In an important step in the public health response to the ongoing pandemic, US Food and Drug Administration regulators recently released full approval of the first COVID-19 vaccine.
The two-dose mRNA vaccine produced by Pfizer and BioNTech has been available to people 16 years of age and older under the FDA Emergency Use Clearance since December 11, 2020, and that clearance has been extended to include 12 to 15 year olds in May. But the agency’s full approval could spur more employers to mandate vaccination in their workplaces, lawyers told HR Dive.
“I got a number of calls from clients who were on the fence, and now it’s something that is helping to build their confidence,” said Adam D. Kemper, partner at Kelley Kronenberg.
The main impact of the agency’s approval, in an employer’s mindset, is the hope that it will lead to fewer employee objections to a vaccine mandate, according to Daryl Landy, partner at Morgan Lewis. Employers, he said in an email, were more concerned with the employee relations aspect of mandates than their legal implications.
“The recent increase, combined with government mandates for public and health workers, has prompted many other employers to require vaccination as a condition of employment or to require proof of vaccination or weekly / regular testing,” Landy said. “Full FDA approval for the Moderna vaccine might help in a minimal way, but again, the legal risks of a warrant are minimal or non-existent in most jurisdictions.”
Research appears to support these considerations. A survey conducted in early August of 1,630 employer representatives by the law firm Littler Mendelson found that 75% were concerned about resistance to a warrant by employees who were not in a protected category but who refused or opposed COVID-19 vaccination, while 68% were concerned about the impact a mandate would have on culture or morale. By comparison, only 10% were concerned about a vaccine’s effectiveness in limiting the spread of COVID-19.
But employers also have concerns about maintaining staffing levels, Landy said, which was also reflected in the Littler Mendelson inquiry; 60% of those surveyed were concerned about the loss of staff or operational difficulties caused by the resignation or dismissal of employees who did not want to be vaccinated.
And despite FDA clearance, these concerns are likely to persist. “It’s out of the law [and] on recruitment and retention issues, “Kemper said.” It’s just something employers need to pay attention to. “
Continued focus on alternatives
Employers who implement vaccination warrants are still subject to the reasonable accommodation requirements of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, according to the US Equal Employment Opportunity Commission. But there is no one-size-fits-all accommodation for all employers, Kemper noted, and not all accommodations will necessarily be reasonable for employers.
Common examples, he continued, include weekly testing for COVID-19 and maintaining existing health and safety measures, such as masking, social distancing and the use of hand sanitizer. Remote work – an accommodation frequently mentioned by lawyers – may be on the table, although this approach can also create cultural tensions in some workplaces.
Employers can also try other approaches to encourage immunization, such as introducing supplemental immunization as part of their health plans. Previous incentives sought to take a “carrot” approach to vaccination, according to Landy. “With the latest wave, however, many employers have concluded that in order to operate safely and to best protect the health and safety of employees in the workplace, the ‘stick’ approach – requiring vaccination – is the only reasonable alternative remaining, ”he said.
The surcharges are already attracting the attention of employers, sources told HR Dive earlier this month, but they also come with their own set of considerations. For example, they may be required to comply with wellness incentive regulations under the Affordable Care Act and HIPAA.
State impact, local restrictions
However, resistance to vaccination mandates does not come only from employees.
Government officials from a few states have spoken out against warrants and have taken or proposed measures to limit their use. Montana is the only state to have pass a law prohibit employers from denying a person employment opportunities, prohibiting a person from holding a job or otherwise discriminating against a person on the basis of their immunization status. The law exempts healthcare facilities and other employers from these requirements in certain circumstances.
In another example, South Dakota lawmakers drafted a bill which would prohibit, among other things, state workers from being disciplined such as dismissal or demotion for refusing to receive a COVID-19 vaccine “on the basis of conscience”, defined like a person’s inner conviction of what is good or bad in his conduct.
On August 25, Texas Governor Greg Abbott issued a decree prohibiting state government entities from requiring anyone to receive a COVID-19 vaccine.
While the majority of state and local bans apply to customers rather than employees, employers should carefully monitor the language of regulations in their respective jurisdictions, Adam Sencenbaugh, partner at Haynes and Boone, told HR Dive in a report. E-mail.
“Many orders are focused on entities that receive public funds such as grants, contracts or other public funds,” Sencenbaugh said. “Legal challenges will likely follow, so employers will need to keep abreast of changes as they evolve. “
The situation in Texas and elsewhere is one reason employers need to maintain flexibility in their vaccine mandates, Kemper said. He noted that employers might consider inserting a disclaimer in their policies indicating that any guidelines are subject to change based on new information.
It is also a reminder that while state and local governments may institute their own requirements, employers also have a duty under occupational safety and health law to maintain a workplace free from hazards. known for safety, Kemper said; “Even if you don’t have a vaccination mandate, you can still encourage it.”