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NACS Sues OSHA Over COVID-19 Vaccine Mandate

Rule would worsen industry labor shortage, supply chain disruptions, association claims
OSHA and NACS logos

ALEXANDRIA, Va. — NACS is one of 11 state and national trade associations suing the U.S. Occupational Safety and Health Administration (OSHA) over its COVID-19 vaccination and testing emergency temporary standard for employees with 100 or more employees.

The lawsuit, filed Nov. 10 in the U.S. Court of Appeals for the Fifth Circuit, said convenience-store and fuel retailers generally support their employees being vaccinated and have offered incentives and paid time off for vaccinations; however, some NACS members expect they will have many employees quit their jobs rather than receiving vaccinations against their will, Lyle Beckwith, NACS senior vice president of government relations, said in the petition.

“Our industry is facing a labor shortage and supply chain disruptions,” Beckwith said. “The OSHA rule will make all of this worse, and everyday Americans will take the brunt of the problems it creates.”

NACS said the convenience and fuel retailing industry employs about 2.5 million people in the United States, from store clerks to truck drivers, and generated $548.2 billion in sales in 2020. The industry sells about 80% of the fuels purchased in the United States.

The White House in early November said that c-store retailers, restaurant companies and other businesses with at least 100 employees have until Jan. 4 to ensure their workers are fully vaccinated against COVID-19. Employees who refuse to get the shots can keep their jobs by testing negative “on at least a weekly basis” for coronavirus, an emergency order states.

Days after the detailed guidance was released, the U.S. Court of Appeals for the 5th Circuit in New Orleans issued an emergency motion to stay enforcement of the OSHA Emergency Temporary Standard, or COVID-19 vaccine mandate, “pending expedited judicial review.” President Joe Biden’s administration responded Nov. 9 with the U.S. Department of Labor saying a stay would likely cost “dozens or even hundreds of lives per day” and “hundreds of thousands of hospitalizations.”

NACS also noted the severe supply chain problems the industry is facing, in addition to challenges in hiring and retaining workers. If the OSHA rule takes effects, some employees will refuse both vaccination and weekly testing, “so the rule will not significantly advance public health but will hurt the industry and its ability to serve American consumers,” NACS said.

The petition also notes that test kits aren’t readily and dependably available in some areas and the costs of complying with OSHA’s mandate will be significant.

Employers are not required by the federal directive to pay for the tests, though the administration noted that state laws and collective bargaining agreements could impose the obligation. It also noted that companies can volunteer to foot the bill.

In addition to NACS, the petitioners include the Texas Trucking Association, Mississippi Trucking Association, Louisiana Motor Transport Association, American Trucking Associations Inc., National Federation of Independent Business, National Retail Federation, Food Marketing Institute, National Association of Wholesaler-Distributors, International Warehouse and Logistics Association and International Foodservices Distributors Association.

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