'That Issue Is Now Off the Table'

"A couple of companies said, 'We're going to require vaccines for our employees, and the deadline is six weeks after the FDA grants full approval,'" said labor and employment attorney Brett Coburn.

Coburn, who is partner at Alston & Bird in Atlanta, has been busy advising corporate clients on vaccine mandates. Some companies, he said, had built into their employment policies a vaccine-deadline contingency.

The FDA's full approval of the Pfizer vaccine, he said, nixes a prior litigation threat that had caused some companies to delay implementing vaccine mandates.

"There been some legal challenges trying to assert a wrongful termination in violation of public policy common law claim because of the [Emergency Use Authorization] status [of the Pfizer vaccine]," Coburn said. "That issue is now off the table.

Implications for Schools

And employers aren't the only ones pushing full steam ahead.

The FDA's full approval of the Pfizer vaccine also opens the dam to a flood of vaccine requirements by colleges, hospitals and other organizations.

In the Peach State, a handful of private colleges and universities have mandated COVID-19 vaccines for in-person learning, barring medical or religious exemptions.

Among those on a list compilied by University Business are schools such as Chamberlain University at Atlanta, Clark Atlanta University, Emory University, Morehouse College, Oxford College and Spelman College.

"COVID-19 vaccines are required of all faculty, staff and students absent a medical or religious exemption," read Spellman College's COVID-19 Faculty Guidance Fall Semester 2021.

At Emory University, for instance, the Fall 2021 vaccination mandate applies to all students, staff and faculty. By the end of July, the private university reported nearly 85% of its staff and students had been vaccinated.

"With the spread of the delta variant and rising COVID-19 cases in Georgia, we must remain committed to protecting the health of the Emory community, and it starts with getting vaccinated," said university president Gregory L. Fenves in a campus update. "Emory community members can sign up to receive a COVID-19 vaccine, free of charge, via Emory Forward. If you are in the process of being vaccinated, you must continue to take a weekly test until fully vaccinated (two weeks after your final dose)."

Students returning to in-person classes first learned of the vaccination requirement in April. Since then, the mandate has extended beyond students.

"Emory staff and faculty members can apply for a vaccination exemption based on medical contraindications or strong personal objections," Fenves' update stated. "Community members who have an exemption will still be required to complete a COVID-19 screening test once a week. Screening tests can be scheduled online."

But the deadline to submit those exemptions expired Aug. 16, leaving leeway to opt out of vaccination, despite returning to traditional face-to-face learning.

Legal Precedent

Amid these changes, a federal ruling out of the Midwest however might have already set the tone.

More than a month before the Pfizer vaccine received full FDA approval, a U.S. District Court Judge upheld Indiana University's campuswide vaccine mandate extending to more than 130,000 students and employees in July.

In response to the lawsuit filed by eight IU students arguing the university vaccine mandate, under the 14th Amendment, infringed on their "rights of personal autonomy and bodily integrity, and the right to reject medical treatment," U.S. District Judge Damon Leichty highlighted that outside of medical and religious exemptions, the students could opt to attend a different school.

A similar argument is pending in New Jersey against Rutgers University after the Children's Health Defense and more than a dozen students sued the university, its board of governors and president for its implementation of a vaccine mandate.

"Rutgers students face a dilemma: take an experimental vaccine and risk injury and death—or abandon academic studies at Rutgers," read the complaint. "Students cannot simply attend college elsewhere because almost every college in New Jersey, and many colleges across the country, following Rutgers' lead, are now requiring COVID-19 vaccines; any transfer could jeopardize their degrees or delay their graduation indefinitely."

It's not clear how the education litigation will fare following Pfizer's FDA approval, but Coburn said in the employment sector, he didn't think existing litigation would be impacted.

"Companies in the middle of litigation over a termination that occurred prior to the full FDA approval, I'm not sure that that really changes much at all," Coburn said. "Perhaps injunctive relief being sought in those cases may be off the table now."