The day after: Trucking ponders what vaccination mandate means for industry

(John Gallagher, FreightWaves’ Washington correspondent, also contributed to this article.)

In the first 24 hours of speculation regarding how President Biden’s COVID-19 vaccine mandate would impact the trucking industry, an unusual sentiment developed in some quarters: excitement.

Some of that positive anticipation was coming from fleets that had less than 100 employees because they would be excluded from the requirement that their workforces be vaccinated. Given that they are almost all suffering from the same tight market to hire drivers as big companies, they are seeing an opportunity to hire away drivers who are now working for larger fleets but who do not want to be vaccinated.

According to the rules laid out by President Biden Thursday, COVID 19 vaccines will be mandated or instead, weekly testing will be required for workers at companies with 100 or more employees

“A lot of the concerns I’ve heard from our members is the 100-employee threshold,” Kendra Hems, president of the New York State Motor Truck Association, told FreightWaves. Conceding that many drivers chose that career path “because they don’t like being told what to do,” Hems said she is hearing from some of the larger carriers in her organization that “they are concerned that they may see drivers leaving their companies for smaller ones who are not required to follow the mandate.”

It isn’t just a concern that drivers will go to a smaller trucking company, Hems added. She is also hearing anxiety that they might go to a sub-100-worker company that isn’t even in the trucking business.

More than 1,000 miles away, Shannon Newton, the president of the Arkansas Trucking Association, is hearing the same thing.

“I doubt that it is unique to trucking, but certainly the carriers that have less than 100 drivers are eyeing an opportunity to pick up drivers from larger employers,” Newton said. “I have received more than one message from employers of less than 100 employees who have said they might stand to benefit in attracting drivers.”

At the center of implementing the vaccination rule will be the Occupational Safety and Health Administration, a division of the Department of Labor. OSHA is responsible for setting and enforcing healthy working condition standards for private-sector employers and is the lead agency responsible for rolling out the vaccination requirement. Because OSHA’s rule will be enacted as an emergency temporary standard, it will avoid the mandatory public comment period and will be reviewed on an accelerated timeline.

In a series of tweets on Friday, David Michaels, an epidemiologist who ran OSHA for seven years under the Obama administration, said that, for the most part, the vaccination mandate actually will not need to be enforced by OSHA inspectors.

“OSHA standards are powerful tools to change conditions at thousands of workplaces, without OSHA ever having to inspect,” said Michaels, now a professor at the George Washington University School of Public Health.

“Most employers try to be law abiding. When OSHA issues a standard, their attorneys and HR staff tell them how to comply with the standard. In fact, compliance generally starts to happen when the rule is announced, even before it goes into effect. Further, in this case, I believe that many employers and workers will embrace this new standard.”

As for the Federal Motor Carrier Safety Administration, a spokesman said it will have no enforcement or guideline role in the rollout of the mandate.

Shannon Cohen, a partner at the trucking-focused law firm of Scopelitis, Garvin, Light, Hanson & Feary, said at this point, there are more questions than answers about the implementation of the vaccine rule.

Trucking companies aren’t likely to be set up now to obtain and store information on employee vaccination status, as well as how to handle requests for exemptions, Cohen said.

On top of that, she said, there will need to be answers to a basic question: Who is an employee? Cohen said a broad mandate could “sweep in” subcontractors, like independent owner-operators hired by a trucking company with more than 100 employees. Her current expectation is that the “sweep” will seek to take in as many people as possible.

And what will be the definition of the “workplace,” Cohen wondered. “We’ll be looking at whether the workplace is defined to be a single geographic workplace or the entire workforce.”

There might not be a person better situated to get the first signs of reaction among drivers to the vaccination mandate than Max Farrell, the CEO of Workhound. His company serves trucking companies by taking in anonymous feedback from drivers via text messages. Farrell told FreightWaves that he already was seeing some of the opposition in the feedback that has come across since President Biden announced the mandate Thursday afternoon.

Feedback in anything may have a tendency to be more negative than positive, not just in trucking. But rather than just hearing complaints, Farrell said some of the feedback he’s already seeing are some basic questions, like whether the vaccinations will be required, “and then broadly, what is the company doing?”

Others are making “bold statements like, ‘You’ll have to fire me and I won’t be the only one,’” Farrell said. But he’s also seeing drivers question why “we are still sharing our trucks with other drivers that haven’t been vaccinated.”

“So the sentiment goes both ways on this,” Farrell said.

That is going to heighten the need for communication, Farrell added. Companies that “control the message that ‘here is where we stand’ are the ones that are usually well received, because they share what they stand for,” Farrell said.

There are two great unknowns beyond the specifics of the mandate. The first is the percentage of truck drivers who are vaccinated and whether employers have so far even bothered to collect that information. The second is how resistant unvaccinated drivers will be to getting the shot in the face of the mandate.

A view that the percentage of vaccinated drivers is low was summed up by Tim Hindes, the co-founder and CEO of StayMetrics, which is now part of Tenstreet. “Anybody who talks to drivers in small groups will quickly find that there is a tone against the vaccine,” Hindes said. “There are a decent amount of drivers with an independent spirit and you don’t tell them how to run their life.”

A more optimistic view was expressed by Jeremy Reymer, the founder and CEO of DriverReach, which works with companies to streamline the application and retention process. While he conceded that the data on vaccinations is a giant hole in the knowledge base, he expressed optimism that the advanced age of the driver pool means that people more vulnerable to COVID-19 would have a high vaccination rate, reducing the potential for upheaval by the mandate.

The law firm of Venable LLP, in an email, said it was not too early for employers to take several steps.

Communication is one. “Notify employees of the vaccination/testing requirement,” it said in its note.

Paying for the testing that can substitute for vaccination is another key question, Venable said. “Employers should ask themselves now whether they will cover the cost of testing for employees who refuse to become vaccinated or if they will push that cost onto their employees,” the law firm wrote. “Some employers may want to forgo paying for testing as a method for encouraging vaccinations.”

And a big uncertainty: an exemption policy, which as of now has no guidelines. Venable said that information will be coming with the OSHA rule.

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