As COVID-19 vaccines such as those from Pfizer/BioNTech and Moderna begin to become available, manufacturers have a lot of questions about vaccination in relation to their workforces.
To provide as many answers as possible at this point in the vaccination journey, the National Association of Manufacturers and its Manufacturing Leadership Council held an informational webinar on December 18. Webinar panelists included Robyn Boerstling, Vice President, Infrastructure, Innovation and Human Resources Policy with the NAM; RJ Corning, Global HR Executive with Whirlpool; Patrick Hedren, Vice President of Litigation and Deputy General Counsel at the NAM; and James Paretti, an experienced management-side employment and labor relations attorney with employment and labor law firm Littler. MLC Co-founder David R. Brousell moderated the session.
Like everything else to do with the pandemic, the vaccination rollout will be complex and evolve over time, the panelists stressed. It will entail local, state, and federal governments. It will involve agencies such as the U.S. Centers for Disease Control and Prevention and the Equal Employment Opportunity Commission, as well as federal laws such as the Americans with Disabilities Act. It also gets tricky because many people may have personal or religious objections to vaccination.
Here are some of the questions addressed by the panel:
When will vaccines become available?
The Department of Health and Human Services including the CDC and its Advisory Committee on Immunization Practices (ACIP) and all 50 governors are among those developing plans for the deployment and distribution of the vaccines as they become available. To date, the number of vaccines being delivered is limited and distribution will focus on health care workers and residents in long-term care facilities.
There are issues involved in supply chain and distribution logistics, such as the ultra-low temperature needed to keep the Pfizer vaccine viable. Pfizer is relying on its own logistics and supply chain to distribute the vaccine, whereas Moderna will use the supply chain developed by the federal government’s Operation Warp Speed program. Both vaccines require a second dose several weeks after the first for full protection. A Johnson & Johnson vaccine, which hopefully will become available at some point in early 2021, “could be a game changer,” said Boerstling, because it only requires one dose and does not need to be shipped at ultra-low temperatures.
When will the vaccine be available for manufacturers?
The hope is that there will be enough vaccine available by Q2 to move to the next tier of recipients, those over the age of 75 and front-line workers. Manufacturing workers were recommended by ACIP to be vaccinated in its 1b prioritization but, as discussed, much is left to the states to determine specific populations to be vaccinated upon arrival of the vaccines.
The NAM sent a letter to the National Governors Association urging the nation’s governors to follow the DHS and Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) guidance to determine what constitutes “critical” and “essential” infrastructure workers. The definitions are well understood by manufacturers and would provide a clear and consistent basis on which to make vaccine allocation decisions, said Boerstling.
How will manufacturers acquire and distribute vaccines once they become available?
Do manufacturers purchase the vaccines themselves, work in partnership with government, or rely on other internal or external partners? All of the above is possible. But first, manufacturers should decide whether they want to be proactive or defer to local governments and health institutions when it comes to administering the vaccines, they said. And know your local laws. Some states have sites where organizations can register to determine their level of prioritization, which could come into play for distribution support as well.
Costs for the vaccine also are a concern. In the U.S., Operation Warp Speed has purchased enough supply to vaccinate every American who wants to be vaccinated, and it should be available at no cost to recipients. However, administrative costs associated with implementing the vaccine are likely, panelists said. Companies are urged to harness a variety of health care partnerships to prepare and plan for accessing the vaccine for the manufacturing workforce. It’s not too soon to start having conversations with local hospitals, plan administrators, and other third parties such as Walgreens and CVS.
While we’re still in the initial vaccine rollout phase, the supply chain issues are still unclear, said Paretti. His advice is to start formulating your strategy now, but keep in mind that the situation is still evolving.
How will state, local, and federal policies likely evolve?
Policies will be left to the leaders of the 50 U.S. states, U.S. territories, tribal nations, and the District of Columbia, each of which has developed a plan and shared it with HHS and the federal Operation Warp Speed program. The EEOC recently released an update to its COVID-19 guidance that includes information about how employee vaccination interacts with legal requirements of the ADA, the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act, and has provided resources on its website specific to COVID-19 and EEO laws.
Watch for how individual states handle the vaccination rollout, panelists said. Some states do require flu vaccines for certain populations, which could be an indication of how they may treat a mandate for essential workers for the COVID vaccine. But don’t expect the state to make it easy for you — every manufacturer needs to develop a strategy and policy that fits with its corporate culture and circumstances, panelists agreed.
How should manufacturers approach developing vaccination policies for employees?
Corning said Whirlpool feels it’s important to be fact-based, globally consistent, and locally relevant — and to keep employees at the forefront of decision-making while also having strong leadership from the top — when developing a vaccination policy. Whirlpool has already had success using that approach in developing a flu vaccination campaign, which resulted in a much higher level of flu vaccination rates across the globe than it had previously. One key his company has found is to work with cross-functional partners within communications, government affairs, HR, manufacturing, supply chain — all those who not just can make decisions, but also do the work on the ground.
Again, the most important thing is to align your policies both with local regulations and your overall company culture.
Should a policy be mandatory or voluntary?
While nothing in the EEOC guidance or the ADA explicitly prohibits a manufacturer from instituting a mandatory vaccination program, Paretti said that the decision to make a policy mandatory or voluntary is an individual decision each manufacturer has to make depending on their specific circumstances. The EEOC and ACIP will continue to develop additional guidance, so it is likely that more will be known as the vaccine rollouts happen.
While the CDC has rolled out its recommendations for Phase 1a, b and c vaccination priorities, state governments also will play a leading role moving forward. While you don’t necessarily need to have a full-blown policy at this stage, Paretti advised manufacturers to start formulating a strategy on how to handle the stickier issues, including employees with disabilities, pregnant workers, workers with religious objections, and those who may need special accommodation.
Manufacturers should also consider how the policy will handle essential workers on the factory floor, as opposed to office workers who may face a different level of risk, and how you plan to approach those who don’t want to get vaccinated, which the EEOC is already beginning to address in its latest guidance. Another consideration: How do you plan to approach compensating people for their time in getting the vaccination? And if you plan to vaccinate on site, how will that work? How will you handle privacy concerns related to subjects such as certification of vaccination and potential allergies to the vaccine?
Paretti strongly advises that you work closely with counsel to determine how to address these and other issues.
Whirlpool is centering its approach on educating, developing, training, and encouraging employees to participate in its COVID-19 measures, which likely also will include vaccination. It’s important to take into consideration both those deemed essential by the state, and also which workers might be most at risk due to co-morbidities or who are immune-compromised. Then layer in how to adjust the messaging due to overall levels of vaccine acceptance.
At this point in time, it likely makes more sense to incentivize employees to participate in vaccination programs rather than mandate them, Corning said, adding that this approach has proven successful with his company’s flu vaccination campaign.
Below is a list of resources already available for reference. In addition, NAM and MLC will be providing more information sessions in 2021. Paretti’s firm, Littler, also is holding free, open-to-all webinars on legal issues surrounding vaccination on January 13 and January 20, 2021, and is regularly updating guidance on legal issues on its website.
- NAM statement on the vaccine authorization https://www.nam.org/manufacturers-welcome-covid-19-vaccine-authorization-11411/?stream=policy-legal
- NAM timeline for vaccine rollout https://www.nam.org/the-timeline-for-the-vaccine-rollout-11356/?stream=business-operations
- How Pfizer will deliver its vaccines https://www.nam.org/how-pfizer-will-deliver-its-vaccines-11324/?stream=business-operations
- NAM letter to National Association of Governors http://documents.nam.org/IIHRP/JTLtrVaccineDistribution12152020NGA.pdf
- EEOC’s What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,
- Littler’s COVID-19 resource section https://www.littler.com/covid-19.