Below are a number of significant developments related to COVID-19 that impact businesses of all sizes, across industries:
DOJ Says Vaccine Mandates Not Prohibited by EUA
This week, the Department of Justice (DOJ), Office of Legal Counsel (OLC) released to the public, a memo dated July 6, 2021. The memo can be found here and discusses vaccine mandates and the OLC’s position that the Food, Drug, and Cosmetic Act’s (FDCA) Emergency Use Authorization (EUA) provisions do not prohibit employer vaccine mandates. The opinion comes at an inflection point in time as employers nationwide debate whether to mandate the now widely-available COVID-19 vaccine to their employees or simply recommend it.
Substantively, the OLC opinion states that the language of the FDCA EUA provisions specify only that certain information be provided to potential vaccine recipients and does not prohibit entities from imposing vaccination requirements.
The OLC memo is a welcome opinion for some employers and business entities, including a number of public entities, that have issued vaccine mandates for employees in recent days and weeks.
A Trend Toward Mandatory Vaccines?
California will require all state employees and healthcare workers to be vaccinated or be subject to weekly COVID testing and mask requirements in order to remain in the workplace. All employees of the City of New York will also be required to be vaccinated or subject to weekly testing. The Mayor of New York City asked that all businesses in the City think about mandating vaccines for their employees. The Department of Veterans Affairs also issued a vaccine mandate for all of its healthcare workers. Finally, some reports indicate that President Biden will announce this week that COVID vaccines will be mandated for all federal employees or, if an employee refuses vaccination, they will be subject to frequent testing and additional mask requirements.
In addition to the DOJ’s memo, at least two federal courts have ruled in favor of vaccine mandates. See our blog post on this here. At this point, it seems that a challenge to a vaccine mandate based on the vaccine’s EUA status is unlikely to be successful. It could also be that these arguments become moot should the vaccines receive full FDA approval in the near future. However, some states have barred “vaccine passports” so businesses should continue to monitor laws, guidance and cases related to these issues and update their policies to ensure the measures taken are appropriate in the jurisdiction in which they operate.
Updated Mask Guidance for Vaccinated Individuals
On Tuesday, July 27, 2021, the Centers for Disease Control (CDC) updated its mask guidance for vaccinated individuals. In May, the CDC changed its mask guidance to state that fully vaccinated individuals could resume most pre-pandemic activities without wearing a mask. However, due to the recent rise of COVID-19 cases due to the Delta variant, the CDC has changed course.
The new guidance states that even fully vaccinated individuals should wear a mask in indoor public places if they are “in an area of substantial or high transmission.” The CDC has placed a detailed map of the U.S. on its website, here, where you can search for a location by County and State in order to determine whether an area is one with “substantial or high transmission.” The classification for a particular County will be fluid and will change based on the number of cases recorded on a weekly basis.
For employers with operations in multiple counties and/or states, it will likely be difficult to keep track of each location’s classification in order to determine whether vaccinated individuals should be required to mask up indoors. Businesses should also pay attention to state and local guidance which could provide for more restrictions due to the uptick in COVID-19 cases because of the Delta variant.