Food retailers and manufacturers continued to face the daunting task of keeping employees safe and healthy throughout the second year of COVID-19, during which the availability of vaccines brought both opportunities and challenges.
In September, the Department of Labor’s Occupational Safety and Health Administration announced it would require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require unvaccinated workers to produce a negative test result on at least a weekly basis, as part of a plan that would impact over 80 million workers in private sector businesses, according to a statement from the White House.
In early November, OSHA released its Emergency Temporary Standard that would require covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. A day later, a U.S. circuit court issued a nationwide stay on the ETS.
Days later, on November 9, FMI -- The Food Industry Association, joined 10 other trade groups representing grocery, truck drivers, wholesalers-distributors, warehousing and logistics providers, and small businesses in a lawsuit that challenged ETS, saying that it would compound labor challenges.
FMI President and CEO Leslie G. Sarasin offered the following statement regarding the litigation filed in the Fifth Circuit Court of Appeals:
“We believe that the ETS, as currently written, will only exacerbate ongoing labor challenges and worsen an already existing shortage of transport and supply chain capacity. Vaccine and testing mandates would further slow delivery times and drive up costs for consumers, retailers, and manufacturers alike while disrupting our ability to keep the level of food on the shelves necessary to serve our communities as we approach the busy holiday shopping season, which has already been plagued by rising inflation and consumer fears about product availability.”
Meanwhile, the Kroger Co., one of the biggest employers in the U.S. with almost half a million full-time and part-time employees, eliminated some COVID-19 benefits for unvaccinated employees, as part of an effort to encourage more staff to get vaccinated, according to the Wall Street Journal.
According to a memo viewed by the Wall Street Journal, as of January 1, 2022, the grocery chain will no longer provide two weeks of paid emergency leave for unvaccinated employees who contract COVID-19, unless local jurisdictions require otherwise. In addition, the company will add a $50 monthly surcharge to company health plans for unvaccinated managers and other nonunion employees.
On December 17, the stay that blocked OSHA’s ETS was lifted. Following the move, dozens of groups applied to the U.S. Supreme Court to stay the decision. Among them was FMI.
Last week, the Biden Administration asked the Supreme Court to uphold the mandate. It's expected to hear oral arguments related to OSHA's ETS on January 7.
For now, the ETS is effective, and OSHA will begin enforcing the ETS' non-testing requirements on Jan. 10 and its testing requirements on Feb. 9.
Related: Retailers Join Partnership to Administer COVID-19 Vaccine; Tyson Launches COVID Safety Program.