Yesterday, the Food and Drug Administration gave full approval of Pfizer's COVID-19 vaccine. And while that doesn’t directly affect the legality of vaccine mandates in the workplace, it may make it easier for employers to institute one.
“Many of those mandates were not premised on the fact of whether or not the vaccine was FDA approved,” said Lilian Davis, an employment attorney and shareholder in Polsinelli’s St. Louis office. However, “from a business standpoint, now there's more emphasis behind it, being able to say, ‘This has been fully FDA approved; we are now going to mandate our employees to receive the vaccine.’”
Davis joined Tuesday’s St. Louis on the Air to discuss what businesses should keep in mind as they decide whether to require their employees to get a COVID-19 vaccine.
Whether vaccine requirements pass muster may depend on the state or even municipality, she said, noting that red and blue states have moved in different directions when it comes to laws governing vaccines. Beyond that, though, she suggested executives consider the percentage of the workforce that is either for or against the vaccine, as well as whether their human resources department is equipped to handle any legal challenges that could arise.
The type of service an employer provides should also play into the decision, Davis said. For health care entities, organizations dealing with vulnerable populations and businesses that cannot allow their workforce to be remote, it may make sense to establish a mandate.
“Something that's very important to keep in mind for nursing homes, or any health care-related facilities, is the OSHA emergency temporary standard,” she said, which establishes new requirements for settings where employees provide health care services. “We've seen a lot of states keep silent as to all other private businesses, but say, ‘If you are a health care worker, the state is mandating that all health care workers in the state get vaccinated by a certain date.’”
Employees who wish to contest their employer’s vaccine mandate may find they qualify for one of two possible exemptions under federal law: Title VII of the Civil Rights Act and the Americans with Disabilities Act.
“Under Title VII, all employers have to provide individuals with a ‘sincerely held religious belief’ that conflicts with an employment policy with a reasonable accommodation unless it presents an undue burden to the employer,” Davis said.
“And under the ADA, employers have to provide individuals who have a medical disability or medical conditions — such as a contraindication to the vaccine — with a reasonable accommodation, so long as it again does not provide an undue burden to the employer. … So it's really important to work with counsel and your HR group through those analyses.”
“St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. The audio engineer is Aaron Doerr.
