As the Biden administration’s COVID-19 vaccine requirement for businesses with 100 or more employees works its way through various legal challenges, National Tank Truck Carriers is telling its members solo truck drivers will be exempt from the Occupational Safety and Health Administration’s emergency temporary standard (ETS).
“NTTC is pleased that solo truck drivers will be exempt from the COVID-19 ETS,” NTTC president and CEO Ryan Streblow said in a news release. “NTTC maintains that the tank truck industry is a committed partner in the fight against COVID-19, and we unequivocally support the use of vaccines to fight its spread. However, NTTC is concerned a mandate will cripple an already strained supply chain, and asks for additional flexibility for all transportation and supply chain essential workers, particularly those who have minimal contact with colleagues and customers.
“NTTC supports the positions of peer trade organizations, including American Trucking Associations, that urge vaccine mandate flexibility addressing the arbitrary threshold of 100 employees.”
ATA president and CEO Chris Spear said in a statement to ATA members that he learned from Labor Department officials solo truck drivers qualify for an exemption granted in the OSHA rules to employees who work exclusively outdoors or remotely and have minimal contact with other people indoors.
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,” Walsh said. “If you’re a worker outside working in the area, this doesn’t impact you.”
NTTC also pointed out Walsh “is on record clarifying that solo truck drivers are exempt from the mandate.”
“This exemption is a huge victory for the trucking industry,” Streblow said. “(However), it does not appear to be applicable for all facets of the trucking industry (office administrative staff, mechanics, tank cleaning personnel, etc.), and the exempt drivers do not reduce the aggregate number of employees to render the employer under the 100-count threshold.”
OSHA issued its ETS for COVID-19 vaccination and testing Nov. 5.
The next day, the conservative 5th U.S. Circuit Court of Appeals granted an emergency stay sought by Louisiana Attorney General Jeff Landry halting the requirement that workers be vaccinated by Jan. 4, or face mask requirements and weekly tests.
OSHA responded by arguing that the dispute was literally about life and death, and the workplace rules should be allowed to proceed, saying that halting its ETS “would likely cost dozens or even hundreds of lives per day. Petitioners’ asserted injuries, by contrast, are speculative and remote and do not outweigh the interest in protecting employees from a dangerous virus while this case proceeds.”
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.
“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,” Spear said. “ATA will continue to consider potential legal action to protect all segments of our workforce from this misguided mandate.”
NTTC, which said it expects the measures to cover 84 million people, pointed out that OSHA plans to conduct inspections at workplaces to verify compliance with the rule. A standard penalty can yield a fine up to $13,653 for a single violation.
“Although this ETS is temporary, no sunset date for the ETS has been made available,” Streblow commented. “For comparison, OSHA continues to monitor and assess the need for changes to a similar healthcare ETS (June 2021) each month.”