San Diego County

Yes, No, Maybe: Are COVID-19 Vaccine Mandates Legal?

Once the now emergency-approved vaccines are fully vetted by the FDA and approved, which is expected to happen soon, state and federal laws can in some cases allow businesses to mandate vaccinations

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Vaccine eligibility will expand to those 16 and older starting April 15, and as more and more people become eligible there are more and more questions about the potential for vaccination passports and mandates.

If the question is whether businesses can order employees to get vaccinated, for now the answers is yes, no and maybe.

"I don't think there is a very clear answer to that question yet," employment attorney Will Small said.

Small, who handles mostly small business and employee claims, said the vaccines are FDA approved only for emergency use which makes company mandates difficult.

"Both the CDC and the FDA have pretty much stated that these are voluntary," Small said.

Once fully vetted by the FDA and approved, which is expected to happen soon, Small said state and federal laws allow businesses to mandate vaccination. 

Not everyone agrees.

"It's beneficial but so is not smoking and things like that. I think the problem is a freedom of choice," Adrian Lopez said.

"I think everybody should have the ability to choose what they want to do," Heather Skaljac said.

While it's not SMall's area of expertise, he said it is likely travelers, shoppers, and bar and restaurant patrons could also face vaccination mandates.

Just as businesses can require shirts, shoes and mask wearing, they can also require vaccinations, Small said, although it might not be a very profitable business plan.

For some, masks and social distancing seems like enough.

"No. [A vaccine mandate] would definitely put me off on that company," Lopez said.

Small says a lot of these questions won't be immediately answered and are already making their way through the courts.

“I think a court challenge would provide a lot more guidance to everybody. That’s why a lot of them are taking place and, yes, that would provide a little bit more clarity," Small said.

Just because it's legal doesn't make it good policy, Small said. He thinks businesses should think carefully before making vaccinations mandatory.

And when it comes to vaccination orders, not all businesses are equal. Businesses with employees that have frequent direct contact with the public may be judged differently than businesses whose employees can work from home.

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