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OSHA ETS – Relief for Motor Carrier Employee Solo Drivers?

A quick glance at the news illustrates COVID-19 vaccine requirements are spreading rapidly throughout America’s work force. Equally clear from the news are the voices of employees who are opposed to such requirements based on earnest concerns over safety, liberty, science, and personal beliefs. Trucking related organizations claim dire workforce reductions are certain if any mandatory vaccination programs are forced on its, at least, commercial drivers. Who “wins” the COVID-19 vaccination battle remains to be seen.

However, the quickest relief from the regulations will not come from the lofty, but importantly, challenges to come in the country’s many courts. The quickest relief might come from the regulations themselves.

The Secretary of the United States Department of Labor, and former Boston Mayor, Marty Walsh recently admitted that the newly minted OSHA ETS requirements relating to vaccination or weekly testing may not apply to the nation’s 3.6 million solo, mostly long haul, truck drivers.  Many trucking industry groups quickly pressed for this interpretation of the regulation to avoid the likely exit of thousands of such drivers by the requirement’s implementation date.  Their pressure seemingly yielded immediate, if not yet concrete, results.  Secretary Walsh stated in a November 5, 2021 CNBC interview, “We’ve heard some pushback from truckers today. The ironic thing is most truckers are not covered by this, because they’re driving a truck, they’re in a cab, they’re by themselves, they wouldn’t be covered by this.”

Specifically, Secretary Walsh, was  referring to the ETS worker exemption for remote workers, although those words are not used, who report to workplaces where no other people are present for work purposes. The  exemption assumes that OSHA regulations focus on mitigating transmission of the virus to other workers or customers. So, if there are no other workers or customers (in a truck or in a home office) the regulations can’t legally, and perhaps scientifically shouldn’t, apply. Of course, this assumption doesn’t square with other OSHA regulations which regulate a worker to not hurt him or herself at work. For centuries, lawyers and those who write the laws have hidden behind the expression, “The law does not concern itself with trifles.” Maybe this part of the ETS is just that.

That said, motor carriers wishing to take advantage of  this exemption for their solo drivers must follow the ETS “remote worker” description (Section 29 C.F.R. §1910.501). It’s not long:

(3) The requirements of this section do not apply to the employees of covered employers: (i) Who do not report to a workplace where other individuals such as coworkers or customers are present; (ii) While working from home; or (iii) Who work exclusively outdoors.

Conceivably, an over the road truck driver could take advantage of section (i) or, perhaps less intuitively, (ii) if the driver’s “home” is literally her truck.

The more obvious section is (i). To use that provision, the employer may need to modify the duties of the driver to eliminate any interaction with co-workers or customers. This means more extensive use of drop and hook procedures and remaining in the truck while a truck is loaded or unloaded. It might mean electronic exchange of shipping or other documents at origin or destination. It does not mean that the driver should be locked in the truck (out of restaurants and motels) where those the driver might interact with are the public but not customers or coworkers (like typical home workers).

Team drivers (at least those who are not related) would be hard pressed to fit within this exemption. Spouse teams, or solo drivers with a permanent non-driver companion (not otherwise a co-worker) might be able to take advantage of the exemption. If both drivers in a team consider the truck “home”, the exemption might also apply under section (ii).

Whether industry trade group pressure forged the way for this exemption isn’t clear. But here it is. Whether the employer or employee chooses to take advantage of (or to some, exploit) the exemption is up to those involved.

As always, reading these posts is not legal advice. Please contact your DeWitt attorney.

 

About the Author

Mike is a partner in the Minneapolis office of DeWitt practicing in the areas of Transportation & Logistics, Business, Labor & Employment and Litigation.

With considerable experience advising users and providers of transportation services, he interacts with governmental regulators, enforcement officials and other stakeholders including large shippers, insurers, and fulfilment providers.

He can be reached at mglover@dewittllp.com.

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