The FDA Is In! Will More Employers Start Mandatory COVID-19 Vaccine Programs?

Today, the U.S. Food and Drug Administration approved the Pfizer/BioNTech COVID-19 vaccine for folks 16 and up. (Source).

This is big news! Huge!

Especially for employers. Why?

The Equal Employment Opportunity Commission (EEOC) advised employers in May 2021 that employers could require all employees to get the COVID-19 vaccine. We delved into the EEOC’s vaccine guidance at the time here.

The EEOC guidance stated:

The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below.  These principles apply if an employee gets the vaccine in the community or from the employer.   

(Source)

But private employers were hesitant. After all, the FDA had approved these vaccines for emergency use only, and employment lawyers like me weren’t seeing too many organizations willing to mandate an EUA vaccine.

Image by Wilfried Pohnke from Pixabay

Then, on August 13, 2021 the Occupation Safety and Health Administration (OSHA) also issued new guidance. It advised employers that

OSHA strongly encourages employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects. Employers should also consider working with local public health authorities to provide vaccinations for unvaccinated workers in the workplace. Finally, OSHA suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated. 

(Source)(emphasis added)

We’ll have to wait and see whether the FDA’s stamp of approval, on top of the relatively new OSHA guidance, causes a spike in employer vaccine mandates.

But with the Delta variant making the rounds at workplaces left and right, I’m thinking we’ll see more employer mandates. If so, what should be an employer’s top concerns and considerations?

  1. First on the list must be reasonable accommodations. Employers must engage in the interactive process with employees who still say “no way” to a mandatory COVID-19 vaccine program based on a disability, sincerely held religious belief, or pregnancy. Reasonable accommodations may include continuing to wear a mask even once a majority of employees have been vaxxed; eliminating marginal duties that require the employee to be in the company of others; continued telecommuting (yes, there’s that flexibility we talked about here); additional PPE; and revising other workplace policies.
  2. Privacy and Proof. Have you checked state data privacy laws? How will you keep any medical information confidential? Remember, employers can request proof that an employee has received a COVID-19 vaccine but must consider what kind of proof, whether it will store the proof, and who will request the proof so as to avoid any disability-related inquiries.
  3. Paid Time Off. Employers must consider whether they will provide paid time off for employees to get vaccinated if they mandate the vaccine. If you are a small to medium-size employer, the American Rescue Plan will provide a paid leave tax credit if you provide $511/day per employee if you provide PTO for an employee that takes time to get a COVID-19 vaccine, care for a family member who receives a vaccine, or recover from the side effects of a COVID-19 vaccine.
  4. Don’t forget about unions! If your workplace involves union participation and activity, ensure you’ve discussed any mandatory vaccine program with union reps. Otherwise, things can get messy.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.