NACS to Court: Overwhelming Majority of Members Expect to Lose Employees If Vaccine Mandate Stands

The Biden Administration is seeking an emergency court motion to reinstate the OSHA rule.
COVID-19 vaccine card

ALEXANDRIA, Va. — NACS is continuing its efforts to fight the federal COVID-19 vaccine mandate that would apply to employers with 100 or more employees.

In the latest move, NACS filed a brief opposing the Biden Administration's emergency court motion with the U.S. Court of Appeals for the Sixth District in Cincinnati to reinstate the Occupational Safety and Health Administration's (OSHA) rule requiring businesses with 100 or more employees have all their workers vaccinated or tested weekly for COVID-19.

The OSHA emergency temporary standard (ETS) also requires that these employees receive paid time off to get vaccinated, and all unvaccinated workers wear a face mask in the workplace.

Within days of the Nov. 4 OHSA rule, the U.S. Court of Appeals for the Fifth District in New Orleans granted a temporary stay against the mandate. The federal mandate was set to go into effect Jan. 4; however, the temporary stay remains in place.

In its brief to the Sixth Circuit Court of Appeals, NACS joined with 25 other trade associations in responding to the Biden Administration's emergency motion to dissolve the stay on the ETS.

"Lifting the stay would inflict irreparable harm upon the business associations' members — hundreds of thousands of businesses across retail, wholesale, warehousing, transportation, travel, logistics, and commercial interests that collectively employ millions of Americans and contribute trillions of dollars annually to the nation's economy. It would impose substantial, nonrecoverable compliance costs on those businesses. It would devastate already fragile supply chains and labor markets at the peak holiday season," the brief stated.

The brief also includes a declaration from NACS Vice President of Research Lori Stillman. According to NACS it is the first time her declaration has been filed in the case. Previously, Lyle Beckwith, NACS senior vice president, government relations, submitted a declaration to the 5th Circuit in November when NACS joined in the lawsuit opposing the vaccine mandate.

In her declaration, Stillman cited a NACS survey of its members regarding the OSHA ETS found that 99 percent of the industry expects that some employees would quit their jobs rather than undergo vaccination, and that 92 percent of the industry expects that some employees would quit their jobs rather than undergo weekly testing for COVID-19.

Additionally, c-store employers who indicated that employees would leave their jobs over the mandate expect that they would lose 32 percent of their staff.

According to NACS, the survey also finds that:

  • 89 percent of employers in the industry would be forced to reduce store hours;
  • 58 percent would need to close one or more stores;
  • 57 percent would expect increased difficulty getting products to their stores;
  • 72 percent would need to reduce cleaning at one or more stores;
  • 93 percent would face increased difficulty hiring staff; and
  • 47 percent would expect reduced customer traffic.

Senate Votes Against Federal Mandate

While the administration is seeking to overturn the stay on the mandate, the U.S. Senate approved a resolution to nullify the requirement. The Dec. 8 vote was 52-48; however, the U.S. House of Representatives is unlikely to vote on the measure, according to The Associated Press.

Lawmakers can invalidate certain federal agency regulations if a joint resolution is approved by both houses of Congress and signed by the president, or if Congress overrides a presidential veto. That's unlikely to happen in this case, the news outlet reported.