How does FDA Approval Affect the Issue of Employer Mandated Vaccinations?

On August 10, 2021, we published our article “Can You Require Your Employees to be Vaccinated?” which concluded that Title VII and the ADA do not prevent employers from making vaccination a job requirement. However, for employees with a medical reason or a legitimate religious issue, the employer is bound to make reasonable accommodations (i.e. find suitable means to allow the employee to continue working such as weekly COVID-19 testing, masking-up, and maintaining social distance).

In this article, we also noted that one of the chief complaints of those unwilling to receive the COVID-19 vaccine was the lack of FDA approval. Originally, the FDA announced that its aim was to give final approval to the Pfizer vaccine by early September. However, the FDA approval came early and the Pfizer-BioNTech COVID-19 Vaccine was approved on August 23, 2021, for use in those 16 years of age or older. The vaccine also continues to be available under emergency use authorization for individuals aged 12 to 15 and for the administration of the third dose in certain immunocompromised individuals. In light of this FDA approval, will resistance to employer vaccination policies dwindle?

An Increasing Amount of Employers are Willing to Implement Vaccination Policies in light of the FDA Approval of the COVID-19 Vaccine.

One of the most common concerns surrounding the vaccine was its lack of F.D.A. approval. Many private employers recognized this sentiment within their employees and chose to delay taking further actions – opting instead to take measures to encourage vaccinations such as providing time off of work to get the vaccine and recover from any side effects as well as offering bonuses for those that had obtained the vaccine. Now, employers are revaluating the COVID-19 vaccination policies they currently have in effect.

What Happened to “My Body, My Choice”?

The truth is, private employers are able to put a vast amount of restrictions on their employees, many of which affect employee health decisions. For example, employers can prohibit you from smoking at your desk or on employer premises. Employers can also submit you to regular drug testing. Subject to restrictions, employers may also require vaccinations.

A common argument that has been made against employer-mandated vaccines is that such mandates discriminated against an employee’s right to make healthcare decisions for that employee’s body. However, unvaccinated people are not considered a protected class and therefore discrimination claims cannot be made based on an “unvaccinated v. vaccinated” dynamic.

Controversy Over the COVID-19 Vaccine Continues.

For some, the FDA approval has served as a real game-changer. For many, the approval has served as a blessing by the federal government that the vaccine is safe and effective. However, doubt still exists regarding the safety and effectiveness of the vaccine. Many believe that the FDA approval was more a function of political pressures than the actual safety and effectiveness of this very new vaccine. Others doubt the necessity of the vaccine in certain circumstances such as for those who have already had COVID-19. Furthermore, individuals who have already tested positive for COVID-19 in the past and then went on only to suffer from a very mild are having trouble buying into the media fear narrative currently circulating.

How Can Employers Approach the COVID-19 Vaccination Issue with a Balanced Approach?

Employers should recognize the ongoing controversy surrounding the COVID-19 vaccine and remain sensitive to employee sentiments about the vaccine. Although the FDA approval has not eliminated opponents of mandatory vaccination, it has lowered the resistance of many to the idea of being vaccinated. If the FDA approval is what you were waiting on prior to implementing a widespread vaccination policy know that implementation of such policy will most likely still be met with push back. Additionally, know that if you choose to embrace a vaccination policy that you have to be prepared to enforce it in the face of pushback. This may include losing trained employees who fail to comply and incurring additional costs to secure and train a new employee to fill open positions.

Another approach is to continue offering vaccination incentives or increase the incentives you have been offering in light of the approval. The same folks that were unwilling to accept an extra $200 bonus for taking what they considered to be an “experimental” vaccine may be willing to accept an extra “$300” to take an FDA-approved vaccine. If the vaccine is in fact safe and effective, the cost to offer these incentives may prevent your employees from becoming sick and therefore needing time off of work.

Focus on Keeping Your Business Open and Operating.

The vaccine continues to be a dividing line between Americans. Find a balanced approach and focus on keeping your business open. In a time where so many are having difficulties respectfully disagreeing, remain open to different perspectives on hot button issues and listen to those different opinions respectfully. There is a large disconnect between drafting a textbook policy on paper and finding the perfect policy for your business. Like most other business decisions, how to approach the issue of mandatory COVID-19 vaccination is not a decision to be made without appreciating the unique situation of your business. As always, we are always a call away if you need assistance finding the right solution for your business.