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Omicron could force many workers who test positive to quarantine under federal mandate, intensifying labor shortages

The NBA, NFL and NHL have been hit with a rash of COVID-19 outbreaks in recent weeks, leaving teams with depleted rosters and postponing some games, while college football has been forced to cancel a few bowl games.

Now imagine similar scenarios playing out at many restaurants, stores, hotels and factories across the U.S.

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 stores and restaurants. That’s because 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.”

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 who’s positive.”

Without such testing, omicron “would spread even more,” she says.

COVID Testing may become more common

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.

Remote work forever?: Return to office paused (again) as COVID rages: Will we ever go back?

Also, the CDC recommends that fully vaccinated workers who come into close contact with an infected co-worker take a coronavirus test within five to seven days and quarantine if they test positive, says Gus Sandstrom, an employment lawyer at Blank Rome in Philadelphia.

“This is a material concern given the transmissibility of the omicron variant,” Sandstrom says.

The lines are long for coronavirus tests in New York City.
The lines are long for coronavirus tests in New York City.

'It could be a mess'

At Neema Hospitality, which owns a dozen hotels in the mid-Atlantic region, about 70% of its 150 employees are fully vaccinated, estimates company President Sandeep Thakrar. If the federal mandate takes effect, Thakrar says he would allow employees to choose testing over vaccination.

If more than a few test positive, Thakrar says he can make do in January and February, adding, “It’s our slow time of year.”

But if the omicron outbreak stretches into the spring, “It could be a mess,” he says, noting he’s already trying to fill about 20 openings.

The federal mandate may become a moot issue.

Sullivan and Coburn believe it’s likely the conservative-leaning Supreme Court will temporarily block the vaccine mandate and ultimately strike it down.

If that happens, however, Democratic-leaning states could pass their own vaccination-or-testing mandates, Coburn says, spawning a similar dilemma for companies.

A New York City vaccination mandate for private employers took effect Monday, though it doesn't include a testing option.

This article originally appeared on USA TODAY: COVID vaccine mandate: Omicron may sideline workers who test positive