CEOs: How to Break Out of Your "Mandated Vaccination Program Trap"

How Might You Break Out of Your "Mandated Vaccination Program Trap"

Many CEOs of private enterprises, possibly except for healthcare-related (likely) private enterprises and perhaps national security-related (less likely) private enterprises, find themselves in trouble. They are deep within the "Mandated Vaccination Program Trap." So how do they break out??

A. Quick and Brief Discussion of The Two Levels of Seriousness of The Trap Into Which They Have Fallen, Level #1 And Level #2.?

Level #1: This less-critical discussion of the first layer, alone, might motivate some CEOs (and their boards) to wake up, think harder, and work faster to engineer their breakout from the trap within which they find themselves.?

Most CEOs of private enterprises are learning fast when it comes to Level #1 problems. Now they know how devastating or potentially devastating Mandated Vaccination Programs are for most private enterprises. Just in terms of operations, many companies will not survive. Others will be seriously harmed. CEOs might lose their jobs. These CEOs just don't yet know what to do about this critical problem. But they are eager to learn.

The obvious Level #1 damages include (a) Employee unrest. (b) Drops in productivity. (c) Drops in revenue. (d) Drops in profits. (e) Increases in employee resignations. (f) Increases in employee firings. (g) Threats of unionization. (h) Difficulties in recruiting top prospects. These actually experienced or potential damages to operations are apparent and should have been evident to thoughtful CEOs before they fell into the trap. But traps are traps because they are, to one extent or another, hidden.?

How did they fall in? Did they lead with emotion instead of business sense? Did they feel that, at least for now, while for the next few months, vaccinations remain free of direct cost, this solo vaccination approach was the best method for protecting both their employees and their investors??

On just these apparent factors, were their calculations flawed? Shouldn't it have been evident that they were taking their enterprises deep into a trap?

On the other hand, perhaps they individually felt safe. Did these CEOs get poor advice??

Perhaps, all of the above. But this is only the tip of the iceberg.?

Level #2: This brief discussion of the second layer might far more motivate some CEOs (and their boards) to wake up further, think harder, and work faster to engineer their breakout from the traps into which they have fallen.

Level #2 damages might be devastating, even catastrophic, for most private enterprises.?

To be clear, though, the "CEOs" of many public enterprises, as contrasted with most private enterprises, have only the problems of Level #1-caused failures. Thus, these Level #2 risks do not likely exist for them, at least for now.?

Thus, in the case of public enterprises, CEOs and their enterprises are probably exempt or at least largely exempt from the consequences of the Level #2 failures. But, of course, the "content and administration" (that I will discuss next) of their overall safety program would have to fail egregiously for them to suffer harm. If not, the higher agency heads to whom they report likely could not hold them accountable financially, in an immediate sense.?

The exception to this non-accountability statement is: they, too, retain exposure to the risk of possibly losing their CEO job.?

B. Let's Now Take a Quick Look at The Rest of The Story.?

Layer #2 of the set of risks here to some (probably most) CEOs and their enterprises is even more complex. Level #1 was just the tip of the iceberg. The following brief discussion is about the rest and the far more severe and better-hidden remainder of the iceberg.?

87% of?an iceberg's volume (and mass) is underwater. So too, here. I have before written of this set of enormous and significant CEO and private enterprise risks. So let me just give you enough here to read more later and ask your consultants for their advice.?

In my longer writings, I build the case for why private enterprises might want to be as aware as plaintiffs' attorneys already are of the risks regarding installing solo mandated vaccination programs.

Solo, mandated vaccination programs not only don't work. Such programs are also huge traps from the perspective of the ethical, moral, and business operations problems they create. Plus, they are especially problematic regarding the enterprise liability, and possibly personal liability, exposure to legitimate civil court lawsuits brought by employees and family members.?

Let me share just a few of the risks.

C. You Cannot Likely Get Away with Not Providing A Good Safety Program

You cannot likely get away with not providing a good, or just as good, or at least good enough COVID-19 and variants safety program.

There is a theory in law that if you do nothing to protect someone, you are not liable to them, even if they likely will die or be seriously harmed by your failure to act. But in this area, even if your advisors might stretch federal and state constitutional, statutory, or regulatory provisions to their utmost point, you will almost certainly lose if you use this concept as a defense.?

The rest of my brief comments apply to COVID employee or family member-initiated lawsuits. Here, it is all but sure that in America's current legal, ethical, and moral culture, judges and juries are going to hold your enterprise (and, in rare cases, you) civilly liable for legitimate damages suffered by plaintiffs.?

In other words, it is almost inevitable in COVID-19 and variants death and other severe harm cases that judges and juries will not apply traditional forms of judicial and jury restraint. Instead, they likely will be bold and even angry.

Both will assume that you knew, or "darn right should have known," of the high risks of severe consequences to your employees from breathing the spread-unprotected air emitted by sick fellow employees working or standing by them within each of your facilities. In other words, your failure to act reasonably to protect your employees and their families from COVID-19 or variants harm will be actionable.?

You and your enterprise will be subject to being held accountable. Employees will be allowed to sue you and your enterprise for damages for your negligent, wrongful, or reckless failure to protect them adequately.

Again, all the above statements regarding the possibility of you and your enterprise's accountability apply not just to your ethical, moral, and business failings. All three are bad enough. But also, they apply to your responsibility (fault) in the form of court-imposed legal damages. So, I will not repeat them for brevity's sake.?

The big difference in the subsequent discussion is that when you act and your action is incorrect in terms of direct error or the error to do enough, you and your enterprise will similarly possibly (or even likely) be held accountable. Therefore, I have purposely limited the next discussion to the "not having done enough" side of the equation.

D. There Is a Dispute Over Whether a Federal President's Mandate Helps

For at least two important reasons, there is a dispute over whether a federal president's mandate, via executive order, or a state governor's mandate, by any means, will give most private enterprises (and their CEOs) some protection from legal liability.?

On the one hand, some commentators think that so long as they initially follow and continuously adhere to the order's intent in setting up and then operating the solo mandated vaccination programs, the CEO and the enterprise should be protected.?

On the other hand, it is likely that as a matter of public policy, judges and juries are likely to search hard for ways to impose civil liability on CEOs and enterprises, no matter what the executive order or other forms of instruction might say.

E. Vaccination Programs (So Long as They Are Not Solo) Are Good Things

Vaccination Programs (so long as they are not solo) are good things. I strongly support vaccinations and vaccination programs. Under the right circumstances, vaccination programs established by private enterprises are excellent things to have, so long as CEOs and their teammates set them up right.

This discussion is only about the use of "solo" mandated vaccination programs. These are programs lacking reasonably required additional components before they become reasonable programs from every likely perspective.

These perspectives range from providing an appropriately comprehensive safety program. For example, a program that fills in most of the safety gaps inherent in solo mandated vaccination programs.?

To the other end of the range, providing a program that properly offers employees a suitable option to choose, so management will not force them to either get vaccinated or receive severe professional harm. For example, a program that involves regular testing within an adequately managed comprehensive, and accordingly, too complex to manage by-hand, Safety Program.

In other words, the discussions above and below are only about vaccination programs at private enterprises that do not already fill the well-known gaps in vaccination programs to a reasonable extent.?

Most private enterprises using mandated vaccination programs probably do not reasonably fill those protection gaps or give a suitable optional program. If they only involve vaccination programs, they certainly do not. Same thing, if they apply little else.?

So, "when the dust has settled," the debate will continue over whether those governmental instructions will likely provide you with none, some, or significant protection if you use a "solo" program rather than a "comprehensive" program.?

For many reasons, I believe the protection here will likely be none, or at the best slight. This finding will require deeper discussion in a later paper.?

F. Employees and Employees' Families Have Rights

As it should be in a democratic society, employees and employees' families have considerable rights they can readily enforce.?

These rights come from many different sources. They can be customary, both specific or implied. In addition, federal and state constitutions, legislation, and regulations might create many more, again explicit or implied. And, judicial formal and informal opinions, and the often binding or informal opinions of juries, are added to the mix. Similarly, in this third case, both might be specific or implied.?

The American legal system and most other countries' legal systems are far more complex than most people believe.?

The most critical elements of employee and family rights for discussion here are rights to legal damages created by any person or any enterprise that imposes one or more of many types of provable harm to them.?

There are limits on how much of the harm might be subject to legally required payment by employers in many cases.?

For example, most employees are unaware that most no-fault workers' compensation statutes give them no-fault ease in applying and administering liability law principles to obtain partial compensation for injuries. But this benefit is purchased for a hefty price. Employees are granted these conveniences in exchange for significant and valuable to enterprises, their CEOs, and their liability insurers, limits on the amount employees and families, might recover.

It is unlikely that judges or juries will directly or implicitly void the worker's compensation statute protections afforded to enterprises (and CEOs) in COVID-19 and variant related cases. If they did, it would likely involve a finding that payment of pandemic-related damages was not contemplated (and therefore not intended) when the state legislatures passed the statutes, but they might. The risk here is slight, though.

Reasonable interpretations of federal and state labor laws might also be relevant here. But I suspect their valid interpretations will go in both directions. They likely will create new rights and dispose of some traditional rights. And they likely will create new limits and throw out old limits. We will see.

Going into court, especially today is always a game of Russian Roulette. Constitutions, statutes, regulations, and case law are all subject to interpretation by regulators and judges. Judges and juries who want at all costs to "do the right thing" create an even greater risk for CEOs and enterprises.

Today, enterprises and CEOs that do not provide reasonable levels of comprehensive spread protection, mitigation, and control of dangerous (deadly or otherwise seriously harmful) pathogens, are in the minds of most Americans (and many people abroad) far from doing the right thing.?

G. Solo Mandated Vaccination Programs Have Considerable Gaps of Many Important Types

It is well known, scientifically-, regulatory-, legally-, and investigative-reporter wise, that solo mandated vaccination programs have considerable gaps in the protection they provide to employees and their families.?

These are just a few examples of the sources of the vast gaps in solo vaccination programs that make them far from comprehensive. When health experts first administer vaccines, and increasingly so, in reality, they are far less protective than most people think.?

This unfortunate reality is because of the possibilities: (a) of faulty manufacture, warehousing, transportation, further intermediate or on-site storage, and administration they might provide only about 90% protection, for example; (b) of what is called "breakthrough" cases, that protection might be lowered still; and (c) of almost certain decreasing protection they likely afford every month; (d) of the protection going almost to zero by the eighth month (not ten years, and not a lifetime, like many people, for one of several reasons, believe); and (e) of the likelihood of far fewer people receiving boosters than the number that were initially vaccinated.?

H. So, What Do You Do to Solve Both Your Level #1 Problems and Your Level #2 Problems??

What do you do to solve both your level #1 problems and your level #2 issues??First, of course, you need to solve both. But you most need to solve your Level #2 problems before they accumulate below sight (as 87% of the iceberg always does) to the level that they come back and even more seriously or even catastrophically bite you.?

The obvious thing to do would be to offer a more comprehensive program that, to a reasonable extent, fills most of those vast gaps.

What does a program look like that does this, magically? What are its key components? How many are there? Where might they be found?

The answer is that a comprehensive COVID-19 and Variants Safety Program is broadly inclusive. Therefore, you cannot just add masks, temperature checks, and social distancing to your mandated vaccination program and thereby, again very cheaply, create a reasonably acceptable comprehensive Safety Program.?

Just like with solo programs, that will not work. Masks, temperature checks, and social distancing are "nice to haves." But they are not protective enough in terms of protecting ill employees from entering their designated (or visited) facilities or their homes and infecting others.?

I. What Must Be Added to Vaccination Programs to Make Them Sufficiently Comprehensive?

So, what must be added to vaccination programs to make them sufficiently comprehensive? Adding routine testing weekly for provably vaccinated employees and daily testing of employees and their family members who are not vaccinated adds tremendous value in filling the gaps.?

But human errors in managing a comprehensive program's complexities leave the program still short of the reasonably comprehensive program goal line.?

Only by also adding to your almost-comprehensive program a sufficiently capable data and decision-making management software platform will your safety program become sufficient to be characterized legally as "reasonably comprehensive.?

Unapologetically, I am pleased to announce that along with my Teammates, I have invented, developed, and recently launched just such a platform after long and hard work. Our SaaS data and decision-making management platform, along with optional add-on features, such as top-of-breed tests, will enable you to structure a sufficiently comprehensive COVID-19 and variants Safety Program for your enterprise.?

Under normal circumstances, my young company,??Safely2Prosperity LLC, will solve most of your Level #1 and Level #2 problems.?

If you might want a demonstration of how this SaaS platform works, please call 617-680-3127 or click one of the Demo Boxes on Safely2Prosperity's website at safely2prosperity.com.?

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? 2021 Safely2Prosperity LLC and John Norris, JD, MBA, Former FDA Senior Executive, and Harvard Faculty Member

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