As the Delta variant has caused another wave of COVID cases and hospitalizations, employers are again asking whether they can mandate that their employees become vaccinated against COVID-19 and what other steps should be taken to protect those who are immunocompromised or who remain unvaccinated. Recently, the U.S. Department of Justice (“DOJ”) and the Occupational Safety and Health Administration (“OSHA”) issued guidance on these issues.

As most employers are aware, in May 2021, the Equal Employment Opportunity Commission (“EEOC”) issued guidance that employers may require their employees to be vaccinated for COVID-19 before physically entering the workplace, so long as the employer continues to provide reasonable medical and religious accommodations.

However, when the Food and Drug Administration (“FDA”) approved the COVID-19 vaccines under its “emergency use authorization” (“EUA”), it required that COVID-19 vaccine recipients receive a fact sheet specifically stating that receiving a vaccine is a choice. This was in the context of clarifying that an individual’s choice of whether or not to receive the vaccine would not impact the medical care he or she might later need. However, the statement caused confusion among employees whose employers had mandated vaccination for work-related purposes.

To resolve the confusion, the Department of Justice (“DOJ”) recently issued a Memorandum Opinion concluding that the fact sheet only ensures that receipts are “‘informed’ of certain information, including ‘the option to accept or refuse administration of the product’” and “does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.”  The full DOJ Memorandum can be found here.

On August 13, 2021, OSHA updated its workplace COVID guidance suggesting that “employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

OSHA specifically recommends that employers adopt policies that fully vaccinated individuals experiencing a close COVID-19 contact be allowed to remain in the workplace but be tested “3-5 days after exposure and be required to wear face coverings for 14 days” following the close contact or until the employee receives negative COVID-19 test results. OSHA further recommends that employees who are not fully vaccinated be removed from the workplace, and subject to a 14 day quarantine, following a close COVID-19 contact.  These unvaccinated employees may be permitted to return to work after seven days only if they have tested negative immediately after the exposure and then again five days later.

The takeaway for employers is that the DOJ and OSHA have joined the EEOC in taking the position that in most cases, employers can mandate vaccination for employees working on-site.

If you have any questions about the DOJ or OSHA guidance or would like more information about mandating vaccination, please contact a member of the Labor & Employment group.


This information is for educational purposes only to provide general information and a general understanding of the law. It does not constitute legal advice and does not establish any attorney-client relationship.