FDA Vaccine Approval: The Impact on Employers

The recent Federal Drug Administration (FDA) approval of a COVID-19 vaccine — coupled with the rise of the delta variant — has opened the door to a wave of new issues for employers to consider.

From new vaccine mandates to state laws and other considerations, the pandemic continues to prompt employers to re-evaluate their policies.

Vaccine Mandates

Can employers mandate the COVID-19 vaccine? In most cases, yes. (In Montana, it’s another story, where lawmakers have made an employee’s vaccination status a protected category.)

But before the FDA approval, many large employers took a stance to encourage the vaccine rather than mandating it for employees. However, since the approval came down in late August 2021 — as well as breakthrough cases and the continued rise of the delta variant — more companies have begun opting for mandates.

“There has definitely been a marked increase in employers that have moved to mandate vaccines and require proof,” Brooke Iley, an attorney with Blank Rome, told the Society for Human Resource Management.

Several vaccine mandates among companies have been announced in recent weeks, and President Joe Biden today is expected to sign an executive order requiring all government employees to get the vaccination, with no opt-out option of being regularly tested.

Update: Biden vaccine plan would impact two-thirds of U.S. workforce.

Among those employers that have instituted a COVID-19 vaccine mandate for employees, there are some variations about which employees must receive the shot — those who interact with customers directly or travel internationally, for example.

Among the major U.S. companies that have mandated the vaccine:

• One of the largest investment banking firms in the U.S.
• Two major U.S. pharmacy chains
• A high-end clothing retailer
• The world’s second-largest processor of chicken
• A major cruise line

These are but a few of the employers that have opted for a vaccine mandate of some kind. Still, enforcing these mandates can get messy. Employees have questions about the specifics:

• Is it a permanent mandate?
• Is it a condition of employment?
• Do all employees have to get it, or just those who interact with clients?
• Is it just for employees who are coming into the office?
• Who manages the enforcement from the company’s side?

“There’s 101 questions,” Jason Girzadas, a managing principal who sits on Deloitte’s U.S. executive committee, told the Washington Post. “The chessboard here gets pretty complicated.”

And, as always, employers should take note of workers with legitimate religious or Americans with Disabilities Act reasons for not getting the vaccine.

States With Vaccine Mandates

Despite the actions taken by employers, few jurisdictions have created new regulations for most companies in the wake of the FDA approval of the vaccine.

Some states have instituted vaccine mandates. But they generally only apply to certain industries — such as health workers in California, emplo

yees who interact with vulnerable populations in Colorado and school workers in New Jersey — or state employees. (California has recommended private employers require vaccinations or regular testing.)

Even under these mandates, there is some leeway. Those who are not vaccinated may have to wear masks or undergo regular testing, for example.

Meanwhile, New York City requires customers at indoor dining, indoor fitness and indoor entertainment to show proof of COVID-19 vaccination. Employees at these types of businesses must also be vaccinated. Enforcement of the policy starts Sept. 13, 2021. (It also requires employers to display a posting.)

For the most part, other jurisdictions have not created vaccine mandates for workers, though employers should monitor counties and cities where they have locations to ensure compliance.

Related: CDC COVID-19 Guidance and Retail Employers

Other Vaccine Considerations

Of course, employers have other items to weigh related to vaccines and the pandemic.

Insurance premiums

One major U.S. airline was in the news recently because of its decision to raise insurance premiums on unvaccinated workers.

The $200 surcharge is aimed at curbing company costs for workers who are hospitalized because of COVID-19. However, Delta self-insures its employees, which may make this a more unique case among employers.

Hybrid Work

Even before FDA approval, the availability of the vaccine prompted many employers to create a hybrid work model.

Since the FDA approval, some employers have considered mandating the vaccine for workers who want to return to the office. Others are taking a harder stance, requiring workers to come in at least a couple of days a week and be vaccinated.

Get a broader look at how some major employers are handling a hybrid work environment and the vaccine.

Related: Business Expense Reimbursements for Remote Workers

Public Opinion

Another major piece of speculation prior to the FDA approval was the notion that the approval would reduce vaccine hesitancy. And it appears to have done so. The U.S. saw a 17 percent increase in the number of people getting vaccinated in the week following approval.

Meanwhile, a September 2021 release from Gallup regarding COVID-19 vaccination had some findings that may be interesting to employers. The question was, Would you favor or oppose businesses requiring people to show proof of coronavirus/COVID-19 vaccination in order to do the following over the next several months?

Stay in a hotel

• 53 percent in favor

Dine in a restaurant

• 53 percent in favor

Go to office or worksite

• 56 percent in favor

Conclusion

The FDA approval of the Pfizer vaccine has already prompted more aggressive action from employers.

In the weeks and months ahead, employers will have to determine what steps are appropriate for their workforce regarding the vaccine.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.