Should Companies That Mandate Vaccinations Now Require Booster Shots?

The following article was first published on Shipman & Goodwin attorney Daniel Schwartz’ Connecticut Employment Law blog. It is reposted here with permission.

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Put aside, for the moment, fears of the Omicron variant. We just don’t know enough about it even though Connecticut had its first case announced this weekend.

And put aside, for the moment, the new mandate in New York City that is requiring all employers to require proof of vaccination for employees.

Rather, I want to raise another subject that is starting to take hold: Should companies require proof of vaccination booster shots?

There are a few questions that should be answered even before this one, though.

First, is your company even mandating proof of the original “full vaccination?”

If not, then don’t worry about booster shots yet. It’s too soon. Getting such a program up and running is probably a top priority to keeping your workplaces safer.

CDC Recommendation

Second, let’s suppose your company has already instituted a mandatory vaccination policy, can your company require booster shots?

The answer is notably simple, now that the CDC has recommended such shots and approved them for use by adults 18 or older: Yes you can.

Obviously, the same caveats that we’ve been talking about during this pandemic hold true—consider exemptions and accommodations, give employees reasonable time (or even paid time off) to do so, etc.

It’s not unreasonable to think that the CDC will change the definition of “fully vaccinated.”

So, coming back to the “should you” question—the answer is mixed.

It’s not unreasonable to think, for example, that the CDC will change the definition of “fully vaccinated” to require booster shots be given after six months of the original regiment, in order to meet that definition.

If that’s the case, some employers may just choose to wait until that happens.

Waning Immunity

But others, particularly in areas such as healthcare or higher-risk industries may not want to wait that long.

Immunity seems to wane after six months and requiring boosters can help to reduce the risk of spread at the company significantly. Why wait for something that can help?

Why wait for something that can help?

This would’ve been even clearer two weeks ago before the Omicron variant was identified.

But this variant adds an unknown: Will the variant escape vaccine immunity? While we have anecdotes, we just don’t have enough information to know.

The science is fast but still needs a few more weeks to draw any conclusions. It may even be that this variant is less severe. There are just too many unknowns.

Vaccination Policies

And even then, employers still will have to grapple with questions such as “If boosters help reduce the risk of severe illness from Omicron but may not prevent illness, should boosters be mandated?”

For now, most employers seem to be taking a wait-and-see approach on both the Omicron variant and booster shots.

That seems sensible in light of all that we don’t know at this point.

Employers should be sure their vaccination policies already indicate that booster shots may be required.

Still, employers should be sure their mandatory vaccination policies already indicate that booster shots may be required in the future so as to cover this variable.

And for employers with offices in New York City, it’s time to start the mandatory vaccination process.

Lots of things to consider as we wrap up another pandemic year.

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About the author: Daniel Schwartz is a partner with Shipman & Goodwin and represents employers in various employment law matters. He is also the author of the independent Connecticut Employment Law Blog. The blog discusses new and noteworthy events in labor and employment law on a daily basis.