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What Does the FDA Approval of the Pfizer COVID-19 Vaccine Mean for Vaccine Mandates at Businesses?

  • FDA approval of Pfizer-BioNTech vaccine expected to spur more businesses to implement vaccine mandates for returning to work
  • Employers have been establishing stricter rules for unvaccinated workers as well as certain exemptions and accommodations
  • Several legal challenges have been filed against vaccine mandates, but a recent federal ruling upheld the right of a hospital group to terminate employees who refused to get the shot

Summary by Dirk Langeveld

When COVID-19 vaccines became available to the general populace earlier this year, businesses were generally in favor of offering incentives for getting the doses rather than requiring them to return to the office. As the Delta variant of the virus drives a new spike in cases, more businesses are establishing vaccine mandates in hopes of avoiding renewed business restrictions or shutdown orders.

The Food and Drug Administration recently gave its full approval to the Pfizer-BioNTech COVID-19 vaccine, the first one developed. It is anticipated that this action could both encourage more vaccine-hesitant people to get the shot and spur more businesses to develop vaccine mandates. President Joe Biden encouraged companies to take such action following the FDA’s decision.

“If you’re a business leader, a non-profit leader, a state or local leader who has been waiting for full FDA approval to require vaccinations, I call on you now to do that — require it,” said Biden. “Do what I did last month and require your employees to get vaccinated or face strict requirements.”

Previous guidance from the Equal Employment Opportunity Commission clarified that businesses can legally require employees to get a COVID-19 vaccination before returning to the physical workplace. They must do so while observing employee rights under laws like the Title VII of Civil Rights Act of 1964 and the Americans with Disabilities Act.

Exemptions can be based on an employee’s disability or religious beliefs. In evaluating the latter, it is advised that the employer assume the religious belief is “sincerely held,” but may require supporting information if they have cause to doubt this rationale. When providing an exemption, an employer should evaluate whether an unvaccinated employer will pose health risks to others in the workplace and whether they can provide reasonable accommodations such as an extension of remote work arrangements.

Companies establishing vaccine mandates have generally been requiring unvaccinated workers to wear masks, practice social distancing, and submit to weekly COVID-19 testing. Employees who don’t receive an exemption are required to receive a dose by a certain date. Several legal challenges have been filed to such mandates, although a recent federal ruling upheld a hospital group’s right to terminate workers who refused to get the vaccine.

Employers can still choose to incentivize vaccines rather than mandate them, especially if they are faced with situations such as a significant share of their payroll refusing to get the vaccine – raising the possibility of having to accommodate or terminate several employees. Business owners may also need to bargain with unions to establish vaccine mandate rules for unionized employees.

Any company establishing a vaccine mandate should consider how it might affect business operations if multiple employees need time off to get the shot or recover from its side effects. A federal tax credit is available for businesses that provide paid time off for these purposes.

The FDA approval of the Pfizer-BioNTech vaccine provides firmer ground for businesses to establish vaccine mandates, though they can still be tricky in certain circumstances. Rules on vaccine mandates vary from state to state, with Governor Doug Ducey of Arizona recently signing an order forbidding employers from requiring their employees to be vaccinated against COVID-19. This can create challenges for businesses that have locations or employees in multiple states.

In Connecticut, Governor Ned Lamont has established a vaccine mandate for state workers and employees at schools, child care facilities, and long-term care facilities. The Connecticut-based companies Cigna and CVS have also announced a vaccine requirement for their employees.

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