The federal contractor mandate, the private employer mandate, and rules for land and ferry border crossings have started to clarify how the Biden Administration’s vaccination initiative might impact the transportation industry – although the final force and effect of these rules remains unclear.

The federal contractor rule (the Contractor Mandate) currently requires workers subject to qualifying federal contracts to be vaccinated by January 4. The requirements for vaccination are being rolled out by multiple agencies and apply differently to various contracts. A clear understanding of which requirement applies to workers providing direct or indirect services pursuant to a government contract is needed to navigate the Contractor Mandate. Although several parties have filed suit seeking an injunction against enforcement, no court has yet issued a nationwide injunction that would prevent the Contractor Mandate from taking effect. A federal court in Kentucky, however, recently issued a limited preliminary injunction temporarily halting enforcement in Kentucky, Tennessee, and Ohio.

The Occupational Health and Safety Administration published its Emergency Temporary Standard (ETS) containing the private employer mandate on November 5. While it lays out detailed procedures for vaccination or testing of unvaccinated employees working for an employer with 100 or more employees, the ETS was temporarily stayed on November 6. There are multiple challenges to the ETS, so the duration of the stay and whether the ETS survives will be determined in the courts. As of the date of publication, the Sixth Circuit was chosen via lottery to hear consolidated cases related to the ETS. The Sixth Circuit is viewed as generally business-friendly, although much will depend on the make-up of the three-judge panel randomly assigned to hear the case. That panel will likely first consider whether the temporary stay entered by the Fifth Circuit should be lifted or remain in place while the courts consider the validity of the ETS. Even if the ETS does go into effect, the Secretary of Labor has suggested that many drivers who work alone or provide services outdoors may be outside the scope of the rule and not subject to vaccination or testing. Despite this, employers should begin to prepare now to ensure that they can meet any deadline for workers subject to the ETS if the stay is lifted.

Finally, the Department of Homeland Security plans to require foreign nationals crossing the border at land and ferry crossings to provide evidence of vaccination starting in January 2022. While essential travelers have been able to cross the border without evidence of vaccination during the non-essential travel closure, this policy has changed following the opening of land and ferry ports to non-essential travelers. Details regarding this change are forthcoming.

These rules are quickly changing, so it is imperative that employers and contractors keep a close eye on developments to ensure that they are complying with the latest guidance.