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American Trucking Associations, along with three state trucking associations and a number of groups representing various facets of the supply chain, have sued the Biden administration over its employer-based COVID-19 vaccine mandate.
The lawsuit was filed in response to a Nov. 4 Occupational Safety and Health Administration rule mandating that private companies with 100 or more employees ensure that their workers are COVID-19 vaccinated by Jan. 4, or if not, are tested at least weekly.
Those joining in the lawsuit, filed on Nov. 9 with the U.S. 5th Circuit Court of Appeals, included the Louisiana Motor Truck Association, the Mississippi Trucking Association, Texas Trucking Association, the Food Marketing Institute, the International Warehouse Logistics Association, the National Association of Convenience Stores, the National Retail Federation, the National Association of Wholesaler-Distributors and the National Federation of Independent Business.
“To be very clear, ATA and its member companies support efforts to encourage all Americans to get vaccinated against COVID-19 — our trucks and drivers have been on the front line in fighting this pandemic since the beginning, moving personal protective equipment, test kits, the vaccine itself and much more as the country locked down, but we believe that the Biden administration has overstepped its statutory authority in issuing this Emergency Temporary Standard,” said ATA President Chris Spear. “This standard arbitrarily picks winners and losers, and puts employers in an untenable position of forcing workers to choose between working and their private medical decisions, which is something that cannot be allowed.”
The lawsuit said the rule would significantly harm the economy and could result in workers leaving the industry, including truck drivers.
“The American economy cannot afford to have fewer employees willing to work because of sweeping federal vaccine, testing and monitoring mandates imposed overnight on over 84 million workers,” the lawsuit said. “American businesses are experiencing unprecedented labor shortages caused by COVID-19, and OSHA’s unlawful action will exacerbate these problems.”
The lawsuit said that ATA and its co-petitioners have contributed significantly to fighting COVID-19, including substantial efforts to make vaccines available and encourage employees to protect themselves against the pandemic.
“Petitioners’ members have taken extraordinary measures to protect their employees, customers and communities during the pandemic. They have distributed, incentivized, encouraged and in some cases mandated the vaccine,” the lawsuit said.
The rule has been the subject of numerous lawsuits filed by 26 state attorneys general in several federal appellate courts. The 5th Circuit has issued a temporary stay, but the White House has told businesses to continue with the requirements despite the legal delay.
A court lottery is expected as soon as the week of Nov. 15 to determine which federal appellate court will take charge of the cases.
The rule includes an estimated number of “truck transportation” employees and entities that would be covered by the mandate, but is not explicit on whether truck drivers fall under a provision stating the possibility that employees who work alone or outside, as many truck drivers do, could be exempt.
“While the Secretary of Labor has suggested that the rule exempts truck drivers generally, a specific request for written guidance from OSHA effectuating that carve-out had not been answered prior to the filing,” said Nicholas Geale, ATA vice president of workforce policy.
“This is a case about American businesses that do not want to face the immediate irreparable harm of losing employees, incurring substantial and unrecoverable compliance costs, and worsening already fragile supply chains and labor markets,” the lawsuit said. “Yet that is precisely what would result from the Occupational Safety and Health Administration’s ‘COVID-19 Vaccination and Testing; Emergency Temporary Standard.’ ”
The lawsuit said that Congress did not delegate OSHA the power to “commandeer private employers to control Americans’ health care decisions.”
“OSHA’s action is a not-so-veiled effort to evade notice-and-comment while forcing businesses and employees to immediately comply in permanent fashion with a supposedly ‘temporary’ mandate,” the lawsuit said.
“We told the administration that this mandate, given the nature of our industry and makeup of our workforce, could have devastating impacts on the supply chain and the economy and they have, unfortunately, chosen to move forward despite those warnings,” Spear said in a recent statement. “So we are now, regrettably, forced to seek to have this mandate overturned in court.”
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