TAMPA, Fla. - The FDA’s full approval of the Pfizer COVID-19 vaccine could also mean more schools and companies will soon require it.
Several other vaccines that have full FDA approval are already required. Students have to get vaccinated to protect against measles, mumps, polio, and chickenpox because they all pose a serious risk to public health – and we suppressed them with approved vaccines.
Now that the first COVID vaccine has full FDA approval, we’re already seeing a surge of new requirements. The U.S. military has sped up its plans to require it for all on active duty. New York City and the state of New Jersey announced it will be required for all teachers.
"Well, I think you'll certainly see more private entities, more universities and schools make the decision to mandate vaccines, because I think that when you have full approval, that's the gold standard when it comes to the approval of any kind of medication or vaccination. And I think that having that employers and these private entities are going to feel like they're on more solid ground to do so," offered Dr. Cameron Webb, senior advisor on the White House COVID-19 Task Force.
The Department of Justice and EEOC have said companies have the legal right to require their employees to get the vaccine under Emergency Use Authorization. They said they didn’t need full approval as long as they make reasonable accommodations for some with certain specific health issues or religious objections, so states New York and California and of hundreds of colleges and universities already required employees to be vaccinated.
Some of the nation’s largest companies like Google and Facebook also required their workers to get vaccinated before full FDA approval.
But many other companies have been waiting for full approval to counter any potential legal challenge or dispute over what the DOJ and EEOC said.
"The full approval, called 'biological licensing application,' now allows them the ability to require vaccination and not be as concerned about lawsuits and other challenges that might arise," explained John Whyte, the chief medical officer for WebMD.
What about the unvaccinated?
"Employers can require that employees be vaccinated. There's two exceptions to that. The exceptions are if a person has a medical-related issue or if a person has a sincerely held religious belief," said Robert Shimberg, an attorney with Hill Ward Henderson Law Firm in Tampa and chair of the firm’s COVID-19 response team. "Some workplaces in the Tampa Bay area have been already. Some places have required vaccinations of their employees with those two exceptions."
Shimberg said the workers would need a doctor’s note. As for a religious exception, Shimberg said it’s typically the honor system or bringing in a note from their religious leader.
"Now that it's a fully licensed drug, employers who have a rational basis for requiring it, and those are certainly health care employers and front-facing service employees have a stronger legal basis to stand on," said Dr. Jay Wolfson, a health lawyer and professor with USF Health.
Some places may require unvaccinated people to test all the time. Wolfson said companies could even move a worker to a different position.
"You may say, ‘Look, because of the risks during the interim, we have to put you in a non-front facing position. Whether you're going to a sales job or a service job or a clinical job or a teaching job, whatever it is, we feel that even if you are getting tested, the relative risks of spread are too high. We're going to put you someplace else.’ The Americans with Disabilities Act provides the guidance for doing that. If there is no place to put you, then we can terminate you legally," said Wolfson of the legality of a vaccine mandate.
Will the COVID-19 vaccine be required in schools?
Just as we require vaccines to suppress polio and measles, Dr. Anthony Fauci told us on Thursday that may be the next step.
"This might come under the category of the other infections that you mentioned, the polio, the measles, mumps, rubella," Fauci said. "Can't say that that will happen, but certainly it's going to be discussed."
The CDC would first weigh in, then states would decide when or whether to require it for all students in public school.
The timetable for any such move in Florida is not clear. The Legislature and the governor would ultimately have to sign off on such a requirement, and Gov. Ron DeSantis has previously tried to block so-called vaccine passports.
Supreme Court's opinion
The nation's highest court has already heard challenges to such vaccine mandates, all the way back in 1905.
In Jacobsen v Massachusetts, the U.S. Supreme Court determined that there is indeed a legal right to require vaccinations – with the caveats that there must be free access to those who cannot afford it and also an opt-out for children only in cases where a physician deems a child to be medically unfit to receive the vaccine.