As employers wait to learn the details of emergency federal standards mandating businesses add COVID-19 vaccination and testing requirements, the construction industry is preparing as much as it can.
Ordered by President Joe Biden on Sept. 9, the Occupational Safety and Health Administration is working on an emergency temporary standard (ETS) that will require federal contractors and subcontractors to get vaccinated, and require employers with 100 or more employees to require workers get vaccinated or undergo weekly testing "Along with that standard, Biden's executive order requires that all federal contracts add a clause requiring contractors to follow Safer Federal Workforce Task Force guidelines, which are expected to be released later this month."
“Until the task force issues guidance, it is unclear what will be required,” said Ben Brubeck, vice president of regulatory, labor and state affairs for the Associated Builders and Contractors. “However, we are interested in whether [Biden’s executive order] will require vaccines only or offer a routine testing option, among a number of other unresolved questions of concern to the federal contracting community. Because we have a vested interest in how this guidance will affect our federal contractor members, ABC plans to engage with the task force before the guidance is issued. Additionally, ABC plans to participate in the Federal Acquisition Regulatory Council’s rulemaking process should the Director of the Office of Management and Budget approve guidance provided by the task force.”
Brian Turmail, vice president of public affairs and strategic initiatives at the Associated General Contractors of America, said the group would review the recommended changes for contractors “to ensure the measure improves workplace health and safety and does not impose undue burdens or disruptions on contractors performing federal work.”
The federal standards are likely to face legal challenges from states such as Montana, Texas and Florida, where officials have banned vaccine mandates. And OSHA’s emergency standards — which can only remain in place for six months without a permanent rule being added — will likely need to account for religious and disability accommodations, as well as the variables specific to different industries like construction, according to legal experts.
Even with an evolving situation, attorneys from the law firm Dorsey & Whitney LLP are recommending employers begin preparing to implement the new federal mandates. They set out some expectations and guidance during a webinar about the vaccine mandate on Sept. 14.
“As we all know, passion runs high on this issue in both directions,” said Jillian Kornblatt, a partner in Dorsey’s labor and employment group. “So I think letting employees have a little time to get their heads around that this will be the new reality is a good idea sooner than later.”
The best thing companies can do for now is encourage their employees to get vaccinated and educate them on the federal rules that are coming, according to Gabrielle Wirth, also a partner at Dorsey. Even in states that have banned vaccine mandates, employers can take other action to protect against COVID, such as requiring masks or testing, she added.
For now, it’s a good idea for companies to draft a vaccine or testing policy in advance, and to ensure vaccine requirements include potential exemptions for religious or disability accommodations, according to Michael Droke, another Dorsey partner.
For companies that aren’t federal contractors or have fewer than 100 employees, the attorneys recommend planning for ways a company could still be affected by the mandate, such as if they have a client that is a federal contractor, or if they will face new rules from companies they deal with, such as a client that requires anyone on-site to be vaccinated. Requiring vaccines may end up being the easier option in the long term, according to Kornblatt.
“The mandatory vaccine option is simple. It may be hard for a lot of people to accept, but it’s easy,” she said. “The weekly testing may be more palatable to a lot of employees, but it’s going to require a lot of planning.”
In the meantime, employers can look for clues in how the new ETS may work in the COVID-19 ETS OSHA published in June for healthcare and related industries, says Katie Ervin Carlson, a senior attorney at Dorsey. In hundreds of pages, the document laid out the types of businesses that were included and how to count employees such as part-time and seasonal workers. She said it’s likely the new ETS will include similar specifications.
“We won’t have to play these guessing games going forward,” Ervin Carlson said.