With the Pfizer COVID-19 Vaccine recently receiving full Food and Drug Administration (“FDA”) approval, the question on many employer’s minds is whether legally employers can now mandate employee vaccinations for COVID-19 as a condition of employment. Even before this recent approval of the Pfizer Vaccine, many employers had already decided to require vaccinations (or alternatively frequent employee COVID-19 testing) even when vaccinations were only approved for emergency use. The emergency use status of the available vaccines made some employers think twice about issuing such a mandate, but with the approval of the Pfizer Vaccine for full use, this likely will now be a game changer and more employers will seek to issue such mandates. In just the last few days, we have already seen some high profile companies implementing mandatory vaccination programs, i.e. Disney, as well as state and local governments, including here in New Jersey.
As I indicated in earlier articles presented here in this blog, vaccine mandates have long been viewed as legal, provided employers made possible exceptions for employees with disabilities that precluded vaccination or for those with religious objections to such vaccinations. COVID-19 vaccination mandates have also recently withstood legal challenges as well in the last few months even with the vaccines having only emergency use approval. Thus, so long as employers provide the type of exemptions noted above, an employer today may implement a mandatory COVID-19 vaccination program for employees.
If you plan to implement such a mandatory vaccination program, here are some important considerations that should be followed.
First, you should clearly advise employees of the nature of the program and outline the specific consequences that could follow for those who refuse to meet those requirements. The policy should also include language that indicates that exceptions from the requirement will be considered for the foregoing health and religious reasons. Importantly, you need to train your employees on how to handle such exemption requests, and what is legally (or not legally) allowed to be sought during the necessary interactive process while considering the exemption request. Beware in particular of religion-based exemption requests. For example, there are various restrictions on when you as an employer should ask for information verifying the bona-fide nature of the posited religious belief. Also, be aware that thanks to the internet today, employees for a fee can actually obtain certifications from various “ministry” religious organization websites that are supplying documentary support for vaccination exception requests (and even mask exemptions on religion grounds). I have seen some of those certifications already used with several of my clients to support a religious exemption to COVID-19 safety protocols, so make sure you proceed with caution anytime you are presented with a religious-based COVID-19 vaccination exemption request. Finally, whether you grant or deny a requested exemption, document the process and the reasons why the particular decision was made.
As more and more employers decide to implement vaccine mandates, we expect to see additional legal challenges filed. We will continue to keep you updated on all possible developments affecting this issue.
Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.