NACS Joins Lawsuit to Stop Biden Vaccine Mandate

OSHA’s rule for private employers will aggravate the labor shortage and further damage the already-fragile supply chain.

November 10, 2021

A Gavel

ALEXANDRIA, Va.—NACS yesterday joined with nearly a dozen state and national trade associations in suing the U.S. Occupational Safety and Health Administration over its COVID-19 vaccination and testing emergency temporary standard for private businesses with 100 or more employees. The petitioners seek a stay of the effective date of the mandate pending court challenges and ask that the court vacate and set aside the ETS.

The lawsuit was filed in the U.S. Court of Appeals for the 5th Circuit. The petitioners state that their legal challenge isn’t about vaccine efficacy but instead, “This is a case about American businesses that do not want to face the immediate irreparable harm of losing employees, incurring substantial and unrecoverable compliance costs, and worsening already fragile supply chains and labor markets.”

The petition calls OSHA’s emergency temporary standard on COVID-19 vaccination and testing “an extreme assertion of administrative power.”

NACS in its declaration to the court notes that the convenience and fuel retailing industry employs about 2.5 million people in the U.S.—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 U.S.

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

Beckwith states in the declaration to the court that NACS members “generally support their employees becoming vaccinated” and have offered incentives and paid time off for vaccinations. “NACS members have a strong incentive to encourage a vaccinated workforce and they do so.” Still, some “members expect that they will have many employees quit their jobs rather than receiving vaccinations against their will,” the declaration states.

As the convenience and fuel retailing industry continues to face challenges in not only hiring and retaining the essential workers needed to keep their doors open to serve their communities, the industry also is contending with severe supply chain constraints due in large part to a shortage of labor at trucking, logistics and supplier companies.

If the OSHA rule takes effect, a significant number of 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.

The petition notes that test kits in some areas aren’t readily and dependably available, and the costs of complying with OSHA’s mandate will be significant in both dollars and time. “OSHA’s estimated costs for these measures are simply not realistic,” NACS states.

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

The 5th U.S. Circuit Court of Appeals Saturday granted an emergency stay temporarily halting enforcement of the Biden Administration’s COVID-19 vaccine mandate for private employers, citing “grave statutory and constitutional issues.”

Multiple legal challenges have been waged since OSHA issued the ETS last week. Under a federal appeals court lottery system, the cases are expected to be combined into a single case as soon as next week, the Washington Post reports.

The Biden Administration, meanwhile, is pressing ahead with the mandate, which is slated to take effect January 4, 2022. Companies face significant fines for noncompliance.

View related documents in the case:

• NACS Declaration

• Exhibits

• Motion for Stay

• Letters

NACS will host a webinar on Friday, Nov. 12, at 1 p.m. ET to answer questions about the OSHA emergency temporary standard. NACS last week published a memo for NACS members explaining the implications of OSHA’s emergency temporary standard.