In a milestone for the public health response to the ongoing pandemic, regulators from the U.S. Food and Drug Administration recently issued full approval of the first COVID-19 vaccine.
The two-dose mRNA vaccine produced by Pfizer and BioNTech has been available to individuals 16 years of age and older under the FDA's emergency use authorization since Dec. 11, 2020, and that authorization was expanded to include those 12 through 15 years of age in May. But the agency's full approval could spur more employers to mandate vaccination within their workplaces, attorneys told HR Dive.
"I've received a number of calls from clients who were on the fence, and now, this is something that helps to solidify their confidence," said Adam D. Kemper, partner at Kelley Kronenberg.
The primary 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 about the employee relations aspect of mandates than their legal implications.
"The recent surge, combined with government mandates for public employees and healthcare employees, has spurred many more employers to mandate 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 minimally, but again the legal risks of a mandate are minimal to nonexistent in most jurisdictions."
Research appears to back up these considerations. An early August survey of 1,630 employer representatives by law firm Littler Mendelson found that 75% were concerned about resistance to a mandate by employees who were not in a protected category but 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 similarly reflected in the Littler Mendelson survey; 60% of respondents were concerned about loss of staff or operational difficulties caused by the resignation or termination of employees who were unwilling to be vaccinated.
And despite the FDA's authorization, those concerns are likely to persist. "It goes outside of the law [and] into issues of recruitment and retention," Kemper said. "It's just something that employers need to pay attention to."
Continued focus on alternatives
Employers who implement vaccination mandates 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 U.S. Equal Employment Opportunity Commission. But there is no one-size-fits-all accommodation for all employers to follow, Kemper noted, and not all accommodations will necessarily be reasonable for employers.
Common examples, he continued, include weekly COVID-19 testing and maintenance of existing health and safety measures, such as masking, social distancing and use of hand sanitizer. Remote work — an accommodation frequently mentioned by attorneys — may be on the table, though this approach can also create cultural tensions in some workplaces.
Employers also may attempt other approaches to encouraging vaccination, such as instituting a vaccination surcharge through their health plans. Previous incentives sought to take a "carrot" approach to vaccination, per Landy. "With the latest surge, however, many employers have concluded that to operate safely and to best protect the health and safety of employees in the workplace, the 'stick' approach – mandating vaccination – is the only remaining reasonable alternative," he said.
Surcharges are already gaining 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 need to comply with regulations on wellness incentives under the Affordable Care Act and HIPAA.
Impact of state, local restrictions
Resistance to vaccine mandates is not just coming from employees, however.
Government officials in a couple of states have spoken out against the mandates, and have either taken or proposed actions to limit their use. Montana is the only state to have passed a law prohibiting employers from denying a person employment opportunities, barring a person from employment or otherwise discriminating against a person on the basis of vaccination status. The law does exempt healthcare facilities and other employers from these requirements under certain circumstances.
In another example, legislators in South Dakota drafted a bill that would, among other things, prohibit workers in the state from being subject to a disciplinary action such as termination or demotion for refusing to receive a COVID-19 vaccine "on the basis of conscience," defined as a person's inner conviction of what is right or wrong in his or her conduct.
On Aug. 25, Texas Gov. Greg Abbott issued an executive order prohibiting government entities in the state from compelling any individual to receive a COVID-19 vaccine.
Though the majority of state and local bans apply to customers instead of employees, employers need to carefully monitor the language of regulations in their respective jurisdictions, Adam Sencenbaugh, partner at Haynes and Boone, told HR Dive in an email.
"Many of the orders are focused on entities that receive public funds such as grants, contracts, or other public monies," Sencenbaugh said. "Court challenges will likely follow, so employers will need to stay apprised of changes as they develop."
The situation in Texas and elsewhere is one reason why employers need to maintain flexibility in their vaccine mandates, Kemper said. He noted that employers may want to consider placing a disclaimer in their policies stating that any guidance is 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 the Occupational Safety and Health Act to maintain a workplace free from known safety hazards, Kemper said; "even if you don't have a vaccine mandate, you can still encourage it."