Vaccine Mandate Raises Questions for Retailers

NRF and RILA say their members need more information and will need more time before requiring employees to get vaccinated.

Lenore Fedow lenore.fedow@nationaljeweler.com

The National Retail Federation and the Retail Industry Leaders Association sent a joint letter to the U.S. Department of Labor and its Occupational Safety and Health Administration (OSHA), raising questions and expressing concerns about an impending vaccine or testing mandate for companies with 100 or more employees.

New York—Retailers need more time and more information to implement new rules about employees being vaccinated against COVID-19, according to a letter by two large retail trade organizations.

The National Retail Federation and the Retail Industry Leaders Association sent a joint letter to the U.S. Department of Labor and its Occupational Safety and Health Administration (OSHA) asking for 90 days to prepare to meet the requirement.

The letter is seemingly a pre-emptory measure, as OSHA has not yet released a draft of the regulations or given a timeline for when the mandate would take effect.

President Joe Biden reached out to OSHA earlier this month, directing the government agency to implement an Emergency Temporary Standard (ETS) that requires companies with 100 or more employees to either have their workers fully vaccinated against COVID-19 or require weekly testing.

OSHA can issue an ETS if it is deemed necessary to protect workers from grave danger.

In June, OSHA issued an ETS requiring health care employers to implement COVID-related health measures, including providing personal protective equipment and adequate ventilation, and allowing for social distancing.

Under this new standard, those working for healthcare providers, federal employees, and employees of federal contractors will be required to get the vaccine.

The standard would also require paid time off for employees to get the vaccine.

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Several major companies already have vaccination requirements in place, including The Walt Disney Company, Goldman Sachs, Google, Netflix, Tyson Foods, The Fox Corporation, and United Airlines.

In their letter, NRF and RILA noted that retailers have put various health and safety checks in place throughout the pandemic and have been “at the forefront of the vaccination effort,” with many providing financial incentives and paid time off to allow retail employees to get the vaccine.

“As we have navigated federal and state requirements, recommendations, and protocols, we have learned that it takes time to implement successful testing and vaccination programs—particularly in the face of challenges related to availability, access, and verification,” said the letter.

The letter also shared a list of questions from the groups’ members, including queries on how to verify vaccination status and what to do if an employee refuses both options.

Some of the questions include:

How should employers handle religious and health exemptions?
As the holiday season approaches, does the mandate apply to seasonal employees?
Would it apply to an independent contractor or remote worker?
Would the mandate affect teenage retail workers? Those workers may need parental consent for vaccination and testing, the letter noted.

Looking at the retail workforce, there may be as many as 4 million employees who would need weekly testing, stated the letter.

This begs the question about the availability of adequate testing: If testing is not available in a certain area, would the employer be fined? Would the employee be unable to work that week?

It’s also unclear whether the employee or employer would pay for the testing, should there be a charge, said the letter. Should the employee pay the testing fee to incentivize vaccinations?

Delta Air Lines announced last month that it will require employees to be vaccinated against the coronavirus or be tested weekly and incur a $200 monthly surcharge for health insurance.

With booster shots now available for select individuals, the members also asked how OSHA will define “vaccinated.”

If an employee receives one dose of the Moderna or Pfizer vaccine and is waiting to receive the second dose, do they still require weekly testing?

“Requiring employers to mandate vaccination and testing of all employees will require extensive coordination with employers and all levels of government,” the letter stated.

Read the full letter here.