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What Employers Need to Know About Federal COVID-19 Vaccine Mandates

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In an effort to combat the COVID-19 virus and its subsequent variants, the Biden administration has instituted three important mandates that employers should be aware of as they may impact their business. First, the Emergency Temporary Standard (ETS), issued by the Occupational Health and Safety Administration (OSHA), requires that all employers with 100+ employees mandate vaccination or weekly testing. The second mandate involves federal workers and contractors and requires them to obtain a vaccination without any option for weekly testing. The final mandate was issued by the Centers for Medicare and Medicaid Services (CMS), and requires vaccination of all healthcare workers at CMS-covered facilities.

OSHA’s Emergency Temporary Standard

The mandate that has the most wide-ranging impact is Occupational Health and Safety Administration’s (OSHA) Emergency Temporary Standard (ETS) that calls for employers with 100 or more employees to either require employees to obtain a COVID-19 vaccination or to prove compliance with a weekly-testing program. This ETS is expected to affect over 80 million employees. 

On December 17, the Sixth Circuit Court of Appeals lifted the stay placed on OSHA’s ETS issued by the Fifth Circuit in November. The court held that OSHA does have statutory authority to mandate national vaccines and/or testing for employers with more than 100 employees. Specifically, it outlined that because COVID-19 is a virus that causes bodily harm, OSHA was well within its administrative authority to regulate the health and safety of employees. 

Since the Sixth Circuit’s decision to dissolve the stay, OSHA announced that it will not be issuing citations for noncompliance with the ETS requirements until January 10 and the testing requirements will not be enforced until February 9 with the caveat that the employer must make good faith efforts to come into compliance as soon as possible.

After this ruling by the Sixth Circuit, eight groups challenged the OSHA vaccine mandate and filed emergency applications with the U.S. Supreme Court asking it to stay the mandate again until the case can be heard in the highest court. On December 20, the Supreme Court requested a response from the federal government by December 30. And, on December 22, in an almost unprecedented move, the Supreme Court ordered oral argument on these emergency applications, which will take place on January 7.

Despite the fact that the validity of the ETS is now squarely before the Supreme Court, employers should still operate as if the ETS will go into immediate effect. OSHA has implemented new deadlines to reflect the current status of the ETS.

By January 10, employers should:

  • Track employee vaccination status
  • Create a database detailing vaccination information for each employee
  • Require unvaccinated employees to wear a mask
  • Provide paid time off for employees to get vaccinated and recover

As of February 9, 2022, employers must also require unvaccinated employees must start testing for COVID weekly. Self-administered or self-read tests would not comply. Employers must observe or use a proctor and have employees tested on site, or at a recognized testing facility.

The Mandate for Federal Employees and Contractors

The second mandate stems from President Biden’s executive order that requires most federal employees or contractors to get vaccinated. This mandate does not have a testing option.

On December 7, the U.S. District Court for the Southern Section of Georgia granted a preliminary injunction to temporarily halt the enforcement of the Biden’s administration’s vaccine mandate for federal contractors.The court found that the administration had overstepped the bounds of it authority under the Federal Property and Administrative Services Act 40 U.S.C. 101 et. seq. The injunction effectively prohibits enforcement of the federal contractor vaccine mandate in all 50 states and any territory of the United States. However, on December 17, the Eleventh Circuit, denied the government’s motion to stay. This effectively upheld the injunction. The court found that the government had failed to show that it “would be irreparably harmed absent a stay.”

The CMS Mandate

The third mandate is an interim file rule of the Centers for Medicare and Medicaid Services (CMS), which requires vaccination of all healthcare workers at CMS-covered facilities throughout the United States. The CMS mandate is currently enjoined by court order in 25 states and continues in full effect in 25 other states. After the ruling by the Fifth Circuit in November, however, CMS suspended implementation and enforcement of the mandate pending resolution of the challenges before the Supreme Court.

RIMS Risk Forum India 2021: Building Resilience As COVID, Cyberrisk Top Business Risks

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An increasingly key theme year over year, resilience is at the root of the latest Excellence in Risk Management India report from Marsh and RIMS—and the RIMS Risk Forum India 2021 virtual event, where the report was officially released today. In the second year of the COVID-19 pandemic, risk professionals in India reported acute short- and long-term concerns about the interconnected risks of COVID-19 cases, global economic recession, and surging cyberrisks amid shifts in work arrangements.

In addition to the death of more than 5 million people in India, the pandemic has taken a considerable economic toll on the region. “According to the Organization for Economic Co-operation and Development (OECD), India’s economy contracted by close to 8% in 2020, while the world’s economy contracted by 3.5%,” the report noted. “Despite the OECD’s projections for economic expansion—both in India and globally—in 2021 and 2022, the potential for a prolonged global recession remains a concern for organizations in India.

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Previously one of the top risks for India-based risk professionals before COVID-19, cyberrisk has also increased significantly with the pandemic and the shift to remote work. “The shift to a remote workforce necessitated by sweeping lockdowns to stem the spread of the pandemic is widely seen as having increased cyberrisk,” Marsh and RIMS noted. “The Indian Computer Emergency Response Team (CERT-In) data indicated that cyberattacks in India rose by 300% in 2020, according to news reports. And cyber risk remained elevated in 2021, with more than 600,000 cybersecurity incidents reported in the first six months of the year alone, according to CERT.”

The continuing pandemic, resulting fallout, and ever-growing cyberrisk have presented the biggest risks for organizations in India in 2021, and the survey indicates that local risk professionals expect these to dominate the agenda for businesses in the year to come.

Despite the considerable concern, few respondents said their company is fully prepared for the continued fallout from COVID-19 or future pandemics. Asked to rate their organization’s preparedness from 1 to 5 (not prepared to fully prepared, respectively), the majority of India-based risk professionals ranked their organization a 3, and only 10% said they are fully prepared. While cyberrisk has been a top threat for longer, preparation is not much better for the threat—only a quarter of Indian companies said they are fully prepared for a cyberattack. This is particularly concerning as “some extent of remote work is expected to remain, leading to concerns of increased cyberattacks due to unsecured home networks,” Marsh said in a press release.

According to the report, this underscores the imperative to develop robust risk management strategies for both current and emerging risks and to focus on building resilience. Marsh identified four “common behaviors among companies that are on the path to becoming more resilient”: anticipating risk, connecting risk management to business strategy, avoiding gaps in the perception of preparedness, and measuring relevant data. Marsh and RIMS explained these further, defining key pillars that have set successful businesses apart, and potentially also offering considerations for other organizations to develop more mature risk management programs:

  • Anticipation: Resilient companies expect the unexpected. They have crisis management plans in place, but they also dig deeper, look farther ahead. Consider that during the pandemic even organizations with thorough business continuity plans struggled. Why? Many of them didn’t fully anticipate the widespread, long-lasting damage a pandemic could create.
  • Integration: Another key behavior among resilient organizations is to fully integrate risk management with operations and strategy. Doing so increases the ability to develop effective responses. Most organizations do not connect resilience planning with their long-term investment strategy. Those that do make the connection are on the path to better mitigating financial exposure, reputational damage, business interruption, and other losses.
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  • Preparedness: On the journey to resilience, it’s important to develop an accurate perception of an organization’s preparedness. A false sense of security can halt an organization in its tracks. Companies often overestimate how quickly and effectively they will be able to respond to and recover from a given risk.
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  • Measurement: There is no shortage of data and analytics in today’s business environment. But consistently applying metrics can be a stumbling block. Many companies fail to conduct a high rate of modeling and forecasting even on risks they see as important. And among the companies that do so, most only model in select areas.

Marsh and RIMS recommended that organizations in India focus on resilience heading into 2022 and beyond. “Resilience means being able to absorb the impact from a range of emerging risks and depends in large part on having robust risk management strategies in place,” the report explained. “This includes anticipating risk, connecting risk management to business strategy, ensuring your organization’s perception of preparedness doesn’t lead to a false sense of security, and measuring relevant data.”

Respondents largely indicated that their organization planned to increase investment in risk management, with 55% saying they expect increased resources, 27% expecting investment to stay the same, and only 4% expecting a decrease. This could be a critical differentiator in navigating COVID-19 recovery and other emerging risks in 2022. Indeed, 42% cited budget at the most critical barrier to understanding the impact of emerging risks on risk management.

Among the takeaways from the report, Marsh and RIMS urged organizations to invest in preparedness. “Look beyond pandemic as you develop a risk management strategy that is prepared to respond to any number of emerging risks,” the report said. “For example, shifting work patterns have intensified an already escalating cyber risk landscape that calls for a range of responses, from scenario planning to financial quantification.”

In addition to a panel on the Excellence in Risk Management India report, the RIMS Risk Forum India 2021 virtual event includes a number of sessions that address resilience challenges and opportunities for risk professionals in India. The program includes keynote addresses by Ajay Srinivasan, chief executive officer at Aditya Birla Capital Limited (ABCL), and Dr. Soumya Kanti Ghosh, group chief economic advisor at the State Bank of India, as well as education sessions like “Cyber Risk Management: A Priority for a Resilient Economy,” “Climate Risk and Your Path to Resilience,” “What COVID-19 Has Taught Us About ESG Risks and Why Risk Management Needs to Change,” and “Breaking the Chain: How Understanding Business Interruption Exposures Can Mean Supply Chain Resilience.”

The RIMS Risk Forum India 2021 virtual event continues tomorrow, December 4, and sessions will also be available for on-demand viewing for the next 60 days. Registration can be found here: https://www.rims.org/events/rf/india-forum-2021

New York City’s New Biometric Information Law Governs Collection and Use of Consumer Health Data

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For risk professionals, the COVID-19 pandemic has increased the importance of ensuring customer and employee safety measures are incorporated into operations, processes and future strategies. As many businesses reopen from pandemic shutdowns or return from remote work arrangements, some enterprises are now exploring both the effectiveness and the risks associated with conducting health screenings that collect biometric information and other personal health data.

This month, New York City released the Biometric Information Law, a new measure that goes into effect on July 9 and imposes disclosure requirements on businesses that collect consumer biometric information.

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It also sets parameters on what they can do with that information, most importantly, prohibiting the exchange of biometric information for anything of value.

As detailed in recent client notice from the law firm Reed Smith, highlights from the law include:

  • The measure requires a business that “collects, retains, converts, stores or shares biometric identifier information of customers” to place a “clear and conspicuous sign” near all consumer entrances that, in plain language, discloses the collection, retention or sharing of biometric information.
  • It stipulates that it is unlawful to “sell, lease, trade, share in exchange for anything of value or otherwise profit from the transaction of biometric identifier information.”
  • It establishes “an ‘aggrieved’ consumer’s private right of action,” meaning that “[a]ny person who is aggrieved by a violation by this chapter is entitled to commence an action to enforce its protections.”

There are key exclusions, however, as “governmental agencies, employers, or agents” are expressly excluded from compliance with any provision.

New York is not the only state to enact a law attempting to govern how organizations can use biometric information. Arkansas, California, Illinois, Texas and Washington have also set guidelines for businesses.

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Indeed, the recent Risk Management Magazine article “Preparing for Biometric Litigation from COVID-19” addresses the imminent and critical questions businesses must answer when collecting and handling such data.

Sensitivities surrounding the confidentiality of biometric and other health information are not new in certain industries, such as healthcare. Further, even before COVID-19, risk professionals were already grappling with the risks associated with new biometric technologies and the data collected, especially with regard to facial recognition, wearables and even the rise in popularity of telehealth.

Now, with every organization on high alert about infectious diseases and how quickly they can interrupt business, health and safety have become top priorities for every risk professional in every sector.

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As risk professionals look to new technology for help with these concerns, monitoring the emerging regulation and security risks around health and biometric technology will become increasingly critical in balancing benefit and risk to their organizations.
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Data security will continue to remain a significant threat, but New York’s Biometric Information Law should serve as a reminder that what the organization does with that data can also have a lasting impact on the enterprise’s reputation and consumer trust.

For more information to help risk professionals manage new health technology and data, check out these articles from Risk Management Magazine:

Employee Engagement is Key in COVID-19 Recovery

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Businesses and their employees have had to rapidly adjust to the shutdowns and disruptions caused by the COVID-19 pandemic, and their ability to adapt and pivot will continue to be critical as organizations start to recover from the impacts of the crisis.

To further compound these circumstances, the ability to maintain engaged, empowered, and satisfied team members has proven challenging for many. While some organizations have thrived under their modified operating conditions, others have struggled to respond to change and keep team members engaged and productive. While rates of vaccinations are bringing some hope about the pandemic’s eventual end, the tidal wave of change we have experienced is unlikely to ebb any time soon.

When creating your COVID-19 recovery plans, the value of engaged and satisfied team members in this fast-moving environment must not be understated.

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Engaged employees will support your organization to achieve its mission, execute its strategy and generate results, particularly as times remain uncertain.

As leaders, we must ask: how can we leverage the rapid change we have experienced over the past year, continue to drive growth and sustain employee satisfaction and engagement? Here’s how:

1. Accept remote or hybrid work environments as the “new normal”

The days of office cubicles and open floor plans for all employees are gone. We now operate in a world where some of our team members will continue to work where it is the safest, most suitable, and most empowering for them.

Many organizations across industries have already embraced the fact that working remotely, in some form or fashion, is here to stay. This shift has had many benefits—such as being able to recruit talent outside of your typical geographic area and eliminating lengthy commutes from home to office. However, the shift has not been without challenges and very real risks.

As we move into a recovery phase, leaders must remain alert to the challenges brought by an environment with minimal face-to-face interaction, the potential for feelings of social isolation, the need for different ways to access information or support, and the natural distractions of being at home.

For leaders, scheduling regular check-ins and establishing rules of engagement has not changed, regardless of whether you work in an office or at home. However, with a majority of our workforce currently at home, we need to get creative in the way we support and engage our teams.

2. Manage the new risks

This shift from in-office environments to hybrid or remote work environments has brought to light many physical, psychological and technological risks. Leaders must build out their risk management framework to incorporate a broader lens.

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It is now paramount to ensure team members have access to resources to work from home safely and comfortably, with the right technology support and a focus on open lines of communication.

The pandemic has also brought on feelings of isolation and fear for many. If you have yet to adjust your workplace mental and physical support offerings, do not neglect these critical needs any longer. Ensure such offerings are also set up for those workers continuing in a hybrid or fully remote setting.

3. Prioritize communication

How we communicate and engage with our teams is as important as ever. Whether it’s Zoom, Slack, Webex, Microsoft Teams or any of the other platforms we have increasingly relied on over the past year, we need to provide opportunities for both formal and informal communication to flow.

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Through informal social connections, leaders can demonstrate emotional support and consideration for their team, which ultimately leads to higher engagement.

When leaders are engaged, supportive, and available to their employees, it helps reduce feelings of isolation and reinforces your strong company culture. At the end of the day, when team members feel they work for an organization that supports their ambitions and wellbeing, it increases productivity, retention, and cost savings. This translates to bottom-line success.