• Concerns about the new omicron Covid variant are disrupting return-to-work plans once again.
• The majority of U.S. employers now have, or plan to have, a vaccine mandate, a report finds.

As President Joe Biden's nationwide employer vaccine mandate gets held up in court, more employers are considering implementing their own requirements.

The majority of U.S. employers now have, or plan to have, a vaccine mandate as many return-to-work plans are pushed back again, due to concerns about the new omicron Covid variant.

According to a Willis Towers Watson survey of 543 employers, 57% of all organizations said they either require or plan to require vaccinations. Of that, 18% already do and 7% are planning to put a requirement in place.

Another 32% will do so if the Occupational Safety and Health Administration Emergency Temporary Standard takes effect.

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Currently, the Biden administration has had to halt implementation and enforcement of its vaccination and testing policy, which required businesses with 100 or more employees to ensure their staff were vaccinated or undergo weekly Covid testing. 

The mandate would cover two-thirds of the private-sector workforce, or more than 84 million workers. 

"This continues to be such a quagmire for employers because of the legal challenges to the ETS," said John Ho, a labor and employment attorney at the law firm Cozen O'Connor.

"Most of the clients I'm talking to are still in a wait-and-see," Ho said.

"If rates go back up, employers might get more aggressive," he added. "Everyone is keeping their eye on the numbers."

Even without Biden's shot mandate, "nothing is precluding employers with moving ahead with their own version," said Ian Carleton Schaefer, chair of Loeb & Loeb's New York employment and labor practice.

"As employers are pushing to reopen, they are likely going to get more aggressive with their own policies, regardless of what happens," he said.

However, the threat of higher employee turnover may be holding some businesses back from pursuing an independent plan, according to Scott Hecker, senior counsel at the Washington, D.C., office of Seyfarth Shaw and a former attorney at the U.S. Department of Labor.

"I've talked to clients who have said they can't lose one person; they are already stretched so thin." 

In fact, only 3% of employers with vaccination mandates reported a spike in resignations, Willis Towers Watson found, although nearly one-third of those planning mandates are very concerned that it could drive employees away.

"There's certainly documentation that the threat of departure maybe isn't borne out when the rubber meets the road," Hecker said, but "we do have to consider that stats don't always show the story on the ground."

Many U.S. companies, including United Airlines, CVS Health and Walmart, already have a vaccine mandate, while others, such as Bank of America, encourage the vaccine but do not require it.

The White House has recommended that private businesses implement their own vaccine and testing requirements, despite the court-ordered pause. And yet, when Google issued its own vaccine mandate, hundreds of employees pushed back.

"The balance of power is in flux now," added Loeb & Loeb's Schaefer. "A lot depends on the company, the industry and the geography."

On the flip side, nearly half of employers said that vaccine mandates could help attract and retain employees, Willis Towers Watson found. (Meanwhile, the number of job listings mandating candidates have a Covid vaccine is surging.)

The survey also found even more employers are planning to require testing and masks for employees returning to the office in addition to vaccine mandates. About 84% said they will offer testing, most on a weekly basis, and 9 out of 10 require or plan to require masks indoors.

Legally, if an employee has a religious or medical issue, they have a right to request a reasonable accommodation, which may be to stay home, according to Ho.

Where return-to-work plans stand now

"Many employers were thinking of bringing employees back around the first of the year, now there's new uncertainty which will push this back further," said Jeff Levin-Scherz, population health leader at Willis Towers Watson.

Just over one-third, or 34%, of employees are currently working remotely, according to Willis Towers Watson, and that number is expected to drop to 27% in the first quarter of 2022.

About 3 in 10 of the employers surveyed said their organizations have already reached a "new normal" in terms of returning to the workplace and ending pandemic-related policies.

Roughly the same number said they didn't expect that to happen until well into 2022 or later.

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