UPDATE: On Nov. 12, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay the Emergency Temporary Standard (ETS) for COVID-19 vaccination and testing, ordering that OSHA "take no steps to implement or enforce" it "until further court order." Accordingly, the agency has suspended activities related to the implementation and enforcement of the ETS, pending future developments in the litigation.
FMI — The Food Industry Association has teamed with 10 other trade groups representing grocery, truck drivers, wholesalers-distributors, warehousing and logistics providers and small businesses in a lawsuit challenging the U.S. Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) for COVID-19 vaccination and testing.
Employers with 100 or more workers must comply with most requirements of the ETS within 30 days of publication, and with testing requirements within 60 days of publication (Jan. 4).
“At FMI, the health and safety of our members’ customers and employees is our top priority,” noted Leslie G. Sarasin, president and CEO of Arlington, Va.-based FMI. “Our industry supports efforts to encourage greater vaccination among the American public and has gone to extraordinary lengths to promote vaccination rates among our associates and communities. In fact, our 10,000 food retail pharmacies have administered a significant percentage of the nation’s COVID-19 vaccinations and boosters.
“However, we believe that the ETS, as currently written, will only exacerbate ongoing labor challenges and worsen an already existing shortage of transport and supply chain capacity,” explained Sarasin. “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.”
Sarasin explained that FMI had joined the lawsuit “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.”
She added that the organization wanted to continue working 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.”
Besides FMI, participants in the lawsuit, which was filed Nov. 9 in the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, include the National Retail Federation, the National Association of Convenience Stores, the American Trucking Associations, the International Warehouse Logistics Association, the National Association of Wholesaler-Distributors and the National Federation of Independent Business.
Industry critics of the ETS have noted that it would be difficult to implement, particularly for smaller retailers with fewer resources, especially since a significant percentage of the U.S. population — including potential retail workers — would never get vaccinated, despite public pressure to do so. Progressive Grocer’s recent study “What’s Next for the Way America Eats, Part II,” which gauged the marketplace realities in which grocers are running stores and foodservice operations, found that one-fifth of consumers surveyed said that businesses shouldn’tbe allowed to turn customers away based on personal health care decisions, while 21% said that they have no plans to get vaccinated, and a small percentage didn’t want to share their status.
In a Nov. 10 letter to Labor Secretary Marty Walsh and OSHA Assistant Secretary Douglas Parker, Greg Ferrara, president and CEO of the Washington, D.C.-based National Grocers Association (NGA), which represents the independent grocery sector, requested an exemption from the ETS for essential workers in the food industry, noting: “From retailers who are currently operating their stores with half of their regular employee capacity, to wholesalers who cannot find truck drivers or warehouse workers to keep product deliveries on schedule, we believe the ETS will severely increase the labor shortage our industry and the country faces. On the operational side of the ETS, there is a scarcity of COVID-19 tests currently available, especially for smaller companies. This includes sourcing for many NGA members who would like to procure tests for their unvaccinated workers as means of employee retention, but do not have the scale or influence to access limited supplies. While the ETS is well intentioned and increasing vaccination rates will be crucial to ending the pandemic, added pressure on the strained food supply chain could impede our vital role in the economy of keeping grocery shelves stocked for American consumers.”