Drugmakers Pfizer and Moderna are seeking emergency approval of COVID-19 vaccines, and the first doses could be administered to Americans as soon as this month. This welcome development poses some tricky questions for employers, who now are considering if they can and should require workers to be vaccinated.

Vaccines, several of which are in development, could be critical to employers to avoid shutting down their businesses as the coronavirus pandemic rages across the country. Federal law typically allows employers to mandate vaccinations, though it is unclear whether that would apply to COVID vaccines that are approved on an emergency basis without full regulatory review, according to Kasowitz Benson Torres partner Jessica Taub Rosenberg.

Rosenberg, who represents employers in all aspects of employment-related litigation, spoke with Reuters recently about whether employers are likely to require vaccination, the liability risks associated with vaccination mandates and what legal protections employers may have.

Questions and answers have been edited for clarity and brevity.

REUTERS: Can an employer in any industry require that its employees be vaccinated?

ROSENBERG: The Equal Employment Opportunity Commission and (the Occupational Safety and Health Administration) have not yet issued guidance on whether COVID-19 vaccines specifically can be given to employees, because they haven't been approved yet. But in 2009, the EEOC put out guidance that said employers may require employees to get a flu vaccine as long as the employer provides for a reasonable accommodation for anyone who has a disability under the Americans with Disabilities Act or a religious objection.

REUTERS: Does it matter that the COVID vaccines are up for emergency approval and will not have gone through the full review process when they are rolled out?

ROSENBERG: I think that makes it a bit tricker for the EEOC and OSHA to decide how to guide employers. There's much more certainty (when the FDA formally approves a vaccine) because the standard is that the vaccine is effective. With this emergency use authorization, the standard is it may be effective. I think both the federal agencies and employers are waiting to see if that gets approved before making any decisions.

REUTERS: What are the liability risks associated with mandatory vaccination?

ROSENBERG: The first is whether an employer gets this analysis about reasonable accommodations right. If you have someone who has been working from home remotely and doing a good job, the employer is going to have a hard time saying they can't accommodate that employee by continuing to let them work remotely. On the other hand, if it's someone who stocks shelves at a warehouse and their not being physically in the workplace is an undue burden to the employer, the employer might be in a position to say they have to be at work and vaccinated in order to continue their employment.

Then there is the potential liability for administering the vaccine on the employer's premises. The [federal] PREP Act gives immunity to certain entities who administer a vaccine if someone gets sick or dies. That obviously hasn't been tested yet with COVID-19, but employers might be able to rely on that. There is a fund under the PREP Act to compensate people who get injured from a vaccine, and workers' compensation laws would likely cover those injuries in certain states. So there really is protection for employers out there if they really want to safely protect their workforce and they believe in this vaccine.

REUTERS: Are employers more likely to encourage workers to be vaccinated than to require it?

ROSENBERG: Yes, employers who in the past have successfully done the flu vaccine by providing it voluntarily are now thinking about voluntarily encouraging the (COVID-19) vaccine at the beginning. The trend I'm seeing is (planning to) provide the vaccine on-site and giving employees information about it, and seeing how that plays out in the first phase before mandating it.

REUTERS: Do you expect to see vaccine mandates more at essential businesses and in the service industry than in office settings?

ROSENBERG: I think that's right. Many states have laws that healthcare workers have to be vaccinated, and I think those industries are going to certainly come first. People who have to be on-site with other workers and dealing with the public, those industries are likely to come first in saying they are going to mandate this not just for the health and safety of all the other workers but also for the public.

(To watch an extended version of this Q&A, click here: https://reut.rs/37JMIjX)