Truck drivers had been exempt from an interim rule requiring all employees in large private companies to be vaccinated against COVID-19, but that may be changing soon.
“These are treacherous times for employers,” said C. Eric Stevens, a shareholder and employment law attorney. “Government mandates are a politically charged issue…[vaccines are] a very important issue for transportation.”
The final ruling that will require employees of companies (including trucking companies) of more than 100 to be vaccinated or undergo regular COVID-19 testing is currently being challenged in court, although the law is set to be implemented on January 4th of 2022.
Still, the 5th United States Circuit Court of Appeals granted an emergency stay of the requirement on November 6th, and the American Trucking Associations–along with various other industry organizations and state trucking associations–filed a lawsuit against the Biden administration regarding the mandate on November 9th.
In the lawsuit, the trucking groups claim that the mandate would be detrimental to the transportation workforce and the American economy itself, and that the Occupational Safety and Health Administration is overstepping its power by implementing such a requirement.
“Given the nationwide shortage of truck drivers, it is vital that our industry has the relief it needs to keep critical goods moving, including food, fuel, medicine, and the vaccine itself,” said ATA President, Chris Spear. “We continue to believe OSHA is using extraordinary authority unwisely, applying it across all industries at an arbitrary threshold of 100 employers 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.”
As of now, the White House is recommending that businesses adhere to this requirement, although there is still confusion regarding how a trucking company would do so if ultimately required.
“How we manage exemption requests, that’s a hot-button issue,” said Stevens. “How do you obtain proof of vaccinations? That becomes tricky based on the size of your company and what state you are operating in–or state you operate in.”
Industry leaders are also being put under quite a bit of pressure with the current confusion at hand, Stevens added.
“What’s left for you is that you have federal guidelines that conflict with state guidelines, and you have state guidelines that say, ‘If you violate our state guidelines, you very well may be sued by individuals that are adversely affected,’ regardless of what the federal government says,” he said.
While the final ruling is determined, motor carriers should begin issuing their own internal requirements that are in the best interest of their employees, Stevens continued.
“When someone says they don’t have a COVID policy, I say, ‘Yes, you do. It may just be the way things are, but yes, you do have a COVID policy. And you might want to have one that’s a little more formalized.’”
Regardless, many state leaders have expressed concerns about the mandate, and have been working to challenge the law itself. Some of these officials include state Legislature members, Attorney General Herbert Slatery, and Governor Bill Lee.
“Many states, including the one that we are currently in, have enacted [their] own laws,” said Stevens during his presentation at the 18th annual Conversion Interactive Agency Recruitment and Retention Conference. “Often, the states feel the need to combat the federal government’s actions, and we have competing state laws and federal laws. OSHA takes the position that OSHA preempts state laws, and those states disagree with that. So, there are some issues to be aware of.”
For those in strong opposition to this mandate, it’s clear that avoiding supply chain disruption is much more of a priority than driver health and safety. Executive Vice President of Advocacy for ATA, Bill Sullivan, explained his concern that requiring truck drivers to become vaccinated will likely cause many of those truckers to either leave the industry, join a smaller company, or retire early. When ATA released a survey among its member fleets, it found that over one-third of drivers who responded noted that they would either leave their companies or quit their jobs altogether if their current companies chose to, or were made to, require a vaccine.
“Even if only 4% [of drivers] quit, that would be a catastrophe,” said Sullivan. “We agree with the president’s goal. We aren’t anti-vax. We are encouraging employees to be voluntarily vaccinated.”