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Paul Zimmerman
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The Status of COVID Vaccine Mandates in the Shadow of FDA Action

For many here in the U.S., the COVID-19 vaccine remains a hot button and rather divisive issue. Some of those who have thus far refused to roll up their sleeves for inoculation have justified this decision with a common refrain: the federal government hasn’t fully approved COVID vaccines; instead, they’re only authorized for “emergency use.” This distinction has been a deal breaker for countless Americans.

But now that the Food and Drug Administration has fully approved the Pfizer-BioNTech COVID-19 vaccine, that justification no longer holds water. Not surprisingly, in the wake of the FDA’s full approval, the share of adults flat out refusing to get the vaccine has dropped by 5%—this according to a recent NPR/PBS NewsHour/Marist poll. In fact, nearly 80% of adults in the U.S. have received, or now intend to line up for, inoculation against the novel coronavirus.

This is hopeful news given the scourge of the Delta variant, yet millions of Americans are still turning their backs on the protections afforded by available COVID vaccines. This sentiment is particularly problematic given the ever-expanding list of states, cities, universities and companies nationwide that are announcing new vaccination policies—or revising existing ones—to incentivize or otherwise require that some or all employees (or students in the case of universities) be vaccinated.

A Line in the Sand

With hospitalizations soaring as Delta spreads and following the FDA granting full approval of the Pfizer-BioNTech COVID vaccine, some of the most well-known companies in the U.S. are implementing variations of vaccination mandates that typically require employees to be fully vaccinated or, in some instances, submit to regular COVID testing. These include the likes of Deloitte, Facebook, Goldman Sachs, Microsoft and Walmart, among so many others.

Of course, big companies are not the only ones requiring employees to be vaccinated against COVID-19, and that trend is sure to continue. No matter their size, it is important for employers to remember that their ability to impose a vaccine mandate is not without limits.

Reasonable Accommodations

Employees can leverage the American With Disabilities Act to avoid immunization to the extent it prohibits discrimination against individuals with disabilities. No doubt, some workers are bound to claim to have infirmities that preclude them from getting inoculated, even if mandatory. And if they do, the ADA calls for individualized assessments to determine if these unvaccinated employees would pose a direct threat to the workplace. In the face of such a threat, employers must establish whether a reasonable accommodation could be provided to reduce the risk without causing undue hardship. In so doing, employers want to be sure not to retaliate against these workers or ask impermissible questions for those unable to be vaccinated.

Title VII of the Civil Rights Act provides another basis upon which employees can seek to avoid a COVID-19 vaccination requirement. According to the law, reasonable accommodations must be made for employees with sincerely held religious beliefs, practices or observances that prevent them from being vaccinated.

Decisions, Decisions, Decisions

The growing trend toward mandatory COVID-19 vaccinations begs the question: how should your business respond? For private employers seeking to enforce mandatory vaccine policies or otherwise require non-vaccinated employees to be regularly tested, they can certainly take comfort from the FDA’s full approval of the Pfizer-BioNTech vaccine. Nonetheless, Michelman & Robinson recommends that companies seek legal counsel in light of requirements regarding accommodations and compensable time for testing, which can vary from state to state.

This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.