Legal challenges are mounting against the President Biden’s national vaccine mandate. Legal battles from states and businesses are expected to grow in the coming months, reports CCJ magazine.
The proposal calls for employers with 100 employees or more to require having their employees vaccinated against the virus or face fines. A provision for weekly testing in lieu of vaccination is expected to be added to the Occupational Safety and Health Act (OSHA) Emergency Temporary Standard (ETS), which awaits OSHA approval.
Trucking groups on both sides of the border cautioned that the mandate would seriously impact the supply chain – specifically the trucking sector, which already faces a severe driver shortage.
given the disease’s most troubling characteristic: its highly contagious and invisible mode of transmission, which cannot be so easily traced to the workplace where OSHA holds jurisdiction.
The American Trucking Associations reports the mandate will likely push out 37% of drivers at a time when they say 80,000 more are needed to help alleviate unprecedented disruptions in America’s supply chain.
The Canadian Trucking Alliance conservatively estimates that 20 percent of Canadian truck drivers crossing the border (22,000), and 40 percent of US truck drivers (16,000), would almost immediately exit the Canada-US trade system should the vaccination mandate take effect in January 2022.
The removal of tens of thousands of cross-border truck drivers would compound the domestic driver shortage problem. Research by Trucking HR Canada shows that currently, even before any vaccination mandates takes effect, nearly 20,000 job vacancies for truck drivers in Canada remain unfilled.
Lawyers in the U.S. say that when challenged in court, the toughest part for the Biden administration in justifying the mandate as part of the Occupational Safety and Health Act will be proving that a COVID cases are being transmitted through workplaces, thus making it a workplace hazard.
“OSHA must prove that a hazard exists in order to issue a citation where the employer is found to violate the standard,” Angelo Filippi, the leading business attorney at the Kelley Kronenberg law firm, which specializes in trucking and transportation law, told CCJ.
“Proof that a hazard exists will be difficult, especially where employers have complied with CDC guidelines to socially distance workers, require masks in common areas and establish strict sanitization procedures.”
“Where an incidence of COVID does occur among the workforce, proving that it occurred in the workplace as opposed to any other circumstance where exposure was possible is extremely difficult,” Filippi said.
“Should a citation be issued, the employer has a right to contest it and be heard before an administrative law judge,” Filippi continued. “An appeal to a federal circuit court could follow any adverse ruling.”
Fisher Philips, which also specializes in trucking and transportation law, told CCJ that OSHA ETS directives don’t always hold up in court.
“We expect industry groups and some states to mount court challenge to the OSHA Emergency Temporary Standard when it is issued,” said Fisher Philips attorney Kevin Troutman. “Specific rules and limitations apply to the issuance of an ETS and many such standards have been successfully challenged in the past.”
Full story here.