The American Trucking Associations and several state trucking groups have filed suit in federal court opposing the proposed COVID-19 vaccination and testing rule for companies with more than 100 employees.
The ATA, the Louisiana Motor Truck Association, the Mississippi Trucking Association and the Texas Trucking Association are all plaintiffs in the suit filed in the U.S. Court of Appeals for the 5th Circuit on Tuesday. That is the court that placed a stay Saturday on implementation of the rule requiring either vaccination for employees or testing and masking of unvaccinated workers for companies with 100 or more workers.
The Occupational Safety and Health Administration and the Department of Labor are the defendants in the suit, along with Labor Secretary Martin Walsh and OSHA Assistant Secretary Douglas Parker.
Numerous other trade associations are parties to the lawsuit. Among them are the National Federation of Independent Business, National Retail Federation, International Warehouse & Logistics Association and the National Association of Convenience Stores. The suit seeks a stay to the implementation of the vaccine and testing rule.
“[The plaintiffs’] members have seen COVID-19 wreak havoc on their employees and communities,” the lawsuit says. “This is not a case about the efficacy of COVID-19 vaccines, which are a marvel of modern medicine.
“This is a case about American businesses that do not want to face the immediate irreparable harm of losing employees, incurring substantial and unrecoverable compliance costs, and worsening already fragile supply chains and labor markets,” the suit adds. “Yet that is precisely what would result.”
The proposed rule that would be administered by OSHA is “an extreme assertion of administrative power,” the suit says.
Among the suit’s criticisms of the rule are that OSHA is seeking to require businesses with more than 100 employees “to keep onerous databases of their employees’ COVID-19 vaccine and testing statuses, which can be handed over to the federal government at OSHA’s direction.”
The irony in the ATA lawsuit is that the trucking sector is coming off what it sees as a big win, with Walsh stating last week that a truck driver working alone would not fall under the vaccine and testing rule.
However, Walsh’s statement was seen as his interpretation of the rule; there is no specific trucking reference in the proposal and that could be seen as indicating the “Walsh exemption” isn’t on the sturdiest of grounds. It also is unclear whether a team driver would have a similar way out from the rule.
If the rule does overcome its various legal challenges, the issue arises of just how it is going to be enforced.
The ratio of OSHA inspectors to the number of companies is so lopsided that in-person enforcement is a minor prospect for the vast majority of companies.
But companies have far more reasons to focus on complying with the rule beyond a knock on the door from an OSHA inspector.
Gerald Maatman, a partner and labor law specialist with the law firm of Seyfarth Shaw, said a company that misrepresents its compliance with the OSHA rule in any number of ways is taking on significant risks.
“That sort of conduct can be used against a company in a civil lawsuit brought by a private party (e.g., trucker sues company for failing to safeguard the workplace from COVID and uses the response to OSHA to show the company was untruthful in its representations to the government),” Maatman said in an email to FreightWaves. “It also can be used in a criminal prosecution for falsifying documents, etc.”
Larger companies have an added fear, Maatman said: They might become examples to spur compliance from smaller operations. “Most likely, OSHA will take on enforcement actions against larger industry leaders on the theory that other smaller companies will get in line based on prosecutions of industry leaders,” he said.
Maatman’s comments about going after larger companies were echoed in a Reuters story about compliance. James Hermon, an attorney with the firms of Dykema Gossett, was quoted as saying that big firms would be targeted “intentionally to put some virtual heads on spikes.”
While comments on the proposed vaccine rule will be taken through early December, the lawsuit says that OSHA has ignored accepted practice on taking comments and other steps while implementing a new rule. OSHA is citing an emergency power as justification for the rapid speed of its implementation, the lawsuit charges, but “Congress designed this emergency power … to use only when necessary to protect workers from the most exigent and newly emergent workplace hazards” while awaiting a more permanent rule.
The lawsuit’s other charges are that Congress had not authorized OSHA to “commandeer” such a rule and that the rule would “inflict immediate irreparable harm” on the members of the associations that brought the suit.
In a prepared statement announcing its participation in the multiparty lawsuit, the ATA does not refer to the Walsh statement, which just late last week was called a “major victory” by President and CEO Chris Spear.
But Spear does repeat his earlier criticism that the proposed rule “arbitrarily picks winners and losers.” Spear has made that criticism in the past while referring to the 100-employee cutoff, which parts of the trucking industry fear would push drivers away from larger carriers to the companies with fewer than 100 workers.
“We told the administration that this mandate, given the nature of our industry and makeup of our workforce, could have devastating impacts on the supply chain and the economy and they have, unfortunately, chosen to move forward despite those warnings,” Spear said. “So we are now, regrettably, forced to seek to have this mandate overturned in court.”