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Transportation Brief: Vaccination Mandates Take Shape

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

December 3, 2021

The federal contractor mandate, the private employer mandate, and rules for land and ferry border crossings have started to clarify how the Biden Administration’s vaccination initiative might impact the transportation industry – although the final force and effect of these rules remains unclear.

The federal contractor rule (the Contractor Mandate) currently requires workers subject to qualifying federal contracts to be vaccinated by January 4. The requirements for vaccination are being rolled out by multiple agencies and apply differently to various contracts. A clear understanding of which requirement applies to workers providing direct or indirect services pursuant to a government contract is needed to navigate the Contractor Mandate. Although several parties have filed suit seeking an injunction against enforcement, no court has yet issued a nationwide injunction that would prevent the Contractor Mandate from taking effect. A federal court in Kentucky, however, recently issued a limited preliminary injunction temporarily halting enforcement in Kentucky, Tennessee, and Ohio.

The Occupational Health and Safety Administration published its Emergency Temporary Standard (ETS) containing the private employer mandate on November 5. While it lays out detailed procedures for vaccination or testing of unvaccinated employees working for an employer with 100 or more employees, the ETS was temporarily stayed on November 6. There are multiple challenges to the ETS, so the duration of the stay and whether the ETS survives will be determined in the courts. As of the date of publication, the Sixth Circuit was chosen via lottery to hear consolidated cases related to the ETS. The Sixth Circuit is viewed as generally business-friendly, although much will depend on the make-up of the three-judge panel randomly assigned to hear the case. That panel will likely first consider whether the temporary stay entered by the Fifth Circuit should be lifted or remain in place while the courts consider the validity of the ETS. Even if the ETS does go into effect, the Secretary of Labor has suggested that many drivers who work alone or provide services outdoors may be outside the scope of the rule and not subject to vaccination or testing. Despite this, employers should begin to prepare now to ensure that they can meet any deadline for workers subject to the ETS if the stay is lifted.

Finally, the Department of Homeland Security plans to require foreign nationals crossing the border at land and ferry crossings to provide evidence of vaccination starting in January 2022. While essential travelers have been able to cross the border without evidence of vaccination during the non-essential travel closure, this policy has changed following the opening of land and ferry ports to non-essential travelers. Details regarding this change are forthcoming.

These rules are quickly changing, so it is imperative that employers and contractors keep a close eye on developments to ensure that they are complying with the latest guidance.



Also in this issue:
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    by Chip Andrewscavage , Andrew J. Butcher
    The Northern District of Illinois recently dismissed IWPCA claims raised by the owners of several motor carriers based on a Virginia choice-of-law clause. More from the Scopelitis Chicago office on why the decision is particularly notable.
  • Transportation Brief: Freight Broker Class Action Attacks Continue
    by David D. Robinson
    The transportation industry continues to battle class action lawsuits focused on the classification of freight brokers as exempt from the payment of overtime under the Fair Labor Standards Act (FLSA). Recent court decisions (and a host of settlements) have served to highlight the vulnerability of an exempt classification for these workers. Why do some recent cases mean that companies should fully examine their classification of these workers as exempt versus non-exempt?
  • Transportation Brief: Massachusetts Considers ABC Test for Joint Employment
    by Gregory M. Feary , Prasad Sharma
    In the Jinks v. Credico oral argument before the Massachusetts Supreme Judicial Court, the Court may reject using Massachusetts’ ABC test in the joint employer context. During oral argument in early October, several justices were skeptical, suggesting it would be unworkable to apply the ABC test to determine whether any entity farther up the contracting chain is an employer of a worker who is one or multiple steps removed. More on this decision from the Massachusetts high court that would be a welcome development.
  • Transportation Brief: FAAAA/AB5 U.S. Supreme Court Developments
    by R. Jay Taylor,
    The U.S. Supreme Court is currently considering whether to review two major Ninth Circuit preemption cases with significant implications for the transportation industry. In California Trucking Ass’n v. Bonta, a federal district court in California issued an injunction barring enforcement of AB5, California’s statutory ABC employment classification test that effectively extends coverage of California’s wage and hour laws to owner-operators working in the state. The Supreme Court is also considering whether to review the Ninth Circuit’s decision in C.H. Robinson v. Miller. In that case, a federal district court held that the FAAAA preempted a plaintiff’s claim that a freight broker negligently selected an unsafe motor carrier. Read the latest regarding these two potentially pivotal cases. 
  • Transportation Brief: Spotlight Cargo Claim & Freight Charge Practice
    by Thomas Gonzalez , Kathleen C. Jeffries , Andrew F. Marquis , Christopher C. McNatt , Michael J. Tauscher
    The global supply chain crisis, paired with the continuing challenges of the pandemic, means motor carriers, cargo brokers, freight forwarders, and shippers are experiencing a significant increase in claims related to delay and cargo damage as well as a slowdown in the payment of freight charges, yet the demands for payment have generally increased. Thus, in the current environment, force majeure clauses have taken on increased importance because they can help transportation providers protect themselves from claims when circumstances beyond their control preclude performance or delay performance. Read more on how the Firm's Cargo Claims team regularly assists clients with addressing cargo claim and freight charge issues. Equally important, the team can help mitigate exposure before issues arise.
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