Big tech companies might have chafed at the White House's announcement that they would soon be required to impose a COVID vaccine or weekly testing mandate on their employees.
Instead? Many executives are breathing a sigh of relief.
"Inside, companies are rejoicing," said Brian Kropp, distinguished vice president of research at Gartner. "It is the best of all possible outcomes for most large employers."
Requiring employees to get vaccinated reduces risk, healthcare costs and absenteeism and makes it safer for companies to reopen offices. Google, Facebook, Uber, Lyft and Twitter are among the biggest tech companies that have already imposed a vaccine mandate of their own accord.
Many others — including Amazon, Apple and Intel — have held out on mandating vaccines or regular testing, likely because they see them as unnecessary or fear pushback. Only 16% of Gartner clients across industries have vaccine mandates in place, though that percentage is up from 2% since January.
Once the new rule from the Department of Labor's Occupational Safety and Health Administration goes into effect, companies with 100 or more employees will enjoy the benefits of a vaccine mandate without looking like the bad guy, Kropp said.
"They don't have to deal with any of the fallout that's associated with putting in their own mandate," Kropp said. "They can just blame the government for it."
Requiring vaccine mandates in the private sector also removes fear about seeming less desirable to job candidates.
Previously, some companies worried that if they required vaccinations, they might lose talent to other companies that don't, said September Rea, an employment litigator at the law firm Polsinelli in Los Angeles.
"This takes off the fear of 'We can't recruit because other companies aren't doing it,'" Rea said. "It de-stigmatizes it, in some ways. I'm hearing relief on that end."
The Business Roundtable, a group that represents the CEOs of more than 200 major companies (including Apple, Amazon and Intel), said Thursday that it "welcomes" the move from the White House and "applauds" companies' decisions to implement their own vaccine mandates.
Still, none of those three tech giants told Protocol whether they would go forward with a vaccine mandate or instead conduct weekly testing. Apple didn't return requests for comment and both Amazon and Intel declined to weigh in.
Behind the scenes, though, tech employers of all sizes are figuring out how to proceed.
"I'm hearing fear on the administrative practicalities," Rea said. "I think it's going to be in the minutiae where companies struggle."
Companies with relatively few employees — say 100 or 200 — might worry about the cost of implementing a weekly testing regimen, which will undoubtedly prove more expensive than a vaccine mandate.
Rea has been fielding questions about hiring COVID-19 testing vendors for weekly off-site testing, who should be the custodian of medical information and what to do about an employee with long-haul COVID who continues testing positive for months.
Some of Rea's clients even have vaccine-hesitant employees who are in the U.S. on visas and could face deportation if they lose their jobs over noncompliance.
And it remains to be seen whether the forthcoming OSHA rule will apply to contractors in addition to employees.
"My sense is that at the end of the day, private employers get to decide, absent a legal rule to the contrary," said Steve Friedlander, the founder of the SV Employment Law Firm in Silicon Valley. "I don't see a big distinction between contractors and employees in terms of how this will ultimately wind up."
Companies are also waiting to hear whether it will exempt remote workers who never come to the office.
"Even with those folks, though ... when they go to a company-related event, there's a safety issue in connection with that," Friedlander said. "You really have to think through: Is this really someone who is never going to interact with the workplace, broadly construed?"
Then there's the question of states like Texas, Arizona and South Dakota, whose governors have pledged to fight the mandate. That may require state-by-state analysis — and potentially delayed office reopening plans — for companies with employees in certain red states.
"Immediately, I had calls. We have back-to-work plans that we're working on for some of our tech clients," Rea said. "I think we're going to see a huge reversion to work remote for people who aren't willing to deal with this."
Rea expects some states to create their own OSHA rules in order to preempt the federal rule, which states can typically do as long as they're imposing rules to be more protective of workers' rights, rather than less.
That may spark a politically charged debate about whether preventing vaccine mandates protects workers' rights, or violates them.
"I'm sure OSHA's going to rely heavily on Fauci and the CDC here, to say that what the CDC has mandated is more protective, irrespective of what states politically feel is more protective," Rea said. "I'm not aware of any science favoring no vaccines universally, so I think (state challenges are) going to have a rough road."
