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11/10/2021

NRF files lawsuit to postpone vaccine mandate; deadlines ‘virtually impossible’

Dan Berthiaume
Senior Editor, Technology
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The NRF is taking legal action against new COVID-19 workplace vaccine regulations.

The National Retail Federation is involved in a lawsuit against the Occupational Safety and Health Administration (OSHA) for its COVID-19 employer vaccine mandate.

 NRF filed suit on November 9 in the U.S. Court of Appeals for the Fifth Circuit. Joining NRF in the lawsuit suit are 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

In an official statement, Matthew Shay, president and CEO of the NRF, explained why the organization is taking part in a multi-trade association lawsuit challenging OSHA’s COVID-19 employer-based vaccination and testing Emergency Temporary Standard (ETS).

“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,” Shay said in the statement. “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.”

Under rules released by OSHA under the Labor Department on Wed., Nov. 4, all private businesses with 100 or more employees have been given a Jan. 4, 2022 deadline to make sure their workers are either fully vaccinated or tested weekly for COVID-19. But there are earlier deadlines as soon as early December that must be met to ensure compliance by then, including a requirement that employers assess their workforce to determine who is and isn’t vaccinated. Employers are also required to view employees’ vaccination cards to confirm their status.

“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,” stated  Shay. "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 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.”

OSHA said companies that fail to comply with the regulations will face penalties that non-compliance can range from $13,653 per serious violation to $136,532 if a company willfully violates the rules. The agency, however, will face some enforcement challenges as it does not have nearly enough inspectors to do routine checking. According to reports, OSHA will respond to whistleblower complaints and make limited spot checks. The mandate also faces serious legal challenges from many Republican governors and state attorney generals.

Employers won't be required to provide or pay for tests for unvaccinated workers under the new requirements unless they are otherwise required to by state or local laws or in labor union contracts.  But they must give paid time off for employees to get the shots and sick leave to recover from related side effects that prevent them from working.

NRF sent an initial letter to President Biden when OSHA published the ETS on November 5. It sent an expanded letter to the Department of Labor and President Biden on November 9 requesting an extension on the implementation of the mandate.

Some retailers, including Walmart, have issued vaccine mandates for their corporate employees. But none of the major chains have done the same for their rank-and-file workers.

For a Q&A on the new requirements, click here.