The Novavax Vaccine May Mean Fewer Religious and Medical COVID Vaccine Exemptions
The FDA’s approval of the Novavax vaccine may be a game changer in the tumultuous COVID vaccine mandate situation. Unless limited by state law, employers may require employees to become fully vaccinated against COVID – subject to exemptions as reasonable accommodations for disability or religious needs. Many employees have invoked such exemptions – but the Novavax vaccine may reduce the number of employees who would be entitled to them.
In the context of the COVID pandemic, the EEOC, OSHA and President Biden have all issued guidance, statements, or orders that support the employer’s right – or even require an employer – to mandate vaccination for its employees (although President Biden’s orders are subject to legal challenge or have been overturned). However, Title VII requires employers to provide reasonable accommodations to such vaccine mandates for an employee’s religious belief, while the Americans with Disabilities Act requires such accommodations for an employee’s disability. Thus, employees with legitimate medical issues or conflicting religious beliefs are entitled to an exemption from the mandate as a reasonable accommodation, to the extent that such accommodation does not pose an undue hardship – such as where an unvaccinated employee poses a direct threat to workplace safety. (We discuss the EEOC’s recent updates to the direct threat analysis for vaccine mandates in our July 15, 2022 blog post, The EEOC Updates Its COVID Guidance for Employers – Testing, Accommodations, Direct Threat and More).
Religious Exemptions. One of the major religious objections to the Moderna, J&J/Janssen and Pfizer vaccines is that fetal cell lines from aborted fetuses were used in the development of these vaccines. According to Novavax, in a February 2022 statement to Religion News Service, however, “No human fetal-derived cell lines or tissue … are used to develop, manufacture, or produce” its vaccine. Thus, employees with such religious objections may be required to receive the Novavax vaccine (absent valid bases for other religious or medical exemptions). This would include those employees who previously received religious exemptions on this basis.
Medical Exemptions. Among the common and valid reasons for medical exemption requests are a documented history of a severe allergic reaction to any component of a COVID-19 vaccine or to a substance that is cross-reactive with a component, and a severe allergic reaction after a previous dose of the COVID-19 vaccine. Because the Novavax vaccine is a traditional protein-based vaccine, rather than a mRNA vaccine like the other existing options, it contains different components. Thus the allergy concerns related to the other vaccines may not apply, depending, of course, on the individual’s specific allergies. Again, employees who previously received medical exemptions on this basis might now be required to obtain the Novavax vaccine.
But Remember Those State Laws! Many states have enacted or are considering restrictions on a company’s right to require proof of vaccination (e.g. bans on so-called “vaccine passports”). These bans come in many different forms. Some are limited to governmental or public entities. Others prohibit private entities from requiring vaccine passports in providing goods, services, or access to the public, but do not govern employers’ ability to impose a vaccine mandate on their employees. Some states prohibit employers from requiring proof of vaccination, and many other states have similar legislation pending before their state legislatures.
Another type of relevant state law or order requires employers to provide exemptions to any vaccine mandates beyond religious and medical exemptions. Such exemptions may need to be provided for personal or philosophical objections, as well as “natural immunity.”
It is critically important for employers seeking to impose vaccine mandates to stay on top of any changes in state law on this issue.