March 5, 2021 | Covid-19 | Posted by Ascentis
Vaccine-Nation: The Employer Role in Fighting the COVID Wars
America has a long history ofrelying on employers to take activist roles in various “war” efforts – whether declared or undeclared, formal or metaphorical. Employers pitched in during World War II doing their part to promote the patriotism of self-sacrifice amid widespread rationing. At the height of the Cold War, employers offered training on behaviors needed to keep employees safe, and for defense contractors, to avoid inadvertently revealing military secrets. Many employers adopted programs designed to further the war on drugs in the ‘80s and ‘90s (with limited impact, unfortunately.)
As we begin to see the “light at the end of the [COVID-19] tunnel,” it is becoming apparent that what stands in the way of achieving victory over this deadly virus is a mini-war which will be fought on many fronts: the “war” to get up to 600 million doses of vaccines into up to 300 million American arms. The Biden Administration has announced its intention to have “herd immunity” via vaccinations established as early as late summer, or as late as the December holidays, depending on a number of variables including widespread public acceptance of the vaccine.
What role can or should employers have in this latest “war?” Clearly, the power of employers to influence employee perceptions of a massive effort like this is well established. Employers who are awaiting specific instructions on the role they can play in vaccine deployment (ranging from mild suggestion to full-on mandate) may well be wondering: “Did I miss a memo? Perhaps from the White House, the CDC, the FDA, OSHA or the DOL? Where are our instructions?”
On January 29, 2021, and pursuant to one of President Biden’s very first Executive Orders, OSHA released new and detailed directives in support of the new Administration’s “National Strategy for the COVID-19 Response and Pandemic Preparedness”. While these documents included new specifics about the role employers must play in maintaining a healthy workplace and workforce, the extent of direction employers received regarding their role in vaccine deployment was buried in the strategic plan, as part of “Goal Five,” at page 89:
Create conditions for worker vaccination through a national employer pledge. No worker should have to choose between earning a paycheck and getting the vaccine. The Administration will spearhead a national pledge from businesses to ensure their employees and contractors can take paid time-off to get vaccinated. It will also work with large employers and labor unions to establish on-site vaccination centers, and to provide employees with information about the benefits of vaccination, prioritizing industries and occupations that face heightened risk of COVID-19.Many organizations, and particularly those not included in the directive’s target of “large employers” and its prioritization of “industries and occupations [at] heightened risk,” are still anxious to participate more fully in the vaccine rollout. They are cognizant of the fact that, according to the best available medical science, the more successful and complete the vaccine rollout is, the faster they can return to some semblance of “normal operations” – whatever that will look like post-COVID.
While it’s been left to each state (and sometimes each county and city) to determine vaccine distribution priorities, we are now seeing statistics exceeding 50% (and sometimes 65%) of priority one groups (age 65+) having completed either one or both of their COVID vaccinations. This is a signal that priority groups including those under age 65 will open to full availability imminently. In a webinar Ascentis delivered on this subject on February 24, more than 50% of the 300 employers responding to the question indicated that they had not yet determined what their vaccination program participation would look like. Clearly, now is the time to make those critical determinations.
As can be seen by the diagram provided, fundamentally employers can participate in the national vaccination effort at one or more of three levels: (a) inform and educate (b) incentivize and/or (c) mandate. From preliminary employer surveys, it appears that the largest number of employers will limit their participation to education and advocacy, while some smaller group will offer incentives of various types. The number of employers considering making COVID vaccination mandatory is likely the smallest. In fact, only one major employer thus far has even gone public with the idea that they would mandate vaccines – United Airlines – and it appears that decision is not yet fully finalized.
Inform and Educate
The process of informing and educating the workforce on vaccination topics begins with employers establishing a single dissemination point – the information-sharing equivalent of a “one-stop shopping” experience, so to speak. The easiest way for employers to deliver this experience is by dedicating a prominent area of their employee self-service (“ESS”) home page to COVID vaccine information. Since the CDC and other federal authorities have delegated vaccine distribution plans to each individual state (and some states have further delegated the roll-out to counties or even cities), good ESS capabilities should be able to access the viewer’s assigned location information and display only the links and data relevant to him or her (e.g., New York City-based employees seeing only New York City vaccine distribution information, while Orlando-based employees see only Orange County, Florida information.)
The other essential piece of HR technology for employers who are most serious about promoting the national vaccination program is a learning management system (LMS). Whether this additional vaccine education requirement causes an employer to acquire an LMS for the first time, or to add vaccine and COVID-specific content to an LMS already on-board, this can be a great tool. This would be important not only for convincing “on-the-fence” employees to seek out their vaccinations, but to counteract the disinformation about the vaccine which is so prevalent in certain areas of social media.
It is also worth remembering, for employers qualifying for, and seeking out the latest round of Paycheck Protection Program loans – whether first round or second round loans – the PPP was modified in late December under the Consolidated Appropriations Act of 2021 in very significant ways. Specifically, and for the first time since the PPP originated under the CARES Act, PPP loans may now be used for HR software investments and still be eligible for full forgiveness, presenting a unique opportunity to have HCM infrastructure improvements “paid for” by federal tax credits.
A recent survey of American employees by Blackhawk Networks (an electronic payments processor) found that more than two-thirds of those surveyed would be motivated to receive the vaccines if they were given monetary incentives ranging from $10 to $1,000. Paid time off was a very distant second choice in incentive.
When combining this survey’s results with those indicating that 40% or more of Americans either would not get the vaccine or are unsure, the conclusion is clear: “Money Talks!”. Another important finding of the same survey: receiving such a monetary incentive would not only drive people to vaccinate themselves but would encourage half of those responding to urge their family members to get vaccinated as well.
Large American employers are paying attention to these surveys. Among the employers publicly announcing that they will offer incentives to employees to receive a full round (two doses in most cases) of COVID vaccinations are:
HCM Note of CAUTION: Employers must always check with their legal advisers when developing and implementing new health-related incentive programs. Similar to wellness programs generally, vaccine incentives are subject to special ADA rules. For those with a documented and legitimate reason for being unable to be vaccinated – including disability, sincerely-held religious belief or pregnancy – employers may have to offer an alternative activity for the employee to achieve the same or a similar incentive.
Mandating vaccinations as a condition of employment is seen as the “heaviest” level of involvement to which employers can commit, and according to recent surveys, is only being considered by less than 9 percent of all companies. In recently reissued guidance (rev. December 16, 2020), the EEOC has heavily implied that it is legal for employers to mandate COVID vaccinations, under the same reasoning that they have previously held that mandating flu vaccines was legal.
However, the EEOC cautions employers that, in addition to the recognized exceptions to a mandate policy (employee disability, sincerely-held religious belief and current or recent pregnancy), employers must also consider the fact that all current COVID vaccines are offered only under “EUA” (Emergency Use Authorization), rather than full FDA approval. For this reason, employees may be within their rights to refuse a vaccine that is deemed to be at the end of the “experimental” phase of roll-out.
Employees deemed to have a legitimate objection to receiving the vaccine may have a right to have their cases analyzed under the ADA accommodation rules with which employers are already quite familiar. Employers are advised to ALWAYS check with their legal advisors to ensure that they have an approved set of steps in place to vet out each objection raised by an employee seeking to avoid the vaccination – one which properly reflects the EEOC’s approved ADA analysis for “reasonable accommodation” and “undue hardship.”
The news on vaccine deployment is developing at “warp speed.” At this writing, within the past few days, the FDA has cleared the Johnson & Johnson single-shot vaccine for EUA deployment. Since this vaccine does not have the super-cold storage requirements of the two previously released vaccines, expect that mobile on-site vaccination centers may become an offering for mid-size employers. This may give employers in the “under 500 employees” space, which by nature of their industry still have employees in communal work settings, the opportunity to schedule a provider to come on site for one or two days and vaccinate as many employees as possible. This would provide both a level of convenience, and certainty that shots had ended up in arms, not previously possible under the Pfizer and Moderna rollout models. Stay tuned for more developments!