The November marching orders from the Biden administration had seemed clear: Large employers were to get their workers fully vaccinated by early January or make sure the workers were tested weekly. But a little over a month later, the Labor Department’s vaccine rule has been swept into confusion and uncertainty by legal battles, shifting deadlines and rising Covid case counts that throw into question the very definition of fully vaccinated.

The spread of the highly transmissible Omicron variant has seemingly bolstered the government’s argument at the heart of its legal battle over the rule, that the virus remains a grave threat to workers. But the recent surge in cases has raised the issue of whether the government will take its requirements further — even as the original rule remains contentious — and ask employers to mandate booster shots, too. The country’s testing capacity also has been strained, adding to concerns that companies will be unable to meet the rule’s testing requirements.

"My clients are totally confused as, quite frankly, am I," said Erin McLaughlin, a labor and employment lawyer. "My sense is that there are a lot of employers scrambling to try and put their mandate programs in place."

No company has been spared the whirlwind of recent changes, set off by the spike in Covid cases that in some instances have cut into their workforces. Then on Dec. 17, an appeals court lifted the legal block on the vaccine rule, though appeals to the ruling were filed immediately, leaving the rule’s legal status up in the air. Hours after that ruling, the Labor Department’s Occupational Safety and Health Administration urged employers to start working to get in compliance. But OSHA also gave employers some leeway, pushing back full enforcement of the rule until February, recognizing that for all its best intentions the rollout of the rule has been muddled. 

For companies struggling to meet OSHA’s standards because of testing shortages, the Labor Department said that it would "consider refraining from enforcement" if the employer has shown a good-faith effort to comply.

The latest reaction of companies has been muddled as well. Some took the first steps in developing testing programs. Others remained in wait-and-see mode. And some employers went even further than what the government so far has required by mandating boosters, spurred by fears over the spread of Omicron.

"I was just on a call with a client who said he can’t keep his workforce — not because of any vaccine mandate but because people keep getting sick," McLaughlin said.

Adding a layer of confusion, many states and cities have created their own vaccine rules, some more stringent than the federal government’s. There’s also the question of whether companies eventually will be required to mandate boosters, which would require accommodating the six-month delay 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 gotten a rush of inquiries from companies that are scrambling to set up their testing programs. In the past few weeks, DocGo has roughly tripled the number of daily Covid tests it usually conducts. Capone added that he and many of the employers he works with are anticipating resistance if they mandate boosters.

 

"You can’t really mandate booster shots yet," he said. "It hasn’t been signed off on by any federal agency."

 

Legal questions about the OSHA rule are far from resolved. Immediately after the U.S. District Court of Appeals for the Sixth Circuit ruled on Dec. 17, several of the many plaintiffs who have challenged that rule asked the Supreme Court to intervene as part of its "emergency" docket. Appeals from the Sixth Circuit are assigned for review by Justice Brett Kavanaugh, who under Supreme Court rules could in theory make a decision on his own but is more likely to refer the matter to the full Supreme Court. 

 

With the Labor Department now delaying full enforcement of its rule until Feb. 9, the justices have several weeks to ask for abbreviated briefings if they want them.