Finally, a STAT piece regarding employer mandates.......
Among those who believe that EUA vaccines cannot be mandated, the best two arguments are a legal argument and a policy one. The legal argument is that the law setting out the requirements for emergency use authorization contains language requiring the Secretary of Health and Human Services to ensure that people know they can refuse or accept the vaccine. The same language requires the informational materials accompanying EUA vaccines to tell people that “It is your choice to receive” the relevant vaccine.
The policy argument against mandates is that the standards for emergency use authorization are lower than the standards for full approval, that the vaccines are “experimental” and not enough is known about them, and it is therefore unfair to mandate them. Two lawsuits have already been filed making both the legal and policy arguments, one by a corrections officer in New Mexico, and one by employees of the Los Angeles United School District.
There are good reasons to reject both of these arguments, though. On the legal side, the EUA statute says nothing directed at employers or universities. Instead, it addresses the actions of federal officials, such as the HHS secretary and the president — not private actors. Private employees are generally “at will,” meaning they can be terminated for any reason that is not explicitly illegal. Those arguing that the EUA statute prohibits mandates by at-will employers are claiming that this federal law is changing existing state employment law on the topic by mere implication. They are reading in a broad prohibition covering all employers and universities in the U.S. that is not, in fact, in the statute. Such broad preemption would require, at a minimum, clearer language.
