The Biden administration’s marching orders in November seemed clear: large employers were to have all of their employees fully vaccinated by early next year, or have them tested weekly. However, a little more than a month later, the Labor Department’s vaccine rule has been thrown into disarray and uncertainty by legal battles, shifting deadlines, and rising Covid case counts that call the definition of fully vaccinated into question.
The spread of the highly transmissible Omicron variant appears to have bolstered the government’s argument, at the heart of the rule’s legal battle, that the virus remains a serious threat to workers. However, the recent surge in cases has raised the question of whether the government will go further — even though the original rule remains contentious — and require employers to mandate booster shots as well. The country’s testing capacity has also been stretched, raising fears that businesses will be unable to meet the rule’s testing requirements.
“My clients are completely perplexed, as am I,” Erin McLaughlin, a labor and employment attorney at Buchanan, Ingersoll & Rooney, said on Saturday. “My impression is that a lot of employers are scrambling to put their mandate programs in place.”
No company has been spared the whirlwind of changes that has occurred in the last week, triggered by an increase in Covid cases that has, in some cases, reduced their workforce. Then, on Friday, an appeals court lifted the legal stumbling block on the vaccine rule, though immediate appeals were filed, leaving the rule’s legal status in doubt. Hours after the appeals court decision, the Labor Department’s Occupational Safety and Health Administration urged employers to begin working to comply. But OSHA also gave employers some wiggle room, postponing full enforcement of the rule until February, recognizing that the rule’s implementation had been a shambles despite its best efforts.
The Labor Department said on Sunday that if a company is struggling to meet OSHA standards due to testing shortages, it will “consider refraining from enforcement” if the employer has made a good-faith effort to comply.
Companies’ reactions have also been muddled. Some people started working on testing programs over the weekend. Others remained on the sidelines, waiting to see what happened. And, in response to concerns about the spread of Omicron, some employers went above and beyond what the government had previously mandated by mandating boosters.
“I was just on the phone with a client who said he can’t keep his workforce because people keep getting sick, not because of any vaccine mandate,” Ms. McLaughlin said.
To add to the confusion, many states and cities have enacted their own vaccine rules, some more stringent than the federal government’s, such as New York City, where testing out of vaccine requirements is not permitted, while others, such as Florida, have sought to undermine OSHA’s rule. There’s also the question of whether businesses will eventually be required to use boosters, which would necessitate accommodating the six-month gap between the second and third shots.
Anthony Capone, president of the technology and health care company DocGo, which sets up Covid testing programs for employers, said he had received a flood of inquiries this weekend from companies scrambling to set up their testing programs. In the last few weeks, DocGo has roughly tripled the number of daily Covid tests it performs. Mr. Capone went on to say that he and many of the employers he works with are bracing for pushback if boosters are mandated.
“You can’t really mandate booster shots right now,” he explained. “It hasn’t been approved by any federal agency.”
JPMorgan Chase, whose decision to mandate vaccines is complicated by its vast retail operations across the United States, declined to comment on how the court’s most recent decision, as well as the recent spike in cases, affects any plans to mandate vaccines. However, the bank’s American employees who do not work in bank branches were told on Friday that “each group should assess who needs to come into the office, work priorities, and who should revert to working from home on a more regular basis over the next few weeks.”
Walmart, which has mandated vaccines for most of its corporate employees, had no comment on broadening that requirement. According to data compiled by the Shift Project at Harvard’s Kennedy School of Government, only 66 percent of its roughly 1.6 million U.S. employees are vaccinated.
The legal issues raised by the OSHA rule are far from settled. Several of the many plaintiffs who have challenged the rule asked the Supreme Court to intervene as part of its “emergency” docket immediately after the U.S. District Court of Appeals for the Sixth Circuit ruled on Friday. Appeals from the Sixth Circuit are assigned to Justice Brett Kavanaugh for review, who, under Supreme Court rules, has the authority to make a decision on his own but is more likely to refer the matter to the full Court. With the Labor Department now delaying full implementation of its rule until February 9, the justices have several weeks to request shortened briefings if they so desire.
“Things are going back and forth literally in a matter of hours,” said Sydney Heimbrock, an adviser on industry and government issues at Qualtrics who works with hundreds of clients to track employee vaccination status using the company’s software. “The ambiguity stems from the on-again, off-again nature of the rule. Is it a rule or isn’t it a rule?” Litigation, appeals, decision-making, and reversing decisions.”
Even the spread of Omicron hasn’t swayed some of the vaccine rule’s staunchest opponents. One of the trade groups challenging the administration’s vaccine rule is the National Retail Federation, which has petitioned the Supreme Court. The group supports vaccinations but has advocated for companies to be given more time to comply with mandates. Even as it fights the administration’s rule, the federation holds twice-weekly conference calls with members to compare notes on how to carry it out.
“There’s no doubt that the increased number of variants, such as Omicron, do not make it any less dangerous,” said Stephanie Martz, the group’s chief administrative officer and general counsel. “The legitimate, lingering question is whether this is inherent in the workplace.”
Employers are also faced with a new question: Should they require boosters? And will they be forced to?
The Labor Department stated on Sunday that its rule currently does not include booster shots, despite the fact that it strongly encourages them. However, the Centers for Disease Control and Prevention may change its definition of “fully vaccinated.” Some state governments, including New York, have already stated their intention to implement the change.
That may take some time, given the political considerations in booster messaging, which affect everything from holiday travel to the ongoing effort to increase overall vaccination rates. And some employers aren’t waiting for the courts or public health officials to intervene. Similarly to how the Delta wave prompted the first round of vaccine mandates, the Omicron variant has prompted some employers to get ahead of the curve.
Jefferies Financial Group, an investment bank, informed employees on December 8 that they needed to get booster shots by the end of January after sending more than 4,000 employees to work from home as cases increased.
“As has been the case throughout the pandemic, we are doing our best to keep us all ahead of the curve,” Jefferies’ chief executive, Rich Handler, and president, Brian Friedman, wrote in a memo to employees on Saturday, adding that they believed health officials would soon consider only people who had received boosters to be fully immunized.
However, for companies with employees who have a higher level of vaccine hesitancy — or human resources departments who are exhausted from dealing with a flood of exemption requests — the process may start more slowly. And it may only proceed if necessary.
United Airlines, one of the first to require vaccinations, has launched a “education campaign” on booster shots. Tyson Foods has begun to provide boosters in its offices and some of its manufacturing facilities. For months, Goldman Sachs has been providing boosters at its on-site health centers.
“A lot of companies are already having difficulty mandating the vaccine,” said Douglas Brayley, an employment lawyer at Ropes & Gray. “I wonder if there is some reluctance to go back to people who they already had to cajole into getting the vaccine and say, ‘Oh, and by the way, please get one more shot.'”
Other businesses stated that, while they moved more quickly than OSHA in mandating vaccines, they are more willing to wait for government guidance on the issue of third shots.
“As a company, we try to follow what we see in the science and evidence, and we have sometimes been more aggressive than what the government has mandated,” said April Koh, founder and CEO of Spring Health, which mandated vaccines for its 350 employees in August.
Because of the spread of Omicron, Spring Health’s office is now closed, but Ms. Koh says that having the validation of government guidance could help her decide whether or not to require boosters. “A mandate would provide us with additional assurance that this is scientifically validated.”