The Occupational Safety and Health Administration has officially addressed the issue of whether truck drivers are subject to its controversial COVID-19 vaccine-or-test emergency rule.
That rule, which is under review by the Supreme Court, requires companies with more than 100 employees to ensure workers are vaccinated against COVID-19. As an alternative they may implement a weekly testing requirement and require face masks of unvaccinated employees. Either one would be a daunting task when dealing with truck drivers.
In an updated entry to the frequently asked questions about the emergency temporary standard its website, OSHA said:
“There is no specific exemption from the standard’s requirements for truck drivers. However, paragraph (b)(3) provides that, even where the standard applies to a particular employer, its requirements do not apply to employees ‘who do not report to a workplace where other individuals such as coworkers or customers are present’ or employees ‘who work exclusively outdoors. Therefore, the requirements of the ETS do not apply to truck drivers who do not occupy vehicles with other individuals as part of their work duties. Additionally, the requirements of the ETS do not apply to truck drivers who encounter other individuals exclusively in outdoor environments.”
In an email to members, the American Trucking Associations said, “we believe this guidance is still too narrow and fails to fully address our concerns as it relates to team drivers and other segments of our workforce.”
The FAQ says the requirements do apply to “truck drivers who work in teams (e.g., two people in a truck cab) or who must routinely enter buildings where other people are present.”
Drivers who only occasionally go indoors where other people may be present, such as using a multi-stall bathroom or entering an administrative office only to drop off paperwork, would still be exempted, OSHA said, as long as time spent indoors is brief.
The FAQ also makes clear that even when the requirements do not apply to specific truck drivers, those drivers are still counted for purposes of the 100-employee threshold.
Following the publication of the ETS, ATA said, Labor Secretary Martin Walsh indicated in public statements that most drivers meet the criteria to be exempt from the vax-or-test mandate for employers with more than 100 employees. “We sought written confirmation from the agency on this matter as well as expansion of the exemption toward other trucking industry workers.”
In an e-mail alert, the transportation attorneys at Scopelitis, Garvin, Light, Hanson & Feary said, "The guidance should prove helpful to many carriers faced with the logistical challenges of testing over-the-road drivers – and may suggest certain operational changes designed to ensure application of the exemption."