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01/13/2022

Retail Industry Celebrates SCOTUS’ Block of Vaccine/Testing Mandate

Trade orgs view OSHA ETS as “onerous and unprecedented”
Bridget Goldschmidt
Managing Editor
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OSHA ETS
Despite the blocked mandate, grocers and other retailers were eager to assure the public that they're concerned about keeping employees and shoppers healthy.

The U.S. Supreme Court’s decision to block the Biden Administration from enforcing a vaccine-or-testing mandate for large employers is being viewed as a decisive win by the grocery industry, members of which had asked to be exempted from such a mandate.

An emergency temporary standard (ETS) on the vaccination and testing of workers at companies with 100 or more employees was issued on Nov. 4 by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), requiring compliance with most requirements of the ETS within 30 days of publication, and testing requirements within 60 days of publication. 

“We are pleased the Supreme Court recognized the challenges OSHA’s rule would have imposed on food retailers and manufacturers, our employees and, ultimately, American consumers,” noted Leslie G. Sarasin, president and CEO of Arlington, Va.-based FMI – The Food Industry Association, which, along with other interested trade organizations, had filed an emergency application last month for an immediate stay in the United State’s highest court. “The Court’s decision today to pause OSHA’s vaccine and testing mandate for private businesses will help ensure the food industry is able to continue meeting our customers’ needs as efficiently and effectively as possible amid the ongoing supply chain and labor disruptions.” 

Added Sarasin: “As FMI and our partner associations’ filing to the court noted, the food industry has gone to extraordinary lengths to promote vaccination among our associates and communities, including investing $1 billion in incentives to encourage their employees to get vaccinated. Our 12,000 food retail pharmacies have administered a significant percentage of the nation’s COVID-19 vaccinations and boosters, a role they continue to embrace in communities across the nation.” 

“The court’s ruling takes some pressure off independent community grocers, who already face daunting staffing challenges amid a nationwide labor shortage,” pointed out Greg Ferrara, president and CEO of the Washington, D.C.-based National Grocers Association (NGA), which represents the independent grocery sector. “Independent grocers remain focused on doing what they have done since day one of the pandemic, providing their communities with access to food, essential products and other vital services. The ruling is a great relief for our industry, as it staves off a burdensome mandate that would have created further disruptions and impaired our members’ ability to properly serve the needs of their communities.”

Continued Ferrara: “Independent supermarkets and wholesalers have worked since the vaccines were first available to ensure their front-line workers had access, and NGA members with pharmacies have been important partners to help deliver vaccines and boosters to the communities that they serve.”

These sentiments were shared by the wider retailer community.

“While NRF has maintained a strong and consistent position related to the importance of vaccines in helping to overcome this pandemic, the Supreme Court’s decision to stay OSHA’s onerous and unprecedented ETS is a significant victory for employers,” observed David French, SVP of government relations at the Washington, D.C.-based National Retail Federation (NRF), which joined more than 26 other trade associations this week to present oral arguments before the court on the mandate’s legality. “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.” 

On behalf of NRF, French encouraged “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.” 

Despite the blocked mandate, retailers were eager to assure the public that they're concerned about keeping employees and shoppers healthy.

“We have raised concerns with OSHA and the [Biden] administration about the administrability of the mandate, including the current shortage of tests, 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,” noted Brian Dodge, president of Washington, D.C.-based Retail Industry Leaders Association.

Last November, a range of trade organizations, including FMI, had filed suit against OSHA to challenge the ETS.

The Supreme Court did allow a more modest mandate requiring the vaccination of health care workers at facilities that receive federal money.

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