What does full approval of the Pfizer-BioNTech COVID-19 vaccine mean for businesses?

(Governor’s Office photo)

@BryanRenbaum

The Food and Drug Administration’s recent decision to grant full approval to the Pfizer-BioNTech COVID-19 vaccine has led to considerable discussion about an increase in vaccine mandates.

The status of the company’s vaccine was upgraded on Monday.

The Pfizer-BioNTech vaccine was the first COVID-19 shot to receive government approval, but previously the approval was only for emergency use.

The two other COVID-19 vaccines, which are manufactured by Moderna and Johnson & Johnson, are only approved for emergency use. However, that could change within the next few weeks.

Vaccine mandates for members of the military and federal employees and contractors are about to take effect.

In Maryland, Gov. Larry Hogan has opted against state-imposed vaccine mandates and the state has instead encouraged businesses to impose their own mandates.

And many businesses have already begun to do that.

So, now that one vaccine has been fully approved, do businesses have more leeway to mandate vaccinations?

“The approval will certainly make some employers more comfortable about mandating vaccinations. However, it doesn’t change the legal landscape,” Jennifer Berman, a Pikesville-based employee benefits attorney, told MarylandReporter.com. “Employees will still have to be given the chance to opt-out based on religious conviction or medical necessity.”

Sarah Sawyer, a labor and employment attorney with the Baltimore-based law firm Offit Kurman, noted that even though the Equal Employment Opportunity Commission has said businesses can mandate that employees get vaccinated against COVID-19, many have chosen not to because of the threat of potential litigation.

“Many employers have shied away from mandating the vaccine because of the administrative burden and risks associated with disgruntled employees filing lawsuits.”

However, Sawyer also noted that she has recently seen an increase in the number of businesses that are imposing vaccine mandates.

“Even before the Food and Drug Administration fully approved the Pfizer/BioNTech vaccine, I have seen an uptick in my clients mandating vaccination. This is especially true for my clients whose operations are dependent on employees physically coming into work. This uptick in mandatory vaccination policies has primarily been due to an increased risk to operations caused by growing positivity rates and governments and more prominent companies mandating vaccination.”

And this could quite possibly become the norm, Sawyer said.

“I anticipate that the FDA’s full approval of the Pfizer vaccine will result in another increase in mandatory vaccination policies as the likelihood of employee pushback and lawsuits continue to decrease.”

But how do business leaders feel about vaccine mandates?

“I still truly believe the best path for a business is to encourage ALL employees to get vaccinated, using whichever vaccine is easiest to obtain,” Frederick County Chamber of Commerce President and CEO Rick Weldon said. “Employers ought to make that process as easy and accessible as possible. I also think it’s best if we leave the specific decisions on masks, distancing, and control of employees and customers to the individual businesses. They have proven over the last 17 months that they do their best to try to keep both their workers and their customers as safe as possible.”

Washington County Chamber of Commerce President and CEO Paul Frey said vaccine mandates are likely to increase now that the Pfizer-BioNTech shot has been given full approval.

“Now that the Pfizer vaccine has been approved by the FDA, and given the surge of the cases of the Delta variant infection, it would appear that more businesses will be mandating that their employees get the Covid vaccination. This includes the public sector, institutions of higher education, public school systems, and nonprofits. In many cases, the general public will demand this action, or they will not patronize those businesses that don’t mandate vaccinations for their employees, as well as mandate face coverings until the latest surge is under control.”

Maryland Retailers Association President Cailey Locklair said that while her organization opposes “one size fits all mandates from government,” it does support the right of businesses to decide whether or not they wish to impose vaccine mandates.

“We support the right for businesses to make decisions about their employees and customers that fits their workplace and environment….Retailers have proven over and over again our ability to operate safely.”