Bloomberg Law
Oct. 18, 2021, 9:55 AM

Punching In: Mapping Out Legal Challenges to Biden Vaccine Rule

Chris Marr
Chris Marr
Staff Correspondent
Ian Kullgren
Ian Kullgren

Monday morning musings for workplace watchers

OSHA Rule Lawsuit Landscape | Classification Issues in Port Trucking

Chris Marr: Republican governors and state lawmakers pushing back against workplace vaccine mandates are setting the stage for legal clashes—most notably in Texas—as a federal standard requiring vaccines or routine testing for tens of millions of workers nears release.

White House review of the Occupational Safety and Health Administration’s emergency rule continues, with stakeholder meetings scheduled for early this week. Deputy Labor Secretary Julie Su said Oct. 14 the measure would be released within a few weeks.

Legal challenges are a given. The bigger question is how many will be filed, and where.

Governors’ orders and legislative activity in Arkansas, Florida, Ohio, and Texas hint at where the most immediate legal challenges could arise, on top of earlier threats of litigation stretching from Arizona to Georgia.

Texas Gov. Greg Abbott (R) made the most aggressive policy response so far. His Oct. 11 executive order requires employers to provide broad exemptions to vaccine mandates that could make enforcement more difficult, and the Texas House and Senate are considering bills to answer Abbott’s call to pass similar requirements into law.

Florida Gov. Ron DeSantis (R), a possible 2024 White House candidate, suggested the state legislature should bar employers from firing workers over vaccination requirements.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

Many employers already have implemented vaccine requirements, and courts have largely upheld employer mandates in a few dozen employee lawsuits this year.

But the impending release of OSHA’s standard, which Biden wants to apply to businesses with 100 or more employees, is expected to set off a new round of litigation with nationwide impact.

Opponents are likely to challenge OSHA’s authority to implement such a sweeping rule. Lawmakers at GOP-majority legislatures in Texas and elsewhere also are weighing options for undercutting federal vaccine mandates in ways that might escape being directly preempted by the federal OSHA regulation—if it survives court scrutiny. Such laws could in turn face legal action.

“We’re not saying that you can’t have” a vaccine mandate, said Texas state Rep. Tom Oliverson (R), sponsor of H.B. 155, which proposes to match Abbott’s vaccine exemptions order.

His bill would require employers to grant exemptions to vaccine mandates for medical reasons, if one has acquired immunity from a prior Covid-19 infection, or for reasons of “conscience,” including religious and other objections.

“What we’re saying is that in the state of Texas, that if you want to enforce that and have it binding, that you have to offer these three exemptions,” Oliverson added. “And if you do that, then no problem.”

The Texas State Capitol building is pictured in July.
Photographer: Sergio Flores/Getty Images

Ian Kullgren: While America’s supply chain crisis has focused attention on shipping backlogs at ports, there’s another problem festering on land—short-haul truckers are moving on after years of poor working conditions and what they view as misclassification as independent contractors, worker advocates and attorneys say.

The drivers typically make short trips, picking up cargo at the docks and ferrying it to local warehouses, where it’s sorted and sent across the country. Companies classify these drivers as independent contractors, paying them by the load instead of hourly—and require them to pick up their fuel and repair costs along with the cargo shipments that help power the economy.

Many of the drivers have had it, in large part because they’re not paid for time spent waiting in line at dysfunctional ports.

The practice is common even in the highly regulated state of California, home to major ports in Los Angeles and Long Beach. Worker advocates have estimated that 65% of the nation’s port truckers are misclassified.

In a statement after discussing supply chain woes with President Joe Biden and port officials last week, Teamsters President James P. Hoffa said “nothing would change” until the workers are treated as employees.

“If people can make an adequate wage with good working conditions, they will come to work,” Hoffa said.

Container ships await entry to the Port of Long Beach, Calif., on Oct. 9.
Photographer: Tim Rue/Bloomberg

Port drivers meet multiple legal tests to be considered employees, and courts routinely find that individual workers have been cheated out of overtime and other benefits, said Julie Gutman Dickinson, a partner at Bush Gottlieb who has represented the Teamsters’ port division. But without greater enforcement, she said, it’s easy for companies to get away with repeat offenses.

“It is really just mind boggling in this day and age in this country, in progressive California, that we have modern-day sharecroppers,” Dickinson said.

The California labor commissioner’s office in recent years has awarded more than $50 million to 500 truckers who said they were misclassified, the Los Angeles Times reported. And state lawmakers in California have tried to at least make the problem known through public listing of offenders.

Just last week, trucking company XPO Logistics Inc. agreed to pay $30 million to settle class actions filed by drivers seeking back wages.

But the settlement didn’t require the company to start classifying drivers as employees.

“In the ports, it’s emblematic of the problem,” said Cathy Ruckelshaus, general counsel and legal director for the National Employment Law Project. Even if truckers want to work, she said, supply chain problems can make it near impossible without employment protections.

“They’re in such a precarious place that any little thing can push them over into not being able to make their payments,” she said.

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We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.

To contact the reporters on this story: Chris Marr in Atlanta at; Ian Kullgren in Washington at

To contact the editors responsible for this story: John Lauinger at; Martha Mueller Neff at