Retailers Tap Brakes on Vaccine Mandates

Businesses can’t afford to lose employees in this tight labor market and busy holiday season.

November 30, 2021

COVID-19 Vaccine and Judge's Gavel

ALEXANDRIA, Va.—Walmart, Target and other large retailers have yet to mandate that their employees get COVID-19 vaccinations, as retailers are concerned over having enough people to work in their stores, reports the New York Times.

Macy’s mandated that its corporate workers get vaccinated or submit to testing, but it hasn’t handed down the same protocols to store employees.

“We have a lot of stores that have a lot of openings, and any ruling that we have to mandate those colleagues be vaccinated prior to Christmas is just going to exacerbate our labor shortage going into a really critical period for us,” Jeff Gennette, Macy’s chief executive, told the New York Times.

When asked what Macy’s would tell concerned customers about shopping in stores, Gennette said: “What I would say is we encourage every one of our colleagues to be vaccinated, and every colleague wears a mask in our stores and warehouses to protect themselves and others.”

The National Retail Federation, the industry’s largest trade group, joined other associations in filing a lawsuit against the Biden Administration after the Occupational Safety and Health Administration (OSHA) issued a ruling directing companies with 100 or more workers to mandate vaccines or weekly tests by Jan. 4.

“We are deeply concerned about 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 ETS during the holiday season,” said NRF in a statement.

Walmart, the nation’s biggest private employer, declined to speak with the New York Times on the federation’s lawsuit or its plans for vaccinations or testing, and it has not implemented any thus far. A spokeswoman for Target told the Times that the company had “started taking the necessary steps to meet the requirements of the new COVID-19 rules for large companies as soon as the details were announced.”

NACS also joined the lawsuit. If the Biden Administration’s mandate takes effect, a significant number of employees are expected to refuse both vaccination and weekly testing. So, the rule will not significantly advance public health but will hurt the convenience retailing industry and its ability to serve American consumers.

“Our industry is facing a labor shortage and supply chain disruptions,” said Lyle Beckwith, NACS senior vice president, government relations. “The OSHA rule will make all of this worse, and everyday Americans will take the brunt of the problems it creates.”

Shortly following mandate, the 5th U.S. Circuit Court of Appeals granted an emergency stay temporarily halting enforcement of the COVID-19 vaccine mandate for private employers, citing “grave statutory and constitutional issues.” A federal judicial panel on multidistrict litigation consolidated all the cases in the 6th Circuit. The 5th Circuit lost jurisdiction of its cases when they were moved to Cincinnati, and the 6th Circuit now has the authority to dissolve the 5th Circuit’s stay. The U.S. Justice Department filed an emergency court motion with the 6th U.S. Circuit Court of Appeals in Cincinnati to reinstate the OSHA requirement.

Health Care Workers

Yesterday, a federal judge in St. Louis blocked OSHA’s ruling from applying to health care workers in 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. The federal rule requires COVID-19 vaccinations for more than 17 million workers nationwide in about 76,000 health care facilities and home health care providers that get funding from the government health programs.

U.S. District Judge Matthew Schelp said that federal officials likely overstepped their legal powers.

“CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans. Such action challenges traditional notions of federalism," Judge Schelp wrote in his order.

Federal Workforce

Separately, the U.S. Office of Management and Budget and Office of Personnel Management yesterday asked federal agencies not to enforce penalties for federal workers who missed the Nov. 22 deadline for vaccination until after the start of next year.

“We encourage your agencies to continue with robust education and counseling efforts through this holiday season as the first step in an enforcement process, with no subsequent enforcement actions, beyond that education and counseling and, if warranted, a letter of reprimand, for most employees who have not yet complied with the vaccination requirement until the new calendar year begins in January,” the agency heads said in an email to the President’s Management Council, Federal News Network reports.

Employees who don’t comply—apart from those that receive a medical or religious exemption face a three-step disciplinary process, including education and counseling, a 14-day unpaid suspension and termination. Compliance stands at 96.5% across the federal workforce.