NRF wins stay against Biden's vaccine mandate

Dive Brief:

The U.S. Court of Appeals for the Fifth Circuit on Friday granted the National Retail Federation's request for a stay of the Biden administration's vaccine mandate for large employers by reaffirming its stay from Nov. 6.
The NRF joined several other groups in requesting that the Occupational Safety and Health Administration's emergency rules be paused. The Retail Leaders Industry Association did not join them.
"We are pleased with the decision by the 5th U.S. Circuit Court of Appeals preventing the Biden administration from doing anything to enforce the OSHA ETS unless and until an appeal is made or another court says otherwise," the NRF said in a statement. "The court agrees that this is neither a workplace hazard nor an emergency."

Dive Insight:

The NRF's contention that OSHA can't use its emergency authority (which means it doesn't provide the usual comment period) may succeed in overturning the rule because a vaccine mandate is so unusual, according to Sharona Hoffman, co-director of the Law-Medicine Center at Case Western Reserve University Law School and a professor of bioethics at the medical school there.

"So whether you get a judge who's sympathetic to the need to vaccinate or you get a judge who's going to scrutinize this harshly, I don't know. So it's novel, and it will be an interesting case," she said by phone. "But 'novel' doesn't mean 'unlawful,' and we are still in a public health emergency that was declared by Trump. You can say that these circumstances are absolutely an emergency."

Edwin Egee, NRF vice president, government relations and workforce development, reiterated on Friday that the mandate is burdensome because the industry is in its busy holiday season and already dealing with supply chain issues and workforce shortages. Ultimately, the emergency rule should be overturned because Congress, and not OSHA, should mandate vaccines because the pandemic is not a workplace issue, he said. Moreover, he said the rule is unnecessary because vaccines rates are up and the pandemic is on the wane, noting that the NRF consulted with public health officials in determining its stance.

"We have countless experts who are familiar with occupational safety and health and the Occupational Safety and Health statute," he said by phone. "We have talked to experts in virus transmission."

Other public health experts remain worried about the virus's ability to develop into new strains, however, especially as more people gather indoors for the holidays. The American Medical Association was among those filing a brief against the stay, arguing OSHA's "emergency temporary standard is neither arbitrary nor capricious, and that a stay of that Standard would cause severe and irreparable harm to the public interest," according to court filings.

The United Food and Commercial Workers union, which represents retail employees, said by email that it was one of the first groups to call for an OSHA Emergency Temporary Standard in testimony to Congress as COVID-19 health risks have continued.

"The brutal truth is that this pandemic is far from over," UFCW International President Marc Perrone said in a statement. "With more than 70,000 new COVID cases every day, companies must do more to keep workers safe."

The pandemic also continues to affect consumer behavior and the supply chain, according to Coresight Research. Some shoppers are still avoiding stores, while others have financial worries related to the disease outbreak's effect on the economy, other researchers found.