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The National Retail Federation won a stay against the government’s plan to have big companies immunize or test their employees. That squanders a chance to thwart the pandemic, experts say.
As the omicron variant of COVID-19 made headlines over the Thanksgiving-Black Friday weekend, President Joe Biden instituted new travel restrictions from eight countries and urged people to get immunized. A week later, as the new strain was discovered in the U.S., he announced a multi-faceted plan to get a better grip on the pandemic.
The initiatives include, among other steps, encouraging immunization boosters for adults and vaccinations for children; developing vaccines for kids under five; expanding testing; strategizing best practices to keep schools and businesses open; developing new vaccines if omicron proves resistant; and calling on companies to ensure their workforces are vaccinated.
The last reflects the recognition of the workplace as a vector for the disease. Notably absent, however, was Biden’s attempted mandate for companies of 100 or more to either check their employees’ vaccination status or test them weekly if they’re unvaccinated — a requirement blocked in recent weeks after the National Retail Federation and other groups challenged it in court.
According to the CDC, nearly 60% of the U.S. population is fully vaccinated against the coronavirus, though community transmission remains high. Reported cases were already resurging before the news of another mutation. Omicron, which by Sunday had been reported in a third of the states in the U.S., is a variant that appears to carry “an increased risk of reinfection” and “may have a growth advantage,” according to the World Health Organization. On Friday, as first reported by the New York Times, a group of scientists, noting that their data is very early, said that omicron in South Africa seems to be spreading more than twice as swiftly as the delta variant; they’re not sure whether that’s because it’s more contagious or better at combating immunity, though that group earlier said that previous COVID infections don’t seem to be preventive.
Because omicron is still relatively rare, it’s unclear whether vaccines are as protective as they are against delta, which at least for now is by far the dominant variant in the U.S., according to the CDC.On Nov. 29, Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases and the president’s chief medical advisor, called the new strain “something that we are concerned about, but absolutely should not panic about” and said people should get vaccines and booster shots “because that will bring up the level of protection against any variant.”
The reiterated advice about immunization comes as the country’s vaccination rate has plateaued, an ongoing problem the Biden administration sought to address through the mandate, which was set by the Occupational Safety and Health Administration.
The NRF may have secured a legal victory when the Fifth Circuit Court of Appeals granted a stay. But cutting off the government’s ability to expand immunization could spell trouble for public health, the economy and the retail industry in 2022 and beyond, experts say. Not all industry groups participated in the NRF’s lawsuit. Neither the American Apparel and Footwear Association nor the Retail Industry Leaders Association joined in, and RILA said it’s preparing members to comply with the rule.
The case is now at the Sixth Circuit and could end up at the Supreme Court. Other federal courts have also recently issued preliminary injunctions against the measure. The legal hurdles mean the federal effort is delayed if not derailed. Some states and municipalities have instituted vaccine requirements; others have put limits on mandates. New York City, where a number of omicron cases have been identified, on Monday extended its mandate to apply to all private companies regardless of size, according to several news reports.Meanwhile, the delta variant, which over the summer strengthened the pandemic, could give way to further variants like omicron, according to Anthony Santella, a professor of public health and director of the Health Science Program at the University of New Haven.
“From the retailers’ perspective, they’re kind of shooting themselves in the foot,” Santella said by phone. “Because the more we continue to have these debates, the more we’re going to be having these conversations about COVID, and COVID not ending, and our lives being disrupted by the pandemic. So the best thing we can all do is just do what’s right, get vaccinated, encourage those who became eligible to get vaccinated, encourage those who are eligible for boosters to get their boosters, and move on from this once and for all.”
What’s the emergency?
In a court of law, the NRF appears to be on solid ground.
OSHA’s vaccine requirement was developed using an “Emergency Temporary Standard,” which allows for swifter implementation, in part because it has a shorter comment period. The regulation states that as of Dec. 5 large companies must provide paid time off for employees to get vaccinated or require masks for unvaccinated workers; after Jan. 4, those employers must regularly test unvaccinated workers for the coronavirus, according to the White House’s fact sheet. The rules are on hold as they make their way through the courts, though the comment period remains open.
Among the NRF’s arguments is that anyone working at a company with fewer than 100 employees should also be protected from harm in a true emergency, according to Edwin Egee, NRF vice president, government relations and workforce development. When asked whether the NRF would support the mandate if it were extended to all businesses, Egee, speaking by phone, declined to answer, except to say that the organization would prefer that Congress take up the issue. So far, Republicans in Congress have stymied such efforts.
Public health experts told Retail Dive that such policies are often developed with a size cutoff in mind in order to strike a balance between the burden on small businesses and the public good. But in using the emergency standard, OSHA is protecting against what the statute describes as “grave danger,” which arguably should include any size business, according to Jonathan Hyman, an attorney at law firm Wickens Herzer Panza who specializes in management-side labor and employment law.
However, just because the mandate can be defeated in court doesn’t mean it should be, he also said.
“There’s a lot of arguments against the rule as it’s been written,” he said by phone. “So I have concerns that the Sixth Circuit now will strike this thing down. I also believe it’s what we need to do to get through the pandemic. The only way through this is getting as many people vaccinated as possible. It’s the only way we’re going to stop this thing from mutating into a variant that might evade the immunity that those of us who’ve been vaccinated now have and put us right back at square one. And so, as a matter of policy, I think this makes a lot of sense. I see the other side — I just think the public health issues trump it.”
Other arguments put forth by the NRF have less merit, according to Hyman and others, including its assertion that COVID-19 is not a workplace issue and that OSHA is not a public health agency.
Egee said the organization consulted with “a wide range of medical professionals and health and workplace safety experts from the CDC, WHO, [the National Institute for Occupational Safety and Health] and other organizations since the beginning of the pandemic in order to provide our members with the latest information and share best practices. The consensus among experts we’ve spoken with has been that the threat of COVID-19 is not specific to the workplace.”
“The consensus among experts we’ve spoken with has been that the threat of COVID-19 is not specific to the workplace.” – Edwin Egee (National Retail Federation VP, government relations and workforce development)
The NRF declined to name its advisers or provide research to support that contention. Several legal and public health experts contacted by Retail Dive disputed it. Hyman called the argument “complete bull—-.” 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, called it “absurd.”
“OSHA is tasked with making the workplace safe, and if you have somebody running around with COVID, it is not going to be safe, so this is a workplace issue,” Hoffman said by phone, noting that while hearing loss is not “specific to the workplace” either, OSHA nevertheless sets legal limits on noise exposure at work. “They are saying, ‘If we have people who are unvaccinated or who have COVID in the workplace, the workplace is unsafe.'”
It’s in the name, notes Dr. Georges Benjamin, executive director of the American Public Health Association.
“It’s a public health agency, and there’s no question about this being very clearly within their lines of authority,” he said by phone. “Its title is ‘Occupational Safety and Health,’ to protect workers, and we know there have been several outbreaks in workplaces. I know what the appeals court said the other day, but the court was wrong. This is clearly within their authority. It’s why the agency was created.”
Laboring the point
The Retail, Wholesale and Department Store Union hailed the OSHA rule when it was first announced, saying that store workers are especially vulnerable to the pandemic. The United Food and Commercial Workers union, which also 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. But the NRF argues that the rule makes hiring all the more difficult in a tough environment.
“It’s a huge onus on employers, especially when we’re already facing a massive workforce shortage,” NRF’s Egee said the day after the legal challenge was filed. “And we’re trying to hire somewhere between half a million and three-quarters of a million additional employees for the holiday season. My members are already under the gun with inflation concerns, supply chain concerns, workforce shortage concerns. This incredibly onerous mandate is coming down at exactly the wrong time.”
Others say it comes at the right time, not just because the disease is such a dire threat to human life but also precisely because those very challenges are at least partially related to the pandemic. Wells Fargo economists estimate there are 4.1 million fewer workers across all age groups due to the pandemic. U.S. workers have been slow to return to the workforce, despite retailers dangling higher wages, largely due to concerns about COVID, according to American Staffing Association CEO Richard Wahlquist, who works with employee recruiting agencies.
“Vaccinated employees feel equally passionate about not having to work side by side with unvaccinated employees.” – Richard Wahlquist (CEO, American Staffing Association)
“The pandemic is reducing the supply of candidates,” he said by phone, noting that employees are concerned not just for themselves but also their children and other vulnerable family members. “People who have found a way to exist on the sidelines — with savings, in some cases with some subsidies, in many cases with support from family members — seem quite content to stay there until, I guess, we get an all-clear signal. And we’re not sure when we’re going to see that.”
In fact, the news about omicron may scare even more people away from reporting to work or taking jobs, especially those that entail working in person, U.S. Commerce Secretary Gina Raimondo recently told CNN. Requiring vaccination or disease testing is uncomfortable for employers because it’s unprecedented, but so is a pandemic, Wahlquist said. At companies he’s worked with that have instituted their own mandates, fewer quit than anticipated, he said, adding that protecting against COVID at work is a selling point to prospective staff.
“Vaccinated employees feel equally passionate about not having to work side by side with unvaccinated employees,” he said. “So companies are realizing this is the right thing to do. And it’s going to be important in terms of retention and for companies that are trying to fill openings.”
The phenomenon where people opt for the vaccine rather than quit over it — despite what they may have said on social media or in surveys from their human resources department — is partly why mandates work, according to public health experts.
The idea is to allow people — and companies — to essentially blame the government, in a “Mom said so” sort of way. That’s especially useful when disinformation about the pandemic is rampant, leading people to refuse to take precautions against the deadly disease and shun vaccines even though, in the U.S., they are safe, effective, free and widely available, experts say.
Several major retailers contacted by Retail Dive either didn’t respond or declined to answer questions about their stance on the federal mandate. It’s a conundrum for the industry considering the impact the pandemic continues to have on the business. Less than half (38%) of U.S. consumers are comfortable with activities like holiday shopping because of it, for example, while a majority (59%) support businesses that require employees to be vaccinated, according to Qualtrics research. In a Nov. 30 client note, Wells Fargo economists said a downturn in consumer confidence in November was likely in part due to rising COVID cases, even before omicron made the news.
There are retailers that do support the OSHA rule, if only privately, though conversations with several show that it’s a “mixed bag,” according to Gautham Vadakkepatt, professor of marketing at the George Mason University School of Business. Some, including Walmart, are requiring vaccines on their own, at least for their corporate staff.
“In contrast to individual companies enforcing vaccine mandates within their company, government-directed vaccine mandates are beneficial in that they take this decision out of the hands of the retailer and, to a certain extent, level the playing field across retailers,” Vadakkepatt said by email. “Governments have the burden of ensuring public health.”
“Government-directed vaccine mandates are beneficial in that they take this decision out of the hands of the retailer and, to a certain extent, level the playing field across retailers.” – Gautham Vadakkepatt (Professor of Marketing, George Mason University School of Business)
The quandary facing public health officials is that many of the best defenses against the pandemic, including masks and immunization, have become politicized, according to Hoffman.
“If you’re in one party, you’re supposed to be opposed to vaccines, and vice versa,” she said. “But one would hope that the government order would give cover and that employers would just say, ‘Oh, we weren’t going to make you do it, but you know, we have to, so just do it.’ And you do have a choice — you can decide that you’ll just get weekly tests, so there is flexibility built into this mandate.”
The NRF doesn’t see it as flexible, or flexible enough, however. “I have not talked to a single business expert that says this is doable,” Egee said in a Nov. 10 conversation, though he also said the group is providing guidance on how to follow the mandate. He added that the effort isn’t necessary because of the high rate of vaccination in the U.S. and what he characterized as diminishing cases. However, for the week of Nov. 24 to 30, COVID-19 hospitalizations rose 5% from the prior weekly average, per the CDC.In some areas, intensive care units are once again over capacity due to serious COVID illness.
That was before omicron emerged. The variant is not yet fully understood, which has biologists and economists alike scrambling to discern its impacts. But the pandemic remains a threat regardless, according to Benjamin.
“With 770,000 people dead, 48 million cases, and a whole bunch of people with chronic disease from this, it ain’t over,” he said. “Let me remind you that it only takes one unvaccinated person to bring down a business. Documenting vaccination status is not that big a deal, it’s not that onerous. I know they may have lots of employees, and my advice would be to get off the dime and get it done. Let me tell you the alternative: If they get an outbreak in a store and they’ve got hundreds of employees, the cost and the time of contact tracing and testing those employees is a whole lot more onerous than having to deal with this mandate.”
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