MIAMI-DADE COUNTY, Fla. – After the FDA’s full approval of Pfizer’s COVID-19 vaccine and amid the variant-driven case surge, labor lawyers say the next phase of the pandemic will involve an increasing number of public and private employers mandating shots.
“Generally the law favors employers that want to mandate vaccination requirements. We absolutely expect to see more mandates,” said Brett Schneider, chair of the labor and employment division at Weiss Serota Helfman Cole & Bierman.
Schneider says keeping staff safe and businesses open is what’s motivating employers to take these steps.
“I would attribute more of it just to the fact that we continue to dwell in this delta variant cesspool,” he said. “More and more employers are sitting there saying, ‘What do we do to protect our workers? What do we do to protect our business?’ And I think that’s motivating this as much if not more than the approval of the Pfizer vaccine by the FDA.”
And they are hearing from staff members asking for a safe work environment. A recent Gallup poll found strong opinions about vaccine mandates at work, with more employees being in favor than opposed.
“It seems as though the majority of folks in the workforce want vaccinations, feel more safe in vaccinated environment, feel like if they are going to be in the office they want a safe workplace,” Schneider said. “There is a loud and vocal minority of folks who don’t want to get it.”
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Yolanda Menegazzo provides human resources consulting for private and public employers. She has helped to create policies related to mandatory vaccinations and reviews requests for the two exemptions: medical and for people with a “sincerely held” religious belief.
“The majority of the employees do participate in the [mandatory vaccine] program and then there are some who have been submitting the religious and medical exemptions,” said Menegazzo, Lagom HR Consultant/President.
Determining which religious exemptions apply can be challenging.
“The lack of detail is what is not allowing people to pass and what I have been requesting additional information for,” Menegazzo said. “If an individual simply writes that they hold a sincerely held religious belief that prevents them from the COVID-19 vaccination that is really not enough detail at all. ...
“I have found that specifically for the religious exemptions that employees have not done their part to elaborate on what their sincerely held religious belief is and how does that prohibit you from getting the COVID vaccination? How does that go against your religious conscious?”
Says Schneider: “Somebody has to indicate they have some form of sincerely held religious belief and they should provide enough information about that so you know what that is and what about that runs afoul of vaccine.”
Still don’t want the shot and don’t meet the exemptions? Schneider says employees can ask to continue with remote work — but keep in mind that will be up to the employer. Some jobs may not allow for remote work.
“Just because an employer has an obligation to make a reasonable accommodation doesn’t mean that in every circumstance a reasonable accommodation exists,” Schneider said. “There are situations where an employer may determine there are no reasonable accommodations that are available.”
He said another issue employers are facing is that “even if they can do it as a matter of law there is some concern about alienating some of their employees who don’t want to get vaccinated and potentially losing good employees.”
With some sectors of the economy suffering from staff shortages, there is a concern about filling vacancies with qualified people if those who don’t want to get a shot resign or need to be terminated.
Schneider also reminds that Gov. Ron DeSantis’ ban on so-called vaccine passports applies to customers of a business.
“The governor’s mandate doesn’t have any bearing on the employer/employee relationship,” he said.