Retail associations sue to halt OSHA COVID vaccine mandate

The National Retail Federation (NRF), FMI-The Food Industry Association (FMI) and the National Association of Convenience Stores (NACS) are among 11 trade groups suing the federal government to suspend a COVID-19 vaccine mandate for employers recently proposed by the Occupational Safety and Health Administration (OSHA).

Under the lawsuit, filed Nov. 9 with the U.S. Court of Appeals for the Fifth Circuit in New Orleans, the business associations seek a stay of OSHA’s planned vaccination requirement pending review by the court. They claim the “immediately effective” mandate, announced Nov. 4, is too sudden and being applied to employers unfairly and will cause “irreparable harm” to their companies, especially amid unstable economic conditions and the upcoming holiday season.

"The Dec. 6 deadline to provide proof of employee vaccination status and the Jan. 4 deadline for testing unvaccinated employees are both unworkable and virtually impossible." — Matthew Shay, National Retail Federation (Photo courtesy of NRF)

Last Thursday, 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 became effective 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.

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

Other trade organization petitioners in the suit include the International Foodservice Distributors Association, National Association of Wholesaler-Distributors, International Warehouse and Logistics Association, Texas Trucking Association, Mississippi Trucking Association, Louisiana Motor Transport Association, American Trucking Associations and National Federation of Independent Business.

“We are deeply concerned about the timing for implementing the OSHA vaccine mandate during the most important season of the year for retailers and customers. Our members are already facing workforce shortages and supply chain disruptions, in addition to the legal and practical challenges of implementing this ETS during the holiday season,” NRF President and CEO Matthew Shay said in a statement.

NRF noted that it sent an initial letter to President Joe Biden when OSHA published the ETS on Nov. 5 and requested an extension of the mandate’s implementation in an expanded letter to the U.S. Department of Labor and Biden on Nov. 9. Named in the suit are OSHA, the Labor Department, Labor Secretary Martin Walsh, and OSHA chief and Assistant Labor Secretary Douglas Parker.

Related:Here’s what retailers should know about employee vaccine mandates

"We are pursuing litigation because the time and resources needed to put policies and procedures in place to track employee vaccination status and determine who needs to be regularly tested ... will create significant challenges during the busiest time of year for food retailers." — Leslie Sarasin, FMI-The Food Industry Association (Photo courtesy of FMI)

“The Dec. 6 deadline to provide proof of employee vaccination status and the Jan. 4 deadline for testing unvaccinated employees are both unworkable and virtually impossible,” Shay explained. “We have consistently and repeatedly communicated our concerns about the practical challenges of meeting those arbitrary targets. However, it appears that our only remaining course of action is to petition for judicial relief.”

FMI reported that its members' 10,000-plus retail pharmacies have administered over 70% of all COVID vaccines to date and have invested $1 billion in vaccine incentives to encourage their employees to get vaccinated. OSHA’s ETS, the grocery industry association said, has only a 30-day compliance window for most of its requirements and lacks exemptions for low-contact- or no-contact workers, such as truckers and food manufacturing, warehousing and distribution workers with limited public interaction.

“The ETS, as currently written, will only exacerbate ongoing labor challenges and worsen an already existing shortage of transport and supply chain capacity. Vaccine and testing mandates would further slow delivery times and drive up costs for consumers, retailers and manufacturers alike while disrupting our ability to keep the level of food on the shelves necessary to serve our communities as we approach the busy holiday shopping season, which has already been plagued by rising inflation and consumer fears about product availability," FMI President and CEO Leslie Sarasin stated. “We are pursuing litigation because the time and resources needed to put policies and procedures in place to track employee vaccination status and determine who needs to be regularly tested — not to mention how annual seasonal hiring will impact whether a company is subject to the mandate — will create significant challenges during the busiest time of year for food retailers.

Sarasin added, “We hope to continue to work with OSHA to encourage and facilitate vaccinations for more Americans, address issues related to the ETS, including the lack of testing availability for workers who chose not to get vaccinated, and re-evaluate exemptions for low-contact workers, such as truck drivers, who work largely in isolation.”

In the lawsuit, the business associations described OSHA’s COVID vaccine mandate as an “extreme assertion of administrative power.”

“Their members have seen COVID-19 wreak havoc on their employees and communities. This is not a case about the efficacy of COVID-19 vaccines, which are a marvel of modern medicine. Petitioners’ members have taken extraordinary measures to protect their employees, customers, and communities during the pandemic. They have distributed, incentivized, encouraged and in some cases mandated the vaccine,” the trade groups stated in the suit. “This is a case about American businesses that do not want to face the immediate irreparable harm of losing employees, incurring substantial and unrecoverable compliance costs, and worsening already fragile supply chains and labor markets. Yet that is precisely what would result from the Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard.”

OSHA’s proposed rule calls for more public input, the petitioners emphasized. “This regime was never subject to the notice-and-comment procedure that OSHA’s statute typically requires,” the lawsuit read. “OSHA delayed for months while it easily could have initiated notice-and-comment procedure. The pandemic has been ongoing for almost two years, COVID-19 vaccines have been widely available to anyone over the age of 12 for about six months, and the president announced his desire for a vaccine mandate nearly two months ago.”

Lyle Beckwith, senior vice president of government relations for NACS, noted in a declaration to the court that NACS members “generally support their employees becoming vaccinated” and have offered incentives and paid time off for vaccinations. However, the association said that if the OSHA rule takes effect, a “significant number” of employees will refuse vaccination and weekly testing.

“Our industry is facing a labor shortage and supply chain disruptions,” according to Beckwith. “The OSHA rule will make all of this worse, and everyday Americans will take the brunt of the problems it creates.”