COVID-19 Vaccine Considerations for Employers Part 2

The FDA has fully approved the Pfizer-BioNTech COVID-19 Vaccine. Now What? On August 23, 2021, the U.S. Food and Drug Administration approved the first COVID-19 vaccine, specifically the Pfizer-BioNTech COVID-19 Vaccine, for individuals 16 years old and older. In our last blog post, we discussed that employers’ mandates for their employees to be vaccinated seemed to be legal and options for companies to consider in light of that legality. In this follow-up, we will discuss what the FDA’s approval means and the steps that some companies have taken regarding their employees and getting a COVID-19 vaccine.

What does the FDA’s Approval Mean? According to Acting FDA Commissioner Janet Woodcock, M.D., “the public can be very confident that this vaccine meets the high standards for safety, effectiveness, and manufacturing quality the FDA requires of an approved product.” After analyzing effectiveness data from nearly 20,000 vaccine and 20,000 placebo recipients ages 16 and older, the FDA found that the vaccine was 91% effective in preventing COVID-19 disease. However, the most common side effects reported by the trial participants were pain, redness and swelling at the injection site, fatigue, headache, muscle or joint pain, chills, and fever. Further, the FDA could not report on potential long-term health outcomes as the data was not available, but the FDA is requiring postmarketing studies to monitor the long-term health outcomes of those who received the vaccine. How have Businesses Reacted in the Wake of the FDA’s Approval? Businesses across the U.S. have reacted in various ways in wake of the news of the FDA’s approval. Some businesses have taken a punitive, “get vaccinated or be fired” approach when it comes to their employees, while others have offered rewards or bonuses to employees who have gotten the jab ─ a carrot versus stick dichotomy. Some notable companies that are taking the “stick” approach and requiring their employees to be vaccinated include Microsoft, Cisco, Amtrak, CVS Health, MGM Resorts, Goldman Sachs, Houston Methodist Hospital network, and United Airlines. Additionally, Delta Air Lines is raising health insurance premiums for unvaccinated employees by $200 a month to cover higher Covid-related healthcare costs. These companies seem to be prepared to let go of some of their employees should they refuse to receive the vaccine. However, other companies are taking more of a “carrot” approach by offering their employees certain benefits and bonuses for getting the vaccine. For example, Publix is giving its employees $125 gift cards when providing proof of vaccination; Amazon warehouse new hires can receive a $100 bonus on their first day for showing proof of receiving the vaccine; and Vanguard, the financial services company, is giving its workers a $1,000 bonus for getting vaccinated. For more examples of companies using the carrot or the stick approaches, check out this article by Yahoo! News.

What approach should I take regarding my business and employees? There seems to be no right answer to whether a company should require their employees to be vaccinated. The disparity in the approaches taken by even the largest of companies shows that the decision should be made with a variety of factors in mind: are most of your employees fully vaccinated? How will your employees react to a vaccine mandate? Would your employees respond better to an incentive-based approach to vaccination? This is a decision that can, and should, take some time to consider. If you decide to require your employees to get vaccinated, remember to ensure your vaccination policy does not violate your state’s wrongful termination laws. Additionally, your vaccination policy will also have to reasonably accommodate those with health concerns and religious hesitancies. Another factor to keep in mind ─ the IRS is offering businesses and nonprofit organizations with fewer than 500 employees a refundable tax credit to offset the time used by employees to receive or recover from their vaccinations. Either way, implementing a COVID-19 vaccination policy can be a tricky subject as your employees to return to the office and your doors open to potential customers. If you have any questions regarding a COVID-19 vaccine policy for your business, we strongly recommend that you consult with an experienced employment attorney so that you best understand your options as you welcome your employees back to the office.

This article was drafted by Rick Duarte and W. Austin Engelbrecht. Rick is the owner of The Duarte Firm, P.A., where he focuses his practice on business law. He received his law degree from the Emory University School of Law and has been named a “Rising Star” in Business Litigation by Florida Super Lawyers for 2016 – 2021. Rick also serves as general counsel to emerging and medium-sized businesses, guiding clients through corporate governance, risk management issues, and strategic decisions where business and law intersect.