Trucking companies and other private businesses covered by the Biden administration’s COVID-19 vaccine and testing mandate have been given a small amount of compliance breathing room by the Occupational Safety and Health Administration (OSHA) after a federal appeals court reinstated the rule.
In a decision issued late Friday, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit voted 2-1 to grant a motion by OSHA to lift a stay of the vaccine-or-test Emergency Temporary Standard (ETS).
The ETS requires that employers with 100 or more employees implement a mandatory vaccination policy for their employees (subject to certain exemptions). As an alternative, employers can put in place a policy allowing unvaccinated employees to test weekly for COVID-19 and wear a mask in the workplace.
The American Trucking Associations had filed suit against the mandate in federal court on Nov. 9 along with several state trucking groups, contending that the mandate “could have devastating impacts” on the supply chain and the economy.
But the court’s majority opinion underscored OSHA’s contention that the ETS as a life-saving measure.
“In a conservative estimate, OSHA finds that the ETS will ‘save over 6,500 worker lives and prevent over 250,000 hospitalizations’ in just six months,” the court stated. “A stay would risk compromising these numbers, indisputably a significant injury to the public. The harm to the government and the public interest outweighs any irreparable injury to the individual petitioners who may be subject to a vaccination policy.”
The mandate initially required employers to be in compliance with the ETS by Dec. 6, including determining the vaccination status of all covered employees, adopting written vaccination policies that comply with the ETS and requiring all employees who are not fully vaccinated to wear masks at the workplace.
In addition, starting Jan. 4, 2022, all employees were to be vaccinated and/or all employees who are not fully vaccinated were required to be tested weekly.
After Friday’s decision, however, OSHA stated it will not issue citations for noncompliance with any requirements of the ETS before Jan. 10, nor will issue citations for noncompliance with the testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard,” according to the agency. “OSHA will work closely with the regulated community to provide compliance assistance.”
Employers who fail to comply with the mandate may be subject to penalties that include up to $13,653 per violation for serious violations and heightened penalties for willful or repeated violations of up to $136,532 per violation, according to OSHA.
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In a letter to his members on Saturday, ATA President and CEO Chris Spear said ATA had filed an emergency application with the Supreme Court seeking to reinstate the stay an hour after the appeals court decision.
“A number of other groups have filed similar requests with the Court as well,” Spears said. “Our hope is that the Supreme Court will act quickly and stay the rule well before this new January 10 date.”
Out of caution, however, Justin Furrow, an employment litigation specialist with the law firm Chambliss, Bahner & Stophel, emphasized that employers covered by the ETS “should quickly begin activities to come into compliance with the ETS.”
By Jan. 10 this should include, among other things:
- Deciding whether to mandate vaccination or permit employees to test weekly and wear a mask while at work.
- Preparing a written policy concerning vaccination/testing, proof of vaccination, costs of tests, etc.
- Obtaining proof of vaccination from employees.
Furrow noted that for employers that do not mandate vaccination and will instead allow employees to test weekly and wear a mask at work, their employees must either be fully vaccinated or begin testing by Feb. 9.
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