An emergency COVID-19 vaccine/testing rule from OSHA has been put on hold, at least temporarily, by an appeals court in the face of multiple legal challenges, while it appears that many truck drivers could be exempt.
The Department of Labor’s Occupational Safety and Health Administration on Nov. 4 announced the details of an emergency temporary standard, or ETS, requiring employers with 100 or more employees to ensure workers are fully vaccinated or are tested for COVID-19 on at least a weekly basis, with a deadline of Jan. 4.
Trucking and truck drivers are not exempted specifically from the order. However, it appears there are a combination of exemptions in the ETS that could exempt many drivers.
An email alert from the trucking attorneys at Scopelitis, Garvin, Light, Hanson & Feary said that “after the rule was released, the Secretary of Labor indicated his view that most truck drivers would not be covered by the ETS.”
ATA and the Truckload Carriers Association also let members know about the comment made late Thursday night by Secretary of Labor Marty Walsh in a TV interview: “If you're a truck driver and you’re outside, you're in a cab driving by yourself, this doesn't impact you. If you're a worker outside working in the area, this doesn’t impact you.”
It seems likely, however, that team drivers, or drivers who interact with people in buildings at destinations or starting points would still be subject to the requirements for being vaccinated or tested weekly as well as mask-wearing for the unvaccinated. It's possible that drivers who need to come in for in-person training could need to be tested ahead of that activity as well as wear masks.
In a Nov. 5 news release, ATA President and CEO Chris Spear said, “As we made clear in our comments to the administration prior to the rule’s publication, drivers spend the vast majority of their workday alone in the cab and outside. The rule published yesterday exempts employees who exclusively work outdoors or remotely and have minimal contact with others indoors, and all indications thus far from the Department of Labor suggest this exemption does apply to the commercial truck driver population….
“We continue to believe OSHA is using extraordinary authority unwisely, applying it across all industries at an arbitrary threshold of 100 employees that fails to factor in actual risks. We are weighing all options of recourse to ensure every segment of our industry’s workforce is shielded from the unintended consequences of this misguided mandate.”
There already are a number of lawsuits that have been filed to stop the OSHA vaccine/testing mandate. More than half of the states have filed suit, including three Democrat-led states along with 23 Republican-led states, according to the Wall Street Journal.
The U.S. Court of Appeals for the Fifth Circuit on Saturday, Nov. 6, issued a temporary stay, citing “grave statutory and constitutional concerns” in its brief order. The court called for accelerated briefing on why a permanent injunction should not be granted, with the government’s brief due Monday, Nov. 8.
There are multiple challenges in other federal courts of appeals seeking a temporary injunction, according to an email alert from the trucking attorneys at Scopelitis, Garvin, Light, Hanson & Feary. It expects that the Judicial Panel on Multidistrict Litigation will randomly select a federal court of appeals in which to consolidate the cases. It is possible that court could lift stays previously issued, like the one from the Fifth Circuit.