The National Retail Federation has joined a multitrade association lawsuit seeking to postpone the government’s mandate on COVID-19 vaccination and testing requirements.
President Joe Biden‘s new requirement, issued last week, that companies with more than 100 workers must have employees provide proof of being fully vaccinated by Dec. 6, or tested weekly for COVID-19 by Jan. 4, 2022, poses concerns for the retail industry and other sectors, though it’s also widely considered a big step forward in the nation’s battle to eradicate COVID-19 — thereby helping the economy.
While some retail and fashion companies support the government mandate and indicated they would comply, the NRF filed the suit on Wednesday in the U.S. Court of Appeals for the Fifth Circuit. Joining the NRF in the lawsuit are the American Trucking Associations, the Food Industry Association, the International Warehouse Logistics Association, the Association for Convenience and Fuel Retailing, the National Association of Wholesaler-Distributors and the National Federation of Independent Businesses
“We are deeply concerned about the timing for implementing the OSHA [Occupational Safety and Health Administration] vaccine mandate during the most important season of the year for retailers and customers,” Matthew Shay, NRF’s president and chief executive officer, said in a statement. “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 December 6 deadline to provide proof of employee vaccination status and the January 4 deadline for testing unvaccinated employees are both unworkable and virtually impossible,” Shay added. “We have consistently and repeatedly communicated our concerns about the practical challenges of meeting those arbitrary targets. However, it appears that our only remaining course of action is to petition for judicial relief.”
The NRF first sent a letter to Biden when OSHA published the ETS last Friday and on Tuesday sent an “expanded” letter to the Department of Labor and Biden requesting an extension on the implementation of the mandate.
The lawsuit states: “This is not a case about the efficacy of COVID-19 vaccines, which are a marvel of modern medicine.…Petitioners’ members have taken extraordinary measures to protect their employees, customers and communities during the pandemic. They have distributed, incentivized, encouraged and, in some cases, mandated the vaccine.”
But the lawsuit characterizes the OSHA mandate as “an extreme assertion of administrative power” and argues that, “Without a stay, American businesses, including petitioners’ members, will face immediate irreparable harm including enormous unrecoverable compliance costs, lost profits, lost sales to competitors who have fewer than 100 employees and therefore not subject to the action, lost goodwill and unemployment. The compliance costs alone will be staggering. Businesses must begin preparing to implement OSHA’s directive immediately. This includes figuring out how to practically monitor employee vaccine-and-testing status, implementing systems to ensure this monitoring occurs, creating the requisite database to retain employee data for OSHA inspection and devising policies for employee non-compliance. Meanwhile, there is a risk that many employees resistant to vaccination and government-mandated testing will quit their jobs rather than submit.”
Last week, the Dallas-based Neiman Marcus Group told WWD that it would comply with a federal mandate requiring proof of vaccination from our associates, and that the company has continued to follow guidelines from the Center for Disease Control and state and local mandates throughout the pandemic. Neiman’s continues to require all associates to wear masks in the workplace and permit those whose jobs do not require in-person presence to work remotely.
Macy’s Inc. said it continues to evaluate and implement government mandates and guidelines and that it strongly encourages its colleagues to get vaccinated. Earlier this fall, Macy’s began to require corporate workers to be vaccinated or show a negative COVID-19 test before entering office locations.