With omicron landing in the US, do retailers actually need the vaccine mandate?

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.”

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