Challenges to OSHA's emergency COVID-19 vaccine-or-testing mandate will be heard Jan. 7 by the U.S. Supreme Court. - Photo: U.S. Supreme Court

Challenges to OSHA's emergency COVID-19 vaccine-or-testing mandate will be heard Jan. 7 by the U.S. Supreme Court.

Photo: U.S. Supreme Court

The U.S. Supreme Court is returning to the bench early to hear a challenge to the Biden administration’s COVID-19 vaccine/testing requirements for larger employers. The trucking industry is among those groups watching the situation closely.

The justices had not been scheduled to return until Monday, Jan. 10, according to the New York Times, but scheduled a special session on Friday, Jan. 7, to hear the challenge.

At issue is the Occupational Safety and Health Administration’s emergency order directing businesses with 100 or more employees to either require workers to be vaccinated against COVID-19 or implement weekly testing programs.

The rule, an “emergency temporary standard,” would affect more than 84 million workers. The administration estimated that it would result in 22 million people getting vaccinated and prevent 250,000 hospitalizations.

A wide range of business groups, states, and religious groups have challenged the rule, including the American Trucking Associations. Large trucking companies are especially concerned that the mandate will give an unfair advantage to smaller fleets when it comes to hiring — although there are indications that many drivers would be exempt under some provisions of the rule for remote workers.

The early-November rule was quickly put on hold by an appeals court.

But in mid-December, after the challenges were consolidated in the U.S. Court of Appeals for the Sixth Circuit, those judges reinstated the rule. It was then appealed to the Supreme Court.

OSHA has said it will not issue citations for noncompliance with any requirements of the rule before Jan. 10. In addition, it will not issue citations for noncompliance with the testing requirements before Feb. 9 — as long as an employer is exercising “reasonable, good faith efforts” to come into compliance.

“There’s a little bit of room to get things in order as long as you’re trying,” explained Shannon Cohen, partner and government affairs specialist for law firm Scopelitis, Garvin, Light, Hanson & Feary, which specializes in trucking.

Looking into the crystal ball

With the first deadline happening just one business day after the court’s emergency hearing, there’s a good chance the status of the rule could still be up in the air when the deadline arrives. There’s a chance that the court could make an initial ruling before the deadline, but it would be after the deadline before the entire ruling is issues, Cohen said — or it could be after the deadline before we get any ruling at all.

The American Trucking Associations, in an email update to members, noted that while the Supreme Court is free to issue its decision at any time, "we would expect them to do so quickly in this case, in light of the current Jan. 10 enforcement deadline for the initial phase of the ETS."

It’s difficult to predict how the court will rule. The court has upheld several state vaccine mandates. But this case, as well as another one the court is hearing on Friday related to healthcare workers, look at whether the executive branch has the authority to make these rules.

“There is reason to think that the court’s six-justice conservative majority will be skeptical of broad assertions of executive power,” noted the New York Times.

Under a 1970 law, OSHA has the authority to issue emergency rules for workplace safety if workers are exposed to a grave danger.

Drivers exempt?

It does appear that solo truck drivers who spend most of their workday alone in their truck will be exempt from the mandate, although OSHA has not issued official clarification on that issue. Early on, Scopelitis pointed out that there was no specific exemption for truck drivers or motor carriers, and that drivers would have to fall into one of the exemptions outlined in the rule:

  • employees who do not report to a workplace where other individuals are present;
  • employees working from home; or
  • employees who work exclusively outdoors.

But during a CNBC interview, Labor Secretary Marty Walsh said, “most truckers aren’t covered by this because they’re driving a truck, they’re in a cab, they’re by themselves.”

A Department of Labor spokesperson told CNBC that the vaccination, testing and masking requirements would apply to truck drivers who work in teams or those who “interact with people in buildings at their destinations or starting points.”

“There are going to be some good arguments for exemptions for those drivers who are alone all the time,” Cohen told HDT. “I don’t think it will necessarily exempt all drivers,” she said, but large portions of the industry could take advantage of those exemptions. However, the firm said it has not seen any clarification on this issue from OSHA.

Drivers who have to come in for training or safety meetings could be subject to the testing and face mask requirements for during those periods, she said. “We’re kind of waiting to see how OSHA’s going to treat those.”

And drivers who do interact with customers, such as food-service drivers bringing soft drinks into a quick mart or a home-delivery driver bringing in and setting up appliances, would likely be subject to the mandate.

“Hopefully we’ll get some guidance from OSHA,” Cohen said. “I think you need to be able to make clear good faith arguments that these drivers are primarily solo or outdoors” in order to be exempt.

ATA also said in an email to members that it continues to seek further clarification from OSHA on the extent to which commercial drivers are exempted by the ETS’s carveout for employees who work alone or outdoors (with only occasional brief indoor contacts with co-workers or customers). ATA’s request for formal guidance remains pending, but OSHA has indicated that it is working on a comprehensive update to the frequently asked questions it published when it first released the ETS, according to the association.

What Should Fleets Do?

The ETS requires employers to do the following:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
  • Provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Scopelitis has been advising trucking companies to look at their operations and figure out what they need to do to get into compliance. Figure out what your policy is going to be; are you going to require vaccines for everyone, or allow some to go the testing route?

“You need to figure out who is vaccinated and who isn’t and you need a system to do that,” Cohen said. “A lot of companies are looking at, what system we have in place, what information we need, how can we collect that and put systems in place to collect that info and communicate to employees impacted by the mandate.”

Different fleets are approaching the looming mandate in very different ways, Cohen told HDT. Some fleets had already been thinking about implementing a vaccine mandate and this represents an opportunity to forge ahead with those plans.

“Others are strongly opposed to it and really are waiting to make sure they absolutely have to do it” before they take action. “And a lot of fleets are preparing and getting ready to implement if they need to but taking a wait and see approach.”

Updated Jan. 4, 2022, to add ATA comments.

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