The National Association of Convenience Stores (NACS) is suing the U.S. Occupational Safety and Health Administration (OSHA) over its updated COVID-19 vaccination and testing standards, the trade group announced on Tuesday.
Issued last week, OSHA’s emergency temporary standard (ETS) requires employers with 100 or more employees to ensure their workers, working on either full-time and part-time schedules, are fully vaccinated by January 4, 2022, or implement a policy allowing for weekly testing and face mask requirements for all unvaccinated employees. The decree was met by a wave of lawsuits from individual state governments and other trade associations, and was temporarily blocked from taking effect by the 5th U.S. Circuit Court of Appeals last Saturday, pending expedited judicial review.
According to the U.S. Labor Secretary Marty Walsh, the ETS is designed to “contain the virus and protect people in the workplace” against the deadliest pandemic in the country’s history, one that has led to the deaths of 750,000 people in the U.S. However, NACS — which has 1,500 retail and 1,600 supplier members across the convenience and fuel retailing industries — argues that the new rules will heap further challenges on companies already struggling with worker shortages and supply chain gridlock.
In a declaration filed with the U.S. Court of Appeals for the Fifth Circuit yesterday, Beckwith wrote that the ETS “will inflict severe damage on members’ businesses and on their employees and families — all at a critical moment for the American economy given the extant issues including labor shortages, supply chain challenges, and rising prices.”
According to Beckwith, OSHA has “drastically underestimated compliance costs” for ETS. Those may include procuring test kits (“if they can find enough of it,” he noted), implementing “expensive and time-consuming tracking software,” keeping records, responding to negative employee morale or otherwise using funds that “would be better spent in other areas,” like raising salaries. The ETS does not require employers to pay for tests, permitted existing state laws and collective bargaining agreements are honored.
But labor issues are the primary concern for NACS members and the 2.5 million workers in industry, Beckwith said. He states that the group’s members “generally support their employees becoming vaccinated” and that they “have a strong incentive to encourage a vaccinated workforce and they do so.”
Yet the group contends that the ETS will only serve to make existing challenges — worker shortages, lack of available testing and low employee morale, among others — more difficult just as the busy winter holiday season is kicking off. Moreover, Beckwith acknowledged that there remains “a significant number of individuals who adamantly refuse vaccination and will not submit to weekly testing and masking.”
Caught between employee resistance and the prospect of being fined nearly $14,000 per violation, some NACS members will be forced to terminate non-compliant employees, resulting in “lost profits, lost sales, loss of customer goodwill, and reputational harm.” For trucking companies — already hampered by an industry-wide shortage of around 80,000 drivers — the impact could be even more severe.
“By requiring NACS members to terminate employees during a labor shortage, the ETS will worsen the severe labor difficulties that NACS members are already experiencing,” Beckwith wrote. “The already tight labor market will make it immeasurably more difficult to replace employees, further hampering members’ productivity and functionality. The upcoming holiday season — during which many companies hire additional employees — will make hiring even more difficult.”
NACS is one of 11 plaintiffs in the suit along with the National Retail Federation, the Food Industry Association (FMI), the National Association of Wholesaler-Distributors, National Federation of Independent Business, and International Foodservices Distributors. The Texas Trucking Association, Mississippi Trucking Association, Louisiana Motor Transport Association, and American Trucking Associations are also involved.
This Friday, NACS will host a webinar at 1 p.m. ET to answer questions about the OSHA emergency temporary standard.