Guide to the Vaccine Mandate in Transportation

December 1, 2021 | Jenni Gray

What is the vaccine mandate?

The Emergency Temporary Standard (ETS) on vaccination and testing says employers with 100 or more employees must require that all employees are either vaccinated, or tested weekly for COVID-19 and to wear face coverings.

 

To whom does it apply?

Employers who have over 100 employees, even if the employer dips below 100 employees after crossing the 100-employee threshold.

It does NOT apply to:

    • Those who do not report to a workplace where other individuals are present
    • Employees working from home
    • Employees who work exclusively outdoors

 

There is currently no specific exemption for drivers or motor carriers.

When does it take effect?

    • Covered employees have until December 5, 2021 to be vaccinated.
    • The weekly testing mandate for unvaccinated workers is effective January 4, 2022. 

 

What are the requirements?

Employers must:

    • Ensure all employees are either vaccinated, or tested weekly for COVID-19 and wear face coverings.
    • Provide four hours of paid time off to allow employees to get a vaccination
    • Provide paid sick leave for employees to recover from the effects of the vaccination
    • Maintain proof of employees’ vaccination status via immunization card, medical records, sworn statements, etc.
    • Maintain records of negative test results by non-vaccinated employees

 

Unvaccinated employees must:

    •  Be tested for COVID-19 at least once every seven days
      • Must be a rapid antigen test, not an antibody test
      • Test cannot be self-administered and self-read unless observed by the employer or an authorized telehealth proctor
    • Provide documentation of the tests to the employer
    • Promptly notify the employer of a positive test result and leave the workplace until:
      • receiving a negative test, or
      • meeting the return-to-work criteria established by the CDC, or
      • receiving a recommendation to return to work from a licensed healthcare professional
    • Wear a face covering when indoors, or when in a vehicle with another person for work purposes (unless alone in an enclosed office, or while eating/drinking)

 

Are there exemptions?

    • Medical, disability, and religious exemptions are available
    • Exempted employees are subject to testing and masking requirements

 

What is the penalty for non-compliance?

Up to $13,600 per violation, if found to be willfully and repeatedly violating the rules.

 

Will the transportation industry receive exemptions?

The American Trucking Association, as well as several other industry groups and states, have legally challenged the mandate. The United States Court of Appeals for the Fifth Circuit issued a temporary stay on November 6, 2021, citing “grave statutory and constitutional concerns.”

“There could be official guidance released soon from OSHA to indicate that a combination of exemptions in the ETS could work to potentially exempt many truck drivers. After the rule was released, the Secretary of Labor indicated his view that most truck drivers would not be covered by the ETS. Regardless of how this issue plays out, planning for compliance now is a key to avoiding penalties, and make sure you are documenting your efforts to be compliant. To assist motor carriers with understanding and compliance, the American Trucking Associations has developed a Toolkit.”

– P. Sean Garney, Co-Director, Scopelitis Transportation Consulting

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