Correction: This story has been updated to reflect that, while OSHA has delayed some vaccine rules until January, no extension as requested by retail industry groups was ever granted.
In a lawsuit filed Tuesday in federal court, the National Retail Federation is seeking to postpone the Occupational Safety and Health Administration's vaccine mandate for large employers.
While the NRF, the Retail Industry Leaders Association and other groups previously requested a 90-day delay, they did not receive it. On Nov. 4, the White House announced the requirements. By Dec. 5, companies with 100 or more employees would have to begin providing paid time off for employees to get vaccinated or require masks for unvaccinated workers; after Jan. 4, those employers would have to regularly test unvaccinated workers for the coronavirus, according to the White House's fact sheet.
The regulations would be set without the usual comment period under an "Emergency Temporary Standard," though Nov. 6 they were stayed by a federal appeals court. In its statement on its legal maneuver, NRF contends that these dates are "unworkable and virtually impossible," citing "the timing for implementing the OSHA vaccine mandate during the most important season of the year for retailers and customers."
"Our members are already facing workforce shortages and supply chain disruptions, in addition to the legal and practical challenges of implementing this [Emergency Temporary Standard] during the holiday season," the group also said. The retail organization was joined by the American Trucking Associations, FMI - The Food Industry Association, the International Warehouse Logistics Association, the Association for Convenience & Fuel Retailing, the National Association of Wholesaler-Distributors and the National Federation of Independent Business.
A spokesperson from RILA, which is not party to NRF's lawsuit, said in a statement, "At this stage, we are focused on assisting our members prepare for implementing the protocols necessary to follow the testing and vaccination requirements within the mandate."
Public health, legal and business experts say the mandated actions are not only doable but also necessary. Further delay gives COVID-19 itself more time to threaten public health, according to Anthony Santella, a professor of public health and director of Health Science Program at the University of New Haven.
"I think if this had been months ago when vaccines were first being rolled out, and there was chaos, really, around the implementation and the rollout of this, I too probably would have been scratching my head a little bit," Santella said by phone. "But, now — like, today — you can pretty much go anywhere for a vaccine, usually as a walk-in, and it's free. You have your choice between products. I mean, it can't be easier than it is right now. And so I understand that employers are going to have to think about things like how to get people time off for their appointment, but at the end of the day, that's a really small price to pay, given that we're in a global crisis, and we're trying to get ourselves out of this."
From a public health perspective, one of the reasons for vaccine mandates is that ordinary people don't have the medical and scientific expertise to make this type of decision, which at this point could determine whether the pandemic remains or even worsens, Santella said.
That's where businesses can be very helpful, as "employers are uniquely positioned to support COVID-19-vaccine adoption," according to a report from McKinsey & Company from April, when vaccines were still quite new. In that report, McKinsey found that employers could be doing more to help educate their employees about the vaccine, and have the potential to "cut through the noise," normalize immunization and help ensure vaccines are widely available and low-cost.
The RILA spokesperson said that "Leading retailers have and will continue to promote the importance of vaccinations," adding that the group has expressed its concerns to the administration regarding the timeline for implementing the vaccine mandate and is in discussions regarding logistics. Edwin Egee, NRF vice president, government relations and workforce development, said that, despite its lawsuit and its belief that the mandate was “promulgated unfairly," the organization is preparing its members to comply.
"Regardless of the merits of the policy, they have grossly exceeded their authority under Section 6(c) of the OSH Act of 1970," he said by phone.
Moreover, retailers aren't just any business — they cater to people who enter their stores with a high level of trust that it's a safe environment, according to Alan Behr, a partner at law firm Phillips Nizer.
"Putting aside the legal question, I cannot imagine — with vaccines having been around so long that I have a booster already — that you can say you didn't see this coming and you didn't want to prepare," he said by phone. "If you want a COVID vaccine, you walk into a pharmacy, and if you're in retail and haven't done it by now, why? Anyone who has regular contact with other people knew or should have known that he or she will need to get a COVID vaccine to continue employment. So, as Thanksgiving approaches and we're waiting for Santa to appear at the end of the Macy's Parade, to say 'Oh, well, gee, this vaccine thing, oh, that's too complicated, it's too sudden.' No. It isn't."
Editor’s note: After publication, this story was updated to include comments from an NRF executive and to reflect that the vaccine mandate has been stayed by a federal court.
