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Law Alert: OSHA Vaccine Mandate Developments

by Shannon M. Cohen, Gregory M. Feary, A. Jack Finklea, David D. Robinson, Prasad Sharma

November 17, 2021

Yesterday, the Judicial Panel on Multidistrict Litigation held a lottery, which determined that the multiple challenges to the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing would be consolidated and heard in the United States Court of Appeals for the Sixth Circuit. Overall, the Sixth Circuit is considered to be a business-friendly court. Generally, businesses and some States challenge OSHA’s authority to issue the ETS in the first place, arguing that OSHA has exceeded the bounds of both the Constitution and OSHA’s statutory authority. Some unions and other groups challenge the ETS as arbitrary and capricious for not being protective enough of worker health.

The first order of business for the Sixth Circuit, absent motions to transfer venue, will almost certainly involve whether to lift the stay currently neutralizing the ETS. Late last week, the United States Court of Appeals for the Fifth Circuit affirmed its prior temporary stay of the ETS pending full consideration of the request for a permanent injunction (continuing a temporary stay that had been issued the day after publication of the ETS). That stay, which makes the ETS ineffective, remains in place unless lifted. The Fifth Circuit’s stay not only prohibited OSHA from enforcing the ETS but also prohibited OSHA from taking steps to implement the ETS, likely forestalling any further guidance or clarification about the requirements and applicability of the ETS. Therefore, a flurry of requests to lift the temporary stay will almost certainly be made in the coming days.

Whether the ETS will survive will be decided by the courts – perhaps even the Supreme Court – on a timeline yet to be established by the courts. There is a possibility that the temporary stay could get lifted and the compliance deadlines as originally published in the ETS could be reinstated. In such case, the extent to which a transportation company’s workers are subject to the ETS will remain to be determined. We know the ETS does not apply to independent contractors (likely using the economic realities test to determine independent contractor status). We also know there are reasonable arguments for why the ETS may not apply to many truck drivers based on the text and rationale for the ETS. OSHA will have the first opportunity to weigh in on that question. 

Since the ETS was pre-released, the motor carrier industry has maintained that truck drivers qualify for one or more of the three exemptions set forth in the ETS. Although the ETS does not expressly identify drivers as categorically exempt, Secretary of Labor Walsh, in media interviews, indicated most truck drivers would qualify as exempt because they frequently meet a combination of the listed exemptions; namely, they work alone when driving in their truck and work outdoors when interacting with others. Additional arguments relating to the “working from home” exemption, though not addressed by Secretary Walsh, may also prove successful. Secretary Walsh’s interview statements provide a positive development and the American Trucking Associations has sought confirmation from OSHA (which confirmation may be delayed by the Fifth Circuit’s affirmation of the temporary stay). While even under this interpretation, not all truck drivers would qualify as exempt, additional arguments exist to help maximize the opportunity for at least some drivers to be classified as exempt. The applicability of the exemptions is not at issue in the various challenges to be considered by the Sixth Circuit, though it could inform consideration of the arbitrariness of the ETS.

We will continue to monitor developments in the courts and at OSHA. In the meantime, while the Sixth Circuit considers the fate of the ETS, carriers can prepare for any eventual enforcement by identifying and preparing to implement best practices to ensure they are able to take full advantage of any available exemptions. In addition, the firm has developed a list of tasks to aid covered employers in the event the stay gets lifted on short notice, and that list is available upon request. Should you have questions about preparing for compliance or the potential application of the ETS in any particular circumstance, please reach out to Greg Feary, David Robinson, Jack Finklea, Shannon Cohen, or Prasad Sharma.

For more information, please reach out to Greg FearyDavid RobinsonJack FinkleaShannon Cohen, or Prasad Sharma


News from Scopelitis is intended as a report to our clients and friends on developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.