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What’s Next for Workplace Vaccines After FDA Approval: Explained

Aug. 23, 2021, 6:39 PM

Employers leery about requiring workers to get shots against Covid-19 got a boost of confidence from U.S. regulators’ grant of full approval to the vaccine made by Pfizer Inc. and BioNTech SE.

The upgraded regulatory status announced Monday will make workplace mandates in the private sector tougher to challenge in court and less objectionable to some employees who’ve been reluctant to take the jab.

1. What’s happening with workplace mandates?

Although employers generally have the authority to impose Covid-19 inoculation requirements as a condition of employment, they’ve been uncommon since the U.S. Food and Drug Administration gave emergency use approval to vaccines starting in December.

But there has been a growing trend toward mandates in recent weeks as the delta variant has fueled a summertime surge. Several large companies, including Google LLC, Tyson Foods Inc., United Airlines Inc., and Walt Disney Co., have rolled out mandates, following colleges and hospital systems. The federal government, along with some state and local authorities, have also started requiring workers to get vaccinated.

2. How will full approval encourage employers?

One of the primary drawbacks of workplace vaccine requirements is the potential for employee resistance, which can damage morale and force employers to fire hard-to-replace workers. Employers who use “soft” vaccine requirements that call for the unvaccinated to undergo frequent testing can face financial and administrative burdens.

Full approval has the potential to quell some worker hesitancy. About 30% of unvaccinated people said that they would be more likely to get vaccinated once the FDA gives vaccines full approval, according to a Kaiser Family Foundation survey report in June.

In addition, risk-averse corporate legal departments concerned about lawsuits have one less thing to worry about now that the Pfizer/BioNTech vaccine is no longer on emergency use status.

3. What about those legal challenges?

Several lawsuits have asserted that the vaccines can’t be required because they’re only authorized for emergency use, which some legal observers called the strongest of a weak set of arguments raised in court against employer mandates. So far, a federal judge in Texas rejected that claim and the U.S. Justice Department deemed emergency authorization to be no obstacle to workplace requirements.

Regardless, full FDA approval of the Pfizer vaccine appears to eliminate legal arguments premised on emergency authorization.

VIDEO: We answer the question on the minds of CEOs, in-house lawyers, and rank and file employees - can employers make their employees take the vaccine?

4. Can mandates still be challenged in court?

Employers could face lawsuits if they fail to provide accommodations for workers with health conditions or religious objections as required by federal law.

Unions can object to the imposition of vaccine mandates if employers didn’t provide the opportunity to bargain. Those union challenges could come via National Labor Relations Board charges or lawsuits in court, depending on the wording of a union’s collective bargaining agreement.

And unlike employees in the private sector, government workers can bring constitutional claims, such as allegations that mandates infringe on their rights to bodily integrity and informed medical choices.

To learn more:

Vaccine Mandates at Work Set for Uptick After Full FDA Approval

Vaccine Mandates Gain Steam with Employers, Littler Survey Shows

Vaccine Mandate Lawsuits Sparked by Shots’ Emergency Status

Workplace Vaccine Mandates Boosted by Hospital Suit’s Dismissal

Covid Vaccines’ Emergency Status Doesn’t Bar Mandates: DOJ (1)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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