Is it possible that the more pandemics change, the more they stay the same? 2021 began with enthusiasm and high hopes for the efficacy of recently approved vaccines. The year ends with a fresh set of challenges and concerns but familiar uncertainty, risk and exposure for businesses around the world.
If 2021 is prologue for 2022, then little of what is written below will be more than tangentially relevant in just a few months. We kicked off 2021 with fresh emergency-use authorizations from the FDA for the Pfizer/BioNTech and the Moderna mRNA COVID-19 vaccines. We wrap the year up with the nation bitterly divided over whether employees can be required to vaccinate or test.
A series of chapters unfolded between. Faster-than-projected vaccine rollouts allowed for re-openings, re-hirings and a near-return to normal for much of the U.S. and the world — for a time. The more-contagious delta variant of the virus upended much of that progress, and as of this writing, the omicron variant remains an unknown quantity.
As remote work entrenched itself as an accepted business practice, criminal actors enjoyed more opportunities and lower-risk means by which to prey on businesses and individuals. Ransomware attacks continued to accelerate. Ransomware-as-a-Service emerged as a growing criminal vertical. Data privacy has become one of the most pressing areas of concern for many compliance teams.
— OSHA_DOL (@OSHA_DOL) November 4, 2021
While the legality of mandates issued by private employers solidified over the course of the year, federal equivalents remain in limbo. OSHA issued an emergency temporary standard (ETS) Nov. 4 requiring businesses with 100 employees or more to vaccinate or test weekly. About 24 hours later, the Fifth Circuit Court of Appeals issued a temporary stay on the ETS. A week later, the court made the temporary action permanent. The fate of the ETS will now be decided by further judicial review.
Nevertheless, 21 states this year have announced or enacted vaccine requirements for public employees. New York City extended a mandate to private businesses to ensure in-person workers are vaccinated no later than Dec. 27.
The U.S. is currently administering an estimated 1.7 million doses of COVID-19 vaccine daily, according to the New York Times. At this pace, the Times projects the U.S. will reach 94 percent of eligible people vaccinated by May 8, a rate that may be sufficient to ensure herd immunity. A number of factors, however, could speed or slow this milestone. And we repeat: All of this will be probably very old news in just a few months.
At the same time, if 2022 were a novel or a movie, COVID-19 would serve less as a plot point and more as a setting. The pandemic has come to influence — if not define — life as we know it, in all aspects. At the onset of the year, Jim DeLoach wrote the following for CCI in reference to an executive survey conducted by Protivit and North Carolina State University:
To address the ongoing global health crisis caused by COVID-19, governments around the world have rapidly implemented new policies, rules and regulations surrounding travel and border controls, public health practices and social distancing that have, in many cases, led to the temporary shutdown of business and commerce. Because of the lack of experience in dealing with a global health crisis of the present magnitude and the evolving nature of the COVID-19 virus, frequent revisions by governments of those policies have led to unprecedented levels of uncertainty for business leaders as they try to maximize the performance of their organizations. The efficacy of vaccines and the effective functioning of their distribution and administration impact this risk.
At this point, perhaps that is still the best we can do in terms of broad-stroke summaries. COVID-19 has introduced a level of uncertainty and risk that few have previously experienced. That reality will continue in the new year. With that said, CCI editors have compiled the articles that told the story of COVID-19 and compliance in 2021 — as we understood it.
Vaccines are good. Vaccine mandates and mandatory testing for unvaxxed are good, too. The 5th Circuit decision staying the OSHA ETS is bad.
That’s my take.
— KSV (@KSVesq) November 6, 2021
‘My Employer Can’t Ask for Proof of Vaccination’ and Other Myths Regarding COVID-19 and HIPAA
The Health Insurance Portability and Accountability Act (HIPAA) protects all of your health information, right? So, employers are not allowed to ask questions related to your COVID-19 status or vaccinations? Neither statement is true.
Employers should be conscious that they are collecting health information on employees if they are screening them for COVID-19 now or for reopening at some point in the future. Yes, health information will be collected, but in most cases involving COVID-19 and HIPAA (along with its subsequent amendments), the law does not apply.
By K Royal. Read the full article.
With Full FDA Approval, Vaccine Mandates Are More Likely Than Ever to Withstand Legal Challenges
Governments and private employers continue to grapple with the best way to achieve a safe workplace for their employees in light of COVID-19 and the delta variant. Due to recent and ongoing changes in the legal landscape, the trend toward vaccination is becoming somewhat clearer, and many employers are implementing vaccination mandates. But questions and uncertainty, with some corresponding risk, remain.
By R. Andrew Hutchinson and Chad E. Wallis. Read the full article.
While Courts Consider OSHA’s Vaccine-or-Test Mandate ETS, Businesses Are Caught in Limbo
On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) that requires businesses that employ 100 or more employees to either mandate their workforce receive a COVID-19 vaccination or require weekly COVID-19 testing and face coverings. The vaccine-or-test ETS was set to take effect as soon as Dec. 6.
However, on Nov. 5, certain businesses and individuals filed suit in the Fifth Circuit Court of Appeals, challenging OSHA’s ETS, arguing that the ETS exceeded OSHA’s scope of authority or that the ETS is unconstitutional. As an initial remedy, the parties requested that the Fifth Circuit temporarily stop or “stay” enforcement of the ETS, which would preserve the status quo. Others filed similar cases in the Sixth, Seventh, Eighth and Eleventh Circuits. Employers nationwide should be tracking the legal developments of the ETS, given the likelihood of a unifying judicial order in the coming weeks or months.
By Caleena S. Braig. Read the full article.
So as near as I can tell, the last time we saw a precedent decision on an OSHA ETS was in 1984, when the 5th Cir. held that OSHA had improperly bypassed normal notice and comment to use an ETS to further cut asbestos levels. https://t.co/ZCej8SO8gk pic.twitter.com/0WEKXHnYep
— Gabriel Malor (@gabrielmalor) September 9, 2021
The Mafia’s Jackpot: How Criminal Organizations are Profiting From COVID-19
The COVID-19 crisis has wreaked havoc on businesses across the world, from mom-and-pop stores to larger operations, but where challenges lie, so do opportunities. Criminal organizations around the globe are moving fast to find ways to profit from the pandemic, and one such group making the rounds lately is none other than the mafia.
By Stefano Siggia. Read the full article.
Pope Francis urged people to fight organized crime groups such as the mafia around the world, warning that they are using the COVID-19 pandemic to enrich themselves https://t.co/jYhMrPsl8b pic.twitter.com/Cwt7j8yLSG
— Reuters (@Reuters) March 21, 2021
A New Generation of Fraud Actors Cut Their Teeth During COVID-19. Businesses Need to Act Now to Get a Step Ahead.
Fraud thrives in chaos. The past 18 months revealed new opportunities on a massive scale for fraud actors to take advantage of unsuspecting people and businesses. Successful criminal operators will only continue to refine their skills. Don’t wait to boost your defenses until it’s too late.
By James Ruotolo. Read the full article.