NATSO Seeks Clarification On COVID-19 Vaccine Mandate From OSHA

NATSO sent a letter on Sept. 27 to the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) detailing the questions and concerns NATSO members have raised in response to President Biden’s executive order directing businesses with more than 100 employees to require employees to be vaccinated against COVID-19 or produce a negative COVID-19 test weekly. The agency is expected to issue the directive in the coming weeks.

In a letter to OSHA Acting Assistant Secretary Jim Frederick, NATSO said that while it supports efforts to increase vaccinations in the United States, fuel retailers are concerned about the impact such a vaccine or testing mandate will have on the labor market. Many locations already have been forced to reduce operating hours or shutter stores completely due to labor shortages over the last several months. 

NATSO was joined by the Energy Marketers of America (EMA), the National Association of Convience Stores (NACS), and SIGMA in sending the letter to OSHA.

The groups said that much of the industry has initiated programs designed to incentivize their workforces to get vaccinated, including meaningful bonus payments and extra paid time off. These have been modestly successful, but there remains reluctance from certain employees. The groups expressed concern that a vaccine and testing mandate could trigger employee retention challenges, including a migration of workers to employers with fewer than 100 employees or the unemployment rolls. 

The organizations asked for clarification on how employers will be expected to collect and safeguard testing results for their employees; what type of information OSHA will request from employers and whether employers will be
required to collect it from employees and verify vaccination and testing status. The groups also asked if employers will be required to dismiss employees due to refusal to get vaccinated or tested or will employees who lose their jobs because they refuse to be tested or vaccinated be eligible for unemployment payments? In total, the organizations submitted nearly 25 clarifying questions to OSHA.

[NATSO Sends Letter to OSHA on Vaccine and Testing Mandate]

The federal government recently issued guidance outlining government contractors' obligations to ensure that their employees are vaccinated. Although not directly relevant to businesses that aren't government contractors, the guidance contains some indications as to how OSHA is likely to approach the vaccine-or-testing mandate to all businesses with more than 100 employees in the weeks ahead.

Some of the take-aways include:

1. Contractor employees must be vaccinated by Dec. 8, 2021, which gives approximately 10 weeks to effectuate the guidance from the date it was released. 
2. Contractors must review employees' documentation to prove vaccination status, but a digital copy is sufficient and there is no guidance directing the contractor to store the information or how it should (or should not) be maintained. 
3. Contractors are not required to provide vaccinations to employees.
4. Contractors are required to review an employee's request for an accommodation (medical or religious) and decide if there is a sufficient reason to grant it. Joint employers must both review and agree on the accommodation that must be offered. There is not a third-party that "approves" such exemptions.
5. There is not an exception for employees who have had a prior COVID-19 infection or a recent antibody test.
6. The guidance does not include a testing alternative to the vaccine requirement (and thus does not provide any meaningful clues as to how OSHA will address that complex issue). 
7. The provision of fuel to a local or state entity is unlikely to trigger the federal contracting regulations, which primarily apply to contracts with the federal government. 

The WSJ recently reported that large trucking companies are saying a federal vaccination and testing mandate could push more workers away from their operations and deepen supply chain problems. "Trucking companies worry that workers who balk at the requirements could decamp for smaller fleets that don't fall under the mandate or turn to gig-economy jobs...." Those who do remain on the job could have trouble meeting their hours-of-service requirements if they have to take a Covid-19 test while they are "on the clock."  

The NYTimes also reported on the difficulties that American citizens and businesses have in procuring rapid COVID tests, even though they are widely available in many European countries.