Grocery and retail industry trade associations hailed yesterday’s U.S. Supreme Court ruling to block a COVID-19 vaccine mandate for private businesses by the federal Occupational Safety and Health Administration (OSHA).
All of the high court’s conservative justices voted with the majority in Thursday’s 6-3 decision, which determined that OSHA overstepped its authority in requiring through an Emergency Temporary Standard (ETS) that all companies with 100 or more employees — some 84 million workers, or about half of the nation’s workforce — have their workers vaccinated by Feb. 9 and/or offer an opt-out requiring regular testing.
In a separate ruling, the Supreme Court let stand a federal COVID vaccine mandate for most of the nation’s health care workers. Chief Justice John Roberts and conservative Justice Brett Kavanaugh joined the court’s three liberal justices in the majority for the 5-4 decision.
“We are pleased the Supreme Court recognized the challenges OSHA’s rule would have imposed on food retailers and manufacturers, our employees and, ultimately, American consumers. The court’s decision today to pause OSHA’s vaccine and testing mandate for private businesses will help ensure the food industry is able to continue meeting our customers’ needs as efficiently and effectively as possible amid the ongoing supply chain and labor disruptions,” FMI-The Food Industry Association President and CEO Leslie Sarasin said in a statement on Thursday.
"The Supreme Court recognized the challenges OSHA’s rule would have imposed on food retailers and manufacturers, our employees and, ultimately, American consumers." — Leslie Sarasin, FMI-The Food Industry Association
Opposition to vaccinate-or-test ETS
FMI was one of 11 trade organizations that in November sued the federal government to suspend OSHA’s ETS mandating employee COVID vaccinations for large private companies. In her remarks yesterday, Sarasin noted that the food industry “has gone to extraordinary lengths” to promote COVID immunizations among workers and customers, including the investment of $1 billion in employee vaccination incentives. Grocery retailers, too, have administered a “significant percentage” of the nation’s COVID vaccinations and booster shots through their 12,000 pharmacies, she said.
“FMI and our member companies remain committed to working with OSHA, the CDC and the White House to encourage and facilitate vaccinations among our employees and communities, while preserving our members’ ability to provide their customers with the foods and products they need to keep their families fed and safe in the new year,” Sarasin added.
Grocery and retail industry associations and other industry trade groups claimed that the OSHA ETS, announced by President Joe Biden in September and implemented Nov. 5, was too sudden and being applied to employers unfairly by singling out large companies. They also objected to the timing, explaining that the measure would harm their businesses amid the critical holiday season and as they grappled with unstable economic conditions, including workforce shortages and supply chain disruptions. In addition, business groups cited legal and practical challenges of implementing the ETS during one of their busiest times of the year.
In expressing support for the Supreme Court’s ruling yesterday, the National Grocers Association (NGA) said the decision “takes some pressure off” independent grocers already squeezed by staffing and supply shortages.
“Independent grocers remain focused on doing what they have done since day one of the pandemic, providing their communities with access to food, essential products and other vital services. The ruling is a great relief for our industry as it staves off a burdensome mandate that would have created further disruptions and impaired our members’ ability to properly serve the needs of their communities,” stated Greg Ferrara, NGA president and CEO.
NGA also pointed to efforts by its supermarket and wholesaler members to ensure frontline workers had ready access to COVID-19 vaccines. NGA retail members with pharmacies have delivered vaccinations and boosters to their communities as well.
“We support efforts to increase vaccination rates that will not place added pressure on an already strained food supply chain and labor force,” Ferrara added.
Initially under the ETS, OSHA called on companies with 100 or more employees to “develop, implement and enforce” a mandatory COVID-19 vaccination policy by Jan. 4. Under the measure, employers could give workers the option to get vaccinated or undergo weekly COVID testing and wear a face mask. Later, the deadline for employers to require masking was extended to Jan. 10, and full compliance for vaccinations and/or the testing option was extended to Feb. 9. Employees would have been responsible for the cost of the tests.
After the ETS was challenged in court by multiple states that banned vaccine mandates and passports, 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.” But in December, the U.S. Sixth Circuit Court of Appeals in Cincinnati lifted the temporary stay on the requirement.
The Supreme Court’s Jan. 13 ruling reimposed a stay against OSHA’s ETS, a move that essentially renders the federal COVID vaccine mandate for private businesses unenforceable. The National Retail Federation (NRF) joined more than two dozen other trade groups this week to present oral arguments before the high court on the legality of the ETS.
“While NRF has maintained a strong and consistent position related to the importance of vaccines in helping to overcome this pandemic, the Supreme Court’s decision to stay OSHA’s onerous and unprecedented ETS is a significant victory for employers. As NRF and other plaintiffs articulated in our briefs before the court, OSHA clearly exceeded its authority promulgating its original mandate under emergency powers without giving stakeholders the benefit of a rule-making process,” David French, senior vice president of government relations for NRF, said in a statement on Thursday. “NRF urges the Biden administration to discard this unlawful mandate and instead work with employers, employees and public health experts on practical ways to increase vaccination rates and mitigate the spread of the virus in 2022.”
The High Court’s decision
In its ruling, the Supreme Court argued that the OSHA ETS was overly broad and involved a level of authority that the agency wasn’t granted when Congress formed it via the Occupational Safety and Health Act in 1970. “The Act empowers the Secretary [of Labor] to set workplace safety standards, not broad public health measures,” the court wrote in yesterday’s ruling.
The high court also contended that COVID-19 isn’t a strictly occupational risk and, therefore, the vaccine mandate goes beyond OSHA’s purview.
“Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution or any number of communicable diseases,” the Supreme Court explained in the decision. “Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
Tony Sarsam, president and CEO of SpartanNash, a Grand Rapids, Mich.-based grocery distributor and retailer, applauded the court’s decision, which he said “sided with private enterprise.”
“We believe our associates should have the freedom to choose whether or not they receive the vaccine. We were prepared to comply with the ETS mandate and will continue to strongly encourage vaccination, and administer them throughout our pharmacies. However, we agree with the ruling since we felt the ETS placed a burden on businesses that are already battling the most challenging labor market and supply chain environment we have ever faced,” Sarsam explained in a statement on Friday. “The ETS could have led to disastrous consequences impacting millions of people by crippling our supply chain and increasing food insecurity for Americans. Having one less barrier for our hard-working associates, who are vital to keeping America’s supply chain moving forward, will help us continue to best deliver the ingredients for a better life to our customers.”
What now to boost COVID safety?
The SCOTUS ruling puts the ball for a broad COVID vaccine requirement back in the court of states, public health authorities and employers. It also comes at a time when a winter surge in infections and an explosion of cases from the fast-spreading Omicron variant of the virus — which didn’t factor into OSHA’s ETS — are overwhelming the nation’s health care system, workplaces, schools and businesses at a rate not seen since the early months of the pandemic in 2020.
Marc Perrone, president of United Food and Commercial Workers International (UFCW), criticized the Supreme Court’s decision, saying that it “fails to recognize the extreme health risks America’s frontline food and retail workers face on the job as COVID-19 dangers continue.” Last month, UFCW sent a letter to 63 retail CEOs urging their companies to bolster their COVID protections.
“As the largest union for 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 with direct employee input was vital to hold companies accountable and protect the health and safety of workers and the public. Frontline workers need to be protected, and this decision needlessly ignores that there was a better way to address this issue without negating this mandate,” Perrone said in a statement. “With the Omicron variant spreading at unprecedented levels throughout the county, the White House and CEOs can still do much more to keep workers safe. UFCW has called for implementing strong safety measures, including promoting mask wearing, free PPE access for workers, and supporting worker vaccination and booster shots by providing paid leave. These actions must be taken now to help reduce the risk of more essential workers and deaths.”
"[The] Supreme Court ruling fails to recognize the extreme health risks America’s frontline food and retail workers face on the job as COVID-19 dangers continue." — Marc Perrone, UFCW International
Before Omicron’s emergence, OSHA estimated that the vaccine and testing ETS would lead to another 23 million people becoming vaccinated and — in what the agency described as a conservative estimate — prevent more than 6,500 deaths and over 250,000 hospitalizations.
“I am disappointed in the court’s decision, which is a major setback to the health and safety of workers across the country. OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans,” U.S. Secretary of Labor Marty Walsh stated yesterday.
“OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID is without doubt such a danger. The emergency temporary standard is based on science and data that show the effectiveness of vaccines against the spread of coronavirus and the grave danger faced by unvaccinated workers,” Walsh explained. “The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15 to 20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.”
That includes OSHA doing “everything in its existing authority to hold businesses accountable for protecting workers,” including under the Covid-19 National Emphasis Program and General Duty Clause,” he added.
"The Supreme Court has chosen to block commonsense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law." — President Joe Biden
U.S. vaccinations lag, infections climb
Through Jan. 13, 62.8% of the U.S. population (208.6 million people) were fully vaccinated against COVID-19, and 74.7% had received at least one dose, according to data from the Centers for Disease Control and Prevention (CDC). Also, 37.5% of the population (78.1 million people) had been administered a booster dose. Total U.S. COVID-19 cases to date stood at 64.3 million, with over 847,000 deaths, the Johns Hopkins University Coronavirus Resource Center showed as of midday on Friday. The latter numbers include 13.5 million COVID cases and nearly 40,900 deaths in the last 28 days.
“I am disappointed that the Supreme Court has chosen to block commonsense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law,” President Biden commented yesterday, noting that the ETS vaccine, testing and mask mandate presented “a very modest burden” considering the hospitalizations and deaths caused by the virus.
“As a result of the Court’s decision, it is now up to states and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated,” Biden said. “The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as president to advocate for employers to do the right thing to protect Americans’ health and economy. I call on business leaders to immediately join those who have already stepped up — including one third of Fortune 100 companies — and institute vaccination requirements to protect their workers, customers and communities.”
According to Brian Dodge, president of the Retail Industry Leaders Association (RILA), the Supreme Court ruling addressed industry concerns about the OSHA vaccine-or-testing ETS.
“We have raised concerns with OSHA and the administration about the administrability of the mandate, including the current shortage of tests,” Dodge said in a statement on Thursday, “but our primary focus at this stage is working with our members to ensure they have the information and tools they need to safely operate, manage their workforce and meet the needs of their customers.”