The OSHA "Hybrid" COVID Risk Management Clock is Running. Important or Not?

The OSHA "Hybrid" COVID Risk Management Clock is Running. Is this mportant or Not??Let's talk.

The President's OSHA "Hybrid" COVID Risk Management Rule clock started ticking on Monday the 10th. Its enforcement might be blocked temporarily or permanently by the US Supreme Court. Why is this important, and why is it not? Be aware! Every thoughtful CEO in America must prepare for the Long-Haul, not just the Short-Haul. Now!

So, why should the Supreme Court side with the President? Why doesn't it matter in terms of CEO actions needed now, even if they don't? CEOs and Board Chairpersons beware.

OSHA will not begin imposing huge penalties per infraction to enforce its "Mandated?Hybrid?COVID Risk Management Safety Program" Rule until February 9th. Or this might occur days later if the US Supreme Court grants a short stay of execution to further deliberate the Constitutional issues the President's order raises. But the President's "Mandated Hybrid COVID Risk Management Program" clock started ticking on January 10th, 2022.?

The race to prepare and obtain sufficient resources to execute an appropriate Hybrid Safety Program by February 9th?is on. The company that I founded, Safely2Prosperity LLC, is being hit multiple times a day for Employers or Resellers to get in line to schedule discussions, Demos, and negotiations-sessions to license Safely2Prosperity's gold-standard SaaS COVID risk-management platform and hybrid safety program.?

The President's OSHA Rule is NOT a "Mandated Vaccination Program," as so many are mistakenly or purposefully calling it. I would bring any apolitical power I might have to bear to oppose it if it were. Instead, and very critically, the President's OSHA Rule creates a "hybrid" safety program. This distinction makes all the difference in the world. Accordingly, I strongly support it, apolitically, again, from a health and healthcare risk management perspective. Unlike lesser programs, Hybrid Programs make a huge difference. Let me tell you why.

I have often mentioned the critical need for Hybrid COVID Risk Management Programs in my articles and posts. In addition, I have repeatedly pointed out the extreme dangers both to employees (and families) and to employers (and CEOs and Board Chairmen, personally) of Solo Vaccine Mandate Programs. This weak but (until now) favored Safety Program was the?de facto?federal government-sponsored program for a while. Moreover, it was the only kind of Safety Program for which the federal government would pay—for roughly two years.?

Because vaccinations are free, these Solo-Programs are initially cheap, federal government-financed Safety Programs. But later, they will cost employers exponentially more, both humanistically and financially—In at least two ways, as we will see.?

For example:?

(1) They are not sufficiently?safe and effective?to adequately protect employees and their families, AND?

(2) They lack the proper creation and appropriate enforcement of a?reasonable choice?for employees who, for any reason or no reason at all, refuse to receive vaccinations—In their bloodstreams and/or in the bodies of their loved ones.

Hybrid Safety Programs have five critical legs, consisting of five very advanced risk-management Programs:

1. Optional Every Seventh Month Vaccination Programs

2. Or, Optional Weekly Testing Programs (or both)?

3. Optional When-Prescribed Therapeutics Programs

4. Daily PPE (some optional and some mandated) Programs

5. Non-Optional 24/7 SaaS Risk Management Platform Programs (This leg makes every other part work in a coordinated, sophisticated, comprehensive, and thoughtful way. Without it, employers partially or altogether lose many of the benefits of a Safety Program.)

These Programs are a "Must Have" at employers' HQs and at all their work facilities. Employers included here are manufacturing, warehousing, distribution, and retailing centers, individual schools, and federal, state, and county government facilities.

Why is the Date of Full Enforcement of this Pending Rule Important?

This February 9th?date is important because:

A. While there is a relatively small percentage chance that the Supreme Court, who is now reviewing the powers of the President and his OSHA agency here, might rule against the President, I bet that they won't for many reasons, including five:?

(1) Rarely has the US Supreme Court overruled the power of the President to use an Executive Order to require a specific federal agency to institute a "narrow," "reasonable," and "reasonably related"?regulation (which the President's is) to protect workers and their families even?without?a crisis. The very essence of why Congress and the President's predecessors created OSHA in the first place is that OSHA leaders and workers have the specialized skills needed to risk manage workspaces and work tools—to protect workers and families from death or other harm sufficiently.?

So, I think there is?even less?chance that the US Supreme Court will deny the President the power during a pandemic-sized US health and healthcare crisis to use OSHA to protect workers (and their families). Yes, of course, I might be wrong. Some of those who read this Article likely will say so. But this is my best interpretation of the circumstances. I don't play it safe.?

Large groups of US employers' have taken poor or insufficient voluntary actions, no actions, or even counter-protective actions to protect their employees and families appropriately. As a result, and ironically, many employers need to have an OSHA Rule "cover" to do the right thing. Likewise, many weaker business leaders need OSHA cover to help them get their employer from shooting itself in the foot. By using solo-vaccination programs—or just as bad, solo-temperature check programs (or such hugely ineffective solo programs plus other PPE), which even together are not robust enough to protect employees (and families) sufficiently—their employer is only hurting itself and its investors—as well as its employees and their families.

(2) With more delay, far more people will be harmed, mildly to severely. This result is almost a certainty. However, because the nature of the Omicron variant is such, the number of deaths and severe harm from the Omicron variant is low. We should be thankful. But we should not be ignorant of the remaining high levels of damage to employees, from fear of injury to themselves and to their loved ones and co-workers to the possibility of long-term injury. And to employers from the coming massive damage to employers (and possible loss of jobs to employees) from damages or settlements of cases in lower courts, both state and federal, that is barreling ahead.?

Especially likely to be damaging to employers are the class-action lawsuits against them. Those who have failed for two years and counting to install safe and effective Infectious Disease Safety Programs are at significant risk of liability. And what if the following variant is more deadly than Omicron, which it might be? This liability likely would be imposed by a court in the form of a finding of negligence. But worse, it might be assessed in the form of gross negligence, wrongful death, or even reckless behavior. So, most often, these cases are settled out of court before they go to trial or through a full trial. These results can, of course, bankrupt employers or drain funds for raises and benefits, further hurting all employees.

(3) OSHA is, in fact, and in law, the proper venue for addressing such issues so long as the OSHA Rule is reasonable as to timing, scope, and penalties for non-compliance and their application is uniform and fair. And it is appropriate as to direct and indirect Hybrid Safety Program employer cost—when compared with physical and mental harms and financial costs to employees and employers absent the Hybrid Safety Program.

(4) Certain people involved here might be misinformed or dishonest, but the members of the US Supreme Court are not. They might have different philosophies regarding using the federal government to manage many crises. Still, they are united in their view that workers (and their families) require reasonable levels of protection, including the creation and proper execution (guided and enhanced by appropriate steadfast enforcement of compliance) of sound methods and procedures for their employees and families' safety.?

Justices of the Supreme Court are also united in other beliefs. For example, they believe that poorly paid front-line workers (most of the people currently left unprotected and most of whom are Blacks or Hispanics) require appropriate levels of government intervention to at least mitigate this potentially severely harmful—and sometimes deadly—form?of?de facto, if not?de jure?discrimination. Therefore, if most justices find in their minds three things as matters of fact, they will likely vote to support the President. I believe they will do this by finding ways to shape their opinions Constitutionally, so long as their interpretation of the Constitution is reasonable as to scope, is properly defined and limited, and is not likely to open a floodgate of other cases.

These facts include:?

(a) There has been a COVID-related health and healthcare crisis ongoing in the US for roughly two years that is continuously harming its workers, in one way or another—and it likely will continue for months or even years. Especially at risk are minority employees who work indoors in confined spaces.?

(b) The new Rule is reasonable as to its scope and its direct and indirect net cost. Regrettably, many employers do not yet see the obvious. Clearly, there are substantial savings here in terms of (1) employee and family lives saved, (2) other physical and mental harms to employees and families prevented or mitigated, and (3) direct and indirect financial costs to employees and employers, alike, that both save. Together, these costs are many, many times the financial costs of refining, implementing, and operating a safe and effective Hybrid Safety Program. Again, financially gifted executives can see this in an instant.

(c) The new Rule protects a large segment of the US population from discrimination, especially discrimination that might directly be severely harmful or even deadly to employees (and their families) who fall within that group. And worse, members of that minority group sit in the weakest position of all employees to apply self-help to protect themselves. Many, if not most, members of this group find themselves seriously trapped in such circumstances. Unless they go on unemployment, they have no escape. And unemployment benefits have a definite termination date.?

Some policy experts and CEOs predicted that this war against the COVID hidden enemy would only last a few months. ("We all will be home for Christmas" is the phrase most often quoted pejoratively to explain this form of naiveite.) Of course, we have no way of knowing how long the COVID Pandemic will last, but it is all but sure that the battle that hasn't stopped at two years might last another year and possibly, many would say probably, far longer.

(d) While the President or the Congress might find other avenues to do the same thing, imposing on employees, predominantly minority employees, the additional delays would be excessive, immoral, unconscionable, and even unconstitutional. For example, in six months, the President might be able to get a statute passed to expressly grant him the power to order OSHA to accomplish his critical mission, again in a thoughtful way.?

But think of the employee and family lives and employers that an adverse decision by the Supreme Court will destroy in the interval! Supreme Court Justices, to a number, are passionate about preventing critical direct or indirect harm to large numbers of largely unprotected people, especially if the Justices can, with insight, experience, and skill, craft a limited means of doing so. Justices are people who care first. Otherwise, they never would have made it to the Supreme Court.?

Each Justice must make their findings of fact in their own minds before determining or rationalizing their constitutional law findings and judgments. If, in their individual findings of fact, two of these are present, especially strongly present, a majority of justices are unlikely to deny the President this power to protect vulnerable workers and families in the middle of a crisis—one that has killed roughly a million Americans and harmed countless millions more. Many of the latter required hospitalization. And a few experienced long-term or even lifetime injuries.?

Although COVID-19 has become less dangerous with the Omicron variant becoming dominant for the moment, COVID might quickly become more hazardous with the "birth" of a following variant (and with a high level of certainty, there will be another variant of concern arriving soon) or the following variant after that. And we are beginning to see that the simultaneous infection with Omicron and the Flu creates a more dangerous situation, now, too.?

Accordingly, the deployment of bottom-up, sound risk management efforts is already delayed by years to date. At a personal level, Justices will also consider if it would be "criminal" to slow them once again.

And, if in each Justice's findings of fact, three of these are present, especially strongly present, a more significant majority of Justices are unlikely to deny the President this power to protect the American population. Rarely does the Supreme Court take away a President's authority to act thoughtfully and reasonably in the middle of a health and healthcare crisis.

B. Some 30,000 of you are my followers. Accordingly, you have followed my COVID-related articles and posts over the past two years. You know that I am not shy about saying what I believe. You also know how strongly I have recommended that CEOs and Board Chairpersons "cease and desist" in using high-risk, both for the employee (and their family) and for the employer, Solo-Vaccination Programs. And that they shift instead to using the Hybrid Programs I described in detail above.?

Unfortunately, for roughly two years, the President only funded Solo-Vaccination Programs. But he is to be praised for revising his thinking. Accordingly, I strongly opposed his initial policy, in an apolitical way, and only as a former FDA and Harvard-born expert in health and healthcare risk management. So you might wonder why I now, to the contrary, so strongly support the President's new thoughtful regulatory policy and its appropriate execution and proper enforcement as an OSHA Rule.?

I do so for two key reasons:

(1) The President has struck the right tone. This thoughtful effort is especially sound now that the President has also pledged to pay for 500M very rapid, fully at-home (or at work) test devices. He also has committed to distributing these devices in two weeks. I have been an advocate worldwide on and off for some 30 years of very rapid, fully at-home (or at work) just as good test devices, especially ones that are very low in cost.?

(2) So, too, have I been an advocate, on and off, of Hybrid Safety Programs, as described earlier—especially where, as here, the half-life of the rapidly deteriorating effectiveness of vaccinations is very short, as short as four months. The President's recognition that Hybrid Vaccination and Testing Safety Programs are the right things to deploy now and his thoughtfulness in moving this insight forward in a proper way have now garnered my strong, apolitical support.

So, Why Do I Also Say That the Supreme Court's Opinion is Not Important?

I also say that the Supreme Court's support of the President's OSHA Rule is unnecessary. But, it's a nice thing to have. It will allow more CEOs and Board Chairpersons to launch their Hybrid Safety Programs sooner—all for the common good.

I say this because:?

A. Employers are in a do-or-die situation already. I have repeatedly warned in many of my roughly 70 Articles and Posts that any CEO and/or Board Chairman who has not moved their company (and its investors) in the direction of a Hybrid Safety Program is taking an extraordinary risk. Not having a robust, safe, and effective COVID Hybrid Safety Program places them in line for serious trouble. Moreover, this level of risk has continuously increased since viable COVID-19 vaccinations, and feasible COVID-19 tests have come on the scene. But few CEOs have acted. And some are still saying to themselves, "If," and not "How."

Many CEOs and/or Board Chairmen, whether they are conscious of this or not, are in a heap of trouble for at least four reasons, from social, to productivity, to legal, to financial.?

These include:

(1) All "Non-Hybrid Safety Programs" in existence today are relatively unsafe and ineffective.?

These unsafe and ineffective Programs include, for example, those that:

(a) Just rely on social six-foot distancing, masking, and/or other PPE.?

(b) Or just rely on those plus temperature checks.?

(c) Or just rely on all of those plus vaccinations.

All three of these archaic approaches provide inadequate and poorly risk-managed protection. In sum, these ineffective safety programs put people's lives at risk—avoidably and irresponsibly. They are what I call "Top-Down" poorly managed safety programs.

(2) That is so, no matter how well managed they are, though. What's worse, many of these inept programs appear as poorly managed to non-managed from a risk management perspective. So, using this second class of very weak alternative safety programs is even worse than using the first.

B. These problems create three critical secondary issues.?

These include:

(1) Our research to date has not discovered the number of these cheap Safety Programs that supply below required minimum levels of protection, but we believe the number is significant. Simply put, they are not as safe and effective as is reasonably required given the totality of the circumstances. Employers beware. Regulators and lawyers—and possibly bankruptcy or dissolution—are headed your way.

(2) Accordingly, all Non-Hybrid Safety Programs in existence today, as far as we know, raise ethical, moral, legal, and discrimination problems in a liability and direct and indirect financial sense.

(3) And accordingly, all Non-Hybrid Safety Programs in existence today create potentially significant adverse employer branding problems (and the same for the CEO and the Board Chairman) that create indirect liability and, in an indirect way, financial or career-damaging sense.

C. If nothing else, the President's thoughtful OSHA Rule has put the fear of God into hesitant CEOs and Board Chairmen and given them strong "cover" to spend adequately to do the right thing entirely—and soon!

Best,

John

John A. Norris, JD, MBA

Founder and Executive Chairman

Safely2Prosperity LLC

Email:?john.norris@safely2prosperity

LinkedIn:?/company/safely2prosperity

Website:?safely2prosperity.com

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? 2022 Safely2Prosperity LLC and John Norris, JD, MBA

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