Department of Justice Declares COVID-19 Vaccine Mandates Legal

Federal law doesn't prohibit public agencies, private business from requiring vaccines for employees

A nurse administers Pfizer's COVID-19 vaccine to a woman in Los Angeles on July 16, 2021. Frederic J. Brown/AFP via Getty Images

The Department of Justice concluded in an opinion that federal law doesn’t prohibit public agencies and private businesses from requiring COVID-19 vaccines under the Food and Drug Administration’s emergency use authorization.

On July 26, the U.S. Department of Veterans Affairs, California, and New York City said they would require some of their government workers to get the COVID-19 shot or be tested weekly. Veterans Affairs, with the move, became the first federal agency to mandate the vaccine.

The Justice Department’s Office of Legal Counsel on July 26 wrote (pdf) that because access to COVID-19 vaccines is more commonplace, “numerous educational institutions, employers, and other entities across the United States” have said they will require some individuals to be vaccinated against the virus as a condition of employment, participation, benefit, service, or relationship.

“For instance,” it wrote, “certain schools will require vaccination in order for students to attend class in person, and certain employers will require vaccination as a condition of employment.”

The opinion, which noted that some have questioned the legality of such mandates, concluded that federal law concerning the FDA’s emergency use authorizations (EUA) on COVID-19 vaccines made by Moderna, Pfizer, and Johnson & Johnson doesn’t “prohibit public or private entities from imposing vaccine requirements, even when the only vaccines available are those authorized under EUAs.”

With the Justice Department’s statement and the July 26 Veterans Affairs mandate, it appears to leave the door open for other federal agencies to make COVID-19 vaccines a requirement for employees.

Rutgers University became the first university to mandate them for both employees and students earlier this year. And last week, Carnegie Hall in Manhattan announced that it will require audience members, staff, and performers to provide proof of vaccination before entering the building.

The Justice Department’s opinion comes as messaging from mainstream media outlets, some government officials, and world leaders around vaccines has become increasingly forceful in recent days. Amid reports of an increase in “Delta” variant cases, authorities in France and Italy have recently introduced vaccine passport-type systems for entering private businesses, including restaurants, gyms, theaters, and more, a move that triggered widespread demonstrations across Europe over the weekend.

Responding to the vaccine opinion, New York Mayor Bill de Blasio told MSNBC: “Public sector entities need to move as quickly as possible. This DOJ decision is important. I think that will be helpful. We have got to put pressure on this situation.”

Throughout the pandemic, the federal government has implemented few COVID-19-related restrictions and namely has targeted travel and public transportation. The U.S. Centers for Disease Control and Prevention has issued guidance—not mandates—around mask-wearing.

White House press secretary Jen Psaki, who has given conflicting statements around whether the administration supports vaccine passports, told reporters during a briefing last week that the administration isn’t requiring officials to get vaccinated.

“No, we have not mandated it,” Psaki in response to a question about whether the White House has made COVID-19 shots mandatory. She appeared to say that the White House offered the vaccines to every employee.

Some Republican-led states, meanwhile, have passed laws that forbid the usage of vaccine passports in government agencies and offices. Florida went a step further in May after Gov. Ron DeSantis, a Republican, signed a law that prohibits all private businesses from using vaccine passports in his state.

COVID-19 is the disease caused by the CCP (Chinese Communist Party) virus.