Following the Supreme Court's ruling on Thursday to block President Joe Biden's vaccine-or-testing mandate for large employers, the surge in the omicron variant of Covid-19 has some business owners asking if this is really the time to be pushing back on getting more workers vaccinated.
According to a new survey conducted by the National Federation of Independent Business, 43 percent of small businesses report experiencing moderate to significant staffing shortages. The small-business trade group had warned that mandates would worsen the staffing crunch and burden owners with expensive and administratively complex regulations.
"They sighed a big sigh of relief yesterday," said Karen Harned, executive director of the NFIB Small Business Legal Center. "We're already hearing from members that omicron is impacting them," as waves of workers call out sick. "Employees aren't coming to work if they're sick. As a result, that's made the labor shortage even worse. This will help prevent a pile-on," she said.
"It means that many employers will get the flexibility they were asking for from the beginning," said Emily M. Dickens, chief of staff and head of government affairs at the Society for Human Resource Management.
Based on feedback that SHRM had been hearing, Dickens said many hiring managers were worried about large numbers of workers quitting if required to vaccinate - a concern she said could be contributing to the huge number of unfilled jobs.
"There's a huge talent gap," she said. She suggested that HR departments on the fence about hiring people with a stated aversion to vaccines, as well as workers unwilling to accept a job that might have come with a mandate, can now exit their respective holding patterns. "There's talent out there that will get a second look now," Dickens said.
"Here in Indiana, there's a pretty even split between workforces that think it's really important to have a mandate and those who don't want it at all," said Chris Schrader, an Indiana-based HR consultant and SHRM member. "It's a Hobson's Choice for employers."
Companies would have had to incur administrative costs - some potentially considerable - to achieve vaccine compliance, Schrader said. He said his clients who were just slightly over the 100-employee threshold set in the mandate were in a particularly fraught position. "It's all been a bit of a mess," he said.
Schrader also criticized the planned implementation of the mandate given the extreme shortage of rapid tests, testing sites and other related resources to which employers would have needed access in order to comply.
"They designed it as if all the resources were there," Schrader said, adding that some of his clients had expressed worry about how they could possibly comply with testing requirements for non-vaccinated employees, when the closest thing to a health care facility might be a drugstore 25 miles away - with no guarantee that the store would even have test kits in stock. "The rural factories were really worried," he said. "It wasn't even just the money - it was the disruption," he said.
Ed Enoch, partner at the law firm of Enoch Tarver and Georgia state legislative director for SHRM, said administrative management of employee-requested exemptions would have been another burden smaller firms would have struggled to carry.
"Part of what we've been running into all along is it opens up the issue of religious and medical exemptions and having to process those requests. Particularly, the religious exemption is so difficult to administer," he said. "Most HR folks are happy trying to continue to encourage, using the carrot rather than the stick."
If scrapping the mandate is viewed as a win by smaller companies, though, Michael C. Schmidt, office managing partner and vice chair of the labor and employment department at the law firm of Cozen O'Connor, said that big businesses with footprints that span both red and blue states stand to lose.
"The bad news, from a practical standpoint, is now instead of having one uniform national policy and requirement on the issue, you're now going back to this patchwork of state laws that are really all over the place… the multi-jurisdictional companies are dealing with this now."
And small business owners hoping that a federal mandate would help to turn the tide of soaring Covid cases and get them back to "business as usual" said they were just plain frustrated.
"It impacts me as a small business owner and as part of a community and society because it is the continued politicization of apolitical decisions that should be based on science," Corrine Hendrickson, owner of a child care business in Wisconsin, told NBC News via email.
"Spread is happening in the workplace, those colleagues are getting sick, missing work, being hospitalized," she said. "Congress created OSHA," she said of the Occupational Safety and Health Administration, the regulatory agency tasked with implementing any such mandate. "OSHA needs to be able to do their job as an oversight agency."