Retailers Pleased With Latest Vaccine and Testing Mandate Victory

Retailers opposed to a Biden administration vaccine and testing mandate won a major legal victory on Friday when the 5th Circuit of the U.S. Court of Appeals in New Orleans upheld a temporary stay on the mandate. The mandate was issued by the Occupational Safety and Health Administration (OSHA), and required businesses with at least 100 employees to have them vaccinated or face weekly COVID-19 tests and face mask requirements. The mandate set a deadline of Dec. 5 for initiating the weekly tests and Jan. 4 for employees to be fully vaccinated. The OSHA rule also required employers to provide paid time off for employees to get vaccinated  The plan was first announced in September by President Biden, who directed the Labor Department to invoke its emergency powers over the safety of workplaces to require businesses to mandate vaccinations for most employees. 

A group of trade organizations, including the National Retail Federation (NRF), filed a suit last week opposing the mandate. The lawsuit argued that the mandate would create enormous extra work and financial burden on companies during the critical holiday season, compound existing labor shortages with employees possibly refusing to come to work, and that it was unconstitutional. The trade organizations also argued that companies have already implemented health procedures and policies to limit the spread of COVID-19.

“We're 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 (emergency temporary standard) unless and until an appeal is made and another court says otherwise,” the NRF said in a statement late Friday.

Total Retail's Take: This is very good news for the retail industry, the country's largest private sector employer, which is still reeling from the impact the coronavirus has had on the industry as a whole. When the mandate was announced, the NRF released a statement opposing it:  “Over the past 19 months, retailers across the country have taken extraordinary measures to keep their employees, customers and communities safe during the COVID-19 pandemic," said the NRF's Senior Vice President for Government Relations David French. "As part of these efforts, retailers have distributed, encouraged, incentivized and, in some instances, mandated the vaccine. Since the president’s announcement of the vaccine mandate for private industry, the seven-day average number of cases in the United States has plummeted by more than half. Nevertheless, the Biden administration has chosen to declare an ‘emergency’ and impose burdensome new requirements on retailers during the crucial holiday shopping season."

After the announcement on Friday, the NRF said in its statement that "the companies seeking a stay in this case contend that they would have been irreparably harmed in the absence of a stay, whether by financial impacts, the loss of suspended employees during this highly competitive labor market, compliance and monitoring costs associated with the mandate, the diversion of resources, or by OSHA’s plan to impose stiff financial penalties on companies that refuse to punish or test unwilling employees. The court recognizes that the ETS presents an incredible and unprecedented burden on millions of businesses across the country. They acknowledge the tragic loss of life and the seriousness of COVID-19, but that transmission isn't inherently a workplace issue."