Transportation Brief: Supreme Court Stays and OSHA Withdraws Vaccine/Testing Mandate
February 2, 2022
It appears that we have arrived at some finality in the on-again-off-again life cycle of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). On January 13, 2022, the U.S. Supreme Court ordered a stay of the ETS, holding that Congress had not given OSHA the authority to issue such a sweeping regulation addressing a general public health concern. In response, effective January 26, 2022, OSHA has withdrawn the ETS.
Given the Court’s determination that OSHA had likely exceeded its authority here, large employers have understandably set aside their immediate plans to implement the ETS vaccine/testing protocols. However, important considerations remain because many carriers continue to face customer vaccination requirements as well as the Canadian vaccination requirement for drivers crossing the border into Canada. Although the ETS is withdrawn, OSHA has reserved the right to continue its normal rulemaking process that may result in a standard that briefly directly addresses protections from COVID-19 in some form. While that rule is developed, we anticipate that OSHA may now pivot to a heightened focus on the enforcement of existing workplace safety standards to ensure employers are taking the necessary steps for the safety of workers. Therefore, we recommend that employers remain vigilant in their workplace safety protocols, which may include masking, social distancing, quarantining, and monitoring of CDC recommendations.
Transportation Brief: Unclaimed Property: A Lurking Liability for the Unwary
by Kelli M. BlockThe efforts of many states to disgorge businesses of funds that may be cast as “unclaimed property” have continued unabated into 2022. Read more from Scopelitis about why transportation companies are often affected by this and what they can do to limit its exposure in the event a state unclaimed property auditor comes knocking.
Transportation Brief: M&A Considerations for Air and Ocean Forwarders
by Braden K. Core , Nathaniel G. SaylorFreight forwarders that engage in air and ocean moves have become attractive targets for strategic and private-equity-backed acquisitions over the past several years. Buyers should be aware that change-in-control notice and approval processes for these businesses are more complicated when compared to U.S. surface-transportation providers. Read more about scenarios to consider, including but not limited to a few that have the potential to complicate and delay transactions.
Transportation Brief: Transportation Worker Exemption from the FAA Requires a “Contract of Employment”
by Braden K. Core , Prasad SharmaEmployers have successfully used arbitration under the Federal Arbitration Act (FAA) to resolve disputes on an individual basis. Unfortunately for transportation providers, the FAA does not apply to “contracts of employment” of drivers and other transportation workers who are engaged in interstate commerce. Read more about a recent decision from Massachusetts that reminds us that if the arbitration provision is not in a “contract of employment,” the FAA may still apply.
Transportation Brief: Spotlight on Cargo Claim Practice
Thomas Gonzalez , Kathleen C. Jeffries , Clifford W. LauchlanMany people assume the Carmack Amendment (Carmack) exclusively controls their cargo claim disputes related to interstate shipments. However, due to certain contract provisions in shipper or broker/carrier agreements, Carmack may take a back seat. Unfortunately, it is often not until a court interprets the contract with conflicting provisions that the parties have a definitive answer to their dispute. Read more from the Scopelitis team that helps clients navigate the cargo claims process, both pre- and post-suit.
Transportation Brief: For the Record, Winter 2022
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