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OSHA plans ‘enforcement discretion’ after court reinstates vax mandate

ATA files emergency petition with Supreme Court to reverse ruling

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.

Watch: What’s in the future for the vaccine mandate? (11/10/21)

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.

Click for more FreightWaves articles by John Gallagher.


  1. According to a recent study in the Lancet, “fully vaccinated individuals with breakthrough infections have peak viral load similar to unvaccinated cases and can transmit infection…” Likewise, “People who get vaccine breakthrough infections can be contagious,” says the CDC. Even more compelling, …“vaccinated individuals still have the potential to infect others. Worse, one CDC report shows that vaccinated people can still be superspreaders. If vaccinated people still get and spread covid with the same viral load as unvaccinated people then vaccinated people should be tested for covid in the same manner as unvaccinated people, correct? Correct. CDC also states, “vaccination is NOT sufficient to prevent transmission of covid virus.” If vaccination is not sufficient to prevent transmission of covid virus, then why are employees being fired for not being vaccinated? An irrational fear of covid doesn’t entitle a workplace to discriminate against persons based on vaccine status. Simply put, there are no compelling or extraordinary reasons to selectively discriminate against unvaccinated people when vaccinated people can still infect others, have similar viral load and be contagious. Therefore, given the absence of logical grounds to continue such discrimination employers should immediately cease and desist such discrimination. An unvaccinated person carries the same level of safety as a vaccinated person, given both can get and spread covid. A more rational, fair and least restrictive solution would be to provide rapid covid testing for all employees, both vaccinated and unvaccinated, provide free testing at stores, schools and hospitals and require all people to wear masks indoors until there’s ample evidence of herd immunity. The highly transmissible Omicron variant could help countries reach herd immunity as cases continue to rise, health experts say.

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John Gallagher

Based in Washington, D.C., John specializes in regulation and legislation affecting all sectors of freight transportation. He has covered rail, trucking and maritime issues since 1993 for a variety of publications based in the U.S. and the U.K. John began business reporting in 1993 at Broadcasting & Cable Magazine. He graduated from Florida State University majoring in English and business.