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OSHA’s vaccine mandate has brought forth mixed reactions. The Natural Products Association (NPA) hosted a seminar on the mandate, titled Implications of OSHA and CMS Rules, wherein experts provided an overview.
The mandate, per NPA, requires employers to establish, implement, and enforce a mandatory vaccination policy—all new and existing employees need to be fully vaccinated, unless they have medical contraindications. The exception: Mandatory vaccination is not required if an employer has a written policy permitting each employee to choose between vaccination or using a face covering and providing proof of regular testing. Employees are entitled to up to four hours paid time for each primary vaccination dose, including travel time, and a reasonable amount of paid sick leave to recover from any side effects experienced. Employees will be presumed unvaccinated unless they provide acceptable proof. Employers are required to preserve that proof, and maintain a roster of vaccination status while the emergency temporary standard (ETS) is in place.
NPA further put together an explanation of the political atmosphere, noting that 28 states had, at the time, filed lawsuits against the mandate, and 39 Republican senators had announced that they would use a joint resolution of disapproval to push to nullify the regulations. The rule has “largely remained partisan,” NPA added. Plus, per NPA, there’s a question of who could even enforce this rule: While OSHA is tasked with ensuring workplace safety, DHHS is the department tasked with determining the appropriate use of vaccines, and the CDC is responsible for recommending who should receive the vaccines.
A major question NPA raised: Will this magnify current worker shortages and supply chain issues? The association has since released a statement, quoting Daniel Fabricant, Ph.D., President and CEO of NPA, as saying:
“We are sounding the alarm today because we have serious concerns this extreme regulation imposes an unrealistic timeline and significant economic burden on businesses across the United States facing historic labor challenges. Vaccine and testing mandates will only slow delivery times and drive-up costs for consumers, retailers and manufacturers and damage the ability to keep products on store shelves that consumers have relied on to stay healthy for the past 20 months. We don’t need the ETS grinch during the holidays when the country is already plagued by concerns of rising inflation and product availability.”
NPA has submitted a petition to the U.S. Court of Appeals, asking the Court to declare the mandate unlawful.
The Fifth Circuit Court of Appeals has placed the ETS on temporary hold. FMI’s President and CEO Leslie Sarasin released a statement in support: “FMI is pleased the Fifth Circuit Court of Appeals issued a stay on OSHA’s ETS for vaccination and testing. In pausing the ETS, the Court’s action today gives us additional time to seek clarity on elements of concern, including the availability of sufficient testing capacity and exemptions for workers with limited contact with others, such as truck drivers and warehouse workers. FMI remains concerned with the potentially harmful impact the ETS will have on American consumers and the food supply chain if implemented, as written, during the busiest grocery shopping season of the year. FMI remains committed to working with OSHA to encourage and facilitate vaccinations, continue protecting consumers and our workers, and ensure U.S. supply chains remain up and running.”
Given the focus on supply chain shortages, it may be worth it to consider several questions. What caused the labor shortage? What impact did COVID have on laborers? What happens when companies institute vaccine mandates? How do employees feel about vaccine mandates?
With regards to the cause of the labor shortage, dats from People’s Policy Project (PPP) suggests that the answer is not unemployment benefits: PPP reports that “job growth was no faster in states that ended federal unemployment assistance early, and states maintaining federal assistance saw twice as much job growth in August as states that ended the benefits early.”
Looking at job openings, PPP notes that there were 10.9m job openings at the end of July 2021—and only 8.4m unemployed people actively seeking work. PPP notes that a possible explanation of this discrepancy is people rethinking their careers rather than immediately returning to former jobs. Another issue: decreased populations “due in part to people moving across the country during the pandemic, and the death toll of COVID-19”—a death toll which, in the U.S., has surpassed 700,000. Another factor is “missing workers”—the 3.2m long-term unemployed and 2.5m permanent job losers—who took early retirements, were automated out of jobs, have been forced to quit due to lack of childcare, or who now have a long pandemic-induced period of unemployment that renders them unemployable—and we may get a better picture of why there are so few workers.
Returning to the impact of COVID, some experts suggest that may be helpful to look at mortality in workers due to COVID. One study published in PLOS ONE looked at mortality among Californians of working age from March to November 2020 by ethnicity and job. Some findings: “Across racial and ethnic groups, Latino working-age Californians experienced the highest relative excess mortality (37%) with the highest excess mortality among Latino workers in food and agriculture (59%; 97 per 100,000). Black working-age Californians had the highest per-capita excess mortality (110 per 100,000), with relative excess mortality highest among transportation/logistics workers (36%).” Food/Agriculture, Transportation/Logistics, and Manufacturing had particularly high excess mortality rates, even when compared to Health/Emergency workers—all three of those sectors had higher excess mortality, across all races, than Health/Emergency, in the time period covered by the study.
Studies on retail specifically are lacking, and unless those numbers are segmented by retail sector, they may be misleading anyway—risk for a grocery store employee, facing high volumes of customers, would be very different from risk at a store that spent several months working with curbside pickup only. Leticia Miranda, reporting for NBC News, looked at the numbers, using data from the United Food and Commercial Workers (UFCW) International Union, which found that at least 158 grocery workers have died from the virus, with at least 35,100 workers infected or exposed. That data isn’t necessarily coming from companies, and isn’t mandatory to disclose—Miranda cites Debbie Berkowitz, Worker Safety and Health Program Director with the National Employment Law Project, as explaining that coronavirus case disclosures “have largely been a volunteer effort by companies and workers who crowdsource the data.” Only in October did Amazon finally report that it had recorded almost 20,000 cases across its Whole Foods Market and Amazon locations. Between March 2020 and April 4, Miranda reports, “OSHA received about 14,000 coronavirus-related complaints in 2020 and opened only about 1,900 for inspection.” She quotes Berkowitz: “All these retail workers filed complaints and OSHA didn’t respond with an inspection. They told retailers to do what they can. It was a real abdication of responsibility.” The takeaway: These numbers could be vastly underreported, which could explain both the labor shortage and an unwillingness of workers in general to return to retail.
Another consideration, when looking at COVID-19 impact: Long COVID. Death and total recovery are not the only impacts, here. One study, published in Nature, looked at 73,435 users of the Veterans Health Administration who had COVID-19 who survived for at least 30 days after diagnosis who were not hospitalized, and 13,654 people with COVID-19 who survived for at least 30 days after hospital admission. The researchers compared these groups to, respectively, a group of VHA users who had not gotten COVID, and—in order to ensure that none of the measured effects were due to hospitalization alone—to a group of people hospitalized with influenza. They found excess burdens of respiratory conditions including respiratory failure, insufficiency, and arrest; nervous system conditions including neurocognitive disorders and nervous system disorders; sleep-wake and trauma-related disorders; chest pain and heart failure; and incident use of both non-opioid and opioid analgesic drugs. Researchers also found poor general wellbeing, including malaise and fatigue, muscle disorders, and musculoskeletal pain. This list, it should be noted, is incomplete—there were a number of further conditions suffered by those who had post-acute manifestations of COVID-19.
The researchers wrote: “Our results show that individuals who survive for 30 days or more after their COVID-19 diagnosis exhibit…a substantial burden of health loss that spans the pulmonary and several extrapulmonary organ systems; this highlights the need for holistic and integrated multidisciplinary long-term care of patients with COVID-19.” This, again, may impact the labor shortage—people suffering from the above list of conditions are less likely to be able to perform the quick-paced, physical-labor-intensive work required in retail stores and in agriculture.
So what happens when employers instate mandates? Chris Isidore, reporter for CNN, cites a survey of 300 businesses conducted by Gartner, which found that 60% of companies are going ahead with plans as if Biden’s January 4 deadline were still in place, and only around 10% of businesses planned to step back. Looking at reasons why, Isidore points to financial concerns and absenteeism: “Delta Air Lines, which has not put in a vaccine mandate, is charging its unvaccinated employees an extra $200 a month in insurance premiums. The company estimates that each employee who has been hospitalized for Covid has cost the airline an average of $50,000.” In the article, Isidore quotes Adam Galinsky, Professor of Leadership and Ethics at the business school at Columbia University: “In general business people want to get back to normal and vaccines are the quickest way to get to normal. Mandates work.” Isidore adds: “Many businesses were counting on the federal mandate to allow them to put in place rules they wanted—so they could tell their vaccine-hesitant workers they had no choice but to get the shot. They also wouldn’t have to worry about losing those workers who didn’t want a vaccine to similar-sized companies.”
Looking at actual impact of vaccine mandates, Isidore reports that companies like United and Tyson Foods that have imposed strict vaccine mandates have seen fewer than 5% of employees quit their jobs over it—and that, in fact, businesses are concerned in the opposite direction: That if they don’t mandate vaccines, they may lose employees. Brian Kropp, Chief of Research at Gartner’s HR practice, told Isidore that employees may not want to return to the office without the assurance that their co-workers are all vaccinated as well.
Taking into consideration what employees want, a Gallup poll conducted in July found that 52% favor vaccine mandates, 38% oppose them, and 10% are neutral. Jeffrey Jones and Sangeeta Agrawal, reporting on the findings, noted that this is not the first time Gallup has performed this survey—this was, in fact, the third time. Comparing the July results to the first results from May, opposition rates have gone from 39% to 38%, while in-favor rates have risen from 46% to 52%.
While there are concerns about those who may lose their job by refusing to get vaccinated, it’s also worth considering the opposite side: those who stopped working due to fear of workplace exposure, who may choose to reenter the workplace if they have reassurance that their coworkers are vaccinated. As of October 2021, Department of Labor data shows that a total of 1.287 million people did not look for work in the previous four weeks due to the pandemic.
In the initial press release announcing the ETS, the Department of Labor wrote: “Since 2020, the coronavirus has led to the deaths of 750,000 people in the U.S., and the infection of millions more, making it the deadliest pandemic in the nation’s history. Many of the people killed and infected by this virus were workers whose primary exposures occurred at their jobs. OSHA estimates that this rule will save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19 over the course of the ETS.”
There are concerns to be raised about forcing people to choose between their job and their health, though some say halting the vaccine mandate does not solve the problem—it only shifts it onto immunocompromised people, in whom full vaccination and a booster may not illicit an immune response, and onto the people who live with and care for them: The Washington Post reports that 3-4% of the U.S. population, a number that includes working-age Americans, are immunocompromised, and that there is limited information regarding how these people react to the vaccine—but that there is a high rate of breakthrough cases for these people. Meanwhile, the ETS doesn’t require vaccination—it allows an alternative, wherein employees can choose to wear masks and get tested, which wouldn’t place a burden on the employer: The ETS states that employers are not required to pay for either the tests or the face coverings.
While the vaccination topic continues to be debated, what to do about the labor shortage in the meantime? For this, it may be best to turn to a natural product retailer for some frontline wisdom. At Natural Products Expo East in September, Abraham Nabors, Owner of Mustard Seed Market & Cafe, shared that he’s working with 210 employees—down about a fifth of his work force, which was a daily challenge. Discussing how he finds employees and encourages them to stay whenever possible, he said: “We’re doing everything under the sun to attract employees. We have to really show that we’re a different kind of company, we’re going to teach you different skills that will transfer to other companies.”
Going into detail, Nabors continued: “We’re lucky in that we’ve always been a values-based business—it’s hard to argue with our mission. We want to tout that: Hey, come join a good mission. In a world where people do shady, unethical ways of making money, we’re trying to communicate that we’re values-based and always have been. We also teach servant leadership. Our best customers are our employees. Superstars do not win the game. It’s important that we continue to shower them with love and support. I am on the frontlines with them. I understand that it’s hard, and I’m there to support them. It’s not about making money: It’s about treating people with kindness and respect. For instance, I buy these electrolyte tabs. I let my employees go mix and match and have as much as they want. That helps line cooks, helps them absorb water when they’re working a hot kitchen for 12 hours a day. The more you love and authentically care about your staff, the better you’ll do. There’s some stuff that you can change on a dime, but some stuff has to be baked in. We’ve relaxed our background check requirements, relaxed our tattoo and piercing guidelines—still no violence and no theft, but we’re working on employee recognition movement, more formally than we’ve done it before.”
Plus, as always, money talks. “We give gift certificates for birthdays, anniversaries, holidays,” Nabors continued. “We’re not getting an application that says desired wage is under $15 an hour, for any position, with no experience at all. We took a big leap of faith and adjusted the market rates of our frontline employees. We started advertising the dollar wages—a line cook used to be $12-15 hour, it’s now $15-20 hour. And that gets more applicants. In grocery the margins are razor thin, but it’s a new labor paradigm, and you have to jump on board for that, or they’re always going to struggle. There’s always inefficiencies and waste, especially in our business—look into turning shrink into value-added products, garbage-to-gold, but you have to look into cost-reduction and efficiency before raising prices. Where does it make sense to buy in bulk? Can you use those ingredients in other parts of the business? Cafe, deli, market—they might all buy the same product from the same vendor, but with different managers, they might not taking advantage of that buying partner.”
Looking to retention, Nabors added: “It really is a combination of letting them know how much we appreciate what they’re doing—we had a dish washer who had never worked up front, and he volunteered to take an extra shift up front, and we told him that if he hadn’t done that we wouldn’t have been able to run. And then we backed that up with a gift certificate. And unfortunately a lot of employees have never been treated that way.”
The pandemic, Nabors said, has exacerbated a long-standing trend of income inequality. The resulting shift towards higher pay? “This whole shift is going to benefit the employees,” he said, “and that’s a good thing.”
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