NACS, EMA, NATSO, SIGMA Raise Concerns About Vaccine Mandate

From NACS: The associations support efforts to boost inoculations but highlight ongoing labor challenges.

The Biden Administration’s vaccine mandate for companies with more than 100 employees will have “far-reaching consequences beyond the laudable objective of moving past the COVID-19 pandemic,” NACS and other fuel trade groups told the Occupational Safety and Health Administration (OHSA) in a recent letter.

The pending Emergency Temporary Standard (ETS), which is at the Office of Management and Budget (OMB) 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 letter states. NACS, Energy Marketers of America, National Association of Truckstop Operators and SIGMA signed the September 27 letter to Jim Frederick, acting assistant secretary of OSHA.

While the associations and their members have incentivized industry employees to get vaccinated against COVID-19, there are holdouts.

“A vaccine and testing mandate may trigger employee retention challenges that do not ultimately lead to more shots in arms but instead a migration of workers to employers with fewer than 100 employees or the unemployment rolls,” the letter states.

“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 24 questions raised in the letter 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, will joint employers be treated as one company or separately to what HIPAA restrictions and requirements apply?

Availability of COVID-19 tests, which are reportedly in short supply, is one of the concerns the associations raised with OSHA.

In a letter to the editor published today in the Washington Post, Doug Kantor, NACS general counsel, points 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,” Kantor wrote. “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. 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.”