Trucking, trade groups appeal to Supreme Court to halt vaccine mandate

American Trucking Associations (ATA) and 25 other U.S. trucking and trade groups have done as they vowed to do and have petitioned the U.S. Supreme Court to put a stop to the federal vaccine mandate that is expected to impact 84 million workers nationwide and set to take effect next month.

The countermove by the trucking and trade groups quickly followed a narrow 2-1 decision on Dec. 17 by an Ohio-based appeals court, a three-judge panel of the 6th U.S. Circuit Court, to quash a stay put in place in November by the more conservative Louisiana-based 5th Circuit Court of Appeals.

That 5th Circuit decision had halted the vaccine mandate, which was ordered by U.S. Occupational Safety and Health Administration (OSHA). The Biden administration mandate requires employers to make sure their workers provide proof they have received the COVID-19 shot or, if they elect not be vaccinated, to test for the virus weekly.

“ATA will not stop fighting this misguided policy until our members and industry are fully relieved from its harmful impact on our ability to keep America’s supply chain moving,” ATA President and CEO Chris Spear said in a Dec. 17 email to members of the trucking federation and the media.

“This mandate threatens to further disrupt our industry and its essential role in the nation’s COVID-19 response efforts, and we will fight it until it’s defeated through any and all means necessary.”

In addition to ATA, the other trucking groups to petition the Supreme Court for an emergency stay of the OSHA “emergency temporary standard” were the Kentucky Trucking Association, the Louisiana Motor Transport Association, the Michigan Trucking Association, the Ohio Trucking Association, the Tennessee Trucking Association, and the Texas Trucking Association.

The assortment of trade groups related to the trucking industry from several mostly red states to petition the High Court are the National Federation of Independent Business, the National Retail Federation, the Food Industry Association, the National Association of Convenience Stores, the National Association of Wholesaler-Distributors, the International Warehouse and Logistics Association, the International Foodservice Distributors Association.

More are the National Propane Gas Association, the Brick Industry Association, the American Bakers Association, the Kentucky Petroleum Marketers Association, the Michigan Association of Convenience Stores, the Michigan Petroleum Association, the Michigan Retailers Association, the Ohio Grocers Association, the Tennessee Chamber of Commerce and Industry, the Tennessee Grocers and Convenience Store Association, and the Tennessee Manufacturers Association.

They joined attorneys general from several mostly Republican-leaning states to ask for a halt to the mandate.

The Supreme Court, which tilts conservative 6-3, has nevertheless taken a favorable view of other state-level vaccine mandates. The nine justices of the court this month rejected a bid to block enforcement of New York state’s COVID-19 vaccine mandate for health care workers. The legal challenges to that mandate were filed by 20 doctors and nurses who argued that state’s directive violated their First Amendment rights because it failed to include a religious exemption.

Three Christian ministries also petitioned the High Court last weekend on similar grounds. The federal vaccine mandate by OSHA does not include a religious exemption. Another conservative-leaning group, the Heritage Foundation, also petitioned the Supreme Court to halt the federal mandate.

Based on filings this fall and winter in lower courts, including most recently the 6th U.S. Circuit in Cincinnati, the Supreme Court arguments from anti-mandate petitioners likely will be framed as First Amendment issues, but more pragmatically they might contend that the mandate places undue financial burdens on companies that must bear responsibility for enforcing it. They likely will also claim that the federal directive will aggravate already shrinking labor pools—for trucking that’s the driver and mechanic shortages and the compliance at fleet headquarters and in maintenance shops and terminals.

On the other side, respondents at the High Court will likely cite the mandate as necessary to protect workers and the public against a potentially deadly and mutating virus—and perhaps OSHA’s authority to do so. In their Dec. 17 decision, two of the three judges of the 6th Circuit, Jane B. Stranch and Julia S. Gibbons, made that same basic argument. Another judge there, Joan L. Larsen, dissented.

Under the disputed 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. Employers must ensure employees are vaccinated or receive weekly negative tests.

Employers also must keep records for each employee, including vaccination status 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.

This FleetOwner story is still developing.