Today the Food and Drug Administration (FDA) announced that the Pfizer brand COVID-19 vaccine, which was previously available under Emergency Use Authorization (EUA), has been granted full FDA approval for use in individuals age 16 and over. The EUA status of the vaccine has long been cited as a reason for both public agencies and private businesses to hold the reins on a full vaccine mandate for workers. Some private employers worried that mandating a vaccine in EUA status increased their risk of liability for placing their employees’ health and safety at risk. (Despite the valid fears of many of these employers, OSHA has been emphasizing since early 2021 that vaccination is the most effective way to prevent against serious illness or death from COVID-19.) Other employers considered a mandatory vaccination policy a threat to retention, as many who doubted the safety of an EUA vaccine may change jobs rather than take a vaccine without full FDA approval.
Currently only Montana and New Hampshire have restrictions on private employers’ abilities to mandate vaccines, although North Dakota prohibits a state government entity from requiring a private employer to obtain proof of vaccination or antibody status before employment. Montana’s law specifically states that an individual cannot be required to receive any vaccine whose use is allowed under an emergency use authorization or any vaccine undergoing safety trials. Now that the Pfizer vaccine has received full approval, that appears to lift that restriction, but vaccination status remains a protected class in Montana, and Montana employers may not discriminate against an employee because of the employee’s vaccination status. The approval of the Pfizer vaccine appears to have led Montana employers into a catch-22: they now have the ability to implement a policy requiring vaccination against COVID-19, but are prohibited against terminating or taking other adverse action against an employee for reporting to work unvaccinated.
The good new is, three out of ten adults in the US have said that they are more likely to get vaccinated once the COVID-19 vaccine receives full approval. With a shift in attitude about the vaccine and official FDA approval, there will undoubtedly be a large number of employers whose fears of liability and employee retention associated with mandatory vaccination policies will be relieved. With the spread of the Delta variant, and the Pfizer vaccine fully approved by the FDA, employers looking to ensure a safe workplace may reconsider mandatory vaccination policies that were previously discarded as unnecessary, unpopular, or too risky. For assistance in drafting a legally compliant mandatory vaccination policy that will be upheld in your state and locality, contact myHRcounsel. A vaccine policy is included in our ASK HR service.
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