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Outside The Supreme Court

Guide to the Supreme Court's hearing on federal vaccine-or-test rules

Jan. 6, 2022
Anyone can listen in Friday as the justices hear oral arguments for and against the OSHA rules covering businesses with 100 or more employees. And one can bet that plenty of stakeholders will pay attention—inside and outside the trucking industry.

If Vegas placed odds on a U.S. Supreme Court decision regarding the Biden administration’s COVID-19 vaccine-or-test mandate, bettors might heavily favor the court—dominated 6-3 by conservatives—striking down the rules that cover businesses with 100 or more employees.

Any High Court decision that follows oral arguments on Jan. 7—which start at 10 a.m.—may hinge on whether the agency that issued the rules for U.S. workplaces, the Occupational Safety and Health Administration (OSHA), has the power to do so. One expert argues that OSHA clearly does, under well-established law, have that broad authority.

See also: Vaccine mandate heads to special Supreme Court hearing

Regardless, as if this were a sporting event on Friday, trucking stakeholders will be among numerous trade groups and other parties before the Supreme Court arguing for halting the mandate. (The justices also will hear argument during that session on the health-care worker vaccination requirement issued by the Centers for Medicare and Medicaid Services.)

Anyone can listen in Friday via the Supreme Court’s website. C-SPAN also is scheduled to provide coverage.

Advocating in favor of the workplace rules will be, by tradition, the solicitor general of the United States. The government will make the case for allowing the OSHA “emergency temporary standard,” or ETS, to now phase in starting Jan. 10, with more enforcement requirements taking effect Feb. 9. The OSHA standard is expected to impact 84 million workers nationwide and was put in place under the guise of protecting the workplace from a potentially deadly virus that continues to march on as the much more contagious omicron variant.

Shield workplaces but lose employees who refuse the shot?

Among the anti-mandate arguments likely will be that the federal rules place overwhelming burdens on employers and that they might lead a large percentage of workers to quit rather than get vaccinated or submit to weekly COVID-19 testing.

If the federal vaccine-or-test rules take a substantial bite out of the workforce, American Trucking Associations (ATA) said this could most exacerbate the trucker driver shortage, which ATA estimates is 80,000 and is possibly headed to 160,000 by the end of the decade—though the industry still is waiting on the U.S. Department of Labor to provide concrete advice on whether truck drivers are exempt. The rules would, however, still cover industry employees with more exposure to their co-workers at, for example, fleet facilities, terminals and warehouses, and commercial vehicle maintenance facilities.

See also: Trucking, trade groups appeal to Supreme Court to halt vaccine mandate

“We continue to seek further clarification from OSHA on the extent to which commercial drivers are exempted by the ETS’s carveout for employees who work alone or outdoors (with only occasional brief indoor contacts with co-workers or customers),” ATA President and CEO Chris Spear said in a Jan. 4 message to members of the trucking federation and other stakeholders that also served as preview of the action in the highest court in the land at the end of this week.

“Shortly after the ETS was published, Secretary of Labor Marty Walsh indicated that this carveout meant that the rule would not apply to most truck drivers," Spear said. "ATA’s request for formal guidance on that issue remains pending.”

ATA and 25 other U.S. trucking and trade groups were among those that took their emergency petitions to stop the mandate to the Supreme Court 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 by the more conservative Louisiana-based 5th Circuit Court of Appeals, that halted the mandate.

The OSHA rulemaking, published Nov. 5 in the Federal Register, calls on companies to document employees’ vaccination status and make sure their workers are tested, though it does not require employers to foot the bill for this testing. However, the rules would make employers provide paid time off (up to four hours) for vaccination and paid sick days after the shot if it causes side effects.

"This mandate is pouring gasoline on the fire after nearly two years of dealing with this pandemic,” Karen Harned, executive director of the National Federation of Independent Business (NFIB) Small Business Legal Center, told National Public Radio on Jan. 5. NFIB is among the groups to petition the Supreme Court to halt the federal vaccine-or-test mandate.

Employers, Harned also said, “are going to lose employees as a result of this mandate, and even dealing with just the testing requirements is going to be particularly problematic, especially for those employers who have 100 to 500 employees, or that have employees spread across multiple locations."

She added: "We do not even think this is about whether to take the vaccine; this is about the legality of the whole construct in how [the OSHA ETS] was done. OSHA does not have authority to do such a mandate. This virus, as we all know, does not just live in workplaces."

What to look for during Friday’s oral arguments

In his blog for the American Hospital Association (AHA), Sean Marotta, a partner at Washington, D.C.-based Hogan Lovells and outside counsel for AHA, predicted what to look for during the Jan. 7 oral arguments at the Supreme Court.

Conventional wisdom holds, Marotta wrote, that conservative Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch are sure votes against the mandate and that progressive Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan will be reliable votes in favor the federal vaccine-or-test rules. The jurists whose votes might be in play, he predicted, are Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett—and questions Friday from these justices might rule the day of testimony.

See also: Appeals court lets vaccine mandate live on

“These median justices will use their questions to voice their concerns with both sides’ positions and perhaps to propose middle-ground or compromise positions," Marotta wrote in his blog. "We will be listening especially closely when these three median Justices speak, and what the other six justices say and ask with those Justices in mind.” 

The justices in the past, he also noted, have been sympathetic to state-level vaccine mandates. The nine justices last month rejected a bid to block enforcement of New York State’s COVID-19 vaccine mandate for health-care workers. “But [the cases Friday] are different because they come from federal administrative agencies,” he added. “Conservative justices in the past have been concerned that agencies have been overreaching and thus usurping Congress’ role. If those concerns come up Friday from the median justices, that may be bad news for the vaccine mandates’ proponents.”

Marotta on Jan. 7 will live-tweet the oral arguments at the Supreme Court at @smmarotta.

One company's solution to easing compliance

If the federal vaccine-or-test rules ultimately survive, Luma, a trucking-industry instructional design and learning company, has come out with a tool to help employers manage compliance for workers who are not exempt from the OSHA rules.

Also, if the rules survive the Supreme Court, companies will have to come up with compliance solutions quickly since they are supposed to phase in starting next week. 

The tool, Luma’s eNugget Learning Management System, sends out just-in-time training on the OHSA mandate to anyone within an organization, creates custom training that aligns with a company's mandates or policies, uses a provided template to create and post company policy on vaccinations and face coverings, and automatically issues forms to capture employees’ vaccination status and ongoing testing forms for those who choose not to be vaccinated.

The Luma tool also allows employers to receive ongoing reports on their workers’ status, based on a pre-set schedule, and keeps vaccination files in a secure, digital file cabinet that provides auditors access on request. The tool also can be used to find all employee forms, training certificates, and compliance records in a centralized place. Any type of document can be uploaded, and conversations or issues can be captured by adding hidden notes.

“We have clients who need a centralized place to provide custom training on this very sensitive and important topic, as well as tracking secure data and forms,” said Gina Anderson, CEO of Luma, adding that the tool “is a natural fit and an extension of our platforms that helps our clients solve this time-sensitive issue.”

This FleetOwner story is still developing.

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