As always, encourage employees to check with their healthcare provider to determine if the vaccine is safe for them.
On August 23, the FDA granted full approval for the Pfizer-BioNTech COVID-19 vaccine for individuals age 16 and older. Some employees who expressed vaccine hesitancy because the FDA approval was only an emergency use authorization (EUA) may have less hesitancy now. This may be a good time, through employee education, to once again encourage your employees to get vaccinated.
Even with the full FDA approval, employers need to be careful not to make absolute statements about the efficacy or safety of the vaccine. Consider referring employees to the Centers for Disease Control and Prevention for information about effectiveness and safety. Further consider bringing in a healthcare professional to address questions and concerns. And, as always, encourage employees to check with their healthcare provider to determine if the vaccine is safe for them.
The Matter of Mandates
Even though employers had a strong argument for mandating vaccines (subject to certain exemptions and other terms and conditions) when there was “only” an EUA, now that there is full FDA approval for the Pfizer-BioNTech vaccine, the employer’s right to mandate is even stronger as one of the legal bases for attack is gone.
Of course, employers who mandate vaccines must consider medical/pregnancy/religious exemptions. Employers also need to make sure they neither engage in nor tolerate harassment of those who are not vaccinated for myriad reasons.
When it comes to mandating vaccines, the legal risks generally are in the details of implementation. In the interest of keeping this Alert brief, we will include but one example.
Determining reasonable accommodations is a two-step process. First, the employer needs to determine whether an employee falls within one of the approved exemptions, such as medical. Then, the employer must determine whether a reasonable accommodation may be made for the employee, keeping in mind the health and safety of other employees as well as those who may interact with employees. An employee may fall within an exemption―but that does not necessarily mean a reasonable accommodation or the employee’s preferred accommodation is always possible. An individualized assessment must be made, taking into account all relevant factors at the time of the assessment.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation, including vaccine policies in general or the reasonable accommodation process in particular. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Jonathan A. Segal, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.