Consider how many restaurants, stores, hotels, and factories there are in the United States.
A federal mandate requiring companies with 100 or more employees to ensure they are vaccinated or tested weekly, if upheld in court, could exacerbate severe worker shortages by forcing employees who test positive to quarantine even if they have no symptoms, according to employment lawyers.
Such employee absences could become common, especially in places where employees cannot work remotely, such as stores and restaurants. This is because the omicron variant is highly contagious but frequently results in milder cases or positive tests without symptoms, according to lawyers. In a single week in mid-December, omicron increased from 13 percent to 73 percent of all coronavirus cases in the United States.
According to James Sullivan, co-chair of law firm Cozen O'Connor's Occupational Safety and Health Administration-Workplace Safety Practice Group, a lot more people will test positive than before. It'll be a testing/quarantining marathon!
On Jan. 7, the Supreme Court will hear oral arguments on whether President Joe Biden's vaccination-or-testing mandate can go into effect on Feb. 9.
The directive was temporarily blocked by a court before being reinstated by another appeals court, with the High Court set to resolve the conflict next month. Or at least until the larger case is resolved later this year.
The majority of the debate over the mandate has centered on whether midsize and large businesses should be required to order employee vaccinations. However, attorneys say that testing staff members who refuse to be vaccinated could become an even more difficult issue.
Kathryn Bakich, health compliance practice leader at Segal, an employee benefits consulting firm, downplayed the rule's impact, saying that some employers are already implementing vaccine mandates and testing policies regardless of the federal mandate.
COVID testing may become more common in the future.
Sullivan, on the other hand, claims that most companies that have imposed vaccination requirements, primarily banks, law firms, and other professional service firms, have not provided a testing option, which can result in administrative hassles and higher costs. According to Sullivan, many restaurants, stores, factories, and other businesses have not required employee vaccinations because they are already struggling to fill openings due to severe labor shortages.
Biden's rule, on the other hand, would force their hand and apply to over 80 million workers. According to Sullivan, many companies will likely offer weekly testing to employees who refuse to be vaccinated in order to keep them from quitting.
"You're going to find more cases if you do more testing," says Brett Coburn, an employment lawyer at Alston & Bird in Atlanta.
"The good news is that, according to the Centers for Disease Control and Prevention, 62 percent of the U.S. population is fully vaccinated." "In most cases, such workers will not need to be tested," Coburn says.
However, because the variant is so contagious, more than 30% of people may refuse vaccination and test positive for omicron even if they have no symptoms, according to Sullivan. According to new CDC guidelines released Monday, those workers must quarantine for 10 days, or five days if asymptomatic, followed by five days of mask-wearing around others.
Also, according to Gus Sandstrom, an employment lawyer at Blank Rome in Philadelphia, the CDC recommends that fully vaccinated workers who come into close contact with an infected coworker take a coronavirus test within five to seven days and be quarantined if they test positive.
"Given the transmissibility of the omicron variant, this is a significant concern," Sandstrom says.
"It could be a disaster."
According to company President Sandeep Thakrar, about 70% of the 150 employees at Neema Hospitality, which owns a dozen hotels in the mid-Atlantic region, are fully vaccinated. If the federal mandate goes into effect, Thakrar says he will allow employees to opt for testing rather than vaccination.
If more than a few tests come back positive, Thakrar says he can make do in January and February because it's his slow season.
However, if the omicron outbreak continues into the spring, "it could be a mess," he says, noting that he is already trying to fill about 20 positions.
The federal mandate may become obsolete.
According to Sullivan and Coburn, the conservative-leaning Supreme Court will likely temporarily block the vaccine mandate before ultimately striking it down.
If that happens, Democratic-leaning states may pass their own vaccination or testing mandates, creating a similar quandary for businesses, according to Coburn.
A vaccination mandate for private employers in New York City went into effect on Monday, but it does not include a testing option.