Full FDA approval provides employers a stronger shield for vaccine mandates – The Denver Post

The Food and Drug Administration’s approval of the Pfizer-BioNTech COVID-19 vaccine on Monday provides employers with the legal cover they need to make vaccines mandatory in the workplace, although some may hold off over fears of losing employees in a tight labor market.

“This is what we have been waiting for to advise employers that they are now legally permitted to mandate vaccines,” said Christine Samsel, an employment law attorney at Brownstein Hyatt Farber Schreck in Denver.

Samsel said her firm has told clients to wait for full FDA approval before making vaccinations mandatory. That’s because COVID-19 vaccines in the United States were allowed under an emergency use authorization or EUA status. That status was used in many of the legal challenges to workplace vaccine mandates.

“A number of lawsuits have been filed — including the ultimately unsuccessful one against Houston Methodist — based on the theory that an employer cannot mandate vaccines while in EUA status,” said employment lawyer Karla Grossenbacher, a partner in the Washington, D.C., office of Seyfarth.

Even if the lawsuits don’t go anywhere, defending against them costs employers money and has made them less willing to implement mandates, she said. A Gallup poll of workers estimated that just under one in 10 faced mandatory vaccination policies as of July.

“We expect to see many more employers willing to mandate vaccinations for their employees now that this obstacle has been eliminated,” she said.

Delta variant driving mandates

Momentum for making vaccination a condition of employment has gained momentum with the growing threat posed from the delta variant, said Elizabeth Wylie, an attorney specializing in employment law at Snell & Wilmer in Denver.

At the start of the month, Denver required all city employees and private-sector workers in certain “high-risk” settings to be fully vaccinated against COVID-19 by Sept. 30, and numerous school districts, health care providers and universities in Colorado now have requirements.

United Airlines will require its employees to show proof of vaccination five weeks after a vaccine receives FDA approval or five weeks after Sept. 20, whichever comes first, so that clock has started ticking. Frontier Airlines will require its employees to get vaccinated by Oct. 1 or to submit to regular COVID-19 tests. Tech giants Google, Facebook, and Adobe, which have a Colorado presence, are requiring their employees to get vaccinated.

“The Pfizer approval provides an additional safe harbor for employers who may be considering a vaccine mandate, but probably just as significant is the hope that it will provide additional incentive to employees to voluntarily become vaccinated and/or comply with any vaccine mandate an employer may adopt,” Wylie said.

Although adverse reactions to the vaccines are very rare, another benefit FDA approval offers is that if reactions do occur while an employee is complying with a workplace mandate, they would be covered under workers’ compensation policies.

“Now that it is fully approved, it is treated as the flu vaccine. It would be covered in my legal assessment,” Samsel said.

Concerns about losing employees

Although employers may feel more comfortable legally with vaccine mandates, for some the decision will come down to whether they can afford to do so in a tight labor market.

A Gallup poll from Aug. 18 found that 52% of U.S. workers surveyed favor workplace vaccination requirements, while 10% are neutral, 9% oppose and 29% strongly oppose. It is the reaction of the strongly opposed that some employers worry about, especially in industries and geographic areas where replacements will be hard to come by.

Workers can obtain exemptions from vaccination mandates for medical reasons, a disability or because of a sincerely held religious belief. But many of those who are opposed to taking the vaccine will not fall under those categories, and some may decide to quit rather than comply.

A survey from Morning Consult found that 18% of adults in the U.S. felt strongly enough about COVID-19-related mandates that they would quit their jobs immediately if they were required to wear a mask or get a vaccine. That is higher than the 14% who said they would quit immediately if their employer cut their pay.

“Though some Americans may get vaccinated now that the Pfizer vaccine is fully FDA approved, it doesn’t seem likely that more companies will mandate it strictly because of the approval,” said Andrew Challenger, a spokesman for outplacement and executive coaching firm Challenger, Gray & Christmas.

The main reason for requiring vaccines is to prevent outbreaks that could hinder operations, but employers are hesitant to restrict their supply of workers or trigger a political backlash, he said.

One gray area involves challenges from employees who argue they have natural immunity after coming down with COVID-19 and should be exempt from a vaccine mandate, even though the Centers for Disease Control recommends vaccination for those who have been infected with COVID-19 in the past.

“We will see where that goes. What we are telling employers is to treat that as a medical exemption,” Samsel said.

Rising infection rates among the vaccinated in Israel suggest that the original protection from vaccines wanes over time. As some employers deal with implementing mandates, they will also have to juggle the question of booster shots for workers who are already vaccinated.

“Employers should be thinking about whether they will encourage vaccinated employees to receive a booster when it becomes available to them, and what incentives/workforce education they may want to adopt to encourage participation in a booster campaign,” Wylie said.

Source: Read Full Article