The recent Food and Drug Administration (“FDA”) approval of the Pfizer-BioTech COVID-19 vaccine has raised questions among employers. Prior to this determination from the FDA, the three COVID-19 vaccines available for use in the United States had only Emergency Use Authorizations from the FDA. Now that one vaccine is FDA approved, employers ask what changes this could bring to the workplace.
Even prior to FDA authorization of any COVID-19 vaccine, employers were permitted to require that employees in the workplace be fully vaccinated against COVID-19, subject to a few exceptions.
The U.S. Equal Employment Opportunity Commission has established that federal laws do not prevent an employer from requiring all employees who physically enter the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act (“Title IV”) and the Americans with Disabilities Act (“ADA”). Under Title VII and the ADA, an employer may be required to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. Some examples of reasonable accommodations in light of COVID-19 may include working remotely, wearing a mask, or receiving periodic COVID-19 tests.
FDA approval of the vaccine may instill more confidence in the vaccine.
Employers who were inclined to implement a mandatory COVID-19 policy, but were hesitant prior to confirmation of approval from the FDA, may now move forward with developing and implementing a workplace mandate in hopes that a fully vaccinated workforce will entice like-minded candidates to join the company, or create an atmosphere where customers and clients can feel comfortable visiting in person.
From an employee’s perspective, FDA approval of the vaccine may remove a potential psychological hurdle for some individuals, resulting in increased numbers voluntarily receiving the vaccine prior to a mandate in the workplace.
There are other alternatives that promote COVID-19 vaccination in the workplace.
While an employer does have a legal roadmap for implementing a mandatory COVID-19 vaccination policy among its employees, it is still a substantial business decision to tackle. Employers must consider various consequences of mandating the COVID-19 vaccine, such as increased staffing shortages and the potential for damage to the company morale. One alternative to implementing a mandatory COVID-19 vaccination policy is to offer an incentive program to reward vaccinated employees with cash, gift cards, or other rewards. Regardless of whether a mandatory COVID-19 vaccination policy is ultimately implemented, it is important to remember that the ADA requires an employer to maintain the confidentiality of the vaccination status of each employee.
Implementation of any company policy related to COVID-19 should not be done without assistance from an experienced employment law attorney.
If you are an employer and you are contemplating implementing incentives or a mandatory COVID-19 vaccination policy in the workplace, it is crucial that you discuss the proposed plan with an experienced employment law attorney prior to taking any action. Contact the attorneys of Critchfield to get advice tailored to the needs of your business and your employees.