New Biden COVID Mandates Explained – 3 Steps to Avoid OSHA Penalties

Date: 9-17-2021 • Runtime: 1:08:05

New Biden COVID Mandates Explained. 3 Steps to Avoid Million Dollar OSHA Penalties.

Were you caught off guard by the sweeping NEW BIDEN COVID-19 EMPLOYER MANDATES? You’re not alone!

Join us as Chief Medical Officer, Dr. Scott Cherry, and Chief HR and Legal Officer, Chuck Kable, and Chief Marketing Officer, Dara Wheeler, explain employer expectations and provide the 3 steps for avoiding million dollar OSHA penalties.

We’ll be covering:

Federal COVID-19 mandates for public and private sector employers
Questions to ask when developing and implementing your action plan
Legal protection for managing the many “what-ifs”
Leveraging the power of third-party providers for friction-free compliance

[00:00] – Holly Foxworth

Hello. Good afternoon. And thank you for joining us today for the New Biden COVID-19 Mandate Regulations that are there. So we’re going to explain that to you and then also give you some steps that you can take to get compliant and really kind of avoid these OSHA penalties that are hanging in there earlier. So this has been a fast and furious week, obviously. So if you feel like you’re a little windblown by this point, don’t feel alone. Everyone seems to feel the same exact way.

A lot of questions are coming in, especially a lot of How do we do this? A lot of what-ifs, what if this occurs, etc. So you definitely are in the right place, if that’s what you’re wanting to have information on. So for those of you who may be new, my name is Holly Foxworth, and I am a Registered Nurse and also the Marketing Manager for content here at Axiom Medical. And then I have a fantastic panel that’s going to be joining us today. I mean, it really is this kind of this full-court press type of scenario. So we’ve got Dr. Scott Cherry, who’s our Chief Medical Officer, we’ve got Chuck Table, who is the Chief Legal Officer. And then obviously we have Dara Wheeler, who is our Chief Marketing Officer. So they’re going to be sharing with you the information that you’ll need to make sure that you can get compliant and then also taking your questions on the back part there. So be thinking about the questions that you want to give us and just kind of let me go ahead and just mention this here that you’ll see right there on your screen at the bottom, on the right-hand side, that there’s a Q & A box there. So you can type in whatever the question is that you have that you want to be answered by our expert panel here, and we’ll make sure that we get back to you on those. Usually, we try to move on towards the back there we can usually get through the majority of them. If not, we’ll follow up with you individually for follow-up there.

Okay, so before we get started with our fantastic panel, I did want to mention that one thing you’ll see right above where that Q & A section is is an image. And so that is actually our next webinar for this next week. We already have it scheduled. So it’s actually kind of targeting some of our TV and film and then also theater production clients from California and New York. And so the interesting piece about them, though, is that they have also been doing this testing. Their regulations and requirements involved testing of their casting crew for a minimum of weekly, some of those even having to do that daily. So if you’re looking for an industry that has successfully implemented some of these testing processes and procedures, that is a great one. You’re welcome to join us. If you’ll just click that register now, it’ll get you registered. You don’t have to give us any additional information. And I think you’ll really walk away with some great ideas on what it is that you could do in your organization as well. So I think that that’s the majority of the announcements that we have here.

One last thing I will mention, though, is that at the bottom of your screen, you’ll see that there’s an icon that’s there. It looks like books we call it the resource tab and there is where you’ll find – we’ve got a copy of today’s slide deck. We have a free webinar, not just descriptions, but also white papers that are there. So we’ve got everything from how it is that you can implement a testing vaccine program to on-site services and then also the other issue that’s kind of hanging in the clouds there above us is this issue of the flu and how it is that we’re going to manage the flu this year with and in combination with all of the measures that are going to be warranted for COVID-19. So I get it if you don’t have the bandwidth, you haven’t thought that far yet or pretend like it doesn’t exist, but that resource is there. You probably need to look at it, take a good look, and just kind of make for sure that you’re familiar with what to expect and how it is that you could put a plan in place at this point so it’s not caught by surprise. So let’s go ahead and get started then, we’ll have our speakers introduce themselves, so maybe let’s go, Dr. Cherry, we’ll start with you and then we will follow that by Chuck and then Dara we will bring you in third if that works for you guys.

[03:55] – Dr. Scott Cherry

Sure. Thank you, Holly. My name is Scott Cherry. I’m Axiom’s Chief Medical Officer. My professional background is I’m board-certified in preventive medicine, public health, and occupational environmental medicine. And I’ve been supporting the military, corporate and industrial operations for the past 15 years.

[04:15] – Holly Foxworth

Fantastic. Chuck?

[04:18] – Chuck Kable

Thanks, Holly. My name is Chuck Kable. I am Chief Legal Officer, General Counsel type role for Axiom Medical. I’ve been an attorney for 21 years to be specific, I’ve spent about half my career as GC for health care businesses. Happy to be here today to start to walk through how businesses can begin to prepare for the new ETS.

[04:40] – Holly Foxworth

Love that. Alright, Dara.

[04:42] – Dara Wheeler

Thanks, Holly. Thank you all for joining us today. I know there are a lot of questions out there like Holly said, so if you have any questions, jump in now, send them in. We’ll try to get to all of them. My name is Dara Wheeler. I’m Axiom’s Chief Marketing Officer. I’ve been with Axiom for years and I’m really passionate about helping all of you try to navigate these situations because it is really complex and it’s getting more complex by the day. So happy to help in any way we can, and we’ll get into it right now.

[05:11] – Holly Foxworth

Love it. All right. So just to kind of give you an idea of what we’re going to go through and some structure around what those topics will be. So we’re actually going to cover, we’ll go through and just speaking about where we are right now, what the significance is of this. We’ll walk through what those mandates are, what would be considered whenever you’re looking at a program, some things you want to keep in mind in terms of compliance. And then we’ll finish up with how it is that you can leverage some of those resources on the back end to help you manage to these problems and issues that occur. And then finally you will go through the questions and answer them. So I see that we’ve already got quite a few questions that are coming in. That’s fantastic, I love to see that. That’s obviously why we’re here, is to make sure that you know we can provide a service that is a help to you guys and answer some questions there. So anything you have, continue, just send them on in and we’ll make sure that we make our rounds back to you. So I will go ahead and Dr. Cherry, do you want to kind of maybe just start out and just kind of give us an overview of what it is, what we’re dealing with here, and why even some of these mandates were discussed or put together.

[06:17] – Dr. Scott Cherry

Sure. So we’re probably 18 months into the pandemic. And so when we look at total numbers, there’s been 42 million confirmed COVID cases in the US. But when studies looked at the true number of infections because not everyone is actually getting a test to confirm it, the CDC actually estimates 120 million infections in the US. So we’re looking at about a third of the country probably has been infected. And right now we’re at a surge. There have been about three main surges since the pandemic. And so right now, we’re seeing in the US 150,000 cases per day. And to put that in perspective, early in the summer was kind of a low. And we were down to 15,000 cases per day. So we’re at kind of a ten X cases per day. And so looking at more severe disease hospitalizations, we’re at about 4000 hospitalizations per day and early summer when it was slower, it was down to a thousand cases per day. When we look at overall deaths, we’re almost 700,000 deaths since the beginning of COVID. Right now we’re at 1400 deaths per day from earlier in the summer at 250 per day.

And so when we look at vaccination rates in the country, we have 179 million people in the US who are fully vaccinated. And that’s about 54% of the country. And so right now, what’s the significance of this? And so the vaccines appear based on kind of the early studies for the Emergency Use Authorization and then follow up studies, appear to be very effective about preventing disease. And when you look at just kind of infection prevention, I think that is starting to be clear that there’s no what we call sterilizing immunity, where once you get a vaccine, you have absolutely no risk of getting infected. And so probably up to 30% or more chance of breakthrough infection. And that may evolve over time, depending on variants or on waning immunity from the vaccine. And so since there’s no sterilizing immunity, I think the idea of herd immunity becomes more and more challenging. And I think that was one of the primary instruments the CDC were hoping to gain to help kind of say, we’re past this. And since that’s the case, I think something that we’ve always been discussing here at Axiom is the multi-layered approach where there’s not one aspect that’s going to save or prevent COVID, but really having this multilayered approach from a kind of a Swiss cheese model, so to speak. So I think what we’re seeing from President Biden may be coming from kind of this discussion points that I’ve been bringing up here, and I’ll leave it at that Holly, in case there are any things you’d like me to address.

[09:45] – Holly Foxworth

Yeah. I think that’s a great overview, just kind of giving us a snapshot of what has been occurring and then kind of what it is that we shouldn’t anticipate coming down the road.

[09:57] – Dara Wheeler

Holly, before you jump over to Chuck, we had two quick questions from the audience about infection rates. So I think it would be good just to have Scott address those really quickly. So the first question was, what is the percentage that would be considered her immunity?

[10:15] – Holly Foxworth

Good question.

[10:16] – Dr. Scott Cherry

So I think experts at the CDC were estimating, so it’s different for every infectious disease, depending on the infectiousness of it, kind of what’s the viral load or kind of inoculum needed to cause an infection. And so I think with the Alpha variant before Delta, there was kind of this goal of potentially 60% to 80%.  I think Dr. Fauci has now stated he thought you need about 90% immune for herd immunity. But when we think through coronavirus, it’s unclear to me if actually, this type of infectious disease has the ability to have sterilizing immunity at all, because what we see with other diseases that have sterilizing immunity is you really have no breakthrough infections at all, and that they’re much more stable in there. They don’t have the genetic drift. So as they are reproducing millions and billions of times in people, other diseases like measles are very stable. So they have no genetic drift. And so the vaccines or your immunity is very effective over time. But like the flu, there’s significant genetic drift every year. And with coronavirus, I think it remains to be kind of categorized or described accurately. But we may be facing that.

[11:51] – Holly Foxworth

Dara, there was one more that you saw that we wanted to toss in here as well?

[11:55] – Dara Wheeler

I think so, I think there was another question about vaccines or basically the difference between vaccine immunity and standard infection immunity. But I think Scott addressed a lot of that. I think there was a couple of other questions we can address individually. So we’ll just go ahead and jump in the Chuck section.

[12:14] – Holly Foxworth

Yeah. Go ahead, Chuck.

[12:16] – Chuck Kable

Alright. Probably full disclosure here, a couple of full disclosure items. So the ETS has not been published. I know that’s a question a lot of folks are asking. So I don’t have, like, a back door kind of copy of this thing. But what I do know is that over the time that we’ve been monitoring OSHA and the developments that have occurred, everything that OSHA has done has been based on guidance that’s already been published in some way, shape or form. So again, I think, as I pointed out on LinkedIn the other day, I think it’s very instructive for us to walk through the healthcare standard as well as the currently published guidance for employers to come up with kind of what makes sense from a preparation standpoint. And then I have a whole bunch to talk about in terms of details and all that stuff. But before I kind of jump and just start talking about all this stuff, I am not going to talk about the way that the rules were promulgated.

I’m not going to talk about the grave danger standard, all of those challenges, I’m sure are going to come. But that’s like a whole other webinar to kind of walkthrough and spend a lot of time on that stuff. I will say that OSHA spent a lot of time documenting why it felt there was a grave danger for the health care sector, in the comments in the Federal Register, and so they’re going to be held to the same standard for this one. But again, time is not a luxury for us. We all have to make sure we’re preparing in case that we do have kind of some obligation to comply in the near term until we even get to a point if we get to that point, that there’s a challenge, and if there is a challenge, we don’t know what’s going to happen, because typically emergency temporary standards are issued from known risks. This is kind of the first time that an ETS has been issued for something that’s brand new. And so that impacts how this whole thing gets kind of fared it out in court. So we’ll see what happens. One comment on the 100 employee standard that the President has announced. So I saw a couple of questions come through asking about. Well, we’ll just make everybody 1099s or some of you may think about well, fine, we’ll just set up a bunch of subsidiaries, right? Another way to kind of manage and employ people less than 100. But remember, you know, EEOC and others have announced a joint employer standard, right? And that’s been around for a long time. And that speaks to employee control.

So as you think about strategies to potentially mitigating risk, I would not recommend you pursue that one because traditionally, that joint employer standard is fairly well defined. It’s flip-flopped a little bit over the past couple of years. But if you’re controlling employees, they’re going to be deemed employees to your organization, whether they’re contractors or not. Obviously, I’m not your attorney. It’s up to you to kind of figure that out. But just think about that as you begin to talk about how to manage risk. Okay, alright. Let’s jump in here. So vaccination and or testing are not the beginning and the end of this thing. OSHA has from the beginning talked about the significance of a layered approach. And indeed, one of the comments I’m going to have to read off of my document here for a second. This is from the comments in Federal Register about leading up to the Emergency Temporary Standard for health care. An effective infection prevention program utilizing a suite of overlapping controls in a layered approach better ensures that no inherent weakness and anyone approach results in an infection incident. So what that’s saying is it’s not just vaccines and testing.

There’s a whole bunch of other stuff and where you kind of get clarity around that other stuff is looking at what OSHA has already published. I’m going to hold this up for the camera just so if you want people to kind of see what I’m looking at here and I’ll read it, it’s probably a better way to handle it. Protecting workers, guidance on mitigating and preventing the spread of COVID-19 in the workplace. So I encourage you folks who are kind of my academics to look at this document and then compare it to the Emergency Temporary Standard for health care. Very, very, very similar. So as we begin to think about how to plan, I think that there are certain fundamental elements from the healthcare standard that will be included in this new standard. Or we may just see an amended standard for health care that’s expanded to include other businesses with some carve out specific to help for health care. We’ll see what happens. So that being said, let’s talk about the approach here. The administration has made this kind of statement about vaccines we’re testing to go to work. What about remote employees? Where do they fall in? This again goes back to the way in which OSHA had approached this concept of risk leveling way back in March of 2020. In March of 2020, OSHA put out a publication that talked about thinking about how you stratify risk in your organization based on the roles that you have as well as the individuals that you may employ based on their own idiopathic kind of concerns or issues they may have.

So what that means is for low-risk employees, someone like an ad homeworker, if they’re always at home, I think it’s unlikely that a vaccination or testing requirement is going to be extended to them unless they’re reporting to work. If you’ve got people coming into the office, I think that’s going to be the key trigger for a lot of the way this works. And as I kind of reviewed the healthcare standard, and if you look at the announcement from the White House, too, it sounds like a mandate, but think about it for a minute. It’s vaccination, must be fully vaccinated or tested before they go to work. So the Administration is giving OSHA discretion to provide a structure, probably some kind of an incentive structure, to mandate some form of activity related to people coming into the office. Now, clearly, a lot of businesses and business owners are thinking about vaccines as a lower-cost remedy, right? To kind of manage this risk. You’re still going to have to worry about those exemptions, people that are claiming medical reasons or sincerely held religious beliefs, which that’s a whole other webinar.

We can talk about that, maybe at the end a little bit. But in terms of the approach here, you’re still going to have to have a process where there’s a testing protocol. So just be mindful of that. Even if you do have kind of a mandatory vaccination policy, if you have a voluntary vaccination policy, then you have to account for folks that aren’t getting vaccinated and how and when they’re being tested before they show up for work. Again, part of the layered approach. Now, let’s talk about the other layers that have come into play here and I have to refer to my notes because I’ve been cramming like crazy to make sure we have some good information here. So the key factors that I expect to be included here are the requirement of a written COVID-19 plan, if you have more than ten employees, that’s consistent with what’s happening in health care. I think that’s going to be consistent with what happens in non-healthcare. Because there has to be a standard to measure from. And we’re going to talk about data kind of towards the end of this thing, too, because that’s another big deal. But your COVID-19 plan is the document that speaks to the procedures that you’re going to implement. So whether vaccines are going to be mandatory, whether they’re going to be voluntary are going to be included in that plan, you probably need to stand-alone vaccine policy as well. Where you speak through how folks can exempt out.

You’re also going to have kind of a testing protocol at least weekly. Is what it sounds like is going to be the case, I think. And again, guys, I don’t know what’s going to happen, but think about this for a minute. We’ve got supply chain challenges for sure on the test kits side. That’s just going to happen. Even with Defense Production Act, it’s going to take some time for the test kits to kind of get to that level if all of a sudden, everybody has to do testing. So there’s going to be some flexibility extended by OSHA because, from an economic feasibility standpoint, they kind of have to, I think. Because how else do you get to that place where let’s say it’s three times a week or two times a week, or, you know, whatever that standard is, it’s going to be really hard to require that without impacting the financials of the business materially and the supply chain issues that go along with that. So what we may see is a combination of daily healthcare attestations which, by the way, is required in the healthcare standard. Folks have to kind of do their check-in every single day. At Axiom Medical, we call it check-in to work. Other businesses have other tools. But you got to run through that process every single day. And if you get flagged then there’s a process, there’s an isolation protocol.

As we approach flu season, we’re going to have to have kind of a rule-out-protocol to manage folks that maybe have the flu and not COVID, which could be a good thing for business, because then folks aren’t going to be out as long. If it’s the flu, you’ve got a much shorter cycle on that in terms of managing infection. But really kind of what we’re talking about here is a robust program to manage this particular infection. So you’ve got a COVID log requirement. You got to make sure you’re kind of tracking. I’m sure that’s going to be part of this thing. Employee notification if folks have been in close contact, those kinds of things. And by the way, and I know I’m rolling here. But this is just because there’s just so much to kind of run through. Right now in the healthcare standard, vaccination buys you freedom from certain requirements, but only if you’ve got what’s called a well-defined area within the hospital setting where only vaccinated people are located, and there is no reasonable expectation that anyone it is essentially infected or at risk for infection. And then if that’s the case, the OSHA has accepted a requirement for physical barriers, social distancing, and one other one. Let me see if I can find it here. Social distancing, oh PPE, folks don’t have to wear masks.

And there’s also kind of written into this health care standard exceptions for eating and those kinds of things from mask-wearing. But again, face masks in health care, at least as part of the standard as we think about retail kind of environments, travel, air travel, those kinds of things. I think we’re going to see some of the stuff seats back into what businesses are needing to do to make sure they have an effective program. Because essentially, while the incentive is to vaccine everybody, for those folks that aren’t willing to do that, you got to have other protocols in place unless you’re going to make it mandatory. But again, the fundamental risk of which some folks have already asked about. The fundamental risk of making vaccines mandatory is people are going to quit. And I’ve seen some people talk about how Well, you know, it doesn’t seem like a lot of people really quitting. They’re these kinds of little moments of termination events when these standards are first announced, or rather when the vaccination requirements are first announced. We don’t know how that’s going to play out.

It’s certainly a cultural issue. It’s certainly a cultural issue, right. In terms of how this gets communicated. You know, how it’s managed, because for those folks that have either have not gotten vaccinated yet or hesitant or anti-vaxxers. They’re all out there. I’m not discriminating against any one of those groups, but they’re out there. And so you have to manage that reality in your workforce. If you’re willing to accept the risk and you can tolerate it, then it is what it is and you manage it. If you’re concerned about it, then I think that OSHA will build in enough flexibility to manage that scenario, because, again, I don’t think the government is interested in forcing more of this kind of great resignation effect that we’re already seeing. I think, you know, there is a requirement for businesses to do something. So the Administration is at the point where, look, we have to incentivize and or disincentivize not getting vaccines. The best way to do that is to put it on the employers. And now we’ve got financial penalties kind of associated with whether they can, whether they are or are not complying. So again, I fully expect the healthcare ETS to be amended to reflect some of the financial penalties that we’re talking about here. But again, I do think that you know, going to this standard and looking at it from kind of an objective, what is my business do point of view, is going to help guide some of your preparation. So COVID-19 plan is essential. You have to get buy-in from folks that are non-managerial. I think that’s going to be part of this. I really do. And then as you move from there, you’ve got notification requirements, as I said, with close contacts, figuring out the process protocol, data retention, and where it gets stored. All that stuff is so so important. Because the one thing that’s clear is this is confidential medical information that has to stay in that separated confidential medical HR file. So it’s got to be segregated data, you know what I’m saying?

And so as we begin to continue to walk through this process, you’ve got to be thinking about, you know, policy administration, and tracking data because it’s going to be on the employer to figure out who needs to be notified when, who was a close contact, who wasn’t. I feel like the way this is laid out in the healthcare standard, there is an element of contact tracing that is probably going to be in place from a public policy standpoint at least, to make sure that employers are doing something to see who else may have been exposed. And then you got isolation protocol. Symptoms are defined in this document. They’re probably going to be defined in the new standard. And again, I don’t know this to be true, right? I do not know this to be true, but it is so instructive to look at what OSHA has already done. I’ve been tracking this stuff since the pandemic began and I was admittedly wrong when I thought the standard that was announced that ended up being the healthcare standard, I thought that was going to be the one that did everybody. It wasn’t. But we’re at that spot. And so as we continue to wait for the standard to be announced, I definitely think that businesses should begin to think about what have you been doing up to this point? Is it different generally from what we’re talking about here, or is it for the most part similar and you’re just going to have to put it in policy and then start to manage it more effectively with more data points?

And that brings me to the last part of my nonstop kind of rambling. It’s the data piece to this. There is a requirement, as I said, for COVID log, notification, that’s going to be part of this, I think 99.9%. You have to think about how many data points that are going to generate for your workforce and how you’re going to manage that. How are you going to use it? How can you use it? Who can access it? Who can’t access it? What decisions can be made on that information? What decisions cannot be made based on that information? So all of this stuff makes up the world of risk that employers are now going to have to manage. And again, this stuff costs money. It’s money you didn’t expect to have to spend. Maybe you’ve been spending it already in terms of your COVID activity and your safety activities up to this point. And now it’s simply kind of putting some more structure around it to avoid penalties. But if you haven’t been doing this stuff, you clearly have an incentive to do it now because you’re going to ding if you get inspected by OSHA to the tune of whatever it is, 14 grand an employee. We’ll see whether that’s the same for nonhealthcare businesses, but there will definitely be, there’s going to be a stick portion now. So the moral of the story here is, it’s a mandate to do something. Either fully vaccinate your folks or have a protocol in place to test people before they show up for work. And I do think this kind of layered approach with daily healthcare attestations in symptomology surveying and then isolation protocols. I think all of that, it’s going to be part of it.

So I know we want to move quick Holly because we want to get to questions, but I know that was a lot for you guys. I know that there’s been a ton of questions about all kinds of issues related to this and what it’s going to be. I do not have a copy of them. I would love to get my hands on them, I’m trying. Unlikely to happen. But I do think it is highly likely that what we see as a final standard for emerging an emergency temporary standard is going to be very similar to this. And then once that comes out, you’re going to have challenges, etc. I think the last thing I want to mention real quick before I kind of turn it back over to everybody here. Exemptions, right. You’ve got medical reasons and sincerely held religious beliefs. The religious beliefs one is clearly the one that folks have the most questions about. The one thing I want to say there are religious reasons are so broadly defined that it’s more like a personal belief that I have as opposed to one that I am adopting from organized religion.

So there’s so much gray area there. What it comes down to I think fundamentally, is if you’re claiming these exemptions, the employer then determines whether it creates an undue hardship to offer those exemptions to those people. And that’s the fundamental issue here. I think United was in the news because they announced that they were putting folks that were claiming religious exemptions. They were putting them on unpaid leave. That was the headline. So that by itself, that’s kind of signals red flags for me. I’m like, Whoa, discrimination. But if you read into the article a bit, what they’re doing is putting them on unpaid leave while they are determining how best to protect them in the workforce. So they’re essentially performing an undue hardship analysis to determine how they can or cannot accommodate a religious exemption and the risk it presents. Guys, it’s a crazy time we’re living in right now, clearly. But I think that by taking a reasonable approach, evaluating what you’ve done up to this point, maybe putting some of that down in writing just to get a handle for where you are and comparing it either to the COVID-19 policy template that’s on OSHA’s website or Axiom Medical has a bunch of resources. I worked on some standard policies for us to present to clients as well to help get you a better grasp of the risk and manage it. But at the end of the day, what I will tell everybody on the phone, you’ve got organizational risk tolerance and you’ve got risk appetite. This is clearly a risk appetite decision, right? What are you willing to do? What are you not willing to do? And how does it play into the risk you’re willing to accept as an organization? And how does that relate to the overall risk profile of your organization? I do think it’s time for organizations to go back and perhaps reevaluate their tolerance. And their appetite, for that matter.

[32:33] – Holly Foxworth

Good information Chuck, that was great. And I think that a lot of the questions that we’ve gotten to this point have been specific to why is there a difference between some of the things that we’re seeing? What kind of time frame are we going to have to get some of these implemented? Why is it different if it’s a private sector organization versus a public? And do you anticipate that those answers will come whenever it’s officially published? Or do you think that we will have something like that beforehand?

[33:02] – Chuck Kable

Yeah. I mean, I think that it would be onerous to require compliance immediately. But I don’t know, technically, the Emergency Temporary Standard becomes valid when it’s published I think in the Federal Register, there’s going to be a whole lot of, you know, kind of work that’s done before that happens. Lobbying, I’m sure is occurring right now, but I would suspect that much like the kind of grace period that the Administration has extended to contractors and employees, there’s probably going to be a similar grace period, you know, because this is an infrastructure challenge, too. It’s a supply chain challenge. And so all of a sudden going from assuming the testing protocol becomes part of it, even vaccinations. You got to put on vaccine events and those kinds of things. There’s going to be a little bit of headway that some businesses are going to require to figure out.

[34:02] – Holly Foxworth

It’ll be interesting, that’s for sure, never a dull moment. Before we finish up with this and before we get to questions, I did want to just kind of go through and maybe Dara, you’ll talk us through this because you’ve done such a great job in meeting with some of our clients and really understanding what their needs are and then being able to translate that to Okay, I know that you’re having this kind of issue, here’s what it is that we can do to support you or here’s what you need to be looking at in terms of not only setting up a program but maintaining that.

[34:31] – Dara Wheeler

Yeah. I think Chuck addressed a lot of this really clearly. And I think for us as a partner organization helping clients manage a lot of these situations, one of the things that we have seen very critically in this is that HR organizations are being asked to do a whole lot here and Chuck runs our HR organization internally at Axiom and tasking an HR team who’s usually pretty well tapped out already to start managing a ton of additional policy and process and record-keeping, gets to be really complicated really quickly. And we’ve worked with a lot of clients that have come to us kind of from the beginning and said, Here, take it, figure out, manage it for us. And then we’ve worked with a lot of clients that were in early days like, Yeah, you know what, we’re good, we’ll handle it. And then very quickly, it gets very complex and tough.

And I think to Chuck, I think he made a very specific point about this. When you’re dealing with people’s vaccination status, testing status, all of this information needs to be in a very specific record within an HR file. It is not something that you want to keep individually with all of the other employment records and have to have really great controls around that information. So a lot of clients can offload that to us or to companies like us because they don’t want to manage that. And like Chuck said, you got to start with policy. If you don’t have a good policy in place, it doesn’t matter how good your practices are, because you can’t point back to that policy, and it’s tough. We know it’s tough. And so it is something that you could have the best intentions in the world. But if you can’t point to those intentions, it doesn’t really matter. And there’s a lot of speculation about, there have been some numbers turned around already by the Administration about what penalties will look like. And we will find out more and more as this potentially gets put into real reality. But compliance and managing compliance issues with the government becomes almost a whole industry. And so a lot of our organizations that we work with that are in the Federal Motor Carriers Association. You’ve got lots of federally regulated programs today. And one of the biggest issues in those programs is compliance and data, because if you don’t have that, then it doesn’t matter as an organization how good you are at compliant if you can’t document that you’re compliant.

So it gets really complicated. We try to simplify it. There’s a lot of businesses out there that are kind of doing the same. But as we’re managing through these really complicated situations, simplifying it to the best of your ability is going to be critical so that you can operate. Otherwise, none of us are doing business. And all we’re doing is compliance work. And so it becomes a really difficult tipping point whereas an organization really dig in and think about it and Chuck, I’m going to have you jump in because I did see a question about this. A lot of people, because this is still in the speculative realm, and I know you talked a little bit about your thoughts about how this will potentially mirror what’s already come out for the health care industry. But if an organization waits and just kind of waits to see is this going to be passed? What is it going to look like in its final form? What is your recommendation around whether employers should wait and see and take that wait and see approach or whether there are some proactive things they should be doing now to get ready?

[37:59] – Dr. Scott Cherry

Yeah. I understand that it’s so hard to kind of figure out what to do when you’ve got these, everybody’s talking about now, is it legal is not legal, what’s going to happen with it? I mean, I think what I would perhaps do is put a question back to the person who asked the question and say, What message are you sending to your team and what’s the potential impact to your business if you don’t do anything, right? And maybe when you say do nothing, maybe what you’re saying is continue doing what I’ve been doing, which may be something. But certainly doing nothing will have – there’s collateral damage. So just because you may not be legally required to do so under the standard, it doesn’t take away from OSHA’s general duty calls, for example. It still requires you to maintain some baseline safety. OSHA a long time ago said that COVID-19 acquired at work is reportable. And then there’s still kind of fundamental concepts of liability. I mean, the first Walmart case where a guy died because he contracted COVID while he was at work and resulted in a wrongful death suit.

There are still consequences either way. And you know, the way to think about it is, again, it’s understanding which organizational risk tolerance is and what your appetite is relative to that tolerance. So there are two different measures. Tolerance is the very most we can accept, and your appetite is somewhere within that scale. And typically those are decisions made at the board level. Because those are the folks that have the fiduciary duties to the business and the duties care. They got to be making sure that whatever you’re doing as a business is rationally justified. And the risk is you go into it eyes wide open. But to not skip over the question. I think that at the very least, putting together a framework for a policy, I think it’s going to be the right thing and then trying to compare to what you’ve done. I’m sure you’ve done something up to this point to manage risk and protocol, making sure that you’ve got that documented and then go on from there. If you determine that the cost associated with complying is… Here’s the thing, the cost to comply is less than the cost of the penalty without question. But if the ETS gets struck down, the potential kind of stick goes away, too. So then you’re left with Well I spent this money when I didn’t have to. But my argument is perhaps you do need to spend something on this, more than you’ve been spending, I don’t know. I think, you know, certainly, our Chief Operating Officer has been extremely strict about making sure that anybody coming to the office is tested before they show up. Anybody. And so that approach has built discipline into our process as a business. And it has not been unduly burdensome from a cost perspective. But it is an additional cost. And I think we also aren’t testing people every day.

And so it comes down to what that cadence says, you know, this kind of and this gets into another question I’m going to answer, I think, too. So the offer of the Administration for folks to be able to buy, you know, kind of consumer kits from Walmart and Amazon at cost translates into the fact I think that those tests are going to be okay for businesses to use. I think we’ll see. You may have some challenges there in terms of misuse for people giving them to somebody else at home, like, there’s risk everywhere. But I think that that’s how it’ll play out. I think at the very least, you got to go through a process with some managerial folks on your team to talk about what matters to them and how you can take steps to make sure they feel safe to work.

[41:57] – Dara Wheeler

Before we jump into some of the questions, Holly… Scott, can you talk a little bit about testing? And I know that we’ve had a lot of questions about what types of tests we think are going to be accepted. Chuck mentioned it a little bit, but can you just do a quick, maybe couple minute rundown on testing and what we will likely see as a requirement if it goes that way?

[42:22] – Dr. Scott Cherry

Sure, and I was going to just add a little bit to Chuck’s comments. It actually reminded me when you said you may be doing something already to a potential person asking the question. And so occupational medicine has many OSHA standards that require something to be done, some type of medical surveillance based on the hazard. But then many hazards are not actually addressed by OSHA, but they can still fall under the general duty clause that Chuck spoke to. But it may be if you’re not doing anything or you’re not sure what to do is to get appropriate consultation about the hazards and shift towards what is appropriate based on the risk, regardless of what standard is passed. And get that bored buy-in about the fiduciary responsibility of the employees. And that may get you into kind of the right risk leveling based on as this risk kind of is going to be with us for a while, it seems. But I’ll leave it at that.

And Dara, you asked me to review testing. And so just quickly, there are two types of tests. There’s a test looking for the genetic material of the virus, and it’s called PCR or polymerase chain reaction. That was the first test technology available, and then there’s a second type of test called antigen testing, which is looking for a protein from the virus. And so in general, what I’ve seen from our agencies like the CDC and the FDA, a lot of the guidance seems to be a natural preference for PCR because they have higher sensitivity. Sensitivity is the ability to detect something if it’s there. And so a lot of the PCR tests have in the 90% or plus sensitivity rate. So that’s great. But sometimes there’s a day or two delays in getting the result. What’s nice about antigen testing is the sensitivity is – well, this isn’t the nice part, but the sensitivity is lower, maybe in the 80% range, but you get results immediately. So if you have someone that’s waiting to come on-site, I would say you need to make the decision of having an answer before they come on board immediately or letting them come on board and then getting a result two days later saying they’re positive or, you know, you have to do the logistics of testing them before, but then you have a window of exposure before they actually come on-site, which might make them positive later. So I think having a mix of antigen and PCR is a great blended approach absent the Emergency Temporary Standard requiring one versus another.

[45:19] – Dara Wheeler

As we’re talking about testing, I think, and I think this is in a few of our town hall questions. Do we have any indication of who will be responsible for paying for the testing, Chuck?

[45:32] – Chuck Kable

Yeah. So again, I think that the intent here is to put the burden on the employer. In the healthcare standard, testing has to be paid for by the employer, for example, that’s in there. So again, I think that OSHA is not going to be inclined to create standards that put the burden on employees because the point of it is to provide a safe environment for them at the end of the day, even though we’ve got this pressure to ensure that as many folks are vaccinated as can be. But again, they are effectively putting the burden on the employer to do all of this. And I think we should expect to see that in the new standard as well.

[46:25] – Holly Foxworth

Yeah, good information. Alright. Well, I’ll just toss some of these out here. And these are some that we received first, and then we’ll get into some of the ones that we received from today. And the first one is from Jeff that was saying, he was explaining that their transportation company, they have over 100 employees. Some of those include minimal contact drivers. They don’t come back to the terminal each day. And so he’s asking, according to the mandate, testing would be required if the employee has not received the vaccine or elects not to take it. Number one, can we provide unvaccinated employees with rapid self-care kits that they could do on a weekly basis at home? And the second piece of that was what do we recommend to attract some of these compliance measures?

[47:10] – Chuck Kable

So I mean, Scott can speak to the technical aspects of the testing and the differences between kind of the at-home versus the PCR. But my suspicion is that since the administration announced at the same time this kind of purchase kits at cost initiative with major retailers, I think that those kits are antigen tests, right, Scott?

[47:39] – Dr. Scott Cherry

Yes.

[47:42] – Chuck Kable

So my expectation is that those tests may very well be acceptable. What’s interesting with the trucking piece is you got an individual who’s kind of driving across the country generally by themselves, except when they’re stopping to eat and for gas and those kinds of things. And to what extent are your drivers going to be obligated to comply with the warehouses or distribution centers that their destination is located at? Because there is a component in the healthcare standard, it speaks to, you know, folks working in other’s homes, for example, or working at the job site of other employers. So again, clears mud, a lot of complication there.

But I suspect that at-home task kits will likely be okay. Although there may be requirements around when it needs to be taken and how you report results and those kinds of things, I don’t know. We’ll see how that goes. And then from a tracking and monitoring perspective, I think Dara would say, buy Axiom medical service. But I mean, that’s a question everybody has to answer, right? Because you’re going to have to track whether someone’s vaccinated or not. You’re going to have to track, you know, testing information, when they were tested, what the result was on a continuing basis. Because part of this is being able to go back and evaluate who sustained close contact because I’m sure that this concept of contact tracing has been with us for a long time. But that’s going to be part of this, too. And so the employer is going to be blind unless you’re tracking this information. And so if you don’t have a system designed to do it, you know, you’re going to have to start to create one through spreadsheets or all the fun stuff that businesses do when they first try to figure something out.

[49:43] – Dara Wheeler

I’m sorry. Chuck. I’m just going to give an example of how some businesses we’re working with are doing or at least preparing to do this. So just as an example, what most businesses that are starting to prepare for this that we’re working with, they’re starting with vaccine status, because in order – well, a policy, of course, is always number one. But then in order to understand how to track and monitor, they’re starting with vaccine status. And what they’re doing is having employees submit that information to Axiom. And then what we do is we have a report that looks at fully vaccinated, partially refusals for whatever reason. And look at the documentation around exemptions and things like that. Then that gives us essentially our testing roster for the week. Because then you’ve got this employee population that is not fully vaccinated or is in progress, and then that would essentially become your weekly testing roster. And then managing that testing on a weekly basis, as people get vaccinated, they drop off that weekly roster. So managing that information, as I said, this is where it gets complicated really quickly, because as we add boosters, does that mean three shots is fully vaccinated? Does that mean two shots? It starts to raise a lot of questions. And I know that when you start pulling this thread a little bit, it really does unravel very quickly. And that’s why it’s like, start at the beginning, start with policy, start with vaccine status, at least understand where your populations are today. And so that way, if this gets passed, you at least kind of understand what your starting point is, because one of the things when we talk to clients, one of the first questions is, okay, well, what percentage of your population is vaccinated? Okay. Well, if it’s 50% of your population, well, now that informs what would the cost be to test your population every week? What does that look like? How does this work? And then you start putting those ideas into practice. So it’s just a lot of tough information. But if you start somewhere, then you can start progressing down this path of compliance.

[51:49] – Chuck Kable

Yeah. Just one additional point. I mean, our friends in the TV and film industry learn the hard way how this all works because they were forced to abide by a standard created per negotiation through SAG-AFTRA, a long time ago. And so this kind of testing cadence was part and is part of their world and has been for a long time. And getting used to and managing expenses has been a big, big, big part of it. And then the last thing I want to mention in today’s point, so just, generally speaking, a technology solution can be really cool also, because you can connect it and have access control. Like, if you’ve got a key card system for folks to get in the building, you can kind of run through. So whether it’s a test or a daily health attestation, if they’re not doing something they’re obligated to do, you can kind of lock them out until it’s done. So there’s some other kind of really cool technological solutions out there that can help you manage that. And that’s one of the cool things that you can do as well.

[00:52:50.960] – Holly Foxworth

Yeah. Good points. And as he mentioned, that the TV and film crew and what it is that they are managing as well what they’ve kind of been through, we’re gonna go through that next week. So if that’s something that you’re interested in, definitely press that button. We’d love to have you for that one. Yeah. So Joanne was the next one. She has quite a few that were in here, but obviously, she was saying that she understands that we may not have some final answers until the ETS comes. However, she wanted to know testing to be passed along to employees if they had offered the vaccine, but they refused to get the vaccine. So I think it’s highly likely that the burden is going to be placed on the employer.

[53:36] – Holly Foxworth

Yeah.

[53:37] – Chuck Kable

Right. I think we kind of talked about that one on the next one. I’ll take the next one, too. So on medical and religious vaccination and testing exemption, so those don’t live in OSHA. Those exemptions live pursuant to the EEOC and the ADA and the Civil Rights Act, essentially. So, yes, there will be. Expect that, that’s part of this. But then again, that’s when I kind of went through that discussion about does accommodate those either medical concern or religious belief, does it create an undue hardship to the business. And that’s going to be something you guys are going to figure out too.

[54:16] – Holly Foxworth

Yeah.

[54:17] – Chuck Kable

Because if it creates a very hardship on the employer, then you can say, We can’t accommodate, you’re going to be technically safe now. They may still come back and try to make a claim, but if you run that process correctly, you’ve got a defense.

[54:33] – Holly Foxworth

Good information. I think we covered the discussion of the remote employees.

[54:43] – Chuck Kable

Holly, I’m sorry but I just want to be clear. So it seems like, it’s highly likely that remote staff will not be kind of obligated unless they’re going to report to a location. And then there will be either a vaccination or testing requirement, I think. And again, that’s based on what I’ve seen OSHA do in the past in terms of risk leveling, and remote workers are considered low risk. So we’ll see, though.

[55:10] – Dara Wheeler

And we’ve also had a lot of employers, and they’ve already kind of preemptively managing this for some of their employees where they may be remote, but they’re also traveling employees like you may have a sales workforce that travels to client sites. Often the client site will dictate the requirement. So if the client site is a site over 100 and the requirement is vaccination or testing, and you’re visiting as a sales individual, coming to that site, you may be required to either show proof of vaccination or a recent test. So thinking about some of those components, there may be some additional requirements depending upon your risk in that role or client, you know, visitation as well.

[55:52] – Holly Foxworth

Hey, I did want to ask you about this one too Chuck, because this came up before. Talking about whenever you’re calculating that 100, is that the entire organization that you have to base off of, or if you have different locations, can you define those as where you’re going to start your account.

[56:09] – Chuck Kable

No, it’s the whole business.

[56:11] – Dara Wheeler

We have a lot of questions coming too about defining that. Like if you have an organization that owns, let’s say, like five LLCs, do you take the entire organization or is it each LLC?

[56:24] – Chuck Kable

And so then it’s time to talk to your lawyers about joint employer. Because if you’re joining, I got to tell you, a lot of our PE friends too need to be aware of this. Because you may not be thinking that some of your portfolio companies, but if you’ve got kind of that requisite control, there could be issues there. I remember years ago there were some pretty big concerns over PE businesses. It may have flip-flop since then, but it’s probably worth taking a look at again. And I’ll do the same thing. I haven’t looked at it in a while but could be an issue.

[56:52] – Holly Foxworth

And then the one that was here, she was basically just asking if they all refuse to be tested or they refuse to be vaccinated. Could that just put us out of business?

[57:03] – Chuck Kable

I mean, yes, if they all quit. I think that from a testing perspective, it’s a little more nuanced because you are allowed to mandate a test. So EEOC has said that that meets the definition of business necessity because it’s essentially a medical inquiry or a medical exam under the ADA is what these tests are considered. And so those are allowed so long as their job is related and consistent with business necessity. And the EEOC has already said testing meets the definition of business necessity. So the next step to make sure it’s job-related is not going to be a big deal. So the consequence for not testing and is you can be fired for it. And so this is a risk of multiple burdens issue at the end of the day. Because if all employers have to follow this rule and people are saying I’m out of here because of it, they’re not going to get a job anywhere unless they’re working for some small mom and pop shops. And there are not enough of those to staff all the people that potentially are going to be quitting if this is some big mass exodus. I think testing is minimally invasive. You can do a saliva test. You can do a little around the nose test, not the deep one. So I would be surprised if that actually happened. But again, the answer is yes, that could destroy your business. If you recall the first webinar I did after the pandemic started, a long time ago, one of the fundamental risks of COVID was business destruction because no one could work. And so now we’re kind of talking about, well, what if no one can work because they’re saying, I’m not going to do what you’re telling me to do. Those are all real risks. I think again, part of this is cultural, and it’s the way you’re engaging with your folks and the way you’re kind of discussing workplace safety and how you’re doing things to make sure people remain safe.

[59:10] – Dara Wheeler

We’ve had a lot of supply chain questions about tests. I think that we’ve talked about it a little bit, but can one of you kind of mention, where do employers or employees even get tests from? And I think Chuck, you mentioned a little bit about the purchase by the government of some of these test kits and what that potentially looks like. But what are we seeing with the supply chain and what does that look like right now?

[59:36] – Chuck Kable

I mean, kits are flying off the shelves. I cannot speak to the inventories being held by, you know, Amazon, Walmart, big-box retailers right now. But I am fairly certain that there will be a shortage of at-home test kits in the very near future because people are preparing for testing standards. And by the way, some companies are already doing mass testing. So that’s having a strain. We had an issue. I think at It Labs in the summertime, in the middle of summer said, Okay, we’re good. And they’re the ones that make that Binax now test and they started laying off people and destroying their test kits feeling like they didn’t need them anymore. Low and behold, Delta, and now they’re desperately kind of my understanding was – desperate is the wrong word, I don’t mean to speak poorly, bad, but I think they were then tasked with having to essentially rehire a bunch of people and kind of gear back up for manufacturing the test kits. So there’s going to be some supply chain challenges, and it’s just going to get worse if all of a sudden, way more employers are having to buy test kits.

[01:00:44] – Holly Foxworth

Yeah. Ok, let’s do one more question.

[01:00:49] – Chuck Kable

Look around, I think to find if you have third-party vendors that kind of bring this business and have inventory or know of inventory that they can purchase like that’s an option for you. But that’s kind of all we can do right now.

[01:01:03] – Holly Foxworth

Yeah. Let’s do one more question and then I’ll just go ahead and say that I think that we probably need to put together one more event. There are so many questions that are here. So we’ll just go ahead and commit to another event this next week to pick up the rest of these so that we can get everybody the same information and everybody has access to it. But before we do that and we call it a day, let’s see this one, I think, Rachel, we answered yours. Adele, you were asking also about how long do we think that testing could be required? And then also could there be a challenge for cause.

[01:01:40] – Chuck Kable

A challenge for cause, to the rule?

[01:01:42] – Holly Foxworth

I believe so, can an employer elect to terminate employees who would then require the weekly testing. Could that be challenged for cause?

[01:01:51] – Chuck Kable

Could they challenge the employer and essentially claim wrongful discharge termination or something, is that the question?

[01:01:59] – Holly Foxworth

Correct, yeah.

[01:02:03] – Chuck Kable

No. I mean, they can say anything they want. Well, look, I’m a lawyer so it depends on the facts. I think if in the vacuum of you’re required to do this and you refuse to do it and PS it’s legal, you’re fired and that’s legitimate. You’re fired for cause because you’re not following policy, as long as you have that policy and you’re applying it equally to everybody, that’s going to be another caveat. If there are other facts that kind of skew that whole thing then I don’t know. But generally speaking, and I think I even read in preparation for today that there’s justification to let people go if they refuse. Or for example, you make a conditional offer and they say, I’ve got COVID, you can turn them down and say no, we’re good, for safety reasons and challenges for business.

[01:03:05] – Holly Foxworth

Alright, so this last question then. This is a big one I’m sure everybody’s wondering this as well. The question was How long is this testing going to be required? Are we talking long-term, like from now on? Especially if somebody refuses ever to get vaccinated or do you have any thoughts on how long this could go?

[01:03:24] – Chuck Kable

Well, so it’s meant to be a temporary standard. Traditionally, if it survives challenges, generally after six months, there should be a transition to a permanent standard. There’s a lot that’s going to happen between now and then so we’ll see kind of where it pans out. Read the question one more time, Holly. I just got totally sidetracked.

[01:03:49] – Holly Foxworth

Yeah, it’s okay. How long will this testing be required?

[01:03:53] – Chuck Kable

How long will the testing be required? I think for so long as the Administration, OSHA, Fauci, and others think that we have not enough people vaccinated and infection rates. I think all that matters. That’s probably the primary measure, is infection rates and deaths. Vaccination is going to be important too because obviously, the Administration wants people to get vaccinated. They want to see movement there. How long that’s going to take and under what circumstances someone says we’re good and we can stop, I don’t know. I mean, again, we felt in the summertime like Okay, things are calming down, we’re looking good, and then here we are with Delta. And I know Scott you’re tracking Delta’s progression in the UK and what’s the current status of UK infections.

[01:04:47] – Dr. Scott Cherry

Yeah, they are about six weeks ahead of us with the Delta experience and they had a huge surge. They started to trend down but then there was a notch and they’ve actually kind of re-ascended again so it’s not promising from an eradication perspective. I’ve spent most of my career complying with OSHA standards and so if it does become permanent even if everyone becomes vaccinated which is not necessarily likely, I think it’ll just be a compliance to the boosters and maybe even updated boosters to new variants. Right now I think the big challenge is for employers to deal with the unvaccinated and to get them tested if this comes through. But again, if everyone is vaccinated as Dara spoke to, vaccination doesn’t seem to be kind of one or two and done. I think it’s going to be a perennial kind of requirement so that is a lot of logistical burdens I think, to manage a medical surveillance program like that.

[01:06:04] – Dara Wheeler

And we haven’t even gotten to antibody testing so there’s a whole other host of questions and I know a lot of you have asked that question about if you have natural immunity how does that play into all of this which we could I think spend another hour on so Holly, I think we’ve got a ton of good information here for follow-up and we’ll definitely be reaching out to all of you with some answers here.

[01:06:26] – Holly Foxworth

Yeah, and I think we may actually just put together another event. That way we can just kind of go through all of these. So watch your email, look at our social for that link and we’ll get you guys back on so that we can cover the rest of these. Before we go, and I know we’re late but if you’re interested in what’s going on, what we talked about within the media space, how it is that they’re doing this, their testing as well, you’re welcome to check that button or push that on the console that’s gonna get you signed up and then we will also send out the links for the follow-up that will be occurring to answer these additional questions. So I appreciate you guys, thank you all for joining us. I know we’re late, and I appreciate our speakers while you guys were a wealth of knowledge, and then there’s a lot of questions that are coming in from various and different directions. So deep breath, we will make it through here and we’ll get you stuff. Until then, thank you so much for joining.