FMCSA Extends COVID Emergency Declaration Through November 30, 2021
The Federal Motor Carrier Safety Administration has extended its COVID-related Emergency Declaration through November 30, 2021. In addition, the agency has extended the scope of the hours of service and other exemptions under the declaration to include gasoline, diesel, jet fuel, and ethyl alcohol, as well as supplies to assist individuals impacted by the consequences of the COVID-19 pandemic (e.g., building materials for individuals displaced or otherwise impacted as a result of the emergency).
FMCSA’s declaration provides for regulatory relief for commercial motor vehicle operations providing direct assistance supporting emergency relief efforts intended to meet immediate needs for:
(1) livestock and livestock feed;
(2) medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19;
(3) vaccines, constituent products, and medical supplies and equipment including ancillary supplies/kits for the administration of vaccines, related to the prevention of COVID-19;
(4) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants;
(5) food, paper products and other groceries for emergency restocking of distribution centers or stores;
(6) gasoline, diesel, jet fuel, and ethyl alcohol; and
(7) supplies to assist individuals impacted by the consequences of the COVID-19 pandemic (e.g., building materials for individuals displaced or otherwise impacted as a result of the emergency).
Motor carriers and drivers providing such relief are exempt from the provisions of 49 CFR Parts 390-399, including the hours of service regulations, but would still be subject to controlled substances and alcohol use and testing requirements (49 CFR Part 382), the commercial driver’s license requirements (49 CFR Part 383), financial responsibility (insurance) requirements (49 CFR Part 387), hazardous material regulations (49 CFR Parts 100-180), and applicable vehicle size and weight requirements.
According to the declaration, “direct assistance” does not include routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency declaration. To be eligible for the exemption, the transportation must be both (i) of qualifying commodities and (ii) incident to the immediate restoration of those essential supplies.
The exemption is in effect immediately and will remain in effect until the emergency has ceased or 11:59 p.m. on November 30, 2021, whichever is earlier.
President Issues Mandate for COVID Vaccinations for Many Workers
On September 9 President Biden issued a sweeping mandate that will require most federal government employees and many private sector workers to be vaccinated for the COVID-19 virus. The announcement left many questions unanswered, however.
First, the President directed the Occupational Safety and Health Administration to develop a rule that will require all private sector employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard to implement this requirement. According to the White House, this requirement will impact over 80 million workers in private sector businesses with 100 or more employees.
The White House did not say when the rule will be published or when it will go into effect. Nor did the statement indicate a deadline for when all covered workers must be vaccinated or submit to weekly testing. There were also no details on which vaccines and/or tests would be acceptable under the rule.
Finally, the announcement did not address whether a person with natural antibodies due to having already had COVID would be covered under the rule, or whether there would be any exemptions for religious objections or medical conditions.
For government contractors, the President signed an Executive Order directing all federal agencies to include provisions in any new contracts, solicitations for bids, or contract extensions, to require contractors and subcontractors to comply with COVID-related guidance issued by the Safer Federal Workforce Task Force.
The current contractor guidance does not mandate that all contractor employees be vaccinated or submit to weekly testing. The guidance states: “Federal agencies need to ask about the vaccination status of Federal employees and onsite contractors—employees and onsite contractors must sign an attestation confirming their vaccination status, or they will be treated as not fully vaccinated for purposes of safety protocols. Federal agencies also must establish a program to test not fully vaccinated Federal employees and onsite contractors weekly or twice-weekly.”
The Executive Order, however, states that by September 24, 2021, the Safer Federal Workforce Task Force shall, as part of its issuance of Task Force Guidance, provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply to contractor and subcontractor workplace locations and individuals. This new guidance will presumably include a vaccine mandate.