Sarasota, FL (WorkersCompensation.com) – The official approval of the Pfizer coronavirus vaccine doesn’t necessarily change anything for employers, at least from a legal perspective. But it may prompt more of them to require vaccinations of their employees. Then again, practical considerations may deter many from taking any action.
“There are a lot of complications for employers as to how to handle this,” said Mark Pew, principal of The RxProfessor LLC. “It’s really complicated from a private and public standpoint.”
Pew’s comments follow the Food and Drug Administration granting of full federal approval of the Pfizer-BioNTech vaccine for those 16 and older. The announcement led the Pentagon to move ahead with plans to require all active-duty troops to be vaccinated, per President Biden’s mandate once the drug was approved. Biden’s announcement also applied to federal workers.
Whether and to what extent other employers – in the public and private sector – will follow suit remains to be seen. But the decision is predicated on a number of factors.
“There are a lot of organizations that did not pull the trigger on mandates because it was emergency use authorization only,” Pew said.
The EUA approval of Pfizer as well as several other vaccines created skepticism among many employees, and hesitancy among some employers about requiring their workers to get vaccinated. Yesterday’s FDA decision changes that, to some extent.
One issue is union consideration.
“The United States Postal Service is pushing back on [Pres. Biden’s] requirement for federal workers, who are saying ‘but it’s not in our agreement,’” Pew said. “Unions in New York are already saying ‘ultimately it’s something that is negotiated as part of the union package.’”
New York City authorities have ordered all public school teachers and staff to get vaccinated with at least one dose by Sept. 27. Monday’s announcement was a change from the previous policy that required teachers and other city employees to get vaccinated or undergo weekly testing.
Other considerations for employers are more pragmatic. Many, especially in the hospitality, food and retail industries are already struggling to find enough workers.
“If you add mandated vaccines, you’ve just cut the [number of job] candidates by 50 percent, 60 percent, 30 percent, of people who will refuse,” Pew said. “Like drug testing, it will come down to what is important; the pragmatism of butts in seats. It’s the same kind of thing with the vaccine.”
From a legal perspective, the FDA approval does not change much, if anything for employers “given all of the prior agency and legal guidance,” said Albert B. Randall, Jr., principal of Franklin & Prokopik, P.C. “As a practical matter, however, I do think that this will cause some employers to change their policies to require vaccinations (aside from legitimate disability and religious objections). “
A survey of more than 1,630 in-house lawyers, C-suite executives and human resources professionals across the United States between Aug. 4 and 12 showed more were considering vaccine mandates, compared to respondents in a similar survey in January. While 63 percent of employers say they will “encourage” rather than require vaccines, the numbers have changed.
“On the issue of vaccines, employer mandates that seemed unlikely several months ago – in a survey we conducted in January, less than 1 percent of employers were mandating vaccination and just 9 percent were planning to in some form – are swiftly becoming more of a reality,” according to the survey by Littler Mendelson PC. “Nearly half of those surveyed (46 percent) are more strongly considering a new vaccine mandate due to the recent rise in cases; 27 percent are unsure, while just 22 percent say they have firmly decided not to institute a mandate.”
The survey showed employer’s concerns about mandating vaccines have not changed; namely resistance from employees and the impact of a mandate on company culture and employee morale. However, one concern that has decreased it that of legal liability if employees experience adverse reactions to the vaccine. While 64 percent had that concern in January’s survey, just 36 percent mentioned it this month. Employers are also less likely to be concerned about the effectiveness of a mandate policy given exempt groups – 32 percent this month compared to 57 percent in January; and uncertainty about a vaccine’s effectiveness in limiting the spread of COVID-19 – 10 percent in August vs. 22 percent in January.