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OSHA ETS: What it means for drivers, motor carriers

Covered employers must comply by December 6

Posted November 10, 2021

All private U.S. employers — including motor carriers — with 100 or more employees/drivers (total, not per location), must comply with OSHA’s Emergency Temporary Standard (ETS), which was issued in early November.

The ETS requires covered employers to adopt either:

  • A mandatory COVID-19 vaccination policy, OR
  • A policy requiring employees to choose:
    • To be vaccinated, OR
    • Undergo regular COVID-19 testing and wear a face covering at work.

By December 6, all covered employers must be in compliance, with the exception of the COVID-19 testing portion, which kicks in January 4, 2022.

The ETS will likely be in place for six months, at which time OSHA must decide whether to proceed with a permanent rulemaking process.

Are commercial drivers exempt?

Commercial truck drivers are not specifically exempted from the rule. However, there are rumblings among trucking circles that drivers may qualify for one of the rule’s limited exemptions.

In the rule, those who work alone or work mainly outdoors are exempt, if they have minimal contact with anyone indoors (e.g., using the restroom or briefly popping in to an administrative office). These carveouts in the ETS might take some pressure off motor carriers and drivers.

Many commercial drivers — particularly long-haul drivers — spend days alone in their trucks, away from customers and coworkers. This type of work schedule would seem to imply that over-the-road drivers could fit an exemption from the rule.

Would this apply to all drivers?

This scenario won’t apply to all drivers, however. Short-haul drivers, who may have more regular contact with people, might not fit the exemption. Similarly, warehouse workers, loaders, mechanics, office staff, management, etc. would generally not be exempt from the requirements.

The key is drivers need to be alone in their vehicles. Drivers must not occupy vehicles with other employees as part of work duties (i.e., do not drive to worksites together in a company vehicle). Also, drivers who are in the process of being trained (riding with a trainer) would not be exempt, nor would the trainer — because, again, they wouldn't be alone in the truck. Basically, even if drivers only sometimes drove with other drivers in the vehicle, they would still be subject to the rule.

What about independent contractors?

Independent contractors do not count towards the total number of employees. Contractors and host employers with at least 100 employees are each required to ensure that they meet the ETS requirements for their own employees. However, host employers could still impose additional requirements for contract employees at their worksites, such as requiring that all workers, regardless of vaccination status, wear face coverings while working indoors.

What about the stay issued by the Fifth Circuit Court of Appeals?

The Fifth Circuit Court of Appeals issued a temporary stay on the ETS. It seems that the stay would only apply to Texas, Louisiana, and Mississippi, since these states are covered by the Fifth Circuit Court. Although, additional lawsuits are likely working their way through other Circuits around the country.

It's also important to note that this stay doesn't affect federal contractors who have a separate vaccination deadline on January 4, 2022, under the Biden Administration’s Federal Contractor Mandate.

OSHA isn’t enforcing the ETS for at least 30 days, so the next few weeks will probably be a roller coaster.

This article was written by Michelle Higgins of J. J. Keller & Associates, Inc.

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