NGA Objects to Latest COVID-19 Vaccine Mandate

In response to the new emergency temporary standard (ETS) issued on Nov. 4 by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), the National Grocers Association (NGA), which represents the independent supermarket industry, raised objections to the move.

“NGA and its members have supported COVID-19 vaccines and have been proud of their role to vaccinate their workforces as well as the communities in which they serve,” noted Greg Ferrara, president and CEO of Washington, D.C.-based NGA. “We are concerned that this new mandate will add more stress onto the food industry at a time when there are acute worker shortages and significant supply chain challenges. Additionally, trying to implement this mandate during the busy holiday season places even more pressure on retailers and wholesalers. NGA had called on the Administration to provide greater flexibility for essential infrastructure industries like the food sector, since grocers play such a crucial role in feeding the country. While we appreciate the Administration’s inclusion of some of our recommendations, we are concerned that the rule’s rigid compliance requirements that go into effect during one of our industry’s busiest seasons will be a burden to many community grocers.” 

Covering employers with 100 or more employees — two-thirds of the nation’s private-sector workforce — the ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects. Further requirements are as follows:

• Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee's vaccination status.
• Employers must have employees provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
• Employers must ensure that each worker who’s not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer).
• Employers must ensure that, in most circumstances, each employee who hasn’t been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Although the ETS doesn’t require employers to pay for testing, they may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements or other collectively negotiated agreements. Employers also don’t have to pay for face coverings.

“While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. “As part of OSHA’s mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses keep their workers safe.”

OSHA is offering resources to help businesses implement the standard, including a webinar, frequently asked questions and other compliance materials. The agency said it has “evaluated the feasibility of this ETS and has determined that the requirements of the ETS are both economically and technologically feasible.”

Large retailers such as CVS Health, Walgreens and Walmart have been among the companies to adopt vaccine requirements or regular testing as necessary measures to protect workers and customers.

Employers must comply with most requirements of the ETS within 30 days of publication, and with testing requirements within 60 days of publication (Jan. 4). When asked during a Nov. 3 press briefing by CNBC’s Spencer Kimball about possible penalties for noncompliance, a senior administration official said, “[W]e’ll be doing that just as we do with other rules that are in place. And the penalties that would be issued as a result of those inspections, if we find some deficiencies in the program, are commensurate with any other penalties that we have in place for other standards.” As can be seen from OSHA’s website, its penalties can be quite steep: $13,653 per violation.

Marc Perrone, president of Washington, D.C.-based UFCW International, noted that OSHA’s ETS, “while not going far enough, is a critical first step to keep workers safe on the job as COVID-19 dangers continue. As the largest union for front-line essential workers in grocery stores and meatpacking plants, UFCW has long said that voluntary workplace safety guidance was not enough, and that a clear and enforceable standard was vital to hold companies accountable for the safety of their workers.”

Added Perrone: “UFCW is calling on all businesses to negotiate this vaccine requirement with their front-line workers. Ensuring that workers have a voice in COVID workplace safety policies is critical to guaranteeing these measures are implemented fairly and build the trust and strong consensus needed for these safeguards to be effective.”

In June of this year, following intense pressure from the grocery industry, OSHA determined that an earlier emergency standard should apply only in “settings where employees provide health care or health care support services,” exempting retail workers. At the time, NGA said that an ETS would “create a regulatory and paperwork nightmare for independent grocers.” 

The independent grocery sector is accountable for about 1.2% of the nation’s overall economy and is responsible for generating more than $250 billion in sales, 1.1 million jobs, $39 billion in wages and $36 billion in taxes. NGA members encompass retail and wholesale grocers across the country, as well as state grocers’ associations, manufacturers and service suppliers.

Bentonville, Ark.-based Walmart operates more than 10,500 stores under 48 banners in 24 countries, and e-commerce websites, employing 2.2 million-plus associates worldwide. Walmart U.S. is No. 1 on The PG 100, Progressive Grocer’s 2021 list of the top food and consumables retailers in North America, while Walmart-owned Sam’s Club ranks No. 9 on the list. Deerfield, Ill.-based Walgreens, operating more than 9,000 retail locations across the United States, Puerto Rico and the U.S. Virgin Islands, is No. 5 on PG’s list, while Woonsocket, R.I.-based CVS Health, whose CVS Pharmacy subsidiary operates almost 10,000 locations nationwide, is No. 7.