A wave of US vaccine mandates made the FDA’s Pfizer approval more meaningful

Following orders.
Following orders.
Image: Reuters/U.S. Navy/Brandon Woods
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“The moment you’ve been waiting for is here,” US president Joe Biden said yesterday (Aug. 23), speaking to the roughly one-third of Americans who are eligible for inoculation against Covid-19 but remain unvaccinated.

The Food and Drug Administration had just granted full approval to the Pfizer Covid-19 vaccine for anyone age 16 and older, so those who had been concerned about the vaccine’s safety before getting the shots had no reason to wait any longer.

But the decision could have a bigger impact on another cohort, employers. The hope among vaccine advocates is that FDA’s ruling on Pfizer’s product, which will now be marketed as Comirnaty, will provide greater political cover for additional company and government officials to introduce vaccine mandates. Those mandates can in turn not only nudge people to choose vaccination to stay employed, but also offer individuals cover to justify getting vaccinated if they are part of a community for which getting inoculated is not yet the norm.

“It’s the next and probably the last big opportunity to sharpen and drive home a clear message that the COVID vaccines are safe and effective,” Drew Altman, CEO of the Kaiser Family Foundation (KFF) wrote in an op-ed.

That point is not lost on Biden. During his address, he also urged employers and local officials who hadn’t already done so to mandate vaccination as a condition of employment.

Expect more mandates from companies that had been on the fence

It’s still early in the week, but it seems that employers and public leaders and others are heeding the call to leverage this moment: Yesterday was a big day for vaccine mandates.

Most significantly, the Pentagon ordered that all 1.4 million active-duty service members must be vaccinated by no later than mid-September. Chevron announced vaccination mandates as Covid-19 infections were starting to impact oilfield operations. The drugstore chain CVS also announced its employees would need to roll up their sleeves to keep their jobs. And New York City decreed that all employees of its Department of Education must be vaccinated with at least one dose by Sept. 27. 

Even before the FDA’s decision, several large and influential companies—including Walmart, Tyson Foods, the Walt Disney Company, Google, Facebook, Uber, McDonald’s, Amtrak, Capital One, NYSE, United Airlines—had introduced mandates for at least some staff. State governments and the Biden administration had also issued vaccine mandates for federal employees and Biden has tied public funding of nursing homes to mandatory staff vaccination policies. Several health systems and hospitals now require workers to get vaccinated, despite some pushback from a minority of frontline healthcare workers.

Hundreds of higher education institutions have enacted mandates for staff and students who plan to attend classes on campus, and, in early August, California was the first state to introduce mandates for all public and private school employees. A recent poll from Indeed also found that job postings that mention a vaccination requirement were up 90% in August compared to July.

Skittish employers will be ready to act on mandates

Chris Feudo, a labor and employment attorney at Foley Hoag, and a member of that firm’s Covid-19 task force, says he believes the FDA’s decision will push more private employers to go ahead and adopt a no-jab, no job rule, if they had been nervous about it before.

Many of his clients across a range of industries had already made that leap because of the risks associated with the highly contagious Delta variant, he says. Some were further encouraged by cases that supported employer rights to fire those who disobey company policies. He was already convinced of the vaccine’s legality, he tells Quartz, but “clients who are skittish about vaccine mandates, who were waiting to see what happens, they may reconsider their stance now.”

The fear of losing staff had been the other big concern weighing on employers, perhaps even more so than the legality of vaccination, he explains. At the beginning of the summer, companies “were hoping they would see a good proportion of their employees vaccinated on their own so they wouldn’t have to worry about a mandate,” says Feudo, “but as things progressed over the summer, and Delta became more of an issue, I think some of my clients began again to more seriously consider vaccine mandates. The desire to return to some sense of normalcy started outweighing the concern about the potential loss of employees.”

Seeing other employers move forward with mandates has also helped companies adopt their own with less fear of losing staff, he adds. What’s more, his clients have found that employees have responded positively to vaccination policies: Workers have even come to their bosses to ask why mandates were not in place.

(That observation aligns with other evidence suggesting employers’ fears that vaccine mandates would scare off staff may be overblown.)

What employers still need to know about vaccine mandates

That said, business leaders do need to make sure mandates impact workers evenly.

Right now, essential workers who can’t work from home, and are not entitled to a reasonable accommodation for medical or religious reasons, are most likely to be at risk of losing their jobs by refusing to get vaccinated. However, that might not be such a big issue in the future; Feudo predicts that employers will also lose patience with employees who continue to work from home daily into the fall and particularly in early 2022, so more unvaccinated people will be losing their jobs whether or not they can work remotely.

Vaccine hesitancy is higher among certain populations, he notes, so if companies find that in the course of firing people who violate vaccine policies, they are letting go of a disproportionate number of people from one or two demographic groups, they will need to “take a look at that and try and figure out why that’s happening and make sure that [they] feel prepared to argue why this rule was a business necessity.”

Although employer mandates would likely still be considered lawful in those cases, he says, “and I think employers would be able to have a good defense, there is a potential legal claim that exists out there under anti-discrimination laws.”

Finally, because vaccine mandates have been turned into a political issue in some Republican-led states, he warns clients who have employees in multiple states to pay attention to state laws that ban proof of vaccination rules and vaccine passports. Such bans largely pertain to public employers, but at least one (in Montana) applies to private businesses and more could follow.