The Food and Drug Administration (FDA) recently granted emergency use authorization for Pfizer’s COVID-19 vaccine in the United States. The government expects an initial 2.9 million doses of the vaccine to be distributed in the coming weeks, and projections suggest that there will be enough vaccine to reach the vast majority of Americans who want to take it by April 2021.

As the rollout of the COVID-19 vaccine begins, many employers like you are wondering what impact this development has on the workplace. Below we’ve assembled key information you as an employer should be aware of regarding the COVID-19 vaccine and employers’ rights and responsibilities.

What does “emergency use authorization” mean?

Pfizer’s COVID-19 vaccine was granted “emergency use authorization” by the FDA, allowing it to be made available more rapidly. The FDA has not yet compiled all the evidence and clinical data that it would typically examine before fully approving a drug for public distribution and use. The FDA has, however, stated that the vaccine has met its “rigorous, scientific standards for safety, effectiveness and manufacturing quality needed to support emergency use authorization” and that “its known and potential benefits clearly outweigh it known and potential risks.”

When will a vaccine be available to me and/or my employees?

The first shipments of COVID-19 vaccine have been delivered to all 50 states and the District of Columbia. Texas was allocated 224,250 doses of vaccine to be shipped to 110 providers across the state in Week 1 of distribution. The focus is on facilities that indicated they will vaccinate at least 975 front-line health care workers since that is the minimum order for the Pfizer vaccine. More vaccine will be available for more providers next week.

The allocation strategy was recommended by the Expert Vaccine Allocation Panel in line with its guiding principles and health care workers definition and approved by DSHS Commissioner John Hellerstedt, MD. The panel put a priority on health care workers to protect those caring for COVID-19 patients and preserve the health care system’s ability to function.

You can learn more about Texas’s vaccine distribution plans on the Texas Department of State Health Services website here.  

Can I require my employees get vaccinated against COVID-19?

The U.S. commission typically responsible for making this determination, the Equal Employment Opportunity Commission, has not yet issued guidance on the COVID-19 vaccine specifically. Unless and until the EEOC publishes more specific guidance, its commentary concerning mandatory flu shots, including the need to consider employees’ reasonable accommodation requests, provides a good roadmap for evaluating the question of whether you will be able to require your employees to obtain a COVID-19 vaccination. Although the EEOC has advised employers to encourage flu shots rather than requiring them, it has not prohibited employers from requiring the shots, especially when the flu is severe.

To be clear, no specific guidelines for employer-mandated vaccination specific to COVID-19 has been officially published, however, it is likely any guidance will be similar to recommendations and requirements issued for the flu vaccine. Employer Flexible will continue to keep our clients apprised of any updates as they arise.  

What should employers know when considering vaccination requirements for employees?

Regardless of the guidance that will likely be forthcoming from the EEOC and/or CDC, you should begin to consider how strongly you want to encourage employees to take the vaccine when it becomes available to your employees. The date your workers become eligible to receive the vaccine largely depends on the industry you are in (such as the healthcare field or some designated essential activity).

Another consideration: if you require employees to be vaccinated, you will be subject to the almost-certain requirement to accommodate employee requests for exemptions based upon medical circumstances or sincerely held religious beliefs. Further, if you implement a vaccine mandate, you should also be prepared to articulate your job-related reason for requiring a vaccine. For example, there may be no basis for requiring an employee who is working remotely to be inoculated.

What should employers be doing now?

This is a rapidly evolving situation, and additional guidance is expected to be issued in the coming days and weeks. As wider availability of the vaccine draws closer, we recommend employers be prepared with a vaccine policy framework and a plan to communicate that plan to employees communications plan. For assistance in this area, you may wish to consult an employment law specialist or contact Employer Flexible for additional information.

We're here to help

We recognize this is a challenging time for all employers, and we want to be a resource to you during this difficult period. If there is anything we can do to help you, please contact us or consult one of resources below:  

• COVID-19 Guidance: Businesses and Employers | CDC
• COVID-19 and the American Workplace | U.S. Department of Labor
• COVID-19 Resource Page | Texas Department of State Health Services