Written by Jeremy Mittman

Employers can breathe a bit easier when considering whether or not to adopt a mandatory vaccination policy to apply to their workforces. On August 23, 2021, the Food and Drug Administration (FDA) granted the Pfizer COVID-19 vaccine full approval, elevating it from its previous Emergency Use Authorization (“EUA”) status. As most know by now, the Pfizer vaccine is the first of the three vaccines available in the U.S. to receive this level of clearance.

As we previously discussed, the EEOC and DFEH released guidance in December 2020 that advised that employers could mandate vaccines (subject to exemptions and reasonable accommodations based on religion or disability).  However, there was an open question as to whether employees could still argue that such policies were unlawful given EUA status, and both agencies (rather unhelpfully) punted on this question, stating that to opine on this aspect of the analysis was outside their jurisdiction.  

Many know that a Texas court dismissed a lawsuit by Houston Methodist Hospital employees challenging the hospital’s mandatory vaccine directive, primarily based on the fact that it was only authorized for emergency use and not fully approved, which we covered in a client alert here.

However, the FDA’s full approval of the Pfizer vaccine should now make employers more comfortable in mandating the COVID-19 vaccine, as it eliminates the most significant potential  legal hurdle in doing so.  Indeed, there is a clear trend and increase in employers mandating vaccination of employees, as well as increased interest among relevant stakeholders in exploring the option generally. 

We encourage employers contemplating a mandatory vaccination policy for their workforce to consult with their trusted employment counsel to develop appropriate policies and procedures.