In the United States, the federal government has mandated that federal employees must be vaccinated, which has led to the promulgation of other similar mandates throughout the country but has left businesses dealing with a patchwork of state and local requirements, or in many cases, no government requirements, until a federal mandate for all businesses with 100 employees or more comes into effect (in January pending litigation challenging such mandate delays or prevents implementation). Some employers, like Goldman Sachs, Google, and Disney, have rolled out variations of vaccine requirements for their personnel. But what about retailers?

Some retailers are holding steadfast to their requirement that all customers, whether vaccinated or not, wear masks while shopping in person. Others have taken a step back, perhaps only requiring masks for unvaccinated patrons. And others have abandoned these rules altogether.

This holiday season may be our second during the pandemic, but it is the first with widely available COVID-19 vaccines. Dining establishments ranging from Shake Shack to Jose Andres’ renowned restaurants have begun requiring proof of vaccination for their customers. However, many retailers have expressed hesitancy about enforcing vaccine requirements for customers – in part due to their concern about the safety of their employees in the event disgruntled customers refuse to abide by such policies and threaten the safety of such employees. Many employers have also expressed their uncertainty with respect to potential legal liabilities, and the potential efficacy of such mandates.

At this time, it looks like retailers have resorted to encouraging vaccination and use of masks, but for the most part have not taken the position of requiring vaccination. But as flu season enters its peak and COVID-19 case numbers fluctuate, we may see a shift in these approaches this holiday season.