Omicron on the rise: can your employer require you to get a Covid-19 booster shot?
As new coronavirus variant Omicron spreads across the globe, much focus has shifted to Covid-19 booster shots, giving rise to the question: can employers legally make you get one? The answer, writes employment lawyer Marisa Sandler, is ‘probably’.
/ Illustration by Rose Hein
Coming on the heels of Pfizer’s December 8 announcement that three doses of its vaccine provide a higher level of protection than two doses, governmental officials and public health authorities are urging Americans to get booster shots, leaving many to wonder: Will the definition of ’fully vaccinated’ change? Can employers require employees to get a booster shot or as many shots as the government advises? What about a variant specific vaccine?
Currently, the definition of ’fully vaccinated’ remains unchanged. According to the Centers for Disease Control and Prevention (CDC), a person is considered fully vaccinated two weeks after their second dose in a two-dose vaccine series (such as Pfizer or Moderna), or two weeks after a single-dose vaccine (such as Johnson & Johnson). Thus, a person is still considered ’fully vaccinated’ even if they do not get a booster shot.
However, that does not mean the definition of fully vaccinated will remain the same in the future, as more is learned about Covid-19, variants and vaccines. Indeed, some experts have opined that individuals who have completed their primary dose of Covid-19 vaccination more than six months ago are largely unprotected due to waning immunity. Additionally, several public officials, such as Connecticut Governor Ned Lamont and New Mexico Governor Michelle Lujan Grisham, are pronouncing that booster shots should be required to be considered ’fully vaccinated’.
Notwithstanding that the definition of ’fully vaccinated’ has not yet changed (ie, two doses of Pfizer or Moderna, or one dose of J&J), the analysis as to whether employers can require booster shots remains generally the same. Yes, employers can require vaccination (subject to the need for an accommodation, as discussed more fully in our prior pieces).
However, at present, employers appear to be only encouraging (and not requiring) booster shots if they have a mandatory vaccination policy. There are many reasons for this:
They may be in the initial stages of rolling out a vaccine mandate now and do not want to further complicate administration with booster shots
They are already having a hard time getting their workforce vaccinated and fear the loss of additional key employees
Other larger companies that previously announced mandatory vaccination policies have not yet announced booster requirements
They are waiting to see what others in their industry and market are doing as they do not want to be the first one to issue a booster mandate
It is too early to announce a booster mandate given the lack of information regarding its effectiveness against Omicron and whether a variant specific vaccine is needed
Of course, were Covid-19 cases to substantially increase, lockdowns or shutdowns to be threatened, or the definition of fully vaccinated to change, employers may reconsider whether to mandate booster shots for their employees. Such mandates are likely enforceable as we have seen play out in the courts over the last year concerning other vaccine mandates despite numerous attacks and attempts to overturn them. Still, for now, with Omicron, as with most of the pandemic, the situation is constantly evolving and remains fluid.
Marisa Sandler is an employment lawyer and litigator at Tannenbaum Halpern Syracuse & Hirschtritt LLP. Maryann Stallone, a partner at the firm, also contributed.