Employers on Alert as They Assess Threat of Omicron Variant

The emergence of a new COVID-19 variant has put employers on notice that they may need to beef up their safety protocols or change reopening plans as the omicron variant makes its entrance in the United States.

The new variant was discovered abroad in late November. Then, on December 1, the White House confirmed the first omicron case in the United States.

Employers have been dealing with the delta variant for months, and many have considered or implemented vaccine requirements to hold down risk and disruption to business. The news of another variant has employers reassessing their risk and planning how to respond.

“The employers with whom I have spoken are taking a wait-and-see approach,” says Jonathan R. Mook, an attorney with DiMuroGinsberg P.C. in Alexandria, Virginia. Those that planned to have employees return to in-person work after the first of the year are now wondering if spread of the omicron variant may scuttle those plans.

“Some employers also have decided to reimpose masking requirements in the workplace, even for those employees who are fully vaccinated,” Mook says.

On November 5, the Occupational Safety and Health Administration (OSHA) published an emergency temporary standard (ETS) that was intended to require employers with at least 100 employees to require their workers to either be vaccinated against COVID-19 or undergo frequent testing. That ETS is now on hold because of litigation.

A day after the ETS was published, a three-judge panel from the U.S. 5th Circuit Court of Appeals put it on hold after a group of businesses sued to stop it from taking effect. Other parties, including a group of state attorneys general, also filed lawsuits. All the suits have been consolidated and will be heard by the 6th Circuit, which was selected by lottery to hear the case. It is expected to eventually go to the U.S. Supreme Court.

Employer Options

Even if OSHA’s rule is struck down, some employers will choose to implement their own vaccination policies. That’s legal as long as they allow for exceptions required under federal antidiscrimination laws. The Americans with Disabilities Act requires exemptions for people with medical reasons for not getting vaccinated, and Title VII of the Civil Rights Act of 1964 requires exemptions for people with sincerely held religious beliefs against vaccination.

Mook notes the Biden administration has emphasized the potential spread of the omicron variant confirms the importance of having employees be fully vaccinated—even if the existing vaccines don’t turn out to be as protective against the new variant as they are against the delta strain.

“OSHA has put on hold its implementation and enforcement of its ETS, but I would imagine it will cite to the omicron variant as a further reason to justify its vaccine or testing mandate in order to protect workers,” Mook says. “To what degree this will sway the judges on the 6th Circuit remains to be seen.”

Gary S. Fealk, an attorney with the Bodman law firm in Troy, Michigan, says the emergence of the new variant shouldn’t affect the court case challenging OSHA’s rule since the challenge is to agency’s statutory authority to impose a vaccine mandate and, if it is determined it has that authority, whether such authority is constitutional.

Legal Risks for Employers

The spread of the omicron variant to the United States means employers will need to assess the threat to their workplaces—for both safety and legal reasons.

Mook advises employers that may have gotten lax in enforcing masking requirements and other safety protocols to make sure they are following the OSHA safety protocols as well as any state or local COVID-19 safety requirements. He cites as an example Montgomery County, Maryland, which recently reimposed its masking requirement for persons indoors even if fully vaccinated.

“Safety first should be the watchword for all employers, which should help reduce the risk of any employee suits or claims for workers’ comp as a result of contracting COVID-19,” Mook says.

Fealk says he doesn’t see the emergence of the new variant as a legally significant issue since the exclusive remedy generally is workers’ compensation, and employees making a workers’ comp claim must prove they contracted COVID on the job.

Advice for Employers

Even though the OSHA rule is on hold, some employers plan to implement vaccination policies on their own. In devising those policies, Mook says the best place to start is with the sample policy OSHA included when it published its ETS.

“Following the OSHA ETS should provide employers with a good road map for implementation of a vaccination policy and, should OSHA’s ETS be upheld by the courts, put the employer in compliance with OSHA’s standard,” Mook says.

Laws in some states may limit employer options to impose vaccine and masking requirements. “At this point, I am advising employers to follow state and local laws pertaining to vaccine and masking requirements,” Mook says. “However, no state or local laws prevent employers from offering incentives for employees to become vaccinated. As Mary Poppins once sang, ‘A spoonful of sugar helps the medicine go down.’”

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.

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