider in the risk calculus.
Other Risk Factors
Of course, employers who are considering mandating vaccines have many other factors to consider. Here are but three:
- What role will the employer play, if any, in determining who vaccinates its employees? If the employer designates a pharmacy or health-care provider, as opposed to allowing employees to elect on their own, the employer may be subject to greater restrictions under the Americans with Disabilities Act, at least based on guidance from the Equal Employment Opportunity Commission.
- Under what circumstances may employees seek an exemption as a reasonable accommodation? The obvious circumstances are for disabilities/medical conditions and sincerely-held religious beliefs. Employers may wish to consider pregnancy, too. According to the Centers for Disease Control, while pregnant women are at higher risk for serious illness, the data are limited as to the safety of Covid-19 vaccines for pregnant women.
- How much information should the employer provide to employees about the benefits and potential risks of vaccination? Employers do not want to get into the business of giving medical advice to their employees. Consequently, an employer is well advised to refrain from specifically defining the potential benefits and risks of the vaccine. Employers may wish to provide links to public health authorities, such as the CDC, and should encourage employees to check with their own health-care providers before making any decision. That may not be a matter of public policy but it is a matter of good employer policy.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jonathan A. Segal is a partner with Duane Morris LLP. A former litigator, his practice focuses on maximizing legal compliance and minimizing legal risk with an eye on culture. Areas of concentration include: Covid-19; diversity and inclusion; harassment and civility; wage and hour compliance; workplace investigations; pay equity; and employment, severance, and business protection agreements.