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10/22/2021

Retail Groups Bring Vaccine Mandate Concerns to Biden Administration

The associations argue that the directive may trigger employee retention challenges when "the cost of labor is already, on average, the highest operating cost for most retailers."

ALEXANDRIA, Va. — President Joe Biden's vaccine mandate for private businesses with 100 or more employees will have "far-reaching consequences beyond the laudable objective of moving past the COVID-19 pandemic," according to NACS and other fuel trade groups.

In a letter sent to Jim Frederick, acting assistant secretary of Occupational Safety and Health Administration (OHSA) on Sept. 27, NACS, Energy Marketers of America, NATSO, and SIGMA argued that the pending Emergency Temporary Standard (ETS) — which is at the Office of Management and Budget for review — "may complicate already fragile labor markets and create challenges for many businesses that are currently struggling to remain open. We urge you to consider these realities as you draft the ETS, and request that the ETS or forthcoming guidance address the specific questions we raise below."

The four trade groups raised 24 specific questions that range from:

  • The timetable for implementation;
  • Whether the ETS is temporary or permanent;
  • Who pays for regular testing and for what kind of test;
  • Who is responsible for enforcement;
  • Will booster shots be required; and
  • Will joint employers be treated as one company or separately to what HIPAA restrictions and requirements apply?

One of the concerns the associations raised with OSHA is the availability of COVID-19 tests.

Although the associations and their members have incentivized industry employees to get vaccinated against COVID-19, the trade groups point out that a vaccine and testing mandate may trigger employee retention challenges and cause a migration of workers to employers with fewer than 100 employees or unemployment rolls.

"The cost of labor is already on average the highest operating cost for most retailers. A vaccine or testing mandate will increase those costs, causing further financial strain on businesses while our economy continues a precarious recovery," the letter states.

Doug Kantor, NACS general counsel, wrote a letter to the editor published in The Washington Post, in which he pointed out the difficult task ahead of OSHA as it drafts rules for employers regarding the vaccine mandate and related test requirements.

"Facing a persistent labor shortage and a testing shortage makes the choices before OSHA hard to reconcile. Employers can tell workers to get vaccinated, knowing that they don't really have the power to do so as they are desperately short of staff, and some workers don't want the vaccines. Employers can tell workers to get tested every five days, knowing that not enough tests exist for this to be possible," Kantor wrote. "This choice between doing the impossible and, well, doing the impossible is more than many businesses can handle right now. Hopefully, OSHA will find a way out of this Catch-22 by creating other options that stay within the realm of the possible."