As the world awaits scientific data sufficient to predict risks of COVID-19’s latest variant, Omicron, U.S. companies are considering whether they need to rethink their still nascent return-to-office policies.
“The questions we're getting from employers can basically be summed up in two words: Now what?” attorney Amy Traub, BakerHostetler’s national labor and employment group chair, tells Yahoo Finance.
Traub, who represents major employers across health care, hospitality, and retail industries, says it’s still too early to know whether the variant will change return to office plans.
But she said it's telling that employers reached out for legal advice within 24 hours of the new variant’s discovery. “It does suggest that something is going to happen in the employment arena,” Traub says.
So far, her clients are equally asking if they should pump the brakes on return to office plans, or double down on vaccine mandates and other safety protocols.
'My clients in New York, they're not happy about that'
Those safety protocols may be evolving as local mandates change. On Monday, New York City issued an advisory strongly suggesting masks be worn indoors regardless of vaccination status. The city’s policy followed New York Gov. Kathy Hochul's announcement Friday that she was declaring a state of emergency scheduled to go into effect Dec. 3 ahead of an expected uptick in COVID-19 cases due to new variants.
“My clients in New York, they're not happy about that. That's for sure,” employment lawyer Mark Kluger tells Yahoo Finance about the city’s renewed masking policy.
Kluger says employer frustrations come, in part, from the fact that the city’s policy is more restrictive than the federal mandate from the Labor Department's Occupational Safety and Health Administration already guiding many return-to-office policies even as it undergoes legal challenges.
On Nov. 4, the Biden Administration released details of the new mandate requiring U.S. employers with 100 or more employees to limit their workforce to those who are vaccinated. Employers can also choose to allow unvaccinated employees to work, so long as they get tested weekly for the coronavirus and remain masked. The rule, issued as an Emergency Temporary Standard, does not mandate masks for vaccinated employees.
“The ETS made the distinction between vaccinated and unvaccinated for purposes of the masking requirements,” Kluger said. “I think a lot of New York employers are frustrated.”
King & Spalding partner Amanda Sonneborn says her clients are in a “wait-and-see” mode.
“I have not, as of today, had anybody change any policies or procedures based on any specific requirements,” Sonneborn said, noting the high burden that policy changes impose on companies handling hundreds or thousands of employees. “I think people are still just waiting for additional guidance from the government, scientists, and the CDC.”
For now, relatively little is still known about the emerging new variant. Over the weekend, the World Health Organization said it's not clear yet whether Omicron is more transmissible or more severe compared to other variants. Still, the CDC said Monday that early data from South Africa suggests increased transmissibility of the Omicron variant.
"The recent emergence of the Omicron variant (B.1.1.529) further emphasizes the importance of vaccination, boosters, and prevention efforts needed to protect against COVID-19," CDC Director Rochelle Walensky said in a statement.
Traub says she’s seeing a real distinction in how employers are reacting to Omicron. Those that had already offered hybrid options, she said, are for the most part, not making immediate changes. Those that planned to require full, or close to full, in-person attendance are more frequently reconsidering their stance.
Still, Traub points out that many employers she works with are concluding they can’t keep holding back on return-to-office plans because for now the COVID-19 virus seems to be here to stay. More and more employers, she said, are using that logic to go ahead with vaccine mandates, even though the rule is currently being appealed in the U.S. Court of Appeals for the Sixth Circuit.
“Nobody knows how far this will go,” Traub says. She adds that governments could even find it necessary to revert to more restrictive, early COVID-19 measures, like business closures, mandatory masking, and social distancing that forced many types of workers to stay home.
Apart from their return-to-office policies, Kluger says, Omicron is introducing added uncertainty about travel and company holiday parties, Kluger said.
“Employers are already starting to think ahead,” Kluger said, explaining that some companies are getting ahead of holiday travel and considering revamping earlier policies that required post-travel quarantine. Those employers that considered this year’s health environment safe enough to hold in-person holiday gatherings have the decision on their immediate agenda.
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.
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