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Human Resources and Legal Implications – Chuck Kable

Date: [ax-webinar-date] • Runtime: [ax-webinar-runtime]

Can workplace mandates lead to HR and Legal complications?

As the new OSHA Emergency Temporary Standard arrives, businesses need to think through risks like this NOW. Do not wait and see!

This is the time to create a policy framework to manage infectious diseases in the workplace. In this session #2 of Axiom Medical’s virtual OSHA COVID Compliance Summit, our Chief Legal and HR Officer Chuck Kable gives his expert views and tips on a pragmatic approach to managing workplace legal difficulties due to the OSHA mandates.

[ax-webinar]

[00:00] – Holly Foxworth

Well, good morning again. We’re here, we are at now section number two of eight for Axiom Medicals Fast Track to OSHA COVID Compliance Virtual Summit. For those of you who aren’t aware that maybe weren’t in the first event. My name is Holly Foxworth. I’m a registered nurse. I’m the webinar host. I’m also the marketing manager for content here at Axiom Medical. We’re thrilled to be able to bring you these dynamic events that are going to be going on throughout the day with so many different ranges of topics. But then also the industry experts. So we are excited, they’re progressing as we had anticipated, something like we’ve got a lot of questions in the private breakout session. I’m sure that we will have the same exact thing here. Just to kind of give you an overview again, should you have any questions that are going to be like you experience a technical issue or something of that nature.

There is at the bottom of your screen a question mark, and that’s a box. And so that would be where you could type that in and they can get you some assistance. We do have a change, though, is how it is that we are managing the question and answer from our traditional webinar format. Today we have what is called breakout rooms, and so you would access that by going to, it should be at the top of your screen on the right-hand side. And so you would just press that button that says “Join” and that will get you in there. You can speak face to face with an Axiom representative. Obviously, after the presenter has concluded their content, they will be joining you there as well. And so we will have an interactive question and answer session for up to 30 minutes after that presentation is complete. Well, let me mention one more time that after we get done with this before you can access the next number three session. If you haven’t already registered, there will be a box that prompts you. It will come up at the very end. You’ll press that button that says “Registered now” and then you will be seeing an access code, again, that’s only for those that are not already registered. If you have already registered, you should already have that information. You can close out your browser from what this one is, and then we’ll catch you in the next one that’s coming. So I think that’s all I have from my end. I’m going to go ahead and turn things over to our infamous Chief Legal and HR Officer. Chuck Kable, so Chuck is going to speak with us about all things HR and legal implications, and Chuck, take it away.

[02:29] – Chuck Kable

Thanks, Holly. For those of you joining for the first time. So I am the head of Legal and HR for Axiom Medical. I’ve been a lawyer for about 21 years and I spent roughly half of my career in the general counsel seat, managing HR and compliance teams. And I’m happy to be here today to talk through HR and the legal implications of the impending OSHA Emergency Temporary Standard for all businesses with more than 100 employees. Okay, let’s kind of get into the deck here. So what I want to do is I want to provide kind of a pragmatic approach to how we should begin to think about complying with the standard that has yet to be announced, although I’m hearing that we should expect to have it announced as early as next week. If you’ve joined us before, you’ve heard me talk about the similarities between the health care standard that’s out, the emergency, I’m just going to say ETS to keep it short, the ETS for health care and how we expect there to be some similarities between that and the one that is coming out for all other businesses with more than 100 employees. So as we think about kind of the approach here, a policy framework, right? This is where you want to begin the analysis. But before we jump into that, there are a number of touchpoints where legal and HR kind of cross.

[03:53] – Chuck Kable

But before we get into the meat of it, I want to talk a little bit first about culture. So let’s talk about Facebook for just a quick second, we saw a whistleblower have a ton of impact on the federal government’s attention on Facebook and its operations. What we’ve learned about OSHA’s approach to the new standards is it seems as if they will be focusing more on a whistleblower-type approach to ensure compliance. Because we all know that the number of resources that OSHA has actually decreased over the past several years and now under the Biden administration, it looks like they’re intending to ramp back up. That’s going to take time, and there will still be a need for there to be a way for OSHA to understand where they need to look because there are a lot of businesses that will be impacted by this Emergency Temporary Standard. So the whistleblower implications matter here. And so as you think about the approach you’re taking or are going to take in terms of vaccination protocol, testing protocol, the way you’re evaluating risk based on kind of the roles that your people have and whether they have interaction with members of the general public, those kinds of things. As you think about that, remember that your behaviors, the words that you as an organization are using are being judged every single day, whether you like it or not. And the way that that is going to translate is through the culture that you’ve established at that organization. If it’s a closed-off culture where people don’t trust management, you’re going to continue to have problems relative to the way in which these policies are rolled out. And you’ll likely have a lot of whistleblower issues to deal with if people are generally dissatisfied.

If you have a more open culture where you are transparent and you’re engaging with your team members to discuss the ways in which these policies should be drafted in the way that they should be rolled out, you will likely have a better experience managing these issues for however long we need to manage them, right? I think that’s the first important point I want to make, the cultural implications of the way in which we roll out these initiatives and the way in which we roll out these policies matters. Culture matters. It does, right? Because as we know, if you have a poor culture, it can contribute to enhanced turnover and all the other kinds of bad things that you’ve read about. Here we’re talking about whistleblower risk. And so another way to help mitigate that risk from a legal perspective, I think, is to ensure that the cultural experience that you’re offering to your team members is in line with one that is transparent. Where you’re able to talk about the standards and why they’re important and how you’re thinking about them. Why you’re considering a vaccine mandate, why you’ve rolled out a vaccine mandate? For example, those are the kinds of things that need to be evaluated when you begin to go down the policy framework approach.

[07:08] – Chuck Kable

Why policy? Moving on. Why policy? Because the most risk exists in whether you are administering your policy on a consistent basis among all members of your team. Consistency is critical. And the way you ensure consistency is first, having a policy framework and then following that framework the way it’s supposed to be followed. So all of that is critically important in terms of managing any kind of regulatory standard that comes out. And so as you begin to think about how to manage a policy framework, you can talk to companies like Axiom Medical, of course. But you need to think about the way that OSHA has talked about employers and how they should be preparing to manage COVID-19. They put out a bunch of really good guidance. The Emergency Temporary Standard will have those ultimate requirements. But going back to fundamental concepts of industrial hygiene can be a really good place to start.

So you’ve got administrative controls, engineering controls, physical controls, all the things that are designed to ensure that that workplace is safe relative to the risk presented by the folks coming into that office. We fully expect there will this kind of vaccination requirement or testing requirement for people coming to the office. So you want to make sure that the policy is distinguishing between remote workforce versus folks that are kind of regularly installed at an office with procedures and policies for folks to go through testing protocol. If you’re one of those organizations that are going mandatory, you need to have a very clear process that outlines how you can ask for exemptions, either medical or religious. Provide a mechanism for those to be submitted because the other challenge here is what you don’t want to do is get into a spot where folks are talking to their supervisors about, You know what? I really have a problem with this. I’ve got a medical condition, or I have a really strong, sincerely held belief that aliens created this, and I don’t want to put it into my body. I’m being sarcastic, of course, but I don’t mean to be disrespectful to anybody that’s considering a religious intervention, but I think just to kind of draw some attention to the issues here. If that happens with a supervisor, you got to make sure there’s a documentation approach that your folks have been educated on. So you have that to rely on when they come and they say, Well, look, I talked to my supervisor about this. You have to have a process in place to gather the information. And then, of course, you need to have a place to manage all of the data points, which we’re going to talk about here in just a minute that is going to come as a result of this. That’s more of an HR burden, but the ultimate result is going to be material mitigation of risk.

[09:56] – Chuck Kable

Okay, so let’s jump back to exemptions for a moment. So we’ve got medical, we’ve got religious. I’m actually doing a webcast for Sherm on November 3rd, specifically focusing on religious exemptions. But ultimately, there are approaches that need to be taken for each one. The undue hardship standard is different depending upon whether it’s a medical exemption or religious exemption. And there’s a whole lot of issues that go into the way in which you’re managing religious exemptions generally. Ensuring that you’re not discriminating against disparate impact is what it’s called against any protected groups. So ultimately, the EEOC has been very consistent in all of its guidance that, look, you can mandate vaccines as long as you’re not discriminating. And so what that means is you have to have a process to run through in terms of undue hardship for both medical and religious exemptions. Again, if you want more information on religious exemptions, I’m speaking at the Shrimp Webcast, as I said on November 3rd. So what does all this mean? So when people run through this undo hardship process, the employer is making a determination whether the requested accommodations create what’s called undue hardship.

That’s kind of where you land and ultimately, in terms of how this gets managed, the way that that gets handled is you’re going to evaluate each of these requests based on precedent. Based on the way that it’s been managed under the policy framework and based on the way that you’ve managed is based on the individuals that have submitted those claims. And so what does that mean practically, for you as an employer, technology is going to be key because the data cycle is fundamentally changing for HR teams. So when you talk about the data cycle. Up until very recently, HR was responsible for maintaining a confidential medical file separate from the employee file for all things related to ADA, fit for duty, leave of absence, medical leave, all that stuff, right? I have a few minutes left so I want to try to hit this hard. When we talk about the data cycle that now exists. The Emergency Temporary Standard will require policy administration that you have to have a way to track information, who’s been tested when, who’s been vaccinated, who hasn’t been vaccinated, who’s up for their boosters to the extent that that becomes part of the definition to be considered fully vaccinated, that’s coming down the pike if it hasn’t come yet already forgive me, I don’t know the exact answer at this moment. I don’t think it has yet, but I expect that to happen. The sheer volume of data that HR is expected to manage, it’s going to be insurmountable for a team of over 100 employees that probably has one or two HR folks, which is generally the model. It’s going to be insurmountable unless you have a technology solution to ensure that you’re gathering that information effectively proactively and you’re able to pull reports on that information to understand where you have pockets of outbreak.

[13:06] – Chuck Kable

For example, if there’s an issue of an outbreak where you have pockets of non-compliance and whether that non-compliance is based on inflating exemption request or if you’ve got other issues that you have to manage under your policy in terms of disciplinary action up to and including termination. So again, I cannot stress. So when I think about the data cycle, I’m talking about acquiring information, storing information, using information, and reporting on it. And from an HR perspective, as an HR leader, I want to have a dashboard that helps me understand where I sit relative to my compliance initiatives, around all of the OSHA ETS data elements that will be required. The other piece of this that goes along with it, you’ve got to have a, we fully expect there to be a risk assessment of the workplace in terms of open risk that you’re iterating with your team members on, right? What do they see? What do they think the employer needs to do in terms of administrative engineering or physical controls to make sure that that workplace is safe. All of these data points come together in a way to help the organization manage not just compliance, but ensuring that there is a mitigating effect on potential whistleblowers. You’ve got mechanisms for folks to share their feedback regularly so that they don’t feel like they’re being ignored.

The point of all this stuff is to mitigate risk, ultimately. Because from a legal seat, I want to make sure that my team members understand the approach we’re taking, why we’re taking it and how they can be part of that process, and what they need to do to comply. I have to make sure all of that stuff is out there in my culture, in my training packets, in my onboarding and orientation to ensure that everyone knows such that they can make the right decisions at the right time and ensure compliance with what we think is going to be maybe not an onerous standard, but my goodness, certainly another cost that businesses have to consider, at least in the short term, until we see what happens with whatever action is going to happen in the courts and whatever action OSHA may take, moving forward to make this kind of more of a permanent approach to managing infection in the workforce, which, by the way, OSHA has been looking at since at least 2010. So for some industries, at some point, I would expect there to be a permanent infection control standard, right? Certainly for health care. I think that’s going to happen reasonably quickly. We’ll see what happens with the ETS for other businesses as it manifests, but I think I’m at time, Holly. So I’m going to turn it back to you guys, and I’m looking forward to answering questions in the breakout room.

[15:53] – Holly Foxworth

I love it, Chuck. You did a great job. And may I add, fantastic with the time. I’m impressed. Thank you for participating Chuck, you did a great job. As Chuck mentioned, we do have the breakout room that is open, and Chuck will be joining that now, and we’ll be happy to take your questions. One point I did want to make there that he mentioned in his presentation is that he is actually doing a webinar with the shirt team on November 3rf. So if you have a membership to them and you would like to attend that session, definitely, you’re welcome to do so. We will also be having another webinar that’s actually to be on the 4th, and we’re going to have Dr. Michaels back for that. Maybe we’ll have Chuck, maybe we’ll just make a panel out of it in that day. We’ll see, we’ll see what we come up with, but anyway, so we have this today. That’s where you can get your answers, get your questions answered in the breakout room, and then in any event that you did not get yours answered, then we will definitely take those next week whenever we do a follow-up webinar here. So thank you again, Chuck. I appreciate your participation. For those of you who have not already registered for the next session, which is our fourth of eight. That is actually going to be the speaker there is our President and CEO, Mark Robinson, and he’s going to be speaking about ESG. So if you haven’t already registered, there will be a prompt that comes up there on your screen and you’ll just press the “Register Now” button that will give you an access code, and we will see you there. All right. Thank you, bye.