Retail groups are rejoicing in the wake of the U.S. Supreme Court’s decision to turn down the Biden administration’s vaccine-or-testing requirement for businesses with 100 or more employees.
In a 6-3 decision, the court blocked the federal mandate on Thursday, ruling that it oversteps the authority of the Department of Labor’s Occupational Safety and Health Administration (OSHA). The mandate would have required large companies to mandate vaccinations or weekly tests across all staff.
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In a Thursday statement, the National Retail Federation’s (NRF) SVP of government relations David French described the decision as “a significant victory for employers.”
“As NRF and other plaintiffs articulated in our briefs before the court, OSHA clearly exceeded its authority promulgating its original mandate under emergency powers without giving stakeholders the benefit of a rulemaking process,” French said. “NRF urges the Biden Administration to discard this unlawful mandate and instead work with employers, employees and public health experts on practical ways to increase vaccination rates and mitigate the spread of the virus in 2022.”
According to surveys and experts, a federal vaccine mandate could exacerbate existing labor shortages across the industry for retailers who already have a shrinking pool of talent to choose from. A record 4.5 million Americans quit their jobs in November at a rate of 3%. In retail, about 686,000 quit their jobs, a rate of 4.4%. Also in November, retail employment declined by 20,000 jobs across general merchandise stores, clothing accessories stores, and sporting goods, hobby, book, and music stores.
According to a September study from Goldman Sachs, about 7 million U.S. workers have reported that they will not get vaccinated, even with a mandate, which would negatively impact hiring. According to a survey from Qualtrics,, 44% of employees say they would consider leaving their jobs if vaccines were mandated and 23% would strongly consider leaving.
For these reasons, some retail groups initially expressed concern about the impact of the mandate on their businesses and workforce. OSHA enacted the rules as an Emergency Temporary Standard (ETS), an acceleration measure that has only been used 10 times in the organization’s more than 30-year history, which went into effect on Monday. However, the mandate is still subject to challenges from courts during the official rule-making process.
“We have raised concerns with OSHA and the Administration about the administrability of the mandate, including the current shortage of tests,” said RILA president Brian Dodge in a statement following the court’s ruling. “But our primary focus at this stage is working with our members to ensure they have the information and tools they need to safely operate, manage their workforce, and meet the needs of their customers.”
Now that the mandate has been blocked, retailers must determine if they want to implement their own vaccine mandates. According to Matt Priest, president and CEO of the Footwear Distributors and Retailers of America (FDRA), this type of mandate has the potential to alienate workers in an already desolate hiring environment.
“Many employers are walking a fine line between ensuring a safe environment for workers and customers, while not alienating and perhaps even losing staff by requiring proof of vaccination,” Gary Raines, a chief economist FDRA, told FN last week.
Columbia Sportswear and TJX Companies have both recently said they will fire employees who do not receive the vaccine by a certain date. Nike is reported to have said similarly. Other companies like Under Armour, Walmart and Saks Fifth Avenue are requiring vaccines among office staff as well.