FMI, NGA question timing of OSHA COVID-19 vaccine mandate

Citing the impending holiday rush and labor and supply-chain pressures, FMI-The Food Industry Association (FMI) and the National Grocers Association (NGA) called the Biden administration’s new COVID-19 vaccine mandate for private employers ill-timed.

The United Food and Commercial Workers (UFCW) union, meanwhile, described the expanded federal COVID vaccination requirement as “an important first step” in protecting grocery, food, retail and other industry workers but noted that employees must have a say in how the policies are implemented in the workplace.

On Thursday, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) requiring companies with 100 or more employees  to “develop, implement and enforce” a mandatory COVID-19 vaccination policy by Jan. 4. Under the measure, employers can give workers the option to get vaccinated or undergo weekly COVID testing and wear a face mask. The ETS goes into effect as of Nov. 5 and calls for employees’ vaccination status to be provided in 30 days.

The new rule will affect an estimated 84 million-plus workers, OSHA reported. The agency is accepting public comment on the policy until Dec. 6.

"We are very concerned with the impact on the food supply chain posed by the ETS." — Jennifer Hatcher, FMI-The Food Industry Association

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“At a time when our economy is facing a constrained labor supply, supply chain disruptions and high consumer demand, we are very concerned with the impact on the food supply chain posed by the ETS, particularly for workers in no-contact or low-contact positions,” Jennifer Hatcher, chief public policy officer and senior vice president of government and public affairs at FMI, said in a statement.

“As written, the ETS does not balance key issues like a lack of testing availability for employers and the likelihood of significant workforce attrition due to the mandate, particularly among truck drivers,” she explained. “FMI believes the ETS will exacerbate an already existing shortage of transport and supply chain capacity, further slowing delivery times and driving up costs for consumers, retailers and manufacturers — especially given the 30-day window to comply with the majority of the mandate’s requirements as we approach the busy holiday season.”

"Trying to implement this mandate during the busy holiday season places even more pressure on retailers and wholesalers," Greg Ferrara, NGA

NGA President and CEO Greg Ferrara noted the importance of immunizing employees against COVID but questioned OSHA’s timing in effecting the new mandate.

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“NGA and its members have supported COVID-19 vaccines and have been proud of their role to vaccinate their workforces as well as the communities in which they serve. We are concerned that this new mandate will add more stress onto the food industry at a time when there are acute worker shortages and significant supply chain challenges,” he commented. “Additionally, trying to implement this mandate during the busy holiday season places even more pressure on retailers and wholesalers.”

OSHA also is giving employers limited latitude in enforcing the new COVID vaccination/testing policy, according to Ferrara.

“NGA had called on the administration to provide greater flexibility for essential infrastructure industries like the food sector, since grocers play such a crucial role in feeding the country,” he stated. “While we appreciate the administration’s inclusion of some of our recommendations, we are concerned that the rule’s rigid compliance requirements that go into effect during one of our industry’s busiest seasons will be a burden to many community grocers.”

FMI’s Hatcher called for more details on employer enforcement of the rule and expressed concern about restrictions on worker exemptions.

“While we are encouraged that OSHA allows for enforcement discretion in the event of testing unavailability if employers can demonstrate good faith efforts to comply with the ETS, additional clarity is needed on what specifically the agency considers good faith,” she explained. “FMI is also disappointed that exemptions for low-contact- or no-contact workers that are vital to our food supply chain and are not a threat to public health were not allowed by the ETS, such as truckers and workers in food manufacturing, warehousing and distribution facilities with limited public interaction.”

"UFCW will engage the administration and our employers to ensure that essential workers have a strong voice in how this policy is implemented." — Marc Perrone, UFCW International

UFCW International applauded OSHA’s ETS proposal, noting that COVID-19 remains a threat to frontline workers in the food sector. To date among its membership, UFCW has tallied 497 deaths from the virus and 104,836 infections or exposures since the start of the pandemic last year, including 205 grocery worker deaths and at least 43,900 grocery worker infections or exposures. Overall, the union has 1.3 million members, spanning grocery, food processing, meatpacking, retail, health care and other industries.

“America’s frontline food and retail workers have faced extreme health risks throughout the pandemic. Today’s action from the Biden Administration, while not going far enough, is a critical first step to keep workers safe on the job as COVID-19 dangers continue. As the largest union for frontline essential workers in grocery stores and meatpacking plants, UFCW has long said that voluntary workplace safety guidance was not enough and that a clear and enforceable standard was vital to hold companies accountable for the safety of their workers,” UFCW International President Marc Perrone said in a statement on Thursday.

Still, Perrone expressed concern about workers potentially having to bear some of the cost of vaccination, testing and personal protection equipment (PPE).

“As President Biden’s new vaccine policy moves forward, UFCW will engage the administration and our employers to ensure that essential workers have a strong voice in how this policy is implemented and that paid sick leave is provided so that all workers who get sick can recover,” he added.

Pointing out that the retail industry accounts for one in four U.S. jobs, the National Retail Federation (NRF) said retailers provided consistent input on OSHA’s ETS proposal. Last month, NRF sent a letter to U.S. Labor Secretary Marty Walsh outlining the retail sector’s concerns about and recommendations for ETS. Also, NRF sent a letter to the Office of Information and Regulatory Affairs and was granted a meeting with administration officials.

“It is critical that the rule not cause unnecessary disruption to the economy, exacerbate the pre-existing workforce shortage or saddle retailers, who are already taking considerable steps to keep their employees and customers safe, with needless additional requirements and regulatory burdens,” stated David French, senior vice president for government relations at NRF.

In commenting on OSHA’s proposed rule, President Biden pointed to “broad public support” for COVID vaccine requirements.

“With today’s actions, we now have requirements to protect people from something that has taken the lives of 750,000 Americans,” Biden said Thursday. “I’m calling on employers to act. Businesses have more power than ever before to accelerate our path out of this pandemic, save lives and protect our economic recovery.”

The Labor Department continues to see a “dangerous levels of cases” in the nation’s workforce, according to Walsh. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19,” he commented. “Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”