The New York Times published an essay on Saturday in which the writer asserted, as a blanket statement, that employers may mandate vaccinations as a condition of employment. This is simply wrong.

First, there is no controlling legal authority on the subject. None. The Equal Employment Opportunity Commission has issued pandemic-related “guidance” that does not have the force of law. The EEOC has yet to issue even "guidance" on mandatory COVID vaccines. And the EEOC's position on mandatory flu vaccines has been that employers must “accommodate” employee assertions that vaccination would be inconsistent with a claimed disability or religious belief. 

The Occupational Safety and Health Administration says employers may mandate vaccination as long as it excepts those employees who claim that getting vaccinated would “create a real danger of serious illness or death,” such as a serious reaction to the vaccine.

The National Labor Relations Board will almost certainly say an employer cannot penalize employees who engage in protected concerted activity protesting mandated vaccinations.

Second,  “guidance” from the Centers for Disease Control and Prevention, the EEOC, OSHA, or any other agency is simply that -- guidance. “Guidance” does not have the force of law. I cannot emphasize that enough. The U.S. Department of Labor very quickly issued regulations interpreting the Families First Coronavirus Response Act. (Since the FFCRA was effective immediately and due to expire on December 31, the DOL had reason to rush.)

Parts of those regulations were struck down within months by a federal judge because the judge, with some justification, concluded the regulations were inconsistent with the language of the statute. Employers should try to follow "guidance" from federal agencies, but they should not assume that following the guidance will shield them from liability.

Third, we enforce employment laws in this country with litigation. Thus, employees are, in effect, potential private attorneys general if they can find lawyers to sue on their behalf. Once the lawsuit is filed, the defendant must engage counsel, respond to seemingly unlimited interrogatories and demands for documents, and participate in depositions. The allegations of the plaintiff are presumed true at the initial stages of litigation. There is no legal mechanism to shut down litigation promptly if the complaint is carefully prepared, and lawyers know how to do that.

Fourth, the reality is the vaccine isn’t going to be available to most people for months. So the question of whether employers should mandate vaccination doesn’t need to be answered yet. Perhaps, although seemingly unlikely, legally binding legislation or regulations will exist by the time the vaccine is readily available for most employees.