Johanna Alonso//December 17, 2020
//December 17, 2020
As Pfizer’s COVID-19 vaccine rolls out in the United States and Britain, Maryland employers are hoping the vaccine will allow them to return to the office.
But it’s unclear how much the vaccine will actually change. Not all Marylanders are planning to get the inoculation, the United States has never previously mandated its citizens receive a vaccine — and some lawyers believe that employers will not be allowed to mandate their employees get the vaccine, either.
This is because of a provision in the Food, Drug and Cosmetics Act regarding Emergency Use Authorizations, the process that allowed the Pfizer vaccine to be approved by the Food and Drug Administration as quickly as it was, according to Jennifer Curry, a lawyer who specializes in employment and compliance issues at Baker Donelson’s Baltimore office.
“There is a provision under the law that basically intimates, although it doesn’t explicitly say it, that individuals who are getting the product must have the option to accept or refuse administration of the product,” Curry said, “which to me indicates that an employer cannot mandate, nor can anyone mandate, that vaccine be taken at this point.”
She further explained that if the FDA had intended for it to be legal for employers to require their employees to take the COVID-19 vaccine, the office could have included that guidance when issuing the EUA of the vaccine.
Other lawyers don’t feel that the vaccine’s emergency authorization will be a major factor in the legality of mandating the vaccine. Michael Hayes, an associate professor at the University of Baltimore School of Law specializing in employment and labor, believes that an employer would legally be allowed to terminate an employee who didn’t take the vaccine due to at-will employment laws.
Exceptions to a mandate would arise if the employee has religious objections to vaccinations or if taking the vaccine could pose a health risk to the employee — especially after a small number of recipients experienced allergic reactions to Pfizer’s vaccine.
Recent Equal Employment Opportunity Commission guidance seems to support the idea that mandating the vaccine would be legal, clarifying that asking someone to take the vaccine would not qualify as making a medical inquiry, which is unlawful under the Americans with Disabilities Act.
More guidance may come from the federal and state governments, further clarifying whether mandating the vaccine is allowed, in the coming weeks and months. While Suzzanne Decker, a principal in Miles & Stockbridge’s Baltimore office, feels that the vaccine’s emergency authorization complicates employers’ abilities to require it, she also noted that it may be a long time until there are enough vaccines available for such mandates anyway.
“I keep thinking, by the time there would be enough doses to make it mandatory, actually this will all have been shaken out,” Decker said.
Hayes thinks that any further information that comes will likely come from the state level, and he’s unsure that Maryland will take a definitive stance allowing mandates.
“Vaccines have always kind of been left to the states,” he said. “I don’t think the Maryland Department of Health, the Maryland Department of Labor are going to come out with: ‘this is definite and you’re completely protected if you [mandate vaccines].’”
Regardless of whether or not mandating the vaccine is legal, many lawyers and human resources professionals advise employers that strongly encouraging employees to take the vaccine may be preferable to fully requiring it.
Kristina Griffin, principal consultant and owner of Pinnacle HR Consulting, LLC in Clinton, Md., said that employers need to start preparing now for how they will talk with their employees about getting the vaccine, including providing reliable, scientific information on the vaccine and approaching the issue with sensitivity, considering how the employees’ lives may have been impacted by the virus.
She also feels that many employers will be hesitant to strictly mandate vaccines because of the complicated questions that may arise if an employee refuses.
“Are you really gonna terminate someone who refuses to take the vaccine? I think that’s the obvious question,” Griffin said. “What if it’s one of your critical employees, what if it is your primary employee?”
Decker agreed that now is the time for employers to start creating plans for when the vaccine will become available to their employees — with the understanding that those plans must leave room for adjustment depending on new guidance and information.
“Have they thought about how they’re going to allow employees to have time off to get the vaccine?” Decker said. “Have you thought about whether you’re giving them time off? Have you thought about if you’re an employer that might have priority because of the exposure of your people to patients or the general population?”C