Employers thinking about requiring employees to be vaccinated against COVID-19 should know that, as pointed out recently by Bloomberg Law, potential recipients of the Pfizer vaccine are told in a fact sheet that it is their choice to receive or not receive the vaccine.  Further, a fact sheet for health care providers who are to administer the vaccine informs them that they must communicate to recipients the they have the option to accept or refuse the vaccine.

I do not know if the fact sheets for the Moderna vaccine say the same thing, but I’ll wager they do.

The fact sheets seem to be consistent with the Section 564(e)(1) of the Food, Drug & Cosmetic Act, a federal law that requires that, in the case of a product – like the Pfizer and Moderna vaccines – that are allowed under an FDA emergency use authorization, recipients be informed that (a) they have the option to accept or refuse the vaccinations, (b) the consequences, if any, of refusing the vaccination, and (c) of any alternatives to the vaccine.

Subject to caveats noted by the U.S. Equal Employment Opportunity Commission (and written up in my last post), employers in Texas MIGHT ordinarily have the right to insist that employees be vaccinated, if they provide prior notice and an employee has the opportunity to resign, but that is now called into question by the Food, Drug & Cosmetic Act and the fact sheets issued under it.

Employers should tread very carefully until the situation is clarified by the courts or an agency.