‘The days you were considered fully vaccinated with two shots are going to be a thing of the past’

With employer vaccination requirements already widespread, workplace experts say it’s possible some companies will convert their full vaccination requirement, now two shots, into a three-shot requirement as the omicron variant emerges.

Pfizer
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+1.34%

and BioNTech
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said three of its vaccine doses can “neutralize” the omicron variant, while two doses may not be enough to prevent infection, according to very early-stage results released Wednesday.

The vaccine makers emphasized the results come from preliminary laboratory studies. That echoes public health officials like Dr. Anthony Fauci, President Joe Biden’s medical adviser, who say early news may be encouraging, but it’s still very early in the process of understanding omicron’s threat.

“I think the days — at least for Pfizer and Moderna — the days you were considered fully vaccinated with two shots are going to be a thing of the past,” said Christopher Feudo, a partner at the Boston-based law firm Foley Hoag representing management in employment law matters.

Even before omicron’s rise, Feudo had been fielding calls from clients curious about whether they could require their employees to get boosters too. “I say yeah, why not?”

The same legal leeway that allows companies to institute vaccination requirements at all should also let them alter the requirements to three shots, Feudo said. To his knowledge, none has followed through with a booster requirement yet, but he wouldn’t be surprised if companies eventually did.

Like Feudo, employment lawyer Erin McLaughlin expects some of the companies she represents to tack on booster shot requirements. “I think it’s coming,” said McLaughlin, a partner at the national law firm Buchanan Ingersoll & Rooney. The same companies that felt strong enough to require vaccines in the name of protecting their workforce will “apply that same rationale to the booster,” she said.

Some employers are thinking about folding boosters into the workplace and some are already doing it — including the NBA.

The professional basketball league does not have a vaccine mandate, but approximately 97% of its players are vaccinated.

Starting Dec. 17, players who have not received a booster shot have to undergo game day COVID-19 testing before they step on the court, according to a league memo reviewed by MarketWatch.

The memo is dated Dec. 3, a week after the World Health Organization labeled omicron a “variant of concern.” The memo also says team personnel without a booster by Dec. 17 cannot travel with the team or be near other players. There are exceptions to the rule if it’s still too soon for players or personnel to get the additional jab, the memo noted.

Other employers are going slower on boosters, which the U.S. Centers for Disease Control and Prevention is advising for all adults six months after they’ve been fully vaccinated with the Pfizer/BioNTech shot or the Moderna
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shot. The CDC advises a booster two months after the Johnson & Johnson
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shot.

“I see employers right now collecting data on boosters and encouraging them. But mandates remain focused on primary vaccination. We might have a new definition of fully vaccinated in the future,” said Dr. Jeff Levin-Scherz, population health leader at Willis Towers Watson
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,
which provides human resources consulting.

Even with omicron, Levin-Scherz noted “boosters work better when delivered later, so we don’t want to encourage people to ‘rush’ to get a booster prematurely.” A booster requirement by a certain date could potentially exclude a vaccinated worker who’s still within the booster timeframe, he noted.

It’s absolutely worth encouraging boosters, said Dr. William Schaffner, an infectious diseases professor at the Vanderbilt University School of Medicine.

But companies and government officials should think hard about requiring three shots, he said. “The notion of redefining for practical purposes what fully vaccinated is would make things more confusing than they already are,” Schaffner said.

Just over a quarter of America’s adult population has received a booster shot, according to the CDC. Almost 72% of the adult population has either had two Pfizer or Moderna shots, or one Johnson & Johnson shot, the agency said.

Meanwhile, workplace vaccination requirements are spreading. Three in 10 workers say their employers required them to get vaccinated, according to a recent survey from the Kaiser Family Foundation. The 29% rate in November is up from 25% in October.

More than half of employers either have mandates in place or will require one if the Occupational Safety and Health Administration (OSHA) rules requiring vaccines at private businesses with 100 or more employees take effect, according to a recent Wills Towers Watson survey.

The rules — which were supposed to go into effect on Jan. 4 — are on pause due to pending federal court challenges. (“Booster shots and additional doses are not included in the definition of fully vaccinated” OSHA said in an explanation of its COVID-19 vaccine-related regulations.)

The pending cases about federal rules on vaccine rules hinge on the question of whether the government overstepped its power in mandating that businesses require vaccines, Feudo said. On the other hand, lawsuits fighting a private employer’s decision to make their own rules have been unsuccessful, he noted.

That matters if employers are going to require boosters some day, he said. “I don’t see a distinction between regular doses and a booster in the eyes of the law in terms of the employer’s ability to mandate vaccines.”

More requirements may involve more goading of workers and shifting requirements for some people who are not in the mood for more, Schaffner said. “This is not the time for the coach to say, ‘You have run around another half mile here.’”

For Schaffner, it goes back to avoiding more twists in a complicated situation. “One of the principles of translating science to public policy is K.I.S.S. — ‘keep it simple stupid.’”

Simplicity and clarity are in short supply when it comes to workplace COVID-19 laws, McLaughlin said. She hasn’t heard yet from clients about booster requirements, but that’s because people are waiting to learn more about the science and also figure out the twists and turns on the federal vaccine mandate hung up in the courts.

“Everybody is in limbo now,” she said.

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