Vaccination and Trucking – Emergency Temporary Standard (ETS)
By P. Steve Keppler, Scopelitis Transportation Consulting LLC and Safety/Regulatory Consultant to Spireon, Inc.
The Occupational Safety and Health Administration (OSHA) has released its Emergency Temporary Standard (ETS) on vaccination and testing on November 5. The ETS requires employers with at least 100 employees to ensure all employees are either vaccinated or that they are tested at least weekly for Covid-19 and to wear face coverings. The ETS is effective immediately, but covered employees have until December 5, 2021 to be vaccinated. One notable exception is the weekly testing mandate for unvaccinated workers, which will need to begin January 4, 2022. The ETS expires May 5, 2022, though OSHA may make the rules permanent. Once an employer crosses the 100-employee threshold, it will be subject to the standard for the duration of the ETS – even if the employer dips below 100 employees thereafter. The penalties for non-compliance are significant, potentially costing motor carriers up to $13,600 per violation if they’re found to be willfully and repeatedly violating the rules. The trucking industry has suggested that should these rules go into effect up to 37% of truck drivers would leave the industry or go to work for carriers with less than 100 employees to avoid being subject to the mandate, a number that would be staggering and have a significant impact on an already fragile supply chain.
The rules don’t apply to those who do not report to a workplace where other individuals are present; to employees working from home (but only while they are working at home); or to employees who work exclusively outdoors. There is no specific exemption for drivers or motor carriers, which many in the industry have been asking for. However, some believe that CMV drivers may be exempt since they work outdoors, work remotely, do not come in contact with any other employees or customers, or only have minimal contact with others.
Employers must provide up to four hours of paid time off for employees to receive vaccinations and paid sick leave for employees to recover from the effects of the vaccination. Employers must also require employees to provide proof of vaccination through medical records or immunization cards, or a sworn statement from the employee, must keep the documentation provided by employees, and maintain a roster of each employee’s vaccination status. Similarly, employers must keep a record of a negative test provided by the employee or the test administered by the employer. Employers may require employees to bear the cost of required testing. A compliant mandatory vaccination policy can provide for medical, disability, and religious exemption, but these individuals would be considered unvaccinated and subject to testing and masking requirements.
An unvaccinated employee who reports to a workplace must be tested at least once every seven days and provide documentation of the test. An employee who does not report to a workplace during a period of seven days or more (including places in which customers are present) must be tested within seven days prior to returning to the workplace. The rule requires a test authorized for emergency use by the FDA, so rapid antigen tests are acceptable, but antibody tests are not. Importantly, the test cannot be both self-administered and self-read unless the test is observed by the employer or an authorized telehealth proctor. The ETS requires an employee who is not fully vaccinated to wear a face covering when indoors and when in a vehicle with another person for work purposes. Limited exceptions exist, including when someone is alone in an enclosed office and while eating and drinking.
If an employee tests positive or is diagnosed with Covid-19, the employee must promptly notify the employer. The employee must be immediately removed from the workplace until the employee receives a negative test, meets the return-to-work criteria established by the CDC, or receives a recommendation to return to work from a licensed healthcare provider.
OSHA indicates the rules would apply to an estimated 2,597 truck transportation entities, 15,684 establishments, 878,429 total employees and 738,360 covered employees. There are other “categories” of employers and employees related to freight transportation that OSHA has projected would be impacted as well. The Rail Transportation, Support Activities of Transportation, Couriers and Messengers, and Warehousing and Storage NAICS classifications collectively would have 4,216 entities, 22,374 establishments, 2,097,490 total employees and 1,823,246 covered employees potentially affected by the rules. OSHA also estimates the rules would cost $10,895 to each entity, with a total cost of more than $28 million, to implement these rules. Clearly this mandate would not only impact trucking, but the entire supply chain.
The attorney generals of 26 states and a number of industry groups are challenging the mandate but it’s unclear if they will be successful. There still is some question as to the applicability of the rules to the trucking industry and the extent to which OSHA has jurisdiction. On November 6, the United States Court of Appeals for the Fifth Circuit issued a temporary stay of the rules. The panel cited “grave statutory and constitutional concerns” in its brief order. The court called for an accelerated briefing on why a permanent injunction should not be granted, with the government’s brief submitted November 8. November 16 is expected to be the date the various challenges are consolidated in on the federal court of appeals.
There could be official guidance released soon from OSHA to indicate that a combination of exemptions in the ETS could work to potentially exempt many truck drivers. After the rule was released November 5, the Secretary of Labor indicated his view that most truck drivers would not be covered by the ETS. Regardless of how this issue plays out, planning for compliance now is a key to avoiding penalties, and make sure you are documenting your efforts to be compliant.
Note: This article does not reflect the thoughts or opinions of Spireon. The company stands neutral on matters of current legislation, and intends only to include such dialogue for informational purposes.