Employers, Vaccines, and FDA Approval: What Now?

Vaccines are impacting the workplace in several ways. Employers are facing government mandates, OSHA and CDC guidelines, decisions about requiring vaccines, and booster shots. In case you missed it, the Federal Drug Administration (FDA) issued full approval of the Pfizer COVID-19 vaccine Monday, August 23, 2021. Staff at Employers Council get a lot of calls about vaccine issues and concerns, and we are here to break it down for employers.

Vaccines: mandating or rewarding

Based on local or state health orders, some employers have no choice but to require their employees to receive vaccines. It is important to remember that a local vaccine mandate cannot overcome the accommodation discussion under either the Americans with Disabilities Act or religious accommodation requirements under the Civil Rights Act. If you have an employee who requests an accommodation, it is important to review it on a case-by-case basis.  Employers Council staff and attorneys can help with this.

Employers not under a mandate are starting to make more clear decisions concerning vaccines. We have seen an increase in the number of online job ads that indicate successful applicants must be vaccinated. Other employers are requiring that an employee either be vaccinated or submit to frequent testing. The number of employers insisting on a vaccine is much more likely to increase now that there is full FDA approval for the Pfizer vaccine. It is also true that employees are more likely to feel comfortable being vaccinated and may need time off for this.  There are states require employers to pay for this time away from work, and even if they do not, it may be wise to offer it.

Some employers are offering incentives to get the vaccine, and some are implementing healthcare surcharges for employees who fail to do so. There is much debate about this practice, with significant concerns that applicants and employees may see this as a reflection of a punitive culture. Surcharges also may undermine the reason for an employer-sponsored health plan, which is to spread the risk of illness, not direct the behavior of employees’ personal health decisions by employers.

Guidelines for vaccinated employees

Both the CDC and OSHA have guidelines for protecting vaccinated employees. As OSHA states in their Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace summary of changes on August 13, 2021:

This evidence has led CDC to update recommendations for fully vaccinated people to reduce their risk of becoming infected with the Delta variant and potentially spreading it to others, including by:

  • wearing a mask in public indoor settings in areas of substantial or high transmission;
  • choosing to wear a mask regardless of the level of transmission, particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated; and
  • getting tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wearing a mask in public indoor settings for 14 days after exposure or until a negative test result.

In this guidance, OSHA adopts analogous recommendations.

Boosters

While some agencies, such as the World Health Organization, are concerned about the need to provide vaccine boosters when so many in the world remain unvaccinated, the Biden administration is moving forward. Right now, the FDA is urging those who are severely immunocompromised to get a booster of the Pfizer or Moderna vaccines. Currently, there is no FDA recommendation for those who received the Johnson & Johnson vaccine, although this could change. Soon, employees in other categories, such as health care workers or older workers, will be in line for a booster. This can look different in different states, and employers should follow updates from state and local health agencies to determine the status of their employees.

Employer Coordination

There will be employers who require vaccines or boosters in their workplace for one reason or another. Other employers will want to re-implement symptom checks or testing, or both. If this is something you are contemplating or starting, it will be helpful to have a planned approach.

Just as was true during 2020, prior to any vaccination being available, you may want to appoint a pandemic or vaccination and testing coordinator to set out plans to test employees or verify their vaccination status. Again, this is likely done as the employee enters the workplace.

Some employers with employees working at home or in the field are coordinating this off-site. An employee I know who works in the field was required to submit her vaccination records to her employer. If she was unable or unwilling to do that, she would need to submit to a weekly test at a lab and could not work until the lab results of no infection were sent to the employer.

If you need help with your response to COVID-19 and the Delta Variant, please let us know. Our staff is happy to assist you.