Avoid the C-Suite Hot Seat: Post-Pandemic Workplace Lawsuits and Liability

Date: 8-11-2021 • Runtime: 58:36

There’s always a story behind previously successful c-suite executives who quickly find themselves on the demoted “D” list! Plainly stated, your prior accomplishments are irrelevant the moment employer liability is overlooked and lawsuits hit the press.

The gray area between lifted regulation and employer liability for safe workplaces lies in the silent warning….if something goes wrong, it’s YOU who will face the career-altering consequence!

What type of protective, defensive measures will be sufficient in a post-pandemic environment and what is your tolerance for risk?

Join us as c-suite executives discuss how they Avoid the C-Suite Hot Seat: Post-Pandemic Workplace Lawsuits and Liability, hosted by Axiom Medical.

We’ll be answering questions relating to:

  • Impact of 3,000+ employment litigation cases in 2021
  • How to effectively evaluate workplace risk
  • Making the case for protected measures outweighing the cost
  • Creative best-practice infection control strategies being used by fellow c-suite colleagues
  • Come and learn as we discuss these issues and many more!
[00:00] –  Holly Foxworth

Thank you for joining us for avoiding the C Suite Hot Seat post-pandemic lawsuits and liability webinar. My name is Holly. I am a registered nurse and also the marketing manager of content here at Tom. And obviously, given the dynamic shift that we’re seeing right now with the variant, some of these cases that are increasing, I’m really thankful that we’re all able to gather here today and really kind of talk through some of the issues that are occurring, some of those safe and health challenges and best practices.

So we’ve got some breakthrough transmission questions. We’ve had a lot about what type of scenario you need to be looking at for exposures, what to do if you have an employee that is positive, etc. So we’re seeing a lot of changes in this scenario, even especially for the exposure. And I’m sure Dr. Cherry will get into it a little bit more. But you know, going from either even the 15 minutes benchmark that we initially looked at and that all of what all of a sudden becoming 1 minute so there’s a lot of important facts that we definitely want to make sure that we get to. So we’re going to cover those along with additional questions at the end of the presentation in that town hall section. So make sure you hang around for that. If you have questions that you want to ask the experts, please feel free to do so. You can do so by entering your question down there on the bottom right side of your screen, you’ll see that it should say like a Q & A icon that’s there. I think we call those widgets so you can just type it in there, it comes directly to us, and we’ll make sure that we can get you some answers there.

One thing I did want to point your attention to is right above that. So you’ll see, I think it’s a green screen. It has some of our leaders that are there, and it’s the next webinar. This is your free admission to this. It’s your sign-up. And this is something we’ve never done before. So this one is actually going to cover the vaccine and variant and really kind of have a straight talk conversation about what it is that you need to be saying and how it is that you can say that. So we’re not going to get into the basic information of what you need to be conveying to others, to kind of get to the root of where we have some of this vaccine hesitancy, but also learn how to read some of those social cues that are coming along with that. So I definitely think this will be a huge resource to you, make you obviously the smartest man or woman in the room, especially your organization, and we will definitely get you what you need. So I think that that is the majority of the announcements that we wanted to go through.

[02:42] –  Holly Foxworth

I will say that we do have one more icon that’s down there at the bottom that looks like a set of books. And so that’s what we call the resource tab. So there are a lot of great resources in there. The one I think you’ll find most useful is the new white paper that we have out, which is called Beyond Covid and why it is that you need a long-term infection control strategy. We’ve also tossed in the others about how the setup vaccination programs at your organization. So let’s get information there, if you need the resources please feel free to take a look at that. So at this point, I am going to have our panel introduce themselves and give us their name, title, function, and fun fact, anything that we need to know. And we’ll start with you, Dr. Cherry.

[03:24] – Dr. Cherry

Well, good afternoon, everyone. My name is Scott Cherry. I’m Axiom Chief Medical Officer. My professional background, I’m a board-certified preventive medicine and public health physician, as well as occupational and environmental medicine, and I’ve been supporting the government, industrial and corporate operations for the past 15 years.

[03:46] –  Holly Foxworth

Fantastic. Thank you. Chuck, we’ll go to you next.

[03:50] – Chuck Kable

Sure Holly, thanks. It’s good to be here, everybody. My name is Chuck Kable. I am the Chief Legal Officer, and I’m also the head of HR for Axiom Medical. I’ve been a lawyer for just over 20 years, and I’ve spent about half my career advising businesses, kind of at that senior legal level, primarily in health care. And I’m happy to be here today to have this conversation.

[04:11] –  Holly Foxworth

All right. And Dara?

[04:14] – Dara Wheeler

Hi, Holly. Thanks for having me today. I’m Axiom’s Chief Marketing Officer. I have been very focused on building strategies for employers to address workplace health and safety, and very much from a holistic view. So I’m very excited to be here. And one really random fact is one of the ways I stay mentally healthy is some powerlifting and some running and cycling. So random fact of me today.

[04:44] –  Holly Foxworth

Oh, Chuck, you have something to add? You can give us a fact.

[04:47] – Chuck Kable

I said she’s better than me.

[04:52] – Dara Wheeler

It keeps me sane, Chuck.

[04:53] – Chuck Kable

Yeah, good for you.

[04:56] –  Holly Foxworth

All right, Tony. Do you want to give us an introduction? Not sure that we hear you. Are you there?

[05:07] – Tony Kloss

Yeah. How about now? I can’t see your video, but that’s okay. Hopefully, you guys can see my video. Tony Kloss from Golder Associates. So I’m 25 years plus in Global HSE for the manufacturing industry. Golder Associates, great announcement right now. Golder Associates is now a strategic alliance partner with Axiom. I’m happy to announce that. So we’re here to offer full-service programs for occupational health safety. I’m happy to be a partner with Axiom. Fun fact, I am an Axiom superuser. I was on the other side of all this. So…

[05:51] –  Holly Foxworth

No way!

[05:51] – Tony Kloss

Believe it or not, yes, believe it or not.

[05:54] –  Holly Foxworth

That is fantastic. I am so glad you’re here, Tony. And we are really excited about that partnership. Good deal. Alright. And then we’ll finish it out with Craig.

[06:03] – Craig Gifford

Hi, Holly. Thank you. Can you hear me okay?

[06:05] –  Holly Foxworth

Yes.

[06:07] – Craig Gifford

I am the head of Infrastructure Operations at US Bank based here in Minnesota. And what that basically means is I’m the head of getting stuff done. I say that I’m the head of GSD. So I’m an accountant by trade. I was a controller for the company for over a decade. We aggregated some operations activities and move those under my role about two years ago or so. But that role covers all of our real estate activities, all of our purchasing, all of our infrastructure driven things. So it’s a key role for our response to the pandemic and our response to how we bring our employees back to work. And fun Fact, like Dara, I do a lot of weight lifting,  resistance training is a fountain of youth so definitely something I enjoy as well.

[06:58] –  Holly Foxworth

That’s awesome. Well, thank you so much. And again, we are so excited to have all of you guys here with us today. Just to kind of give you an idea of what it is that we’re going to cover. So we’ll start and Dr. Cherry will give us a perspective on what it is, what we’re dealing with right now. You’ll run into what the cost of action would be. Finishing that first section with how it is that you can make the case for protective measures while also focusing on profitability and productivity and then some best practices. Then obviously at the end, we will take some of those questions that are submitted in the town hall. So if that works for you guys, let’s go ahead and get started. Dr. Chery, I’ll let you come and take it from here and talk to us about where we stand right now.

[07:42] – Dr. Cherry

Sure. You know, we continue now dealing with COVID. And when we look at the overall infections since the pandemic began, there have been over 34 million formal cases reported. However, that can be misleading because not every person that gets infected will actually get a test and be confirmed positive. And so the CDC’s own studies and estimates looking at kind of the ratio of people who test positive and then the ratio of those that are basically infected but never get a test. Their estimates are actually were over 110,000,000 infections since the beginning of the pandemic. So not to confuse the idea of the current infection, but over this whole pandemic, over 15 or plus months. So that’s about over a third of the population of the US. I’m tracking kind of the population to be around 330,000,000. So we’re at about a third of the country has been infected. And so this has been obviously a very devastating challenge for us to deal with. And when we look at the graph here that you’re seeing on the slide, there’s been about four peaks up until now, and we’re actually probably starting the fifth peak.

But when the slide was made maybe a few days ago or a week ago, we were at about 40,000 cases, new cases per day. So these are new infections. That’s what I really care about in general. So the graph here shows new cases per day over the pandemic. And what’s interesting or a little bit alarming is that we’re kind of seeing a trend of a surge of new infections. And when this slide was made, we were at 40,000 new cases per day. But when I looked this morning at the same data, we’re actually at 67,000. And so when we compare that to kind of the lowest baseline in early June, about a month ago, we have about 550% increase. So 5X from mid-June. And so that’s going to help frame up a lot of the discussion today, because, as you can see in the middle of wintertime, we have a huge number of infections and things have really come down. So a lot of the guidance was starting to relax about protective measures. And so I think this is a great time to start discussing what should we be doing and thinking through when cases are starting to really peak because of variants or other activities, seasonality, vaccination rates, etc. So really, this is something that looks like it’s kind of going to be a bumpy ride at this point.

[10:57] –  Holly Foxworth

Definitely. Yeah. And again, after we kind of get through the main presentation, we’ll jump into some of those questions because I know there’s been a lot that has been asked about what’s different now and some of the other considerations that may need to go into that great information. All right. Chuck, we’ll come to you next and just kind of talk us through the real cost of inaction. If you don’t do anything about it, where do you find yourself at?

[11:19] – Chuck Kable

Yeah. I think that there’s a number of organizational risks that have to be kind of thought about in a situation like this, right? I think that for a long time we were talking about our expectations. For example, that OSHA was going to come out with some kind of a standard that would require all kinds of businesses to take steps to mitigate infection in the workplace. And we saw that actually did not happen, right? Instead, they focused again on health care because that is the kind of worker population most directly impacted by infections. And I think there was some politics involved in that decision. That being said, clearly, businesses took many steps when they realized that the consequence of an action was not just kind of people getting sick and creating challenges for them, but potentially creating an environment where they could not conduct business at all. I mean, this concept of destroying the workforce to such an extent that the revenue generation activity is impacted so negatively that that business could and some businesses did go under. So when you think about the operating environment and the risk associated with infection there, you got to take steps to fix that, because the other consequences now that we’ve kind of come down this path, we’ve got a lot of employees that are watching what their employers are doing, and they’re making decisions about whether to stay or go based on what they’re seeing, partially. It’s a crazy job market right now, without a doubt, a lot of people are quitting. I get that.

But now is the time more than ever for businesses to make sure that they’ve got a very clear approach and policy relating to how they’re going to make sure their workforces are safe. We’re seeing that manifest in a lot of different ways. You’ve got litigation that arose related to Methodist Hospital here in Houston that took a very specific stance relative to vaccinating its workforce. Everybody has to be vaccinated. That created some lawsuit activity that has turned out to not kind of do anything to change that decision, but at the same time, it speaks to the nature of this risk.

There is so much uncertainty in the employee base that even though employers are doing what they think are best to insulate themselves and protect the workforce, it’s still creating these challenges. So that’s kind of a more abstract, more general thought around some liability. But then you get to the heart of the matter, and then you look at this. I think it’s Fisher Phillips that puts out this tracker, and people are filing claims and creating lawsuits around perceived inaction and challenges around remote work, getting sick at work and causing major health concerns. We’re getting to a place where all of a sudden now there’s this potential cause of action against employers because they’re not taking adequate steps, at least from their employees perspective, to insulate the workforce or protect it from the risk of injury or illness in this case, illness from COVID. And so it’s manifesting itself. And it’s crazy what we’re seeing because we’ve got a lot of movement on the health care side. OSHA is paused, but we’re still seeing enforcement activity kick up with OSHA. There’s still a general duty clause as well that is causing employers to think about the way in which they’re managing this risk.

And now I think the fact that we’re seeing this spike again in infection, clearly, this issue isn’t going away. And so the biggest kind of risk that I think we’re going to see is we’re going to see a lot of these claims spike as well. Because whenever you’re in an environment where you’re recognizing the fact that you’re getting a spike, a lot of times, businesses are now starting to take action again. It’s too late. There’s going to be that delay. We’re going to spin our wheels for a little while until we can start to gain some traction, begin to gain control, and mitigate some of this infection. So there’s kind of a lot that goes into this concept of liability relative to infection. I think the steps that we’ve recommended, what we’re trying to espouse to all of our clients when we talk about these issues is having a policy approach to infection control in the workplace, something that will give you that baseline standard that you can communicate to your team. So they understand that you’re taking steps to protect them, and it gives you steps to take along the way so that you’re not left wondering, what do I do now? Or, Oh my God, we have to go back to wearing masks. Or do we have to go back to wearing masks? And how does that plan to what the governor told us about requiring masks? For example, in the state of Texas, there’s all these kind of countervailing forces that have to be managed. This is why, again, from our perspective, private businesses have an incentive to take a step to have something in place that’s consistently applied, that gives you that communication, shows the workforce you care, and mitigates risk on a go-forward basis. So a lot was wrapped into that comment. But that’s my intro field relative to what we’re seeing happen in the US right now relative to liability and legal risk.

[16:42] –  Holly Foxworth

Yeah, definitely. Good information Chuck. And Craig, I’ll come to you next, talk us through them because we’re talking about how we have these measures that go into this picture. So it’s like you’ve got protective measures that are here. But we also, at the same time as businesses, need to make money and make sure that we’re remaining productive. And so you’ve got all these different factors. What does that mean to you? How can you maybe interpret that well?

[17:09] – Craig Gifford

Thanks, Holly.  What I read after Jeff Bezos took his rocket flight into space on his Blue Origin rocket a few days ago, he said that one of his primary objectives, in order to save the Earth’s minerals and the Earth’s environment, was to have people live and work in space. And I thought we’re just trying to get them to come back into the office. Space or the office. I don’t know. Two different objectives here. But if we can get them to come back into the office and feel comfortable, feel safe and be productive, we will be successful. But I will tell you, one of the things that we have learned is that flexibility and adaptability are paramount. The situation changes the environment. The scenario changes on a daily basis. Just two days ago, we had full plans to return everyone to the office in a hyper mode after Labor Day, as did many companies. I think Google just announced yesterday that they’re going to back off of that by a month and a half. So the Delta variant and the CDC’s turn on a dime a day and a half ago has really changed a lot of things. And it’s been like that for the last 18 months.

Every time we think we have a path and we communicate a path, something changes. And so one of the things that have been important in our communication to employees has been to give visibility to when they will know something and how much lead time they will have. But that’s about the only thing that we’ve given from a firm commitment perspective. We haven’t committed to certainty on a lot of fronts because we simply don’t know and we’re having to be quite reactive. But we have certainly provided all the things that people would expect. In the beginning, it was all about PPE and masks. And then it was plexiglass and social distancing. And then it was Wevax. Now in a return to the office, and we’re talking about things like dress code, employees want to know, How do I address when I come back? Can I wear jeans? And nothing’s really changed there. So we’re reiterating policies that have existed for years, some of the policies that were actually being adapted in a more flexible mode, like our dress code policy. We call it dress for your day, shortly before the pandemic that hadn’t really taken root in our culture.

And so there are some things around our culture that we’re having to establish and remind people of. And I think that’s the last part about what’s important for a company and we’re in this to be a business. So much about a company’s success is its culture, and every company has a different culture. But how do we retain our culture? What makes us who we are and who we are to our customers and has been a core to our success? How do we retain that culture and also our vision in a different work environment? And that’s something that we focus very hard on. So I’ll just pause there.

[20:08] –  Holly Foxworth

Yeah, those are all great points. And I don’t know whether you have anything that you want to share in this session. And I think that one of the issues, the main issues that we hear a lot is how is it that those decisions may be being made on the backside but how are they communicated to others? Do you guys have a form of strategy for how it is that you communicate? Is it scheduled? Do you have any recommendations in that area?

[20:35] – Craig Gifford

Yeah. I mean, communication is critically important. It took me 20 years of my professional career to fully understand how important it is to communicate. It helps alleviate uncertainty in a certain segment of employees. Some employees thrive on uncertainty, but there’s a segment that doesn’t and they can be paralyzed by uncertainty. And so communication is very important. We have an internal working committee, and we’ve got several subcommittees that deal with various aspects, like workplace environment but we have an internal working committee that is a part of our command center that deals with all crises. And for the last 18 months, this has been the principal crisis, though not the only one crisis, but not the only one. But coming out of that is a decision process about what we communicate and win. And our principal manner of communicating is a message that comes from our CEO’s email. He doesn’t draft it, but comes from our CEO’s email and goes to all employees. And there’s not a routine cadence. In other words, it’s not every employee is looking for the message from Andy on Monday morning, but it’s on a fairly regular basis. And we call it three things from Andy because our CEO likes to talk about three things. There’s not a speech he gives, he doesn’t hold up three fingers and rattle off his three things. So we actually have entitled it Three Things from Andy. And it comes out on a fairly regular basis that communicates where we are and what’s relevant, super helpful. Every employee reads it word for word, I guarantee you.

[22:02] –  Holly Foxworth

I love it. All right. Let’s move over to Tony then now and can you talk to us about the infection control. What does that look like in a modern workplace? I think that you’re sharing that you guys have implemented some additional strategies and implemented practices that have helped in this area. Talk us through that.

[22:25] – Tony Kloss

Yeah, sure. And I want to build off something that Chuck Kable was alluding to and that the employees are becoming more aware of their workplace and more aware of their work conditions. So much so that now we’re getting input from employees asking us as consultants for their companies. Well, what is the exchange rate in my work cell? What type of filters are being used for particulates, what types of cleaners are they using in our work cells. In 25 years in the business, I don’t know if I’ve had any employees ask that, but now we are getting those questions, and they’re posing those same questions to their employers. They are aware of their workplace and becoming more aware of their rights in the workplace because they’re educating themselves and asking the questions. So we’ve been asked by multiple clients and globally what we can do to create a baseline, what can we do so that they have some information and some data that they can supply back. So we have different intrusive and non-intrusive tools that help establish those baselines, whether it’s air exchange or indoor air quality or environmental readings, to help, again, provide some information in some sense of we’re okay here as we build back to getting back to the workplace. Because as Craig has said, we have plenty of companies that we were dealing with that said, we are returning to work September 6, right after Labor Day, and those plans have changed again, and they’ve continued to change over the past 18 months. So we help them refine their plans and help them get that data and information in their hands so they can continue to make the right decisions forward for their employees.

[24:12] –  Holly Foxworth

For sure. Yeah. And, you know, another thing I was going to ask you about today was like we talked about it here, about the change, that shift that’s occurring within the workforce, about this wellness culture. So it’s like we used to feel like that we all had to wear the hero capes, and we’re coming in to work when we’re ill because that shows what a great employee that we are. And you’re finally seeing that transition to recognizing that not only is it not the thing to do but, I mean, you’re putting yourself and everybody else at risk as well.  You open up that to the potential outbreaks and everything else. What are you seeing on that front?

[24:47] – Tony Kloss

Yeah. We continue to assess those sets of questions for clients and customers and continuing our plans to push out. Hey, if you’re not feeling well, if someone in your house is not feeling well, make the right decision. There are so many outlets now to remote working. We are all very good at it now. I mean, look at this. We’re working in technology. We’re on video. We can make it happen. We’re working on standard hours. It’s all part of the process. I think I’ve seen more people thrive on this management of change, self-management of change in determining what is best for their work and environment. And we continue to support clients with those exact procedures. So yeah, there’s definitely a higher level of awareness.

[25:33] –  Holly Foxworth

Yeah, definitely. And, you know, whenever we’re talking about implementing some of these infection control strategies and feel free to hop in here as well. But it feels like you really need to kind of make a decision about not only that you’re going to implement one, but how it is that you’re going to ensure that that’s a practice that’s adopted moving forward. So it’s not just a piece of paper. Do you have any thoughts or strategies that you’ve seen that have worked well on organizations that have adopted this, obviously the policy, but also have a strategy for moving forward? Making sure that is part of the culture that’s adopted.

[26:09] – Tony Kloss

I mean, the concept itself is so new. And I think what we’re seeing is a lot of businesses they’re having a hard time. They’re having a hard time selling it to operational folks who understand that there is additional cost and time involved in this kind of initiative. People don’t know what the long-term need is going to be. And so there’s this back and forth cost-benefit discussion that I think we find a lot of our clients are certainly in the middle of it, and they’re trying to find the path forward and the path through. I think when you talk about adoption and we’re living in this kind of environment. Volatile, uncertain, ambiguous, it’s a military acronym. And so living in this kind of environment makes it inherently difficult to come up with a strategy that’s going to work every single time. And I think when you are considering organizational culture, workforce dynamics, you know, the approach that I think at least seems to consistently have an effect that is, you know, positive is just being transparent as best you can about what’s happening and how you’re thinking about keeping people safe.

I think you know longer-term, however, decisions are going to have to be made on what kind of a plan or policy is going to be put in place. And to your point, Holly, how do you make it part of the kind of operational dynamic in that business day in and day out? How do you make it part of the culture, you know, top-down and bottom-up, I think, is the answer, right? It’s not just commanding that this be done. People have to own it on the ground floor, and they have to understand. It’s like what Tony is saying about, you know, Americans show up to work sick all the time because it’s who we are, who we’ve been, what my dad did like he just worked. He didn’t take time off unless it was vacation. And that’s because my mom made him. So in the world, we live in now, we’re starting to kind of recognize that putting others at risk is not necessarily the right way for you to prove that you’re valuable to the business. So it’s like I’m bouncing around a lot here. But I think ultimately, the approach we’re going to have to get to is one that is a balance between the operational needs of the business, the cost constraints presented and ensuring that there is a policy or a process that’s going to be implemented that will keep people safe and not ill.

[29:08] – Dara Wheeler

Yeah, Holly, I was going to jump in there, too. And I think that everybody’s made some really great points. And we’ve got many case studies of our clients and how they’re going through this themselves. As Craig described, this velocity of change is such a challenge for employers to deal with. And to Chuck’s point, if you have a framework to at least start to deal with it, then it’s good to have that in place. But that velocity of change, that pace is so fast. That one of the themes that seem to come up every time Dr. Cherry and I are discussing this or on Webinars is that the data and the information that we’re being given by the CDC, by OSHA, by our local county, and health departments are often shifting quickly. There’s a lot of information and misinformation out there, and what I’m hearing from employers is a major struggle with how to weed through all of that to make the right decisions. And even as you all said, very clearly, making a decision and then having to shift it already due to changes in what’s going on. And that has taken such an interesting approach because we’re all feeling that this velocity change and where it’s leading with inflation over the next few years and capacity and our ability to staff. I mean, our clients are having a huge issue with being able to perform the jobs they’re being hired for and all of these other components that they’re dealing with. Yet we do know that some of our employers that we’ve worked with throughout this pandemic that was critical infrastructure and had to maintain operations. And as we’ve all described, trying to balance operations with some of these other decisions, there are shining examples of those that spent the money, kind of did a little bit of extra effort around infection control in the workplace, and are seeing some really great returns on that investment through shareholder earnings. And I do think one of the themes we’re hearing more from our publicly traded clients is that this concept of ESG and environmental, social, and governance and this corporate social responsibility world that we live in is making a big difference, and it is changing and shifting the way we think about these decisions. So I’m going to end on this. The question that a lot of employers that we work with are facing is what do they have to do versus what they should do? And right now that seems to be the biggest challenge their facing. Do they have to do something because OSHA is regulating it, or should they do something because it’s the right thing to do? And it plays into all these other decisions for their shareholders and stakeholders?

[31:58] –  Holly Foxworth

Absolutely. Great points. And I think that that’s where we see so much, there’s so much discussion there because it’s like, you know, we thought maybe OSHA was going to come forward to say, hey, here’s the rules. You have to do one, two, three, four, then all sudden it’s like, well, we’re not going to do that now. But then it’s like if something occurs with an outbreak occurs at your location, those that are at the top, that’s the first ones that we’re looking at. Who’s responsibility is this? Could there have been more that you could maybe done in that scenario to look at additional measures and actually, kind of speaking to that Dara, let me ask you this. Talk us through whenever we talk about some of these best practices that are associated with this, not just in the pandemic but even beyond that. What does that mean? What does a layered approach mean? Why does it matter? Where is the value?

[32:42] – Dara Wheeler

Yeah. And before I even get into that, one other quick point, and I’ll probably have Dr. Cherry and Tony another’s weigh in on this, too. One of the things that we’ve kind of skirted around is risk balancing and leveling. And Chuck has been a big advocate for this because based on the operational needs of an organization, you have people in different roles with different risks. And understanding how to manage that risk appropriately for your employee population is so critical to all of this that we’re talking about. And one of the interesting points that I heard recently, so we have the CDC guidelines and that’s shifting constantly, and Dr. Cherry can describe this. But we see the CDC as a public health component of what we’re dealing with from a policy standpoint, but that doesn’t always help employers actually create action around what they should be doing. And I know Tony follows is a lot, too. But the National Safety Council came out with some responses to the CDC, and they did say and encourage employers to continue to take that risk-based approach based on their work environment, being prepared to verify vaccine status. And I know we’ve all been following very closely the news, and a lot of local governments, like in New York and LA, are starting to require employees to be vaccinated or go through testing regiments. So that’s something that we need to think of as employers and then continue to foster this. And we’ve talked about workplace culture. Is that culture of safety and inclusivity and making sure that if they are vaccinated or not, that we’re having these open, honest conversations and helping employees see how these decisions are being made and then moving from there. And then in terms of this risk approach, Axiom has definitely advocated these layers. And interestingly, it comes up a lot in recent times with some of the backing down of some of the measures with the CDC and others is that we’ve had a lot of employers say, well, we can stop a lot of this, right? And to the point about infection in general, we want to continue to encourage individuals and companies to continue to think about that layered approach. It isn’t just one or the other that’s going to keep us healthy and safe. It’s all of these things working together. It’s Tony’s points about health and air and quality, environmentally cleaning and safety controls being in place, and everything up into either vaccination and testing protocols. So all of these components need to continue to be working together to keep these employees and employers safe and healthy. I’m going to pause. I’m going to let I think Dr. Cherry or others weigh in on this, too? I think there’s a lot that I just went through.

[35:22] – Dr. Cherry

Yeah, Dara. Maybe I’ll just reinforce a couple of topics that you touched upon, and were in the back of my mind. So as we consult with our clients, obviously, once things were kind of slowing down from a daily case rate and the CDC guidance was starting to relax with regard to some of the protective efforts, we were getting a lot of questions from our clients about also following suit. And I had to think deeply on this because, in some senses, we did see the risk coming down. But still, with the limitations of the data on infection prevention of the vaccines, although they’re very effective at preventing hospitalization and death, it was to be determined early on their effectiveness at infection prevention. And I think now we have a better understanding of that. But the way I contextualize it for our clients is that the CDC is actually a guidance agency. It is not an enforcement agency. And so the guidance is helpful. But and maybe Chuck could address this if I’m misspeaking, but following CDC guidance may not be enough for corporate or businesses. I see the CDC as public health guidance for the general population. However, employee populations, specifically, companies may have a higher standard to fulfill the protection of their employees. I know we were expecting OSHA to pass a more broad protection requirement for infectious disease in the workplace, but still, the general duty of clause does exist. But also I think we’re seeing lawsuits that aren’t through the mechanism of OSHA, but through, I guess general liability check. I don’t know how potentially those lawsuits are being filed under the legal framework, but I know that they are existing. So the CDC is almost potentially the bare minimum at times you need to follow. And I know our Axiom standard has been more protective, really, from the beginning of this pandemic, but it helps put things in perspective that it’s not just CDC guidance that should inform corporate or employee health policy.

[37:56] – Chuck Kable

Yeah. I mean, just to comment on that, Scott, I think that where companies may get into trouble, to your point is they may sit back and say, well, we’re following CDC guidance. But in this particular location where there is an outbreak, they have information that should cause them to take a more conservative approach than what’s being recommended by the CDC, which is based on a much broader view of the population. And so the risk is it’s all about the knowledge of the employer at the time. That’s what’s going to be challenged. That’s what’s going to be utilized in a lawsuit to claim, for example, wrongful death, which we’ve seen. We have some clients involved in those kinds of lawsuits because the family members are upset. They want to put the blame on the employer because they feel like the employer knew that there was an unreasonable risk of infection and they didn’t do enough to protect the workforce. And so those are the kinds of risks when you don’t have a defined standard that is going to be out there. It’s not black or white. Even if you’re following CDC, it’s evidence of something. We’re doing something here. But then the next question becomes, well, how are you ensuring that you’re, first of all, even following that standard, do you have a policy document? Well, no. Who’s in charge of enforcing it? Well, we just tell everybody, you know what I mean? Like, you can kind of go down this path and very quickly start to see that perhaps even if you say you’re following CDC guidelines, there may not be any evidence to suggest you’re even doing that.  So there’s a lot to think about, a lot to concentrate on from an HR perspective. Everything’s policy-driven. When we’re, for example, the White House has suggested that long haulers, these folks that have had COVID for months and months may be entitled to protection under the ADA. So now you got kind of another issue that’s a traditional HR issue that’s driven by policy, that is now kind of a liability that’s been created by COVID. So, anyway.

[40:10] –  Holly Foxworth

Good stuff, yeah. Well, Chuck, just kind of staying with you then you know, the first town hall question that we had gotten was really kind of specific to some of that risk leveling that you had referenced before. I think it was from Karly, she asked questions about the liability of risk leveling by location. We have multiple plans throughout the United States, with several locations requiring less health and safety protective measures such as masks, social distancing, reopening the break room, etc. So if an outbreak were to occur at one of these less protective measure locations, are we liable for the relaxed policy if it doesn’t match the policy of other, more restrictive facilities?

[40:52] – Chuck Kable

I don’t I don’t necessarily like talking about it in a comparative approach. I think that the way that that situation is going to pan itself out is you have a standard that you’re utilizing in that location. But there’s an outbreak. Well, what information are you using to determine when there’s an outbreak? How are you examining the prevalence of infection in that location? And then what measures do you have in place to create enhanced levels of protection when you begin to suspect an outbreak is occurring? So, again, the information you have at the time and how you’re evaluating risk is what’s going to play into this. And so, like, one of the things that Axiom’s working on is a risk scoring that employers can utilize to generally just understand what the variables that are at play at a given location, for example, would relate to kind of risk generally of an outbreak or infection. And that could then translate into a scaled approach. A layered, scaled approach, perhaps. In terms of what steps you need to take. But I do think, look, evidence is evidence at the end of the day. And if you have more comprehensive measures in place at different geography. It shows that you know that there are more comprehensive measures available. So then the question becomes, once you see that an outbreak starting to occur in this place where there are less substantial required measures in place. What are you doing to enhance protection then, once you know it? If the answer is we’re just going to keep it the way it is, because we don’t have to do anything more than that. That may not be the right answer, just have to play it out. But it’s all based on knowledge and the way in which you’re evaluating risk and the steps you’re taking.

[42:48] – Craig Gifford

About that… In the context of traveling, we have begun to move toward allowing employees. We have employees and locations all over the country, in fact, in other countries as well. And we had begun to move toward more free travel, particularly for those who were vaccinated. But in the current environment, we’ve just decided in the last few days that we’re going to be fairly limited on travel for a lot of reasons. One, we want to protect employees in one location from another. We don’t want to be carrying it from one place to the next, particularly if they’re red locations. But it’s impacting some of the decisions we had made about how we get back to our business of visiting customers and supporting our employees and the collaborative nature of some of the things that we do that make us who we are, certainly impacting that.

[43:44] –  Holly Foxworth

Good input, yeah. Let’s see. I tell you what. Let’s go to Dr. Cherry next for this one. And anybody else that wants to contribute, please feel free to do so. Rhonda asked, we have not made COVID-19 vaccine mandatory for employees due to the liability of the EAU status, should that position be reconsidered given that increased transmission of variance? And what about employees who are given the Johnson & Johnson vaccine? Is it safe to take one of the other additional vaccines for protection?

[44:19] – Dr. Cherry

Oh, that’s a good one. And I think the first part is probably a little easier in the sense of, you know, I think maybe this is a nuance that maybe the general population may not understand. So for medication or therapeutic or vaccine under prescription to be given, it needs to be FDA approved. And so there’s this process by which that occurs over a period of time. Emergency Use Authorization is a mechanism under very narrow times of public health emergency, which would be declared by a government authority, our President, or governors. And so what happens is there’s some due diligence about that therapeutic, but at the same time, it’s recognized that speed to offering that therapeutic outweighs some of the downsides of not going through the full FDA approval process. So I think making vaccines mandatory, that has its own HR and legal kind of process to understand. I mean, in health care workers or in workers with very specific hazards in the workplace, I’ve seen mandated vaccines, but it is not commonplace for the general workers. And so that’s already a tough HR legal challenge. But when a vaccine-like COVID-19, since it’s not fully approved by the FDA, I think that even creates a tougher legal discussion for each company. In fact, I looked up recently because I had a question about is the military requiring vaccines because the audience knew my military background, and I actually assumed yes, but I told him I didn’t know, but I went and looked it up. And actually, the Pentagon is not making it mandatory because of this EUA status. So that’s very interesting. And I think there are bigger laws about potentially experimenting with different populations without being fully informed. And so making it mandatory, I think, doesn’t allow that informed consent, and it being voluntary. So I think it’s a really tough one, but it’s almost like a legal HR decision for each company thinking about doing that. And actually, in the second part, I’ll need to actually look up just to make sure I have my thoughts right on having multiple vaccines. In the US, a mix and match of the three vaccines approved under the Emergency Use Authorization here in the US, it’s not allowed for mix and match, so to speak. So what happens is someone may get one of the messenger RNA vaccines to start out with, but then when it comes around two to three weeks later to get the second dose, that same vaccine is not available. So then they’re asking, a lot of other countries are allowing this to happen. But right now, the US has taken the stance to not allow for that. That’s why I still have a question mark, but right now we’re taking a very conservative approach here in the US.

[48:11] –  Holly Foxworth

Good information.

[48:14] – Chuck Kable

I’m going to clarify one point on the liability piece to that, Holly. Now, bear in mind, there has been a court decision in Houston relative to this issue of the emergency use authorization, and the court found in the context of the health care providers that we’re not willing to say yes to methodists. That their lawsuit had no merit. Now, it could have been because a lot of the arguments being utilized were off. There was mention of some international treaties. I think the meat of the argument perhaps wasn’t necessarily addressed in the way that Scott articulately and put it. But as it stands right now, what we seem to see is that the liability that we’re concerned about relative to requiring vaccines. First, you have to have an opt-out protocol for people that have sincerely held religious objections, and then folks that have medical conditions, for example, that would not allow them to have a vaccine. But it’s like an EEOC standard. It’s like you have to have an opt-out for these situations, and then you can require a vaccine. And for now, there’s not been anything firm on this Emergency Use Authorization having an impact on that traditional approach adopted by the EOC. And they, in fact, have reiterated that this is the approach that it’s always been, and this is the same for COVID vaccines. There are bigger issues here because there are unknown factors relative to how these are going to pan out over time. And the fact that the FDA has not formally approved them. We expect that they will be approved, I think, before the end of the year, is what I’m hearing and that plays into this, too. But just to clarify, the action taken in courts up to this point suggests that the Emergency Use Authorization is not acting to change or create liability. Now, the liability is going to be people saying I’m not doing that, I’m leaving, right?

[50:26] –  Holly Foxworth

Yeah.

[50:29] – Chuck Kable

Sorry.

[50:30] –  Holly Foxworth

No, you’re good. Good information, Chuck. So the next one, I think that Paul had given us, this one was specific to the CDC face coverings. He mentioned, we discontinued enforcement of wearing face coverings in June. But now the CDC is saying face coverings should be worn indoors for hot spot locations. Is this mandatory for the workplace and what criteria is used to make a hot spot determination? Is the recommendation for vaccinated and unvaccinated?

[51:16] – Dr. Cherry

You know, so hot spot is an outbreak within a baseline of activity. So just generally, you could look at an average infection rate. And then if you have some increment above the average, then – and that’s a very theoretical approach – I think for COVID, once you start seeing an increase in different regions because we’re such a dynamic society, it’s really hard to kind of have tight borders here in the US, even in counties. And so I wouldn’t be overly theoretical in this type of calculation. And if we start seeing trends, I think we’re here now for COVID again, where we want to be as protective as possible for all of that multi-layered approach that Dara spoke to earlier. And then I think it’s worth addressing this last question. I know our time is getting tight, but, you know, the vaccinated versus unvaccinated is a great discussion. Vaccinated persons are at very, very low risk of severe disease and death, but they do have up to about a 25% chance of a breakthrough infection from some of the most recent studies. And this was before the Delta variant. I think the Delta variant is actually going to show a much lower efficacy once that’s known. But that’s just my intuition. So I would not treat vaccinated and unvaccinated persons differently in the employee population. It could be different for the general population when you’re going in your personal, private life. But for an employee program, I would recommend to not differentiate.

[53:11] – Craig Gifford

At our company, we had been planning to differentiate our guidelines that internally that we communicated had been vaccinated did not have to wear masks in the office, and unvaccinated could choose to wear masks or not. Anyone can choose to do so. But we had said that vaccinated did not have to. We also said that you can’t ask, and that was important. From an employee health disclosure standpoint, we didn’t want anyone putting anyone on a spot, so to speak. But with the newest guidance, we have instructed that – and we haven’t said mandate – we said consider, but it’s a strong consider that employees, all employees, vaccinated or unvaccinated, should wear a mask when in public spaces. And that means when not in your assigned office or cubical location. Certainly anytime you’re in a conference room or in the hallways.

[54:12] –  Holly Foxworth

Good information, Craig. Yeah, definitely. I wanted to take one more that is coming up a lot. And Doctor, you may be able to weigh in on this one, but Joshua asked, curious to know if other employees have considered or planning for vaccine boosters. If so, when would they need to be administered? And could we combine them with an annual flu shot?

[54:34] – Dr. Cherry

Yeah. I think there have been discussions about boosters. The way the coronavirus is, the biological makeup of coronavirus is very amenable to variants because it’s an RNA virus. And RNA viruses are built that way. They’re built to have flaws when they reproduce. And so most variants actually are actually bad for the virus, and most of them actually make them weaker, but a very small percentage will actually become stronger and give them some kind of competitive advantage with infections. And so I think boosters have been talked about by the pharmacy companies pretty early on. I have not seen anything yet where there’s actually a valid booster shot. But if we see a significant breakthrough, if we see vaccine effectiveness drop below 50%, I would say that’s probably where you would need a booster and you want to give it as soon as possible. And I know there is also in the works combining it with the flu shot. What’s been so interesting for Chuck and I as we dive into the disability-associated cost and just activities, flu has been a huge cost to employees and to the nation. So if you can actually control flu, it may offset your COVID spin to a degree, and that’s just shooting from the hip. But I feel like there’s a huge low-hanging fruit there as well.

[56:11] –  Holly Foxworth

Yeah, definitely. Well, I think we’re kind of at the end of our time here, but I did want to just wrap up and just point out again that we appreciate you joining us today on having these discussions with us. We aren’t stopping it here by any means. We’ll continue to push forward with some of these that are here again. If you haven’t already, please press that register now button that’s going to get you free admission. You can come and discuss with us what’s going on next, having those real conversations about vaccines and the variants, what it is that you need to say and how it is that can be presented. So definitely, if you haven’t already, please click on that. In addition to that, we also have the resources that are listed there for you. We have the white papers that are here. This is a new one, it’s fresh off the press and talks you through what the value is and why it is that you need a long-term approach for infection control in the workplace. I think that’s about it. I think that we’ll wrap it up at this point. Unless somebody else has something to add. Any last-minute thoughts? Dara, last minutes thoughts, closing remarks?

[57:20] – Dara Wheeler

No, I appreciate everybody joining us today, and thank you all, some really great information. We probably could have spent another hour, so I know Holly’s trying to get us out of here, so thank you so much. And we’ll continue to follow up in this conversation, get as many answers as we can.

[57:37] –  Holly Foxworth

Absolutely, yeah. So don’t hesitate to reach out in the event that you have any questions about any of the long-term strategies, the check-in the work, anything that kind of comes along with this, please reach out. We’re happy to help and get you the answers that you need. Thank you.