Pfizer and the German biotech company BioNTech announced Monday that their innovative, mRNA-based vaccine is more than 90 percent effective, according to the initial analysis from phase three testing. It's good news in a week in which the U.S. reported a record 10 million confirmed coronavirus cases; on Tuesday, hospitalizations hit an all-time high of 61,964.
Pfizer says it could produce 30 million to 40 million doses of the vaccine before year's end, which is enough for 15 million to 20 million people to get an initial shot and a booster. Priority will likely be given to higher risk groups, including health care workers, older adults, and those with pre-existing conditions like diabetes. Pfizer and BioNTech aren't the only companies working on a vaccine; other organizations, including Moderna and AstraZeneca/Oxford University, are also in phase three testing for vaccines that look promising. It is important to note that much uncertainty remains about just how well the vaccines will work.
Can You Require a Vaccine?
News of the vaccine also raises questions for business owners: Can you require employees to be vaccinated, and if so, how do you go about it?
Employment lawyers and HR professionals say that policies regarding the flu vaccine are a good place to start. Many states mandate that hospital workers and other health care professionals, as well as school children and preschoolers in daycare, get flu shots and other vaccines. But it's not required for most professions. Generally, employers can require a flu vaccination, but an employee may be entitled to an exemption if he or she has a particular disability that needs to be accommodated, or a sincerely-held religious objection to taking the vaccine, says Michael Schmidt, a New York-based employment lawyer for Cozen O'Connor.
In both cases, the employer may have to pay for the vaccine or reasonable accommodation. If you refuse to make accommodations for an anti-vaxxer, it's possible to face a claim for violating the Americans with Disabilities Act (ADA), the Civil Rights Act, or the Occupational Safety and Health Administration's whistleblower protection program. Most of the time, Schmidt says, the advice is for employers to encourage employees to get a flu shot rather than try to create a policy that demands it. However, he notes, many would argue that the Covid-19 situation is far more threatening than the flu is at this point, meaning a vaccine may be more crucial to the overall health of a workplace.
Not putting a policy in place could also cause moral and psychological conflict in the workplace, says Alissa Kranz, a labor attorney at Tampa-based law firm Lieser Skaff Alexander. Employees may have concerns about going into a workplace where one or more co-workers have not been vaccinated.
Schmidt also notes that vaccine guidance likely will be released from the Centers for Disease Control and the Equal Employment Opportunity Commission, which deals with Title 7 of the Civil Rights Act and the ADA. So it may be worth waiting for more information before you create a plan. When you do create one, remember to document everything and ensure that the plan is executed as written. Not only will this help to avoid worker's compensation or gross negligence claims, it will also give employees more assurance that you are creating a safe workplace for them.