Full FDA Approval Means Dealers Face Fewer Risks With COVID-19 Vaccine Mandates

Brian P. Goodman | 08.27.21

In April 2021, Boardman Clark advised that requiring employees to get the COVID-19 vaccine could create legal risk to dealers. At that time, COVID-19 vaccines were only approved for emergency use by the Food and Drug Administration (FDA). On August 23, 2021, the FDA fully approved the Pfizer COVID-19 vaccine for prevention of the disease in individuals 16 years of age and older. This means that the Pfizer COVID-19 vaccine meets high standards for safety and effectiveness. It also means that Wisconsin dealers can implement a vaccine mandate with less legal risk, provided they consider reasonable accommodations for employees that cannot get the vaccine due to disability or sincerely held religious beliefs.

Wrongful Discharge Claims No Longer a Risk

Wisconsin dealers that now decide to mandate the COVID-19 vaccine will likely no longer face a risk of wrongful discharge claims if they terminate employees for failing to get the vaccine. The previous risk of liability for wrongful discharge derived from the vaccine being only approved for emergency use by the FDA. This limitation may have given individuals a right to refuse the vaccine from their vaccination provider. Now, the FDA has fully approved the Pfizer vaccine. Any employee subject to a dealer’s COVID-19 vaccine mandate who has safety concerns about the vaccine can choose to receive the Pfizer vaccine. Therefore, terminating an employee for refusing to get a COVID-19 vaccine that has been fully authorized by the FDA is unlikely to result in a viable claim for wrongful discharge.

Disability and Religious Accommodations Still Required

Mandating the COVID-19 vaccine, however, still implicates legal issues related to disability and religious discrimination under the Wisconsin Fair Employment Act, the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964. Despite full FDA approval, employees may still claim they cannot get vaccinated due to a disability or sincerely held religious belief. The law imposes constraints on the questions dealers can ask employees and what documentation dealers can request. Therefore, dealers should consult with legal counsel if an employee asks for an exemption to the vaccine mandate based on a disability or sincerely held religious beliefs. 

If an employee informs a dealer that they are unable to receive the COVID-19 vaccine due to a disability or sincerely held religious belief, the dealer cannot terminate the employee without first engaging in the interactive process with them as to whether a reasonable accommodation is available that does not pose an undue hardship on the dealer. Because the legal standards for undue hardship are different depending on whether the employee is requesting an accommodation due to disability or religious belief, dealers should consult with legal counsel when assessing the accommodation. 

Mask Mandates Can Take Vaccination Status into Account

Guidance from the Centers for Disease Control and Prevention (CDC) as of August 12, 2021, states that all individuals over the age of 2 should wear a mask indoors in public if they are in an area of substantial or high transmission. Additionally, some local governments are re-imposing mask mandates. For example, Public Health Madison & Dane County issued an Order on August 17, 2021, requiring all individuals older than two years of age to wear a mask when inside an enclosed public space. Dealers that conduct business outside Dane County should check their local public health guidance for similar orders. If local authorities require masking indoors, dealers should implement a mandatory mask policy to comply with that law. 

Dealers that implement a mandatory mask policy should also be prepared to address employees’ concerns on a case-by-case basis. If an employee claims a religious or disability exemption to the mask policy, the dealer should meet with that employee and ask them to explain how their religion or disability prevents them from wearing a mask. If the employee provides a bona fide reason, the dealer should engage in the interactive process with the employee, similar to the process discussed above regarding vaccines. Through that process, the dealer should determine if a reasonable accommodation is available that allows the employee to successfully perform their job duties without causing undue hardship on the dealer or creating an unsafe work environment. Depending on the outcome of this process, the dealer might establish a legal basis to take adverse employment action against an employee. Before doing so, however, dealers should consult with an attorney. 

Conclusion: Dealers Can Require Employees to Receive the COVID-19 Vaccine

Full FDA approval of the Pfizer COVID-19 vaccine means that dealers can now require employees to be vaccinated. However, to avoid potentially viable discrimination claims, dealers must still consider reasonable accommodations for employees that cannot be vaccinated due to a disability or sincerely held religious belief. If individual questions arise, legal counsel with experience in labor and employment law can help dealers identify a reasonable accommodation request, conduct an individualized direct threat analysis when appropriate, assess undue hardship under the appropriate legal standards, and advise dealers on the best way to proceed in a given situation.