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Vaccine mandates are still up in the air as the case heads to the Supreme Court.

Federal appeals court reinstates Biden’s employer vaccine mandates

Those opposing mandate — including FMI and other retail associations — are turning to Supreme Court for final ruling

*Editor's Note: Article updated with comment from the National Grocers Association.

President Biden’s Occupational Safety and Health Administration (OSHA) vaccine mandate for employees of businesses with more than 100 workers is back on after the U.S. Sixth Circuit Court of Appeals lifted a temporary stay Friday from a November ruling by a federal judge in another court. Opponents of the mandate are now turning to the Supreme Court for the final ruling.

“We will go immediately to the Supreme Court — the highest court in the land — to fight this unconstitutional and illegal mandate,” South Carolina attorney general Alan Wilson said in a Twitter statement, noting that he filed a motion with the Supreme Court on Dec. 18, and is one of several to do so. “The law must be followed, and federal abuse of power stopped.”

FMI-The Food Industry Association also expressed disappointment with the Sixth Circuit Court of Appeals decision and noted that it had filed an emergency application for an immediate stay in the United States Supreme Court, along with other association partners including the National Retail Federation and National Association of Convenience Stores.

In a statement released over the weekend, FMI President and CEO Leslie G. Sarasin said, “FMI is disappointed that the Sixth Circuit discounted the harm FMI members will face should the ETS be implemented during this challenging time of the year. Lifting the stay will exacerbate ongoing labor and supply chain pressures and negatively impact our members’ ability to focus their efforts on meeting their customers’ needs during the holiday season.”   

She added, “To be clear, FMI and our member companies are committed to ensuring the health and safety of our customers and employees. Our industry supports efforts to encourage greater vaccination among the American public and 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. Additionally, 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 National Retail Federation also released a statement expressing its disappointment in the decision and said it will consider additional legal options. "NRF has long maintained that OSHA, in promulgating its Vaccine Mandate Emergency Temporary Standard, exceeded the authority granted to it by Congress in 1970 and crafted a rule that is infeasible for employers to implement during the critical holiday season," noted David French, NRF senior vice president of government relations. “NRF urges the Biden Administration to delay the ETS’s implementation timeline. We can work together to find viable ways to increase vaccination rates and mitigate the spread of the virus in 2022.”

The final rule for the Emergency Temporary Standard (ETS) was published in November and requires companies that fall under OSHA guidance with 100 or more employees to mandate that employees send proof of COVID-19 vaccination to their employers. Any unvaccinated workers would be required to test weekly (possibly at their own expense) and to notify their employer immediately if they ever test positive for COVID-19.

As previously reported by NRN, the U.S. Court of Appeals for the Fifth Circuit in New Orleans 

Granted a motion on Nov. 12, ordering OSHA to “take no steps to implement or enforce the ETS,” which was expected to go into effect in January. The wave of lawsuits challenging the mandate from attorneys general and lawmakers around the country was consolidated and decided in what is known as a “ping pong ball lottery” in this latest court of appeals decision.

"The Sixth Circuit opinion sets-up a showdown at the U.S. Supreme Court, and definitely moves the odds in favor of the OSHA ETS prevailing at the end of the day," Keith Wilkes, a labor attorney with national law firm Hall Estill said in a statement, noting that the 2-1 opinion does not follow party lines. “Unprepared covered employers have a daunting task ahead to meet the new first of two compliance deadlines announced by OSHA. The laundry list of tasks must be satisfied by January 10 or face OSHA penalties of up to $13,653 for each violation and up to $136,532 for each willful violation.”

On Friday, the Biden Administration made it clear that the current spike in COVID-19 cases due to the Omicron variant has made it even more prudent for the mandates to go into effect.

“Especially as the U.S. faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment,” the White House said in a statement.

Businesses continue to try to keep up with the ever-changing mandates, both at the federal and local levels. According to the New York Times, since the legal challenges have taken place so close to the Jan. 4 enforcement deadline, that deadline has now been moved to Feb. 9, which gives the highest court in the land several weeks to decide the case.  

Following the 6th Circuit Court of Appeals decision to lift the stay on the emergency temporary standard (ETS), the National Grocers Association (NGA), which represents the independent supermarket sector, sent a letter to OSHA and the U.S. Department of Labor calling on the administration to consider exempting businesses in the food supply chain from the COVID-19 vaccine and testing mandate. NGA's letter outlined concerns and the challenges faced by independent grocers in light of a workforce shortage, the holiday rush and changing consumer behaviors amid a surge in COVID-19 cases.

“We fear an untenable situation should OSHA restore the vaccine and testing mandate on grocers at this time,” NGA President and CEO Greg Ferrara stated in the letter. “Our members are reporting that many employees intend to quit if required to submit to vaccines or weekly tests. Even if employees opt for weekly testing, grocers are reporting they cannot currently procure enough tests to satisfy the number of employees that require testing. Simply put, we expect significant disruptions to the industry’s ability to supply a hungry American public with needed food and consumer goods should the mandate go forward as planned.” 

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