Trucking worries vaccine mandates will push more drivers out as 11 states sue

A federal appeals court on Nov. 6 temporarily halted the Biden administration's vaccine requirement for businesses with 100 or more employees.

The conservative 5th U.S. Circuit Court of Appeals granted the emergency stay sought by Louisiana Attorney General Jeff Landry of the requirement from the federal Occupational Safety and Health Administration (OSHA) that those workers be vaccinated by Jan. 4 or face mask requirements and weekly tests.

Trucking stakeholders, weighing in over the OSHA COVID-19 emergency vaccination standards, which some legal observers expect to be eventually reinstated, had voiced concern that the new rules might further aggravate the industry's driver shortage—which a new estimate pegs at 80,000—but they learned on Nov. 5 that drivers may be exempt from the new rules.

American Trucking Associations (ATA) President and CEO Chris Spear said in a statement to ATA members that he learned from U.S. Department of Labor officials that solo truck drivers qualify for the exemption granted in the new OSHA rules for employees who work exclusively outdoors or remotely and have minimal contact with other people indoors.

Late on Nov. 4, Labor Secretary Marty Walsh seemed to confirm Spears’ information in trying to clarify the mandate's impact. "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," Walsh said.

Spear said in his statement to ATA members Nov. 5, “We continue to believe that OSHA is using an extraordinary authority unwisely and applying it across all industries at an arbitrary threshold of 100 employees in a way that fails to take into account the actual risks. ATA will continue to consider potential legal action to protect all segments of our workforce from this misguided mandate.”

Eleven mostly Republican attorneys general—from Alaska, Arizona, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, Wyoming—beat ATA to court with a lawsuit they filed on Friday.

In their suit, filed in the St. Louis-based 8th U.S. Circuit Court of Appeals, the AGs challenged the federal government's power to institute the mandates and the new vaccine requirement for workers at companies with more than 100 employees, according to the Associated Press. Their suit argues that authority to compel vaccinations rests with states, not the federal government.

OSHA’s position is the ETS preempts state and local laws “that ban or limit an employer from requiring vaccination, face covering, or testing,”

The state AGs are all Republicans, except Iowa AG Tom Miller, who is a Democrat. Several private, nonprofit, and religious employers also joined the lawsuit, the AP reported.

“This mandate is unconstitutional, unlawful, and unwise,” said the court filing by Missouri AG Eric Schmitt. Oklahoma AG John O'Connor earlier called the rules "a clear abuse of power," according to another report. "[President Joe Biden] does not have the authority to make health-care decisions for Oklahomans."

In what is anticipated to impact two-thirds of the private U.S. workforce, OSHA’s action, called an emergency temporary standard (ETS), requires businesses with more than 100 employees “to develop, implement, and enforce a mandatory COVID-19 vaccination policy.”

Employers also may “instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace,” according to the OSHA rulemaking.

“I think it was disappointing that the ETS did not take into account the special and unique circumstances of the trucking industry,” Prasad Sharma, a partner with transportation law firm Scopelitis, told FleetOwner on Nov. 4.

“It did not make allowances for the fact that most of the work that truck drivers do is isolated in cabs,” Sharma added. “The rule did not seem to take into account that and, certainly, that will ratchet up the pressure on what’s already a stressed supply chain.”

The intended result of the OSHA standard is to compel 23 million unvaccinated Americans to receive COVID-19 shots—and it is the federal government’s method of enacting Biden’s strategy announced in September to quell the reemergence of the pandemic. The OSHA policy is a reversal for Biden, who In December 2020 stated that he wouldn’t institute vaccine and mask mandates.

Under the new OSHA rulemaking, if individuals choose not to be vaccinated, they must be tested for COVID-19 weekly or within seven days prior to returning to work, with employers not mandated to pay for the testing. By Jan. 4, employers must ensure employees are vaccinated or receive a weekly negative test.

According to OSHA, exempt employees include:

• Those who don’t report to workplaces where others are present.
• Those who work from home.
• Those who work exclusively outdoors.

Employers also must keep records for each employee, including vaccination status of each employee and acceptable proof of vaccination. Employers are responsible for providing paid time off (up to four hours) and subsequent sick days after the vaccination, as the shot may cause common side effects such as fatigue, headaches, muscle pain, chills, fever, and nausea.

According to the Centers for Disease Control and Prevention, the Vaccine Adverse Event Reporting System (VAERS) received 9,367 reports of death (0.0022%) among people who received a COVID-19 vaccine. A report of death to the VAERS system does not confirm the vaccine caused the death. The onset of anaphylaxis, thrombosis with thrombocytopenia syndrome, Guillain-Barré Syndrome, and myocarditis and pericarditis have been reported as rare but severe side effects of the shot.

U.S. Rep. Thomas Massie of Kentucky also noted that the mandates would create “a supply chain disaster,” citing unsourced data that more than a third of truckers would quit or retire rather than get the COVID-19 shot.

A Nov. 3 letter, sent out the day before OSHA issued its mandates and signed by ATA and 95 other organizations, calls for vaccine mandate flexibility from the Biden administration for truck drivers and other transportation and supply chain essential workers.

"Our industries are committed partners in the fight against COVID-19, and we unequivocally support the use of vaccines to fight its spread. However, we are concerned a mandate will cripple an already strained supply chain," the letter stated. "We estimate companies covered by the mandate could lose 37% of drivers at a time when the nation is already short 80,000 truck drivers."

Besides relief from the vaccine mandate, the Nov. 3 letter also asks for help from Biden in four other areas: a younger driver pilot program, promotion of transportation and supply chain careers, hours-of-service relief, and investigation into the causes and relief from bottlenecks at U.S. ports.

Spear, speaking at ATA's Management Conference & Exhibition (MCE) late last month, said the vaccine mandate is “weaponizing public health."

“Through this pandemic, trucking has kept America safe and remains committed to consumers and the nation, delivering food, PPE, and vaccines,” he said. “Elected officials would be wise to take that into consideration, especially with a shortage of talent—not just in trucking, but every sector of the nation’s economy, where labor participation is at an alarming 61%. With this intent, the administration’s COVID vaccine mandate is to protect all Americans—why pick winners and losers? In other words, stop weaponizing public health by dividing our workforce. Ours is a real-world industry that is safely bringing America out of this COVID-induced world.”

Government justification for the vaccine mandate

Since January 2020, the federal government reports that 745,000 people in the U.S. have died due to complications from COVID-19. OSHA “conservatively estimates” that these efforts “will prevent over 6,500 deaths and over 250,000 hospitalizations.” Since 2020, obesity and vitamin D deficiency have been linked to increases in severe outcomes in those who contract COVID-19, though OSHA did not institute any rules mandating sun exposure (which allows the body to make vitamin D), vitamin D supplements, or increased physical exercise.

The target of businesses with 100-plus employees was set because of OSHA’s confidence they have the “administrative capacity to implement the standard’s requirements promptly.”

The regulatory body is less confident a company with 99 or fewer employees can enact the new standards “without undue disruption.” OSHA will continue to assess if and when small businesses also must enact these standards.

This FleetOwner story is still developing.