A federal appeals court has temporarily halted the Biden administration's COVID-19 vaccine requirement for businesses with 100 or more employees—rulemakings that trucking stakeholders are watching closely as they make their way through various legal challenges.
The conservative 5th U.S. Circuit Court of Appeals, based in Louisiana, imposed the emergency stay on Nov. 6 from the requirements by the Occupational Safety and Health Administration (OSHA)—called an emergency temporary standard (ETS)—that those workers be vaccinated by Jan. 4 or face mask requirements and weekly tests.
The 5th U.S. Circuit order, citing “grave statutory and constitutional issues,” followed a Nov. 5 petition in a separate appeals court, the St. Louis-based 8th Circuit, by 11 states—Alaska, Arizona, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, Wyoming—plus small Kansas City, Missouri-area trailer manufacturer Doolittle Trailer Manufacturing and an assortment of religious organizations.
At least 27 attorneys general, mostly Republicans, had sued by Monday in various jurisdictions to block the vaccine mandates.
The 5th Circuit did not provide details with its emergency stay, but the appeals court is requiring the government by Monday to provide an expedited reply to the motion for a permanent injunction, followed by petitioners' reply on Tuesday.
Seema Nanda, the U.S. Department of Labor’s chief legal officer, said in a statement that the federal government is prepared to defend the rule in court. OSHA’s ongoing position is the vaccine mandates preempt state and local laws “that ban or limit an employer from requiring vaccination, face covering, or testing.”
“The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them,” Nanda said in her statement.
Trucking stakeholders, weighing in last week over the disputed OSHA standards, 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 that he learned from Labor Department officials that solo truck drivers qualify for the exemption granted in the OSHA rules for employees who work exclusively outdoors or remotely and have minimal contact with other people indoors.
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 the next day, “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.”
In their 8th Circuit Court lawsuit, the attorneys general argued that authority to compel vaccinations rests with states, not the federal government.
“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."
OSHA’s action 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.
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.
This FleetOwner story is still developing.