FDA's approval of Pfizer vaccine already paving the way for mandates

When Pfizer and BioNTech’s (PFE) COVID-19 vaccine on Monday became the first to receive full Food and Drug Administration approval for people 16 and older, several vaccine mandates came down just that day.

The uptick shows that legal experts and the nation's top infectious disease expert were on target by predicting that approval would embolden businesses, governments, and schools to mandate vaccines.

Just Monday, vaccine mandates came down for staff in New York City and New Jersey schools and for some employees of Chevron (CVX), while the former governor of Virginia urged all employers in the state to require COVID-19 vaccinations in light of the full approval.

Prior to Monday, the Pfizer/BioNTech vaccine had received the FDA's approval under the agency's Emergency Use Authorization authority, which some vaccine opponents used as an argument against becoming inoculated. The full approval comes after Pfizer presented the FDA with longer-term follow-up data showing the drug was 91% effective at preventing COVID.

The drug, which will be marketed as Comirnaty, remains under Emergency Use Authorization for people between 12 and 16 years old.

Earlier this month, Dr. Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, told USA Today's editorial board that there will be a "flood" of vaccine mandates at schools and businesses after the vaccines receive full FDA approval.

Indeed, New York City Mayor Bill de Blasio announced Monday that staff working in the city’s schools must show proof of vaccination by Sept. 27. The city offered no testing alternative for the new policy, which followed its strictest-in-the nation measure banning unvaccinated individuals from indoor restaurants and fitness areas.

New Jersey governor Phil Murphy also announced on Monday that its teachers and other staff must be vaccinated by Oct. 18, though it will offer regular testing as a vaccination alternative.

The Associated Press reported on Monday that The Pentagon planned to send new guidelines for its vaccination requirement, previously announced for the U.S.'s service members. The guidance is in line with the Defense Department's earlier indication that it would shorten the timeline for service member vaccination if FDA licensure was granted before mid-September.

In Virginia, according to The Hill, former governor Terry McAuliffe encouraged all state employers to mandate vaccination. The Wall Street Journal reported that Chevron became one of the first oil industry companies to adopt a mandatory vaccination policy for some of its employees.

The newcomers to vaccination mandates follow a string of major employers tracked by Yahoo Finance that adopted strict policies prior to Monday’s Pfizer and BioNTech approval.

Will vaccine mandates face legal challenges?

Legal scholars and practitioners say that while there's a strong foundation for non-government employers to enforce their own vaccination policies, the foundation for mandatory policies adopted by states and local governments isn’t unshakable.

“Telling the government it can’t do something is not the same as telling private employers,” Matthew Bodie, a professor of law for St. Louis University and an expert on employee privacy law, told Yahoo Finance in June — emphasizing why legal experts have largely concluded that private employers are at liberty to create their own vaccination rules.

Legal challengers are expected to raise some of the arguments already brought against COVID-19 mandates in lawsuits across the country, and ultimately force courts to grapple with the 1905 Supreme Court decision, Jacobson v. Massachusetts. In Jacobson, the court said that states, under their police power, could require the smallpox vaccine.

“Jacobson is an old case, and how much force it will have, I think it depends,” Jim Oleske, professor at Lewis & Clark Law School, told Yahoo Finance earlier this month.

Most ripe for debate, Oleske said, is whether state and local governments need to provide exceptions to mandatory vaccination policies — either to protect the constitutional right to the free exercise of religion, or to protect the constitutional right under the Due Process clause to remain free from bodily interference.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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