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Whiplash on US Vaccine Mandate Leaves Employers ‘Totally Confused’

A drive-through Covid-19 testing site in Miami on Friday. (Getty Images) The marching orders from the Biden administration in November had seemed clear — large employers were to get their workers fully vaccinated by early next year, or make sure the workers were tested weekly. But a little more than 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 the very definition of fully vaccinated into question.

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 has also been strained, adding to concerns companies will be unable to meet the testing requirements.

“My clients are totally confused as, quite frankly, am I,” Erin McLaughlin, a labor and employment lawyer at Buchanan, Ingersoll & Rooney, said Saturday. “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 changes in the last week, set off by the spike in COVID cases that have, in some instances, cut into their workforces. Then on Friday, an appeals court lifted the legal block on the vaccine rule, although appeals to the ruling were immediately filed, leaving the rule’s legal status up in the air. On Saturday, hours after the appeals court ruling, the Labor Department’s Occupational Safety and Health Administration urged employers to start working to get in compliance. But OSHA gave employers leeway, pushing back full enforcement of the rule until February, recognizing that for all its best intentions the rule’s rollout has been muddled.

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