The NBA, NFL, and NHL are the latest sports groups to have been hit by COVID-19 outbreaks in recent weeks. Teams are left with depleted rosters and postponing some games, while college football had to cancel a few games.
A federal mandate for companies with 100 or more employees to ensure they’re vaccinated or tested weekly could worsen severe worker shortages – if it’s upheld in court – by forcing staffers who test positive to quarantine even if they have no symptoms, employment lawyers say.
Such worker absences could become widespread, particularly at workplaces where employees can’t work remotely, such as in stores and restaurants. That’s because the omicron variant is highly contagious but often results in milder cases or positive tests without symptoms, lawyers say. Within a single week in mid-December, omicron surged in the U.S., from making up just 13% of all coronavirus cases to 73%.
“A lot more people will test positive than before,” says James Sullivan, co-chair of law firm Cozen O’Connor’s Occupational Safety and Health Administration-Workplace Safety Practice Group. “It will be a testing/quarantining extravaganza!”
The Supreme Court on Jan. 7, is scheduled to hear oral arguments on whether President Joe Biden’s vaccination-or-testing mandate can take effect as scheduled on Feb. 9.
The directive was temporarily blocked by a court before another appeals court reinstated it, with the High Court set to resolve the conflict next month. Or at least until the broader case is hashed out later this year.
Most of the controversy surrounding the mandate has focused on whether midsize and large businesses should be forced to order the vaccination of their employees. But the testing of staffers who refuse to get vaccinated could become an even thornier issue, attorneys say.
Kathryn Bakich, health compliance practice leader at Segal, an employee benefits consulting firm, downplayed the effect of the rule, saying at least some employers already “are moving ahead with vaccine mandates and testing policies regardless of the federal mandate.”
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And Debbie Berkowitz, a former official at the Occupational Safety and Health Administration under President Obama, said it would be hazardous not to do whatever is necessary to bar infected employees from the workplace.
“If you’re positive, you’re contagious,” says Berkowitz, now a practitioner fellow at Georgetown University’s Kalmanovitz Initiative for Labor and the Working Poor. “You don’t want to be working next to someone positive.”
Without such testing, omicron “would spread even more,” she says.
Sullivan, however, says most companies that have imposed vaccination requirements – largely banks, law firms, and other professional service companies – have not provided an option for testing, which can result in administrative hassles and higher costs. And many restaurants, stores, factories, and other businesses have not required employee vaccinations because they’re already struggling to fill openings amid dire labor shortages, Sullivan says.
Biden’s rule, however, would force their hand and apply to more than 80 million workers. Many firms will likely give employees who refuse to get vaccinated the option of weekly testing so they don’t quit, Sullivan says.
“If you’re doing more testing, you’re going to find more cases,” says Brett Coburn, an employment lawyer at Alston & Bird in Atlanta.
The good news is 62% of the U.S. population is fully vaccinated, according to the Centers for Disease Control and Prevention. And such workers generally won’t need to be tested, Coburn says.
But that still leaves more than 30% who may refuse vaccination and could test positive for omicron even if they have no symptoms because the variant is so infectious, Sullivan says. Those workers must quarantine for 10 days, or, if they’re asymptomatic, five days, followed by five days of mask-wearing around others, under new CDC guidelines released Monday.
