(Reuters) – Formal US approval of Pfizer Inc./BioNTech SE COVID-19 vaccine will make it nearly impossible to successfully challenge employers' mandates, legal experts say.
The decision of the Food and Drug Administration to give full approval to the vaccine is "seismic", says Brian Dean Abramson, author of vaccine laws.
He said it would be extremely difficult to question the FDA's decision and the mandates that follow.
On Monday, the Pfizer / BioNTech vaccine became the first to ensure full FDA validation, urging governments and private employers to make shots mandatory.
COVID-19 vaccines have been available in the United States since December under FDA emergency use.
The language of the EUA Act states that recipients must be informed of the benefits and risks of the vaccine and given the opportunity to accept or refuse it.
That language raised some uncertainty about how your mandate, which is usually considered legal, says Dorit Reiss, a professor at UC Hastings Law. "With full approval, it will be removed."
Following the FDA announcement on Monday, CVS Health Corp., Chevron Corp. ̵
Legal experts said there was already a growing consensus that employers can mandate an emergency vaccine. During the pandemic, both the Equal Employment Opportunity Commission and the Department of Justice issued guidance in support of vaccine mandates, provided that exceptions were made for medical conditions and religious beliefs. At least a dozen lawsuits have been filed, mostly by college students, but also by employees fighting allegations of wrongful dismissal for refusing a shot.
Most of the cases have clear arguments that vaccines approved in emergency situations could not be required, adopted the language of the Emergency Authorization Act that requires the consent of the vaccine recipient.
For example, Isaac Legaretta said he was never told he could refuse the vaccine required by the Dona Ana Detention Center in New Mexico where he worked.
"On the contrary, he was informed that he would be fired if he did," said the Legaretta lawsuit, which was filed in February and is ongoing.
In July, in one of the few judgments involving a private employer, a federal judge in Texas, confirmed vaccine mandates for employees at a Houston Methodist Hospital, where employees misunderstood the language of EUA law.
Legal experts said that challenges against the vaccination mandate will almost certainly persist, especially against public employers or public universities and colleges, which entails accusations of governments violating an individual's constitutional rights. That argument does not apply to private employers.
But as long as the government requires the vaccine to be a condition of employment or education, legal experts said it will be difficult to do.
"You can always work for someone else or go to a school that does not require a vaccine," says Jeffrey Nolan, a lawyer for Holland & Knight, who represents employers.
Many employers have tried to use incentives such as gift cards and leave to encourage vaccinations. This approach seems to have worked, legal experts said.
With full FDA approval, employers seem ready to move toward ordering staff to be vaccinated.
Samantha Monsees, a lawyer for Fisher Phillips, who represents employers, said: "I believe that based on my workload over the past two days, FDA approval will tip the scales with many employers." Catalog