…is going nowhere. A court in Louisiana probably has it right–OSHA does not have jurisdiction over the seasonal flu and does not have authority to compel employers to compel employees to submit to Experimental Drug Therapy (EDT). The EO is DOA.
Smart employers nevertheless would do well to plan as though it will go forward. The Executive Order does not mandate vaccines/EDT, it mandates that employers create friction in the lives of their employees who do not receive the EDT. It does this by: (1) requiring that employees that refuse EDT wear masks starting December 4; and (2) after January 4, exempt/non-compliant employees will be required to submit to weekly Covid tests and pay for them. This is just another example of a mass Milgram Experiment, with employers being told by authority figures to create wanton and unnecessary friction in the lives of their employees in order to change their employees’ behavior. Knowing that the EO is first and foremost a cynical behavior modification tool and knowing that the data shows that masks don’t work and that PCR tests are completely worthless will make it easier for intelligent employers to artfully comply with the EO in way that improves their business rather than harms it.
The goal: employers should have as their goal that exactly zero of their employees receives the EDT as a result of the EO. The reason: no one has any liability if the EDT injures or kills your employees. Employers do not want to be left holding that bag. Government has sovereign immunity. Pharmaceutical companies have statutory immunity. Although the EO claims to exend immunity to employers, if it is ultimately determined that the EO illegimately attempted to extend OSHA jurisdiction, the the EO’s immunity from liability will be as ineffective as the EO. The result will be that employers who mistakenly compelled their employees to receive an EDT will be exposed to the risk of lawsuits if they are injured or killed as a result of the EDT.
Employers have 60 days to plan and execute their plan.
First, impacted employers should communicate to their employees that they intend to comply with the EO and at the same time communicate that they will also comply with any exemption requests based on “sincerely held beliefs.” Use this language. This is the Title VII standard. Subjective, sincere belief letters are better than the more objective “religious exemption” letters. No one wants to be put on a stand and cross-examined on whether they are objectively a good Christian who hates abortion. Example: have you ever used Tylenol? When you are explaining, you are losing. Do not encourage your employees to put themselves in a position of explaining or arguing and do not make their religion the issue. Make the perception of reality the issue, encourage them to back up their view and suggest that they leave room for uncertainty. The issue is risk and who bears it, not fetal cell tissue. All jurors understand risk.
Second, place a trusted executive in charge of determining whether there are doctors in the area who are willing to sign mask exemptions because masks create unnecessary risk and do not minimize the probabiity of contracting Covid. Informally make sure that the employees who must be on site after December 4 are aware that they can also attach a doctor’s maske exemption note to their exemption request.
This intentional and compassionate effort to protect employees from the no-safety-net EDT risk decision being foisted upon them will communicate to employees that their employer is sincerely concerned about their health and safety and will not participated in any Milgram test friction/abuse. These efforts, if done properly and discreetly, will boost morale.
Third and finally, if we get to January 4 and the EO actually goes into effect, have a plan to test employees that does not involve puncturing their nasal cavity once a week and ensures that they do not have to pay for any test. This is another Milgram friction/torture ploy. Don’t play along. Make it easy, painless, and pick up the tab that the EO attempted to put on the employee. Hopefully, some creative entrepreneur will develop a saliva strip test with “Let’s Go Brandon” on it. Every time the employee submits to the spit test, he will remember who threatened his life and health and also that his employer did everything it could to help avoid unnecssary risk to his life and health.
This will build loyalty.
The effect of this strategy will to shift the burden of proof from the employer to OSHA. If an OSHA inspector inspects an employer and attempts to cite the employer for violation of the EO because of a factory filled with happy, maskless and jab-less employees, if the employer has complete records showing that all of its employees have made sound, Title VII-compliant EDT exemption requests accompanied by mask exemptions authorized by a medical professional, then OSHA will then be in a position of explaining how an “emergency temporary standard” trumps federal law and professional health advice.
This originally appeared on WilliamBernardButler.com.