On August 23, 2021, the United States Food and Drug Administration (FDA) granted full regulatory approval to Pfizer/BioNTech’s COVID-19 vaccine for individuals age 16 or older, making it the first shot to move beyond Emergency Use Authorization (EUA). EUA continues to govern the use of this vaccine for individuals ages 12 to 15 and immunocompromised individuals set to receive a third booster shot. The vaccine has yet to be approved in any form for individuals under the age of 12. Shortly after, President Biden urged businesses to implement vaccine mandates for their employees, where feasible.

The FDA’s announcement and White House push comes on the heels of the United States Occupational Safety and Health Administration’s (OSHA) updated Guidance for General Industry Workers, which includes a suggestion that employers “consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing—in addition to mask wearing and physical distancing—if they remain unvaccinated.” Consistent with the CDC’s latest recommendations, the updated OSHA Guidance also endorses risk mitigation factors for fully vaccinated individuals, such as (1) wearing a mask in public indoor settings in areas of substantial or high transmission, (2) choosing to wear a mask regardless of level of transmission, particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated, and (3) getting tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wearing a mask in public indoor settings for 14 days after exposure or until a negative test result.

Policymakers have expressed hope that these developments will convince reluctant Americans to get vaccinated, as the Delta variant continues to spread throughout the country. Additionally, these new measures will likely give employers more confidence in their ability to implement mandatory vaccination policies for their employees or mandate regular testing for unvaccinated employees.

Below are three key takeaways for employers to consider in light of these new developments:

• Key takeaway #1 - Plan carefully. Although it is widely accepted that employers may require the COVID-19 vaccine for their workforce, how that mandate is implemented requires careful planning and consideration to ensure the policy aligns with federal and state law as it relates to anti-discrimination considerations and accommodations. The announcements by the FDA, White House, and OSHA will certainly provide employers with more authority in issuing a mandate. But employers considering a vaccine mandate should plan the roll-out carefully.
• Key takeaway #2 - Mind the states. Some states have passed, and are considering laws that restrict the use of vaccine mandates in some degree or another, including as it relates to employees. Employers should therefore be sure to keep careful eye on the state developments before adopting any type of mandate for the workplace.
• Key takeaway #3 - Communication is king. Vaccine mandates carry with them an emotional weight with the workforce. Employers need to ensure they are thinking through the communications plan, and ensure employees have a clear path to request accommodations. The FDA, White House, and OSHA announcements will help with communications, but they won’t resolve all hesitancy amongst the workforce.

To learn more about vaccine mandates, or for guidance on your organization’s policies, please reach out to one of the contacts listed in this alert.