With the highly transmissible Delta  variant surging, and vaccination  rates stagnating, employers are  facing new pressures to reinstate  mask mandates for everyone, regardless of  vaccination status, and encourage COVID-19  vaccines through workplace mandates.

On August 23, 2021, the Food and Drug  Administration ("FDA") fully approved the  Pfizer-BioNTech COVID-19 vaccine for use  in those age 16 and older. This upgrade to full  approval from "emergency use" status is predicted to lead to a rise in vaccine requirements  from employers, schools, and local governments. Health officials are also hopeful that the  approval will lead to higher vaccination rates.  Note that the Pfizer vaccine is only one of three  COVID-19 vaccines to receive full approval.  At this writing, the Moderna and Johnson &  Johnson vaccines remain in emergency use  status only.

In The States

Even under the FDA's prior emergency  use approval, major companies1  – including  Google, Facebook, BlackRock, and Morgan  Stanley – initiated policies insisting that workers get vaccinated before returning to the  office. Meanwhile, California and New York  City became the first state and major city,  respectively, to require public workers to be  vaccinated. Illinois very recently joined the  returning wave of COVID-19 related restrictions by enacting another statewide mask  mandate and requiring all teachers and healthcare workers be vaccinated or subject to weekly  testing. The Biden administration also requires  all federal workers to attest to being vaccinated  or face strict testing protocols.

The legal considerations surrounding  workplace mandates – how to implement  them and how to respond to employees who  refuse – remain uncertain. Earlier this year,  Montana became the first state to make vaccination status a protected class under the law.  That puts an employee's vaccination status in  the same category as race, sex, and religion  when it comes to employment discrimination.  Under the new law, Montana employers are not  allowed to discriminate against non-vaccinated  employees and are not allowed to mandate  vaccines. Other state legislatures – including  in New York,2  New Jersey,3  Maryland,4  and  Illinois5  – have also introduced similar bills.  However, as discussed further below and with  the exception of Montana, non-governmental  employers in the 49 remaining states may still  legally require employees to be vaccinated as of  the date of this publication.

A slate of employment-related COVID-19  cases have already hit the courts, and more  litigation is expected as workplaces reopen with varying levels of vaccination requirements and accommodations issues.  How can employers protect against  potentially costly lawsuits as they  bring workers back to the office?  What follows is what you need to  know.


1. https://www.cnn.com/2021/07/28/business/companies-vaccine-mandate/index.html 

2. https://www.nysenate.gov/legislation/bills/2021/A4602 

3. https://www.njleg.state.nj.us/bills/BillView.asp?BillNumber=A5607 

4. http://mgaleg.maryland.gov/mgawebsite/Legislation/Details/HB1171?ys=2021RS 

5. https://www.ilga.gov/legislation/BillStatus.asp?DocNum=3682&GAID=16&DocTypeID=HB &SessionID=110&GA=102

 You can read the full article here.

Reprinted from Employee Benefit Plan Review, November-December 2021, Volume 75, Number 9, page 12–14, with permission from Wolters Kluwer, New York, NY

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.