COVID-19 Prevention and Vaccination for America's Maritime Industry

As the Occupational Safety and Health Administration (OSHA) develops its COVID-19 emergency temporary standard (ETS) for workplaces, many states have already implemented their own emergency standards. Employers within America’s Marine Transportation System (MTS) - which broadly encompasses ports, terminals, and vessels operating on America’s navigable waterways—should be aware of these existing standards as well as what OSHA is likely to issue. And although an OSHA ETS may not apply to certain vessels operating in the MTS, it is still important for owners and operators of such vessels to be knowledgeable of the standards to ensure crewmembers remain healthy.

Each of the existing state standards requires employers to implement COVID-19 prevention programs. The primary elements of such programs include virus hazard assessments and various mitigation measures. Such programs are also strongly encouraged by OSHA and the U.S. Centers for Disease Control and Prevention (CDC). In addition to mitigations, those agencies also encourage employers to establish workplace vaccination programs to keep workers healthy and reduce time missed from work. Vaccine requirements may be included in an OSHA ETS either as mandates or (more likely) recommendations.

Additionally, the U.S. Committee on the Marine Transportation System (CMTS) COVID-19 Working Group, which recently held a public meeting to address vaccine distribution and prioritization for the MTS workforce, is encouraging MTS stakeholders to include COVID-19 vaccinations in their workplace wellness programs.

COVID-19 Prevention Programs

As OSHA explains in its recent updated workplace guidance, implementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work. MTS employers should consider various virus mitigation measures including physical protections and distancing, as well as implementing workplace-level infection control plans. OSHA guidance specifies sixteen elements of “[t]he most effective COVID-19 prevention programs,” ranging from administrative steps like designating a workplace coordinator for pandemic concerns to implementation of a “hierarchy of controls” to prevent infections. These recommendations are consistent with existing state COVID-19 ETS and likely a preview of what to expect when OSHA issues its ETS.

Any prevention program should include worker education and training; a system for effective COVID-19-related communications; isolation or quarantine of potentially infected workers; enhanced cleaning or disinfection processes; and protocols for COVID-19 screening and testing.

The CDC has issued guidance for maritime pilots, cruise ships, and cargo ships that may be used by MTS employers to supplement their COVID-19 prevention program planning. Such guidance may also be useful in complying with the expected OSHA ETS. Because OSHA has not, thus far, issued guidance specific to the MTS workforce.

COVID-19 Workplace Vaccinations and Prioritization for the MTS Workforce

To date, three COVID-19 vaccines have been authorized under “emergency use authorizations,” and several other vaccine candidates are being evaluated. These advances are an important, positive step toward curbing the pandemic and helping the country return to normalcy. Encouraging employees to get vaccinated will minimize an employer’s COVID-19 risks.

On March 3, 2021, CMTS held a public meeting to address vaccine distribution and prioritization for the MTS workforce, as well as the need for MTS stakeholders to include COVID-19 vaccinations in their workplace wellness programs. The discussion was led by Commander Alice M. Shumate, who is a commissioned officer in the U.S. Public Health Service, as well as a member of the CDC Vaccine Task Force and the Director of the Center for Maritime Safety and Health Studies at the National Institute for Occupational Safety and Health.

COVID-19 Workplace Vaccination Programs

Many employers view the COVID-19 vaccines as a significant step to returning to pre-pandemic business operations. Consequently, MTS employers should be evaluating the development and implementation of workplace vaccination programs. Such programs should either require or strongly encourage employees to get vaccinated, and may allow for on-site vaccination. In fact, Commander Shumate recommended multiple times during the March 3 CMTS meeting that mariner unions and shore-based MTS employers should establish workplace vaccination programs that allow for on-site vaccination. Although these programs will rely on timely vaccine distribution, federal agencies like CDC, as well as local health departments, have issued guidance on how to navigate these concerns as well as practical and compliance-related issues that are expected to arise with the implementation of such vaccination programs.

The planning process for implementing a robust MTS COVID-19 vaccination program should include input from management, human resources, employees, and labor representatives, when appropriate. Several necessary preliminary tasks, as noted by Commander Shumate, include obtaining senior management support, identifying an internal vaccine coordinator, and considering local guidance from public health authorities, hospital systems, and pharmacies.

Establishing a workplace vaccination program offers many benefits to both MTS employers and employees, including keeping the MTS workforce healthy, reducing illness-related absences, reducing time missed from work to get vaccinated, and improving productivity and morale. If an MTS workplace is unable to offer COVID-19 vaccinations on site, or if the applicable jurisdiction has determined that the workplace is not a suitable location to offer vaccines, MTS employees should still be encouraged to seek COVID-19 vaccinations in their communities. MTS employers can provide them with information about how and where they can get vaccinated.

Vaccine Prioritization for the MTS Workforce

Though not yet widely available, federal authorities expect COVID-19 vaccines to be accessible to all who wish to receive them by late spring to early summer 2021. In the meantime, state and local jurisdictions largely follow the Advisory Committee on Immunization Practices’ (“ACIP”) recommendations on vaccine prioritization. ACIP’s recommendations call for  “essential workers” in the transportation and logistics sector, which broadly includes the MTS workforce, to be vaccinated as part of phase 1c. Phase 1c is widely expected to begin in April 2021.

During the CMTS meeting, Commander Shumate explained that numerous stakeholders have petitioned ACIP to revise its prioritization recommendations to include the MTS workforce in phase 1b or otherwise sub-prioritize mariners and port workers to increase the speed at which they can be vaccinated. However, she noted that “ACIP will not reconsider its prioritization model” because its recommendations are general best practice guidelines designed to assist state and local jurisdictions in developing their own, more detailed, prioritization schemes.

Commander Shumate encouraged MTS stakeholders to lobby state and local jurisdictions for increased vaccine prioritization. CMTS representatives noted that the committee is finalizing two white papers that will soon be available on its website. One of the white papers will address the need to prioritize mariners in vaccine distribution planning while the other will address the need for prioritizing port workers. These white papers can be used by stakeholders when advocating their position on prioritization to state and local jurisdictions.

More Information

According to President Biden’s January 21, 2021 executive order, OSHA must determine, and if necessary, publish a COVID-19 ETS by March 15, 2021. Notification of publication will likely be available on OSHA’s website. Additionally, during the March 3 CMTS meeting, Commander Shumate noted that her presentation slides will be made available on CMTS’s website.

Finally, CMTS encourages mariners from all segments of the U.S. maritime industry to take a ten-minute, anonymous, online survey, titled  “Mariner Mental Health Needs during COVID-19,” so that the industry can gain insights on how the COVID-19 pandemic has affected mariners, particularly with regard to mental health. Read more and take the survey, here.

Austin Echols is an associate in the Houston office of Baker Botts LLP. His practice focuses on a range of environmental and health and safety issues, including within the maritime industry. Prior to practicing law, Austin served in the USCG as a waterfront facility inspector and pollution investigator. Austin continues to serve in the USCG Reserve as a Legal Assistance Attorney for the Eighth Coast Guard District.

Greg Dillard co-leads Baker Botts LLP’s incident response practice, focusing on safety and compliance for companies engaged in operating onshore and offshore oil, gas, and chemical facilities across the upstream, midstream, and downstream energy sectors. On any given day, he is an on-site responder, investigator, problem solver, innovator, counselor, and crisis manager.