• How FDA Vaccine Approval Impacts Vax-resistant Healthcare Workers

    Last week, The Food and Drug Administration (FDA) granted full approval of the Pfizer COVID-19, a vaccine which had previously only been available under the European Medicines Agency’s (EMA) emergency use authorization.

    Then, on Monday, the Centers for Disease Control advisory panel unanimously decided to recommend approval of the Pfizer Inc. and BioNTech Se COVID-19 vaccine for individuals 16 and older.

    Both developments may mean fresh legal jeopardy for those healthcare workers who have heretofore cited the COVID-19 vaccines’ “emergency use” FDA approval status in defense of their opposition to mandatory vaccination and potential subsequent dismissal by their healthcare system.

    Barrier takedown

    Some public health officials had hoped that such official, formal approval might mitigate some of the opposition expressed by the vaccine-hesitant and spur additional vaccinations, especially in the critical healthcare worker sector. Now, the full approval FDA in parallel with the nod by the CDC, has some companies and states expanding the mandate of COVID-19 vaccination for their employees as a condition of employment.

    This places the COVID vaccines more in line with the influenza shots category which have been accepted as a compulsory employment condition in the healthcare industry for a decade.

    Resistance and advice

    The healthcare provider community was already roiling on multiple sides with the COVID infection spike caused by the particularly contagious Delta variant  Although some data show that healthcare workers seem to have gradually come around to acceptance of the COVID-19 inoculations, according to a study of healthcare workers’ vaccination status published on August 18th from the Covid States Project — a collaborative effort by researchers from Northeastern, Harvard, Northwestern, and Rutgers — 27% of study participants remain unvaccinated, and 15% of the unvaccinated group remain firmly opposed to immunizations.

    Meanwhile, some healthcare organizations are firing employees who don’t comply with a vaccine mandate. A federal judge recently sided with a large Houston-based hospital system that elected to terminate employees who refused to comply with the organization’s vaccine mandate. In her ruling, judge Lynn Hughes of the U.S. District Court for the Southern District of Texas, stated that the lead plaintiff who had challenged the policy “is refusing to accept inoculation that, in the hospital’s judgment, will make it safer for [workers and patients].”

    In Florida, another COVID Delta variant hotspot, some healthcare professionals held a pre-workday news conference on Monday, August 23 — incorrectly represented in the lay media as a “walk out” — to focus attention on their caregiver exhaustion and to urge the public’s vaccination as infections surge in that state.

    Even before these recent developments, the Equal Employment Opportunity Commission (EEOC) had weighed in to address some workplace vaccination questions. The EEOC’s “expanded technical assistance” issued on May 28, 2021, held both nuance and caveats. The agency stated that federal anti-discrimination laws do not prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. That said, employers who either encourage or require vaccinations, are still held to compliance with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and other workplace laws.

    What are my rights?

    The agency’s provided new information about how both the ADA and the Genetic Information Nondiscrimination Act (GINA) apply “when an employer offers incentives for employees to provide documentation or other confirmation of vaccination when an employee gets a vaccine in the community or from the employer or its agent.”

    The guidance, however, comes with the qualification that its “technical assistance” answers COVID-19 questions only from the perspective of the EEO laws. Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers and employees.”

    Are there exemptions?

    In an article published on August 23, 2021, the Society for Human Resource Management cited three potential exemptions to counter the COVID vaccine mandate, each based on religion, disability accommodation, or union membership.

    Review their detailed discussion of each at