With the trucking industry breathing a sigh of relief late last week after concluding solo truck drivers aren’t going to fall under the Biden administration’s vaccine rule, attention immediately turned to another question: What about team drivers?
The answer is that nobody is really sure. But it’s hard to see a way in which team drivers would not be required to be vaccinated or face a testing regime if they are working for a company with more than 100 employees given the provisions of the proposed vaccine rule.
The Department of Labor has authority over the Occupational Safety and Health Administration, which will implement and enforce the vaccine rule. What is known as a preamble to the proposed rule was published Thursday; the proposed rule was published a day later.
The comment period on the rule runs until Dec. 6. The vaccine rule is in limbo following a decision by the U.S. Court of Appeals for the 5th District over the weekend. The court questioned the constitutionality of the vaccination rule and stayed imposition of it for now.
Lane Kidd, managing director of the Trucking Alliance, noted in an email to FreightWaves that the vaccination rule is not a vaccine mandate. An unvaccinated employee can stay that way as long as he or she gets tested for COVID-19 weekly. That provision also comes with a mask requirement.
“The only question is how often a non-vaccinated driver must get tested,” Kidd said, pointing out that even the weekly mandate has numerous holes in it for a remote worker who comes into contact with co-workers on an infrequent basis, citing a Q&A that OSHA put out in conjunction with the proposed rule.
The industry’s determination that solo drivers are not subject to the rule comes down mostly to a statement made by Labor Secretary Marty Walsh. In an interview with Chris Hayes of MSNBC, Walsh talked about truck drivers not falling under the rule. But his references were to truck drivers being “alone,” a word that doesn’t describe team drivers.
The American Trucking Associations, in its celebratory email Friday following the Walsh remarks, also noted that it had received similar indications from officials in the Biden administration regarding the exclusion of drivers from the regulation. “We have received indications from senior Department of Labor officials that the exception for employees who exclusively work outdoors or remotely and have minimal contact with others indoors does exempt solo truck drivers from the mandate,” ATA President and CEO Chris Spear said in the email.
Spear used the word “solo” in his statement. A reading of the proposed rule issued does not seem to leave room for the vaccine rule to bypass team drivers.
First, it’s important to note that there is no “trucking exemption” in the rule. The word “truck” is used in the proposed rule mostly in citations of previous legal cases, and the word “trucking” doesn’t appear at all. The “trucking exemption” at this point is basically the interpretation of Walsh’s statement, which is largely unambiguous. It also is based on the ATA’s statement that other Washington officials largely echoed Walsh in their statements to the organization.
The Federal Register proposal says the requirements of the vaccine rule do not apply to employees “who do not report to a workplace where other individuals such as co-workers are present; while working from home; or who work exclusively outdoors.” While an over-the-road driver wouldn’t be working from home, it is possible to see how an interpretation of the other two provisions could keep long-distance truck drivers out from under the rule.
The provision exempting drivers who work “exclusively outdoors” could be viewed as granting a break to truck drivers. But the proposed rule also says that workplaces that are “characterized as outdoors may in fact involve significant time spent indoors.” The proposed rule cites an example of a construction site where the workers go in and out of a construction trailer.
But the interpretation provided by Walsh appears to be that a truck driver going in and out of a shipper or some type of terminal does not violate the definition of “exclusively outdoors.”
There is also the pathway to a quasi exemption through the act of working alone. “OSHA has determined that the provisions of this TMS (emergency temporary standard) are not necessary to protect employees from COVID-19 when they are working alone, or when they are working from home,” the proposed rule says.
But when the question arises of team drivers, these interpretations fall by the wayside. By definition, a team driver isn’t working alone. And Spear specifically did say “solo” driver in his comments.
If the vaccination rule falls on team drivers but not solo drivers — and it would need to be team drivers at companies with more than 100 drivers — Steve Viscelli sees an uneven impact from it.
Viscelli, a sociology professor at Penn State who has long studied trucking as his area of speciality, said there are some companies that are “much more reliant on teams.” He cited refrigerated trucking and companies that move auto parts as examples.
Such a split in the rule also would hit company training, Viscelli said. In an email to FreightWaves, he cited companies that “train a lot of new workers, all the big truckload carriers … that would be a big disruption to them.”
Kidd said that in a recent conference call among some of the Trucking Alliance’s members, “nobody speculated and are waiting on further clarification from OSHA and court rulings. In the meantime, they are encouraging all drivers to get vaccinated.”
One argument that has been heard in the discussions about how the vaccine rule will be implemented is that the sheer number of companies in comparison to the number of OSHA inspectors will allow many employers to ignore it, with just a small risk of being caught.
But that argument ignores the fact that a company lawyer is likely to argue strongly against such a course of action.
In a published posting over the weekend, the law firm of Fisher Phillips, writing about the 5th Circuit’s decision to order a stay against the vaccine rule, counseled employers to get ready for its implementation anyway. The consequences of not being ready for it could be significant, the law firm said.
Additionally, one source noted that while the risk of inspection is not high, there will be an OSHA-provided form that will question whether the company complied with the vaccination rule. A “yes” answer, when the reality is “no,” created a whole new set of risks for the company, the source said.
“As of right now, an employer’s best course of action is to familiarize yourself with the requirements of the OSHA ETS and prepare to implement those requirements if the stay is lifted and the emergency rule is revived,” Fisher Phillips wrote. “After all, OSHA will most likely have little patience with noncompliant employers who claim they held off implementing the mandate-or-test rule while awaiting a final court ruling — and the agency has significant weapons at its disposal in the form of citations and penalties for those not following the ETS edicts.”