A registered nurse applies a dose of the Moderna COVID-19 vaccine to Sarasota Hospital patient technician Carol Garcia at the Sarasota Memorial Hospital in Sarasota, Fla., September 24, 2021. (Shannon Stapleton/Reuters)
When Brandon Trosclair discovered that President Biden’s vaccine requirement for private businesses would apply to his grocery stores in Louisiana and Mississippi, his first concern was for his employees who have expressed fear and uncertainty about getting vaccinated against COVID-19 or losing their jobs.
Trosclair, who owns 16 grocery stores and employs nearly 500 workers, called the Louisiana-based Pelican Institute for Public Policy to ask for help in fighting the mandate, which will force businesses with 100 or more employees to require workers to be fully vaccinated or be tested at least once a week. The Pelican Institute and the national law firm Liberty Justice Center partnered to file a lawsuit on behalf of Trosclair and six employees of Texas-based CaptiveAire Systems.
“I felt it was not only the right thing to do, but kind of a no-brainer to file a lawsuit against this mandate and try to stop it,” the second-generation grocery-store owner told National Review.
The suit led the Fifth Circuit Court of Appeals to halt the vaccine requirement, as judges on the court blasted the president’s order as a broad overreach that “grossly exceeds OSHA’s statutory authority.”
Fifth Circuit Court of Appeals judges Kurt D. Engelhardt, Edith H. Jones, and Stuart Kyle Duncan argued that the mandate wrongfully groups every workplace and worker into the same category.
“Rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address,” the judges wrote.
The order, which makes employers responsible for enforcement, will cause financial harm to private companies with more than 100 employees, the judges said, by forcing businesses to fire significant numbers of their labor force or to face fines for non-compliance.
The judges added that “the Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.”
Trosclair’s business has rolled with the punches in recent months, whether it be adapting to mask mandates or other COVID-19-safety measures, enabling customers to do more online shopping or adjusting to product shortages caused by supply-chain issues. But he says the vaccine mandate would deal a severe blow to his business and his employees.
“Unfortunately, now we have an administration in Washington that is truly playing politics,” he said. “We believe it’s a vast overreach for the federal government to come in and get me involved as a business owner in the medical decisions of my staff.”
Trosclair noted that he is not “anti-vaccine,” but rather “anti-mandate,” adding that he is against business owners having to get involved with the “personal medical decisions of our employees.”
“My biggest concern would be my staff,” said Trosclair, who has been working in the grocery business since he was 15.
Trosclair’s parents bought a grocery store in 2000 and ultimately grew their operation to include two more stores. He bought his parents out in 2017 and grew the business to 16 stores.
He noted that a number of his staff are “truly concerned and scared for their jobs, as well as their health” and said he stands to lose 20 to 30 percent of his workers if the requirement is allowed to take effect in January. Losing that many employees would exacerbate the problems his stores have already faced with understaffing since the pandemic began.
“It’s going to make it that much harder to deliver our service, which is groceries and good customer service,” he said.
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