Appeals Court Affirms Stay of OSHA COVID Vaccine/Test Mandate for Large Employers –  The U.S. Court of Appeals for the Fifth Circuit has issued a decision affirming its earlier temporary stay of the Occupational Safety and Health Administration’s Emergency Temporary Standard requiring large employers to ensure their employees are vaccinated against COVID or submit to weekly testing and masking in the workplace.

The court held that OSHA’s ETS has exceeded the agency’s authority under the OSH Act because the ETS is not specifically related to the workplace but to public health, this ETS is much broader than any prior use of the ETS process (most of which were nonetheless struck down by the courts), and there is no “emergency” to address because the pandemic has been around for two years and vaccines were approved over a year ago.

In addition, the court noted that this ETS likely exceeds Congress’s authority to regulate interstate commerce because the individual’s decision to forgo a vaccine is not “economic activity,” i.e., it is not an economic decision but a matter of personal health.  This same reasoning was used by the U.S. Supreme Court to strike down the mandate to purchase health insurance under the Affordable Care Act in 2012.

Thus, the appeals court ruled that the OSHA ETS remains stayed pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction, and directed OSHA to take no steps to implement or enforce the mandate until further court order.

Because similar petitions for review of the OSHA ETS have been filed by various parties in different appellate circuits throughout the country, the courts of appeal will hold a lottery on Tuesday, November 16 to determine which circuit court will take the lead in addressing the legal and constitutional issues presented in these cases.  The decision from that circuit will presumably end up in the U.S. Supreme Court before the end of the year.

Finally, the American Trucking Associations and ten other trade associations have filed a similar petition for review in the Fifth Circuit Court of Appeals seeking an injunction of the OSHA Emergency Temporary Standard.  That case has been consolidated with the case in which the stay was granted.

Argument Scheduled on Injunction of COVID Vaccine Mandate for Federal Contractors

The States of Kentucky, Ohio and Tennessee have filed suit in federal court in Kentucky against the COVID vaccine mandate for federal contractors and subcontractors.  That mandate covers up to one-fifth of all workers in the United States, and unlike the OSHA ETS for large employers, does not allow workers the option to submit to weekly COVID testing.

The complaint alleges the Safer Federal Workforce Task Force’s new guidance on workplace safety for federal contractors and subcontractors, which mandates that all covered contract employees on existing contracts must be fully vaccinated against COVID-19 no later than December 8, 2021 (now extended to January 4, 2022), is beyond the scope of the President’s power to regulate and violates the Administrative Procedure Act.

FMCSA Extends COVID Emergency Declaration through February 28, 2022 – The Federal Motor Carrier Safety Administration has extended the Emergency Declaration providing driver hours of service relief for transportation providing direct assistance in support of relief efforts related to the COVID-19 public health emergency through February 28, 2022.

Under the Emergency Declaration, motor carriers and drivers providing direct assistance in support of relief efforts related to the COVID-19 public health emergency are granted emergency relief from 49 CFR § 395.3, maximum driving time for property-carrying vehicles, for the following categories of shipments:

            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). 

Direct assistance does not include non-emergency transportation of qualifying commodities or 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.

FMCSA Extends State Authority to Recognize Expired CDLs, CLPs

Additionally, the Federal Motor Carrier Safety Administration has extended the authority of States to extend the validity of commercial driver’s licenses and commercial learner’s permits and to waive the 14-day waiting period and granted other waivers from certain regulations applicable to interstate and intrastate CDL and CLP holders and to other interstate drivers operating commercial motor vehicles.

This authority is now effective through February 28, 2022.

Thus, if a driver’s CDL or CLP is scheduled to expire on or before February 28, 2022, the driver or carrier should check with the State driver licensing agency to determine if the State will grant extended validity under this waiver.

FMCSA has also published a Notice of Enforcement Discretion that it will not take enforcement action through February 28, 2022 for the following:

  1. 49 CFR 383.23(a)(2) – a CLP or CDL holder operating a CMV with an expired license, but only if the CLP or CDL was valid on February 29, 2020, and expired on or after March 1, 2020. Enforcement discretion regarding this provision also applies to non-domiciled CLP or CDL holders, provided the holder’s legal presence is valid.
  2. 49 CFR 383.37(a) – a motor carrier that allows a CLP or CDL driver, including non-domiciled CLP or CDL holders with valid legal presence, to operate a CMV during a period in which the driver does not have a current CLP or CDL, but only if the CLP or CDL was valid on February 29, 2020, and expired on or after March 1, 2020.
  3. 49 CFR 391.11(b)(5) – a CMV driver (i.e., CLP, CDL, or non-CDL license holder) or motor carrier that allows a CMV driver to operate a CMV during a period in which the driver’s operator license has expired, but only if the driver’s license was valid on February 29, 2020, and expired on or after March 1, 2020, and the driver is otherwise qualified to drive under § 391.11.
  4. 49 CFR 391.45(b) – a CMV driver or motor carrier that allows a CMV driver to operate a CMV during a period in which the driver does not have the current medical certificate and any required medical variance as required by 49 CFR 391.45(b), but only if the driver has evidence of a valid medical certification or medical variance that expired on or after September 1, 2021. Drivers whose medical certification or medical variance expired before September 1, 2021 are not covered by this Notice of Enforcement Policy.
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