Pfizer’s COVID-19 vaccine won full approval from the U.S. Food and Drug Administration on August 23rd, 2021, marking the first such shot to shed emergency use authorization status and removing a hurdle for businesses looking to make workers get vaccinated.  

While a legal landscape that already appeared friendly to vaccine mandates now seems friendlier, experts say employers that want to require the vaccine without getting hit with discrimination claims should still bear a few tips in mind. 

Exemption Requirements Aren’t Going Away 

Under any vaccine requirement, employers must make exceptions for workers who cannot or will not receive the shot for medical or religious reasons. Those obligations still apply now that the Pfizer vaccine is approved.  

There’s not much case law governing the area, and it’s not clear whether those kinds of arguments will be modified in the wake of Pfizer’s full approval.  

But Title VII of the Civil Rights Act of 1964, the federal civil rights law that protects employees against discrimination, provides generous leeway for employees’ religious beliefs. 

Religion does encompass an awful lot, but employers can be properly skeptical of those considerations and take appropriate steps to parse the difference between a personal belief and a religious belief. As long as they establish a basis for it, employers can ask follow-up questions.  

The courts have made it clear that they do not want to get into this question of what is deemed to be a sincerely held religious belief.  

It may be helpful to look at the Americans with Disabilities Act. There is a great website, www.eeoc.gov, that walks through a lot of these considerations.

Watch the Calendar 

There is importance in figuring out a timeline by which workers must be vaccinated. For example, if they were waiting on FDA approval and went out for their first Pfizer shot tomorrow, it would be another five weeks before they had full immunity. Each vaccine has a different immunity timeline. 

The CDC advises COVID-19 patients who received monoclonal antibodies to wait 90 days before getting the vaccine. CDC officials announced last week that they recommend booster shots eight months after a vaccine and that also presents a number of timing challenges.  

Regardless, employers should be treating their workers’ vaccination information as confidential medical records under the Americans with Disabilities Act.

Don’t Forget the Youngest Workers 

The FDA has so far only fully approved the Pfizer shot for people 16 and older. It’s still under emergency use authorization for those between 12 and 15, according to the FDA’s approval announcement.

Companies that hire teenage workers should take note of that distinction. To the extent that they’re in some sort of frontline job, whether they’re camp counselors or working in an amusement park, these teenagers are going to be out there among people and potentially exposed to the virus. 

The federal Age Discrimination in Employment Act only applies to workers 40 and older, which is perhaps why the question of vaccines for teens employees hasn’t received a lot of attention. 

As a practical matter, they may want to address that issue with their employees that are under 16. However,  from a legal perspective, it may not change the analysis of the employer’s liabilities. 

Contact Counxel Legal Firm

There are real implications to implementing a vaccine mandate as an employer. It’s important to understand what you are up against and how things will unspool if there are disputes. Contact Counxel Legal Firm at 480-536-6122 or at intake@wordpress-457010-3165254.cloudwaysapps.com. 

This article is intended for informational purposes only and does not constitute legal advice for your specific situation. Use of and access to this article does not create an attorney-client relationship between you and Counxel Legal Firm. Please contact intake@wordpress-457010-3165254.cloudwaysapps.com or 480-536-6122 to request specific information for your situation.

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