By: Andrew Petracca

The Occupational Safety and Health Administration recently issued an Emergency Temporary Standard Rule (“ETS”) requiring employers with more than one hundred employees to require vaccination or regular testing for those employees; while enforcement of the ETS is currently stayed pending litigation the ultimate outcome of that litigation is uncertain, and employers across the country would be wise to organize compliance efforts now. Fortunately, the ETS exempts independent contractors and several categories of employees, and comments from the Secretary of Labor about the trucking industry suggest that one exemption may apply to many last mile drivers.

The ETS expressly exempts employees who 1) don’t go to workplaces where others are present, 2) work from home, or 3) work exclusively outdoors.  In media interviews Marty Walsh, the Secretary of Labor, has stated that most truckers would be exempt “because they’re driving a truck, they’re in a cab, they’re by themselves, they wouldn’t be covered by this.” This comment is most likely applying the first exemption; because truckers do not report to workplaces where other people are present, but rather are alone in their truck cabs, they are exempt, or so Mr. Walsh seems to say.

While trucking and last mile delivery are different industries, the same logic applies to both, as most last mile delivery workers also spend their workdays alone on the road, not at a workplace with other people. Last mile businesses that use employees and want to take advantage of this exemption should review their practices and policies to ensure that their employee drivers meet these conditions.

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