It's no secret that the trucking industry is heavily regulated by an alphabet soup of government agencies, including FMCSA, EPA, and NHTSA, to name a few. But an emergency regulation regarding COVID-19 on its way from OSHA has many trucking companies, especially larger ones, concerned.
On Sept. 9, President Joe Biden announced sweeping new requirements in an effort to curb a pandemic that to date has killed nearly 700,000 people in the United States.
Biden directed the Department of Labor’s Occupational Safety and Health Administration to develop a rule requiring all businesses with 100 or more employees to ensure their workers are vaccinated or else tested once a week. Companies could face thousands of dollars in fines per employee if they don't comply.
Why a vaccine mandate?
In August, COVID-19 was the third leading cause of death in the U.S., following heart disease and cancer. The fact that it is not number one, as it was back in December, January, and February, is most likely due to the availability of COVID-19 vaccines.
Just two weeks after the Biden announcement, the U.S. reached a milestone: 55% of the population fully vaccinated for COVID-19, according to the Centers for Disease Control and Prevention. To get a better feel for the situation, however, we need to look only at Americans 12 and older, since no vaccine has yet been approved for children under the age of 12. For this group, the rate of full vaccination is 64%.
Still, that’s about a third of teens and adults who are not vaccinated — and those are the people the Biden administration is trying to push to get the jab. Government officials have called the current situation a “pandemic of the unvaccinated,” because unvaccinated people overwhelmingly account for new cases and serious infections. A recent study of government data showed that hospitalization rates among unvaccinated adults were 17 times higher than among those fully vaccinated. In some areas, hospitals are overwhelmed and turning away patients with other life-threatening conditions. Some of those have died waiting for an ICU bed.
“We’ve been patient, but our patience is wearing thin, and your refusal has cost all of us,” Biden said.
However, larger trucking companies — many of whom have already been working to get as many of their drivers and other employees vaccinated as possible — are concerned about what these new rules will mean, for two main reasons:
- They fear truck drivers, who they already are having a hard time recruiting and retaining, will leave to go work for smaller fleets that won’t be subject to the mandate.
- The logistics of getting truck drivers, especially long-haul drivers, vaccinated (or tested weekly), are daunting.
In comments during ATA’s recent Technology & Maintenance Council meeting, ATA President Chris Spear said, “I’ve been pro-vaccinations from the moment they became available… But companies are different, and a one-size-fits-all approach in this instance is an overbearing mandate for industry that is already facing chronic shortages of technicians, dock workers and drivers.”
Both ATA and fleet safety managers I spoke with also cited the arbitrary nature of the 100-employee cut-off. If it’s truly a safety issue, they note, it would make more sense to mandate it for all companies, or to apply it based on the number of people working in a specific location rather than total employees.
There are still a great many questions on how this mandate will play out. What we do know is that OSHA is developing an Emergency Temporary Standard. Unlike permanent regulations, there will not be an opportunity for those affected to comment on a proposed rule.
It’s unknown at this point how long it will take for the agency to issue the emergency rule (although it has said weeks rather than months) or how long employers will have before they must be compliant.
The ETS can remain in place for six months. After that time, it must be replaced by a permanent regulation that has to go through the formal rulemaking process with the typical notice-and-comment period.
According to labor and employment law firm Fisher & Phillips, once issued, the ETS will have immediate effect in the 29 states where federal OSHA has jurisdiction. In states where the federal government does not have jurisdiction over workplace safety, such as California, Tennessee, North Carolina, and Kentucky, these agencies will have to adopt the ETS or “just-as-effective measures” within 15 to 30 days.
The order also will require employers to give workers paid time off to get vaccinated and recover from any side effects.
Businesses that don’t comply with the order could face fines of up to nearly $14,000 per violation.
The ETS standard is a minimum, meaning some companies could go further and require the vaccine instead of offering a test-out alternative. However, companies will need to allow for medical and religious exemptions.
Employment experts are recommending that companies start encouraging all employees to get vaccinated now and that they start developing policies, administration and tracking procedures.
What does this mean for trucking?
There are still a great many questions about what the actual rule will look like.
According to Fisher Phillips, Labor Department officials have said that remote workers not working in contact with others would not be covered by the emergency rule, provided they don’t come to the workspace.
Could truck drivers possibly be included in such a definition?
Typically a truck driver’s job is pretty solitary. Where they do interact with others at shippers and truck stops, safety procedures such as mask-wearing are generally in place. That means a driver’s exposure risk is very low compared to many other professions. Unlike an office cubicle setting or some sort of production line where a large number of unvaccinated people working closely together might post a major risk of spreading the virus, drivers — like the remote workers OSHA is talking about exempting — simply don’t contribute much to the risk of spreading the COVID-19 virus.
Weekly testing would be an even bigger logistical hurdle than trying to get drivers vaccinated. Companies would have to route drivers to someplace they could get tested every week. You can’t stop the hours-of-service clock for a driver to take a COVID test. Labs offering testing typically don’t provide truck parking.
That leads me to another question we don’t know yet about the rule: Would testing have to be the more time-consuming PCR test? Rapid antigen tests might make weekly testing logistics a little easier, but as a recent New York Times article pointed out, rapid home tests aren’t widely available.
Vaccines are still a logistical hurdle, but at least that’s only once or twice, depending on the vaccine. Some truckstops have been holding vaccine clinics.
Carrot or stick?
Pushback among large fleets against the mandate typically seems to be not because they don’t believe in the importance of getting vaccinated, but because of the arbitrary and intrusive nature of the rule and the complicated logistics that will be involved in complying.
When the vaccines first became available, ATA pushed the CDC to put truck drivers higher on the priority list. And as the vaccines started to become available last spring, organizations were pushing the CDC for mobile truck stop vaccine sites.
Many trucking companies already have been taking measures to get their employees vaccinated. Biden cited Tyson Foods, which employs more than 1,300 truck drivers, as a workforce that's already instituted a vaccine mandate.
But in general, it appears that most trucking companies would prefer the carrot to the stick.
U.S. Xpress, for instance, is encouraging its roughly 10,000-person workforce, which includes about 7,000 drivers, to get the Covid-19 shot, according to a report in the Wall Street Journal. The company estimates that just under half of its drivers are vaccinated. But the carrier isn’t requiring the vaccine, “and we’re not necessarily comfortable with the government mandating it,” CEO Eric Fuller told the paper.
Old Dominion Freight Lines is encouraging drivers to get the vaccine with a financial vaccination incentive.
Cargo Transporters back in the spring worked with its local public health department to coordinate getting employees and drivers vaccinated.
J.B. Hunt earlier this year started offering COVID-19 vaccines to employees and contractors at its corporate campus in Northwest Arkansas. Employees and contractors in other areas were encouraged to use a vaccine finder tool to find and schedule an appointment. The company made up to four hours of special vaccine PTO available for non-salaried employees to get vaccinated, and salaried employees did not have to use PTO to get the vaccine.
In a Facebook video, J.B. Hunt employees shared why they got the vaccine, including sharing photos and stories of family they want to protect.
Education and caring
Truck drivers and other employees may push back against vaccine mandates simply because they don’t like being told what to do, or because vaccine disinformation and distrust of the government are coloring their viewpoint.
One fleet safety manager told me that his company is focusing on communication to help combat misinformation. People who may be mistrustful of what they read in the general media may feel more comfortable with the company’s own data. And beyond data, personal stories of employees who have experienced severe COVID or lost a friend or family member might have greater impact than cold, impersonal numbers.
Will drivers quit larger trucking companies in droves rather than get a COVID-19 vaccine, and instead go to work for a smaller company, become owner-operators, or leave the industry altogether? I’m sure some will, but I’m skeptical about it becoming a mass exodus. I also remember when the industry was worried that drivers would quit rather than be subject to mandatory electronic logging devices to track their hours of service.
I believe the key will be in how companies address the issue with drivers. In the past, I’ve talked to a number of fleets who have found that a real culture of safety, one where drivers believe the company truly has their best interests at heart, can help them retain drivers. And in the early days of the pandemic, I saw fleets bend over backwards to provide drivers with masks and hand sanitizer and address their concerns about truck sanitization and what would happen if they got sick on the road.
Fleet managers should recognize driver concerns and thoughtfully address misinformation about the vaccines. They should make it as easy as possible for drivers and other employees to get the shot(s) without losing income. And above all, it’s important to convince drivers that, mandate or not, you truly care for their health and well-being.
Kirk Graves of Atlanta-based supply-chain consulting firm Chainalytics told the Wall Street Journal that the long-term health benefits of the mandate could outweigh the short-term pain. How much of the problems with staffing in the supply chain are because of the pandemic? Whether it be drivers who decided to retire early rather than taking risks, people are out sick with Covid, or parents who dropped out of the workforce to care for children doing virtual school, COVID-19 has taken a real toll on the workforce. Maybe a government mandate isn't the best way to do it, but the sooner we can get more of the population vaccinated, the sooner we can get back to some semblance of normal.