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Covid-19 Booster Shots: Legal Issues for Employers

Oct. 1, 2021, 8:01 AM

While most employers remain focused on encouraging or requiring that employees receive an initial series of the PfizerBioNTec (Pfizer), Moderna, or Johnson & Johnson-Janssen (J&J) Covid-19 vaccines, the need for booster shots may be just around the corner.

The recent flurry of developments surrounding booster shots is an indication of how quickly policy has evolved since this summer, when President Biden announced that Covid-19 booster shots could be rolled out as early as September to all eligible individuals, at eight months after their final dose, subject to approval from the Food and Drug Administration.

On Sept. 17, an FDA vaccine advisory committee unanimously voted to recommend booster shots for people who received two doses of the Pfizer vaccine at least six months ago and who are age 65 or older, at high risk for severe illness from Covid-19, or at risk of serious complications from Covid-19 due to frequent exposure to Covid-19 at their jobs.

The FDA adopted that recommendation on Sept. 22 and on Sept. 23, a Centers for Disease Control and Prevention panel adopted the FDA’s recommendation with one major difference—the panel did not recommend boosters for frontline workers at risk due to their jobs (just people at risk due to age or illness). The very next day, on Sept. 24, in an unusual turn of events, CDC Director Rochelle Walensky overruled the panel and adopted recommendations that align with the FDA to include frontline workers.

With approval from the FDA and CDC, the White House will roll out a plan for booster shots soon. We also anticipate similar recommendations regarding booster shots for the Moderna and J&J vaccines as well, although the timing is not clear.

How Will Booster Shots Impact Workplace Vaccine Policies?

Employers are rightly worried about the impact a booster shot recommendation may have on existing or future vaccine policies. Those concerns relate to developments from the Occupational Safey and Health Administration, the tracking of employee vaccines, and the CDC.

OSHA and the Federal Contractor Executive Order

On Sept. 9, Biden ordered OSHA to issue an emergency temporary standard (ETS) requiring Covid-19 vaccination or “at least” weekly testing for employers with 100 or more employees. He also announced a vaccination mandate for federal employees, federal contractors, and health-care workers at Medicare and Medicaid participating hospitals and health-care settings.

Guidance from the Safer Federal Workforce Task Force on the federal contractor vaccine mandate defined “fully vaccinated” as receipt of just the initial does of the approved Covid-19 vaccines. The guidance notes the task force will reconsider that definition if CDC changes its recommendations. We are still awaiting details on the definition t be used in OSHA’s anticipated ETS.

Verification and Tracking

Thousands of employers nationwide have already rolled out vaccine policies (or vaccine incentive programs, etc.). These policies often set a firm deadline by which employees had to be “fully vaccinated.” The current CDC definition of “fully vaccinated” is two weeks past the final dose of a one- or two-shot series.

Employers may decide to amend the definition of “fully vaccinated” in their policies to include booster shots (if not already required by the OSHA ETS as discussed above) to align with CDC and FDA recommendations.

Tracking when employees are due to receive a booster shot and verifying receipt of it could be a large burden on employers. This is particularly true for employers that asked employees to attest to vaccination status instead of collecting copies of vaccine cards, as they will be unable to calculate when employees are due for booster shots.

CDC, State and Local Orders and Guidance

It is not yet clear whether the CDC or other public health authorities will issue orders or guidance that differentiates between people who have received booster shots and those who have not. For example, booster shots may be required as part of “vaccine passports,” which allow individuals to enter certain businesses, travel, etc.

If the CDC bases safety and health recommendations on receipt of booster shots, employers will take notice and may follow suit in related employment policies. Employers should also be aware of any state or local laws prohibiting vaccine mandates, such as in Montana.

VIDEO: Employers are making plans to return to their offices. Can employers make their employees take the vaccine?

Employers Need to Plan Ahead

For employers, booster shots are one more wrinkle in the increasingly complex legal and regulatory environment around Covid-19. Right now, the only population that employers currently need to worry about are persons falling into the CDC and FDA-approved categories discussed above. It is possible that this universe will expand, however, and employers would do well to plan a response to a CDC and FDA recommendation that all eligible persons receive a booster shot.

Steps employers can consider to get ahead of the curve include:

Add Booster Shots to the Definition of Full Vaccination: Consider adding a sentence on booster shots to vaccination policies, tying it to recommendations by the CDC and FDA, and including it in future company communications.

Consider Requesting Date of Vaccination Information from Employees: The U.S. Equal Employment Opportunity Commission has clearly stated in its guidance that questions about vaccine status, including requests for proof of vaccination, are not disability-related inquiries or medical exams under the Americans with Disabilities Act.

This means that employers are largely free to request this information from employees, although employers should be cognizant of medical privacy laws and the ADA’s confidentiality rules, particularly for written documentation of vaccine status.

Designate a Method for Tracking Employee Eligibility for Booster Shots: While not yet required, it may be helpful to designate a person or system for tracking employee eligibility for a booster shot in advance. Considerations would include limiting access to employee Covid-19 vaccine information and having a system to protect employee privacy in compliance with applicable federal, state, and local laws.

Ensure Booster Shot Requirements Comply with Civil Rights Laws: When it comes to mandatory booster shots, employees will have the right to request reasonable accommodations based on qualifying medical conditions or sincerely held religious beliefs (just like for vaccine mandates already in place). Employers need not grant accommodation requests that create an undue hardship on their business or would pose a direct threat to the health and safety of their employees and customers.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Edward (Pierce) Blue counsels clients on labor and employment matters, including compliance with the ADA, GINA, and Title VII. He previously worked as an attorney-adviser to a commissioner at the EEOC and as labor policy adviser on Capitol Hill.

Alana Genderson advises clients on labor and employment best practices and defends clients in all phases of federal, state, and administrative employment litigation. She is a member of the firm’s Occupational Safety and Health Administration (OSHA) practice.

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