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Ryan E. Day


It’s Time to Apply Risk Management to President Biden’s Vaccine Mandates

Odds are high that your organization will be affected

Published: Thursday, November 4, 2021 - 11:03

‘By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301, 3302, and 7301 of title 5, United States Code, it is hereby ordered as follows....”

Why do these words make me cringe? Well, because when presidential ink hits paper, all the ramifications get real. All the things that make for healthy debate become regulations that impact our businesses on a daily basis—and in a big way. Today, I’m talking about President Biden’s vaccine mandates or executive orders.

It’s already well known that President Biden’s “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors,” aka Executive Order 14043, requires all “federal workforce and individuals interacting with the federal workforce” to be fully vaccinated by Nov. 22, 2021. This is the first of two executive orders (EO) signed on Sept. 9, 2021.

The second mandate is the “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors,” or EO 14042. The fallout from that declaration will soon—as in Dec. 8, 2021—transform from media fodder into cold hard facts for literally millions of U.S. workers.

Which begs the following question. It’s not about how the Biden administration is handling the response to the pandemic, or the fact that the EOs don’t apply to congressional or judicial branch workers. No, my question is simply this: Will these mandates apply to you and your employees?

Employees in the vaccine-mandate crossfire

U.S. employers—and possibly foreign contractors and subcontractors—must assess their legal responsibilities in light of these new executive orders. Although no specific penalties for noncompliance have emerged as of this writing, repercussions for noncompliance could be disastrous for lucrative federal contracts.

Although the orders themselves give only the broad-brush view, the details are farmed out to the Safer Federal Workforce Task Force. According to the task force’s “Guidance for Federal Contractors and Sub Contractors” and “Memorandum for Heads of Executive Departments and Agencies,” all workers covered by “contract and contract-like” arrangements are subject to the mandate.

Scott Warrick is a practicing employment law attorney, human resource professional, and best-selling author with 40 years of hands-on experience. Many of Warrick’s clients and associates are, and will be, caught up in the nets of these EOs.

When discussing which employees are going to be included in vaccine mandates, Warrick uses a fishing analogy.

“Think of it as an angler who is fishing, and he has four different buckets for each kind of fish he catches,” postulates Warrick. “The first bucket of fish/employees are the federal workers. The second bucket is for federal contractors and subcontractors.”

The mandate for contractors and subcontractors throws a wide net. How aggressively it will probe into the subcontractors’ realm is a risk management concern for many organizations employing millions of workers.

“A good example of who gets caught in the contractor EO would be an organization like the J. M. Smucker Co.,” explains Warrick. “Apparently, Smucker’s makes jelly that is sold to the military.”

From a risk management viewpoint, company leaders must determine if they have employees working on products sold to the military. Will those employees fall under the subcontractor clause? Obviously, this concern is relevant for all companies supplying products or services to any federal institution as well as subcontractors to those federal suppliers.

“The third bucket is anybody who receives Medicare or Medicaid funding,” says Warrick. “That stipulation includes every medical institution in the country—and all their employees.”

Further digging through the president’s “Path Out of the Pandemic” reveals how encompassing the reach of the EOs will be. A quick rundown of organizations and workers that must be vaccinated or regularly tested includes:
• All Centers for Medicare & Medicaid Services
• All organizations receiving Medicare/Medicaid funding
• Contractors and subcontractors of any federal facility or organization, including:
—Veteran’s Administration
—U.S. Postal Service
—Federal Aviation Administration

“These first three buckets represent some 80 to 100 million employees,” says Warrick. “That’s roughly 64 percent of the American workforce.”

And that’s just the executive orders, but the plan doesn’t stop there. There’s one more bucket waiting in the wings.

“The fourth bucket of [people covered by vaccine mandates] is coming by way of emergency OSHA regulations,” explains Warrick. “Any employer with more than 100 employees will be covered in this fourth bucket.”

Now, add the companies with 100-plus employees to the number of federal employees, contractors and subcontractors, teachers, and employees of facilities receiving Medicare/Medicaid funding, and the number of people affected is staggering. If your company doesn’t fall into one of the buckets, it may fall into another.

It’s also incumbent on employers to stay abreast of state and local vaccine regulations.

A note for employers to remember: Employers of the people covered will be required to deploy programs to both “inform employees” of requirements and to “verify, record, and report compliance.” No doubt there will be a certain amount of resistance from employees that will add to the ongoing struggle to maintain an adequate workforce.

So, the imminent question remains: Does your company and its employees fall into any of these groups? If so, what steps are you taking to ensure compliance and mitigate noncompliance risk factors? Addressing these questions may be the most important thing you do for your business this entire year.


About The Author

Ryan E. Day’s picture

Ryan E. Day

Ryan E. Day is Quality Digest’s project manager and senior editor for solution-based reporting, which brings together those seeking business improvement solutions and solution providers. Day has spent the last decade researching and interviewing top business leaders and continuous improvement experts at companies like Sakor, Ford, Merchandize Liquidators, Olympus, 3D Systems, Hexagon, Intertek, InfinityQS, Johnson Controls, FARO, and Eckel Industries. Most of his reporting is done with the help of his 20 lb tabby cat at his side.


Biden's Mandates

I find it astonishing that the U.S. Constituition allows for the mandating of medical treatments. In Canada, in sptie of the fact that our politicians and health officers have been working feverishly to do so for the last two years, NO ONE can mandate any medical treatment, not even if you are a doctor. Mandating a medical treatment violates our informed conset laws, as well as several other violations of our absolutely guaranteed protections under our Constitution and Charter of Rights and Freedoms.

There is no mandate, law, requirement, recommendation, prescription or incentivization that supercedes our Charter Rights. Our Constituion is the higest law of the land.

Section 52(1) of the Constitution Act, 1982 (Canada) states that any law that is inconsistent with the provisions of the Constitution is of no force or effect. Statutes which conflict with the Constitution are invalid in the most radical sense; they do not become law.

This is true even in the event of a national emergency. The Federal Emergencies Act R.S.C., 1985, c. 22 (4th Supp.), which does not pertain to viral infections, was never invoked in Canada. In any case, as the peamble to this Act sattes:
AND WHEREAS the Governor in Council, in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency;

Most people in Canada do not know their rights, and have followed along, not only with vaccine mandates, but with all the Covid mandates. By compling with them you are breaking the law.

That such Executive Orders by a President in the United States could be considered valid and lawful, it truly astonishing.



Risk management

The risk assessment that should be done is the risk to your employees and your business from having unvaccinated employees.  What's the risk of unvaccinated employees infecting each other and if one is infected in the workplace, what is the risk of serious illness or death?  What is that same risk if all employees are vaccinated?  Also, what is the risk of unvaccinated employees contracting COVID  and running up very high medical costs or dying, in which case you have to bear the cost of replacing them?  You would no doubt have to replace some workers who refuse to be vaccinated, so that would have to be factored in also.  I suspect a number of compaines have done this analysis and don't care about the government mandates because they are already requiring vaccinations.

Risk Management

Risk management, with respect to health care issues, falls uner the domain of the doctor-patient relationship. My medical situation is between my doctor and me, no ne else. We don't do risk assessment studies for influenza or the common cold. Why would we do that for Covid-19? The risks for seaonal influenza vs Covid-19 are essentiaaly the same. In Canada, for exanple, out of a poulation of sone 35 million people, we have a total of about 28,000 Covid deaths in the last two years. Most people (some 97% to 99%) recover from Covid-19 -- not looking so deadly so far. Pretty much the same as seasonal influenza.

Now that vaccine mandates have taken center stage, it's all about how can we protect ourselves from "the unvaccinated" who cares if the unvaccinated are also naturally immune, having been infected with Covid 19?

You may not have heard, but vaccinated people can become infected with Covid-19, and can infect other people.  These not well tested vaccines, pose a great risk, especially given that death counts and vaccine injuy counts from the Covid vaccines are far higher than wold normally be acceptable. These facts have been glossed over to create a false concern about "the unvaccinated" vs "the vaccinated". Historiucally, death rates from vaccines, when high enough, have caused them to taken off the market immediately. The death rates fron the Covud vaccines, which are not vaccines at all, but experimental gene therapy, are quite high enough to warrant immediate withdrawal of these toxic substanes from the market.

Known to be safe tratments, such as Hydroxychloroquine + Zinc + an anibiotic (early stage treatmet) or ivermectin (earaly/late stage treatment) have been available from the outset cheaply, but were banned. Estimates indicate that 500,000 lives could have been saved if these treatments had been available. Sounds kike a huge risk was taken here.

As I said, I don't know what the laws in the U.S. are, but in Canada, no one has the right to mandate a medical treatment. Allowing such mandates creates great risk, opening a Pandora's box where lawlessness reigns.