Truckers Are Balking At The Federal Vaccine Mandate – What Can A Trucker Do?
The Federal Office of Management and Budget (OMB) and OSHA (Occupational Safety and Health Administration) is conducting a final review of President Biden’s COVID-19 vaccine mandate which covers two-thirds of the nation’s employees, including truckers.
The President signed two executive orders in early September mandating that employers with 100 or more employees require their employees to receive the vaccine, be tested regularly or face dismissal. Employers may be fined if there is no compliance.
The order also covers Federal workers and contractors. Federal employees and contractors had to be vaccinated or face termination by October 15th.
Meanwhile, trucking interests and business groups are meeting with the White House and OMB trying to delay the implementation of the vaccine mandate by at least three months. There are fears that many truckers will resign and flock to smaller trucking companies where there is no vaccine mandate.
In mid-October, Texas Governor Greg Abbott (R) challenged the Biden mandate by issuing an executive order preventing companies from requiring vaccines. Gov. Abbott wrote: “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual … who objects to such vaccination”.
GRAPHIC: USA truck fleet make-up:
Dealing With A “Workforce Crisis”
Advocates for the trucking industry are campaigning with the Biden White House to delay or rescind the new rules. The American Trucking Association (ATA) warns that up to 37% of truckers may resign rather than get the jab.
Chris Spear, the association’s president and CEO said in a letter to the OMB, “Placing vaccination mandates on employers, which in turn force employees to be vaccinated, will create a workforce crisis for our industry and the communities, families and businesses we serve.” He meets with the OMB soon.
Spear also states, “a one-size-fits-all approach in this instance is an overbearing mandate for industry that is already facing chronic shortages of technicians, dock workers and drivers.”
Many truck drivers agree, as reported by an Overdrive magazine poll (www.overdriveonline.com) where a majority of respondents said the vaccine mandate is just “another form of crowd control”.
Various business organizations, including the National Retail Federation, the ATA and other retail leaders are requesting that the Biden administration delay the vaccine mandate for 90 days until late January at the earliest. The current truck driver shortage, back-ups at America’s ports and other factors are threatening to significantly delay product delivery to sellers in time for Christmas shoppers.
In Australia that nation’s truckers threatened a national strike in August over a similar vaccine mandate there. Here in the USA a trucker’s strike was announced on social media in September for Ohio but nothing came of it.
Major Shippers and Trucking Fleets Are Complying
In early September Tyson Foods required all of its workers in the United States to be vaccinated for COVID-19, including trucker drivers. The deadline to get vaccinated was November 1, 2021. Tyson Foods employs more than 1,300 truckers. There is a $200 incentive to get a vaccination.
A Tyson spokesperson said, “We did not take this decision lightly. We have spent months encouraging our team members to get vaccinated – today, under half of our team members are. We take this step today because nothing is more important than our team members’ health and safety, and we thank them for the work they do, every day, to help us feed this country, and our world.”
Other shippers, especially those which ship food products, are also starting to require drivers be vaccinated. According to a source for Commercial Carrier Journal, “We haul a lot of food-grade product,” the source said. “A lot of our customers have requirements in general, like more stringent health and safety requirements for drivers, so there are really strict rules about who can be in their facilities and what PPE they have to have on.”
The new vaccine rule will also apply to the hundreds of thousands of short-term workers who will be hired around the holiday shipping rush.
Strategies To Get Drivers To Get The Jab
Greg C. Gantt, president and CEO of Old Dominion has taken a different approach to requiring its truck drivers and others workers to be vaccinated.
“While our daily volumes increased during August, our growth was affected by the recent rise in COVID-19 cases as well as various other matters impacting customers’ supply chains throughout the country,” said Gantt. “As a result, we made the decision to offer a financial vaccination incentive that we believe is an important investment for the safety and well-being of our OD Family of employees.”
Some drivers are facing mask and vaccinates and refusing to comply, so they are facing repercussions.
According to an anonymous shipping executive quoted by Commercial Carrier Journal, “We had to suspend a driver last week because he was noncompliant with a shipper’s mask policy, but in their mask policy it stated that if the driver took their proof of vaccination to HR, the driver would be exempt from mask wearing”.
Truck Carriers and Big Shippers Are Pushing Back
With less than two months to go before the Christmas and Hanukah holidays, the trucking trade press and general news media are full of troubling headlines such as this one from Politico: “Biden’s vaccine mandate has cargo giants in a pre-holiday panic”.
Big shippers such as United Parcel Service (UPS), Federal Express (FedEx), DHL Express and Atlas Air, which runs cargo flights for Amazon, are sounding the alarm that because of truck drivers and others are resigning because of the vaccine mandate shipments will be delayed. It is reported that these companies are facing “unprecedented labor shortages”.
In a letter to President Biden obtained by Politico, the Cargo Airline Association (CAA) wrote, “We have significant concerns with the employer mandates announced on Sept. 9, 2021, and the ability of industry members to implement the required employee vaccinations by Dec. 8, 2021,” wrote Stephen Alterman.
He and others warn that shippers need the vaccine mandate to be delayed until late January at the earliest because all are experiencing labor shortages already.
“We are reviewing the Executive Order and what it means for UPS and our people,” said UPS spokesperson Kara Ross. “We’re urging all of our employees to get vaccinated. Vaccination remains the best way for our employees, communities and company to stay healthy and strong.”
Chris Allen, a FedEx Global spokesperson says, “We strongly encourage team members to get vaccinated and continue to communicate on the importance and access to Covid-19 vaccines”.
The largest truckload carrier in North America is
Knight-Swift Transportation Holdings based in Phoenix. CEO Dave Jackson calls the mandate a “major logistical hurdle” affecting wages and slow deliveries.
The CEO of U.S. Xpress in Chattanooga, Tennessee is worried that the vaccine mandate will aggravate the already-challenging situation with the on-going driver’s shortage.
“We’re in an industry where we can’t afford any fallout. We don’t have enough drivers today,” said Eric Fuller.
What Options Do Truckers Have When Dealing With The Vaccine Mandate?
As we wait for OSHA to review and issue its Emergency Temporary Standard (ETS), which will spell out the vaccine mandate rules in detail, truckers have few options. According to the National Law Review, “For employers mandating the vaccine, an employee’s refusal to receive it because he or she simply does not want to be vaccinated is likely fair game for termination.” So the reality is that it is legal to suspend or terminate employees for violating a mask or vaccination mandate.
As employers carry out the vaccine rule, the NLR expects that there will be exceptions based on disability or religion. But we just don’t know how that will work until the final rules are released.
The Americans with Disabilities Act would cover you if you have a medical issue preventing you receiving the vaccine. Title VII protects you if you have a sincerely held religious belief against vaccination. Both laws have elements that try to reduce any undue hardship on the employer. There is a higher standard of proof for a medical claim than there is for a religious declaration.
By Federal law you must be offered a “fair accommodation” when refusing the vaccine. “If no such vacancies exist, the employer should allow the employee to exhaust available sick or PTO (paid time off) time, as well as FMLA (Family and Medical Leave Act) leave, if his or her vaccine refusal is based on a medical issue. For a religious issue, the employee would not qualify for sick time, but the employer should allow that employee to exhaust available PTO prior to termination.
If you are a trucker who crosses the Canadian border on a regular basis you now have to show proof of vaccination against COVID-19 to authorities there.
Other options include changing jobs to work with a trucking company with fewer than 100 employees (exempt from the vaccine mandate), or buy/lease your own truck and have some freedom from the mandate.
The Federal Approach
The Federal government is also requiring all of its employees and staff to be vaccinated along with contractors. One of the largest vehicle and truck fleets in the country is operated by the United States Postal Service (USPS).
The head of the White House’s Covid task force, Jeff Zients, told a news conference that the mandate for Federal workers and contractors will be gradual.
“It’s important to remember this is a process and the point here is to get people vaccinated, not to — not to punish them,” Zients said. “So, agencies will not be removing employees from federal service until after they’ve gone through a process of education and counseling.”
Zients says the same goes for contractors. He promises that there will not be any “disruptions to government services that people depend on”.
Frustrated Trucking Companies Are In The Dark
Eric Lawrence manages Lawrence Transportation Company, a refrigerated trucking company in southeastern Minnesota. He is frustrated by not being able to come up with a strategic plan because of the lack of information about the specific vaccine mandate,
“I’m afraid we’ll lose drivers because they’re just not going to do it. And they’re not going to want to comply with the weekly testing either,” Lawrence says.
Countering The Federal Mandate In Congress
The suddenness of the vaccine mandate and its negative repercussions has members of the U.S. Congress fighting back with new legislation to counter President Biden’s mandate. In late September Senator Rick Scott (R-Florida) was joined by Senators Ron Johnson, Cynthia Lummis, Roger Marshall and Mike Lee to introduce the Prevent Unconstitutional Vaccine Mandates for Interstate Commerce Act.
According to a press release from Senator Scott’s office, “The Prevent Unconstitutional Vaccine Mandates for Interstate Commerce Act would prohibit any of the following federal agencies from requiring Americans to provide proof of COVID-19 vaccination to engage in interstate commerce or travel”, including the Transportation SecurityAdministration (TSA), the Surface Transportation Board, and the Department of Transportation.
Senator Roger Marshall said, “President Biden’s vaccination decree is an all-out assault on private business, our civil liberties, and our entire constitutional system of limited government. This is another example of the Administration overstepping its authority, and we cannot allow the success of American businesses to be thwarted for the sake of political power.”
Senator Rick Scott said, “My … act ensures that the Biden administration cannot require anyone to show proof of COVID-19 vaccination to do business across state borders, and protects Americans’ rights and privacy.”
Legal experts are predicting that the Biden administration’s vaccine declaration will see vigorous legal action. Constitutional law attorney Jonathan W. Emord writes in Townhall.com that the mandate is not only poor public policy, but “They deprive Americans of their liberty and personal autonomy on a false, speculative promise of better health outcomes.”
Emord writes that once OSHA issues its rule detailing the vaccine mandate, legal challenges will “result in its invalidation”. He believes that the mandates violate Federal law.
“Under Section 6(c) of the OSH Act, the authority to promulgate the Emergency Temporary Standard that Biden has ordered, without opportunity for notice and comment rule making, is limited by proof not easily established and by a six-month duration. The government must prove employees are exposed to a grave COVID danger in the work place. Second, the government must prove the ETS necessary to protect employees from that grave danger.”
He says that past Federal court precedents declare that similar Federal actions such as the vaccine mandates are a “most drastic weapon,” and an “extraordinary power” available only in “limited situations”.
As the trucking industry waits for a final declaration of the vaccine rules from OSHA, many truckers are saying that they should be considered essential workers and exempt.
The ATA supports this characterization of truckers, writing recently to OSHA that, “As evidenced by the COVID-19 pandemic, trucking is the dynamic linchpin of the United States’ supply chain that keeps the wheels of our economy turning. This year, our industry will move more than 70% of the nation’s freight tonnage. Over the next decade, trucks will be tasked with moving 2.4 billion more tons of freight than they do today, in addition to delivering the vast majority of goods to American communities. Trucks will continue to be the dominant freight transportation mode for the foreseeable future.”
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