General vaccine considerations

Employers may be able to require vaccines in the workplace. The Equal Employment Opportunity Commission (“EEOC”) updated its guidance in response to the COVID-19 vaccine in its publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” 

The guidance clarifies that, while an employer may be able to require a vaccine (depending on the workplace and whether the employer can establish a safety threat), they must engage in the interactive process with all employees who refuse the vaccine due to religious beliefs or disability. 

Put simply, the employer must work with employees who request accommodations to the vaccine for religious or disability related reasons. Employers cannot terminate employees until they have ruled out whether accommodations, including telework, can be offered.

The Occupational Safety and Health Administration (“OSHA”) has not provided any specific guidance as to the COVID-19 vaccine. However, in the 2014 publication titled “Protecting Workers During a Pandemic,” OSHA stated that “Depending on the pandemic, a vaccine may or may not be available to protect people from illness.”

Employers who require employees to get these vaccines prior to full FDA approval run the risk of a “wrongful discharge” lawsuit if they terminate employees who refuse to be vaccinated. 

Further, OSHA also has indicated that employers should encourage their employees to get the flu vaccine. Thus, it is likely that OSHA will support employers encouraging the COVID19 vaccine.

Emergency-use authorization vaccines

The current COVID-19 Vaccines have received Emergency Use Authorization (“EUA”) from the Food and Drug Administration (“FDA”). EUA is a tool that can be used to expedite the use of vaccines  and other medical counterparts during public-health emergencies. The EUA allows unapproved medical products to be used, or approved medical products to be used for unapproved purposes before such products receive the formal FDA approval.

The Federal Food, Drug and Cosmetic Act (“FDCA”) governs the conditions of EUA including the condition that: “individuals to whom the product is administered are informed … of the option to accept or refuse administration of the product.” Section 546(e)(1)(A). 

Both the Pfizer-BioNTech COVID-19 EUA Fact Sheet and the Moderna COVID-19 EUA Fact Sheet clearly specify that recipients or their caregivers must have the right to accept or refuse the vaccine. 

So what does this mean for employers? 

Employers who require employees to get these vaccines prior to full FDA approval run the risk of a “wrongful discharge” lawsuit if they terminate employees who refuse to be vaccinated. 

While Wisconsin and many other states recognize the “at-will doctrine” (meaning an

employer may terminate employees at any time for any reason) there are exceptions. One such exception is “when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law.” (See Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983)). Examples of the public policy exception in Wisconsin include termination for refusing to work excessive work hours prohibited by statute (See Wilcox v. Niagara of Wis. Paper Corp., 965 F.2d 355, 363 (7th Cir. 1992), and termination for complaining about alleged wage violations (See Wisconsin Mgmt. Co. v. Loken, 412 N.W.2d 901 (Wis. Ct. App. 1987) (unpublished opinion)).

Accordingly, employees terminated for refusing the vaccine during the EUA period under the FDCA likely have a viable claim for wrongful discharge under the public policy doctrine.

Bottom line

Once the vaccine receives formal FDA approval (barring religious or accommodation issues) you can take a stronger stance on requiring the vaccine. Until then, we recommend you steer clear of a mandate. 

Nicole Stangl is an attorney with Ruder Ware law firm.