The Federal Drug Administration’s (“FDA”) approval of the Pfizer-BioNTech COVID-19 vaccine clears the way for employers hesitant to mandate vaccines authorized under the FDA’s Emergency Use Authorization (“EUA”) to now require employees receive an FDA approved vaccine.
On August 23, 2021, the FDA formally announced approval the first COVID-19 vaccine for individuals 16 years of age and older. The fully approved vaccine, which has been available since December 11, 2020, and referred to as the Pfizer-BioNTech COVID-19 Vaccine, will now be called “Comirnaty.”
In May 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) provided guidance advising employers may require employees to receive a COVID-19 vaccination so long as reasonable accommodations are provided for employees due to disability or sincerely held religious beliefs. California’s Department of Fair Employment and Housing (“DFEH”) issued slightly different guidance, advising employers:
Under the FEHA [Fair Employment and Housing Act], an employer may require employees to receive an FDA approved vaccination so long as the employer does not discriminate against or harass job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).
The FDA’s approval of Comirnaty resolves concerns that mandating an FDA authorized vaccine as opposed to a fully approved COVID-19 vaccine might be inconsistent with the mandates of the FEHA.
Although Comirnaty’s approval is helpful to employers who want to require employees to be vaccinated to continue employment or work in the office, there are still a number of other considerations for employers, such as:
- The costs employers need to pay for when mandating vaccinations for non-exempt employees;
- How much time employees should be provided to obtain necessary vaccinations to become fully vaccinated;
- What to do if an employee refuses an employer mandate to become vaccinated;
- What information an employer may require as proof of vaccination;
- How information pertaining to employee vaccination status should be stored and maintained; and,
- How to engage in the interactive process and provide reasonable accommodations for individuals with disabilities or sincerely held religious beliefs precluding an employee from receiving a COVID-19 vaccination.
We have a dedicated team that can answer workplace related COVID-19 questions. If you have any questions or need assistance, please contact us.