The U.S. Supreme Court has scheduled a special Jan. 7 session to hear arguments over the controversial federal vaccine-or-test mandate for private employers with 100 or more workers that trucking stakeholders have taken a keen interest in and have sued to stop.
Under the disputed Occupational Safety and Health Administration (OSHA) rulemaking issued by the agency on Nov. 5, if employees choose not to be vaccinated, they must be tested for COVID-19 weekly or within seven days before returning to work.
Employers don’t have to pay for the weekly testing, but they must bear the administrative costs of documenting that their workers are vaccinated or are receiving negative test results. Employers also 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.
The OSHA “emergency temporary standard” is set to take effect Jan. 4 and is expected to impact 84 million workers nationwide, though some workers—including truck drivers, the Labor Department has said—are excluded from the mandate, which also exempts people who work from home and those who work exclusively outdoors.
Trucking and trade groups, at least 24 mostly conservative state attorneys general, and a wide variety of other interests have argued both to their constituents and in various lower courts that OSHA doesn’t have the authority to issue such a mandate, that it violates their First Amendment rights, and in trucking’s case would disrupt an already-congested supply chain, harm the economy, and cost companies employees who would rather quit their jobs than be vaccinated or tested.
New briefs get to the heart of the arguments
“What is causing these supply-chain issues and raising prices? Vaccine mandates,” the legal foundation argues in its brief. “When governments or companies require employees to get vaccinated, many employees quit or are fired. Those positions often remain unfilled because many job-seekers either refuse to join companies that require vaccines or move to jurisdictions without vaccine mandates.”
“It makes no sense for the federal government to exacerbate this problem by instituting a nationwide vaccine mandate for most businesses critical to our national economy.”
However, former OSHA administrators Charles Jeffress, David Michaels, and Gerard Scannell—who served both Democratic and Republican administrations—submitted their own brief that supports the mandate and OSHA’s authority to issue it, citing several provisions of existing law on the subject. They also echo OSHA’s and the Biden administration’s arguments that the mandate is needed to protect public health in the middle of a pandemic and with the omicron variant of COVID-19 surging worldwide.
“These provisions unambiguously grant OSHA authority to protect workers from workplace exposure to a virus that causes severe and often fatal illness,” the former agency chiefs argue in their "friend of the court" filing. "Other clear language in the [Occupational Safety and Health Act] and related statutes confirms that the Act applies to workplace exposure to harmful infectious agents and authorizes OSHA standards to include vaccinations as part of the protection afforded workers against such exposure."
American Trucking Associations (ATA) and 25 other U.S. trucking and trade groups were among those that took their petitions to stop the mandate to the highest court in the land before Christmas. That move 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 last month, by the more conservative Louisiana-based 5th Circuit Court of Appeals, that halted the mandate.
“It’s evident that OSHA overstepped its statutory authority with this emergency temporary standard, so make no mistake: 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. That includes the movement of food, fuel, medical supplies, test kits, and the vaccine itself," ATA President and CEO Chris Spear said in a pre-Christmas message to members of the trucking federation and the media.
"Our workforce has served on the frontlines of this pandemic since Day One, safely delivering on behalf of the American people. This mandate threatens to further disrupt our industry and its essential role in the nation’s COVID response efforts, and we will fight it until it’s defeated through any and all means necessary.”
Supreme Court will settle the issue
In addition to ATA, the other trucking groups to petition the Supreme Court for an emergency stay of the OSHA 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.
However, the Supreme Court, which tilts conservative 6-3, recently took a favorable view of a state-level vaccine mandate. The nine justices this month rejected a bid to block enforcement of New York state’s COVID-19 vaccine mandate for health care workers. The justices on Jan. 7 also will hear arguments over the federal requirement that health care professionals who work in hospitals that receive federal money be required to get vaccinated. Federal judges in Missouri and Louisiana have blocked that rule.
Meanwhile, in protest of vaccine mandates, five Republican-led states—Arkansas, Florida, Iowa, Kansas, and Tennessee—have extended unemployment benefits to people who have lost or quit jobs over the mandates. The Biden administration has criticized this move as an incentive for those who have so far skipped getting the vaccine to stay unvaccinated, undermining the nation's response to the COVID-19 pandemic.
The percentage of those fully vaccinated nationwide is just under 62%. Republican-led states continue to be those with higher percentages of unvaccinated citizens. Those states also tend to have higher death rates per 100,000 people attributed to COVID-19, even above states such as New York, Massachusetts, and California with much higher total populations.