(Editor’s note: this article was published shortly before the Supreme Court blocked enforcement of the OSHA rule. An article on that development can be found here.)
The Biden administration’s proposed so-called vaccination mandate in the workplace does not apply to solo truck drivers, according to new guidance handed down by the Occupational Safety and Health Administration.
That formal declaration of what had been suggested at the time of the mandate’s rollout in November appeared in updated Frequently Asked Questions, published earlier this week.
“There is no specific exemption from the standard’s requirements for truck drivers,” the OSHA FAQs state.
But OSHA goes on to say that the rule “provides that, even where the [mandate] applies to a particular employer, its requirements do not apply to employees ‘who do not report to a workplace where other individuals such as coworkers or customers are present’ or employees ‘who work exclusively outdoors.’
“Therefore, the requirements of the [mandate] do not apply to truck drivers who do not occupy vehicles with other individuals as part of their work duties.”
Nick Geale, the vice president for workforce policy at the American Trucking Associations, said in an email to the group’s membership that “the guidance released today does indeed acknowledge that most solo drivers are exempted from the vaccine-or-test mandate, so long as they encounter other individuals exclusively in outdoor environments or have only de minimis use of indoor spaces (such as using a multi-stall bathroom or entering an administrative office to drop off paperwork).”
But the exemption does not apply to team drivers. The FAQs say the “requirements of the [mandate] do not apply to truck drivers who do not occupy vehicles with other individuals as part of their work duties.”
It does apply to drivers “who work in teams (e.g., two people in a truck cab) or who must routinely enter buildings where other people are present,” the FAQs say.
What the FAQs refer to as “de minimis use” of facilities does not kick in the requirements of the law “as long as time spent indoors is brief, or occurs exclusively in the employee’s home (e.g., a lunch break at home).”
“OSHA will look at cumulative time spent indoors to determine whether that time is de minimis,” according to the FAQs.
The Emergency Temporary Standard as it is formally called is generally seen as a vaccination mandate. However, there are pathways to stay within the rules without vaccination through regular testing.
The trucking sector, since early November, has been operating under the assumption that solo drivers would not fall under the vaccination and testing rules of the mandate. Soon after the Biden administration released it, Marty Walsh, the secretary of labor, of which OSHA is a part, said in an interview on CNBC that truck drivers wouldn’t fall under the rule, though as OSHA reiterated in the FAQs, there is no specific “trucking exemption.”
At roughly the same time that Walsh said that in November, Chris Spear, ATA president and CEO, said in an email to his membership that the organization had received indications from Department of Labor officials that solo drivers, who don’t interact a significant amount with others, wouldn’t fall under the rule.
However, until the latest FAQs were published, there had been no further clarification from the department on how the proposed rules would hit trucking, particularly with regard to team drivers.
All of this will be moot should the U.S. Supreme Court shoot down the mandate.
The mandate technically went into effect Monday. But the actions of the Supreme Court remain the focus of the rule’s future.
The mandate affects companies of 100 or more employees and would be administered under the authority of OSHA. Most court observers who listened just before Christmas to the justices’ questioning of Biden administration officials on the ability of the federal government to impose such a sweeping regulation believed the court was leaning toward blocking the implementation of the rule.
The Supreme Court took quick action on reviewing the mandate because lower court decisions are in conflict on the question of whether OSHA can implement the rule. But court-ordered stays allowed the mandate to go into effect Monday.
ATA is a plaintiff in a lawsuit against the mandate. In Geale’s letter, he expressed dissatisfaction with the guidance on team drivers. “Although we are pleased that our advocacy has resulted in an exemption for a large portion of our driver workforce, we believe this guidance is still too narrow and fails to fully address our concerns as it relates to team drivers and other segments of our workforce,” he wrote.
In a quick analysis of the OSHA FAQs. the trucking-focused law firm of Scopelitis, Garvin, Light, Hanson & Feary said: “The guidance should prove helpful to many carriers faced with the logistical challenges of testing over-the-road drivers – and may suggest certain operational changes designed to ensure application of the exemption.”