This article is an opinion piece and should not be construed
as legal advice for any specific situation. Please consult
with an attorney for legal advice about your situation.

The single most commonly asked question I am receiving
on a daily basis is regarding the COVID-19 “vaccine.”
People have a number of questions about the vaccine itself
but, more pressingly, they want to know if it is or can be
mandated. The answer to this is less clear than it may
appear but I would generally say that the vaccine cannot be
mandated or cannot be mandated without substantial legal
risk for the mandator.

21 U.S. Code § 360bbb–3 is the relevant statute to part of
this question. This part of the code is titled “Authorization
for medical products for use in emergencies” and sets the
rules for how such products can be authorized. Particularly
relevant is part e which is below:

(1)Unapproved product

(I)that the Secretary has authorized the emergency use of
the product;

(II)of the significant known and potential benefits and risks
of the emergency use of the product, and of the extent to
which such benefits and risks are unknown; and

(III)of the alternatives to the product that are available, and of their benefits and risks.

(ii)Appropriate conditions designed to ensure that
individuals to whom the product is administered are informed—

(I)that the Secretary has authorized the emergency use of
the product;

(II)of the significant known and potential benefits and risks
of such use,

(III)of the alternatives to the product that are available, and
of their benefits and risks.

(ii)Appropriate conditions designed to ensure that
individuals to whom the product is administered are informed—

(I)that the Secretary has authorized the emergency use of
the product;

(II)of the significant known and potential benefits and risks
of such use, and of the extent to which such benefits and risks are
unknown; and

(III)of the option to accept or refuse administration of the
product, of the consequences, if any, of refusing
administration of the product, and of the alternatives to the product that are available and of
their benefits and risks.

(iii)Appropriate conditions for the monitoring and reporting
of adverse events associated with the emergency use of
the product.

(iv)For manufacturers of the product, appropriate
conditions concerning recordkeeping and reporting,
including records access by the Secretary, with respect to
the emergency use of the product.

Part “e” discusses the conditions of authorization for an
unapproved product. All of the available vaccines are
“unapproved products” meaning that they are not actually
approved by the FDA; rather, they are available only under
the emergency use authorization (“EUA”).

the product is administered are informed—

Critical to this question is the language stating that
“Appropriate conditions designed to ensure that
individuals to whom the product is administered are
informed… of the option to accept or refuse administration
of the product, of the consequences, if any, of refusing
administration of the product, and of the alternatives to the
product that are available and of their benefits and risks.”

This language is sensible and follows with norms of
not forcing the administration of experimental drugs on
people that have been established globally since
Nuremberg. Based on this it seems very clear that no state
or federal agency can mandate the vaccine under the EUA.
The second part of the analysis is somewhat less clear and
that is whether a private employer can mandate the
vaccine. For a number of reasons that are beyond the scope of blog article my answer is probably not. That said, I think
the answer is clearly no if you have a religious or medical
exemption and, even if the answer is yes, I think employers
are putting themselves at risk of serious liability if they
choose to mandate an unapproved vaccine.

Under federal law it is illegal to discriminate against
someone who is disabled or due to their religious beliefs.
The standards differ between these two forms of
discrimination and the religious exemption is [arguably]
substantially stronger. As I think through the relevant law
and precedent I believe it is likely that an employer that
choose to discriminate against someone that refused the
vaccine for religious or medical reasons would lose a case
brought in defense of such a plaintiff.

That said, you should not be intimidated or
forced into taking an unapproved vaccine.

I also think there is a substantial risk of liability for an
employer that mandates these experimental vaccines for
people without religious or medical exemptions. Ultimately
these vaccines are truly experimental and so there is risk
involved with taking them. The long term effects of the
drugs have not been studied and neither has their safety in
a number of cohorts such as pregnant women (I am unsure
if any such studies have been completed recently for
that cohort).

As such, if an employer coerces an employee
into taking these vaccines and they are injured it is
possible the employer would be liable. Worse for the
employer, since the manufacturers are immune to liability
the entire claim would fall on the employer.

Ultimately, I believe it is plainly illegal for a government
entity to mandate this vaccine, probably illegal for a private
employer to mandate the vaccine, and definitely extremely
risky for a private employer to attempt to mandate it.Finally, people should know their rights. This article is not
meant to provide legal advice about any specific situation
and only reflects the opinion of the author. That said, you
should not be intimidated or forced into taking an
unapproved vaccine. If, after giving a fully informed
consent, you choose to take the COVID vaccine that is fine,
but you must be given the information about the risks and
alternatives before you are able to offer informed consent.
If anyone is pushing an alternative narrative, you should be
talking to your attorney.