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