The Associated General Contractors of America has written two letters to federal regulators including one to Secretary of Labor Marty Walsh  expressing concern that President Joe Biden's recently announced COVID-19 vaccine mandate for employees of federal contractors and large employers could slow federal projects and exacerbate existing worker shortages.

The other letter was sent to the White House Safer Federal Workforce Task Force that will draft guidance for Biden's Executive Order on Ensuring Adequate COVID Safety Protocols for federal contractors, and to the Federal Acquisition Regulations Council that will write regulations to implement the mandate.

Biden's order also includes his request that the FAR council, the Workforce Task Force and the U.S. Dept. of Labor's Occupational Safety and Health Administration develop new guidance by a Sept. 24 deadline that includes a vaccine mandate, or weekly testing, for all employees of companies with 100 or more workers. Both letters express concern over issues surrounding liability for testing and enforcement under such a mandate and the effect such a mandate could have on the worker shortage in construction.

“Since the onset of the pandemic, AGC and its members have strived to ensure the safety and health of the greatest construction industry asset: its more than seven million employees,” wrote Stephen Sandherr, its CEO, in the letter. "As COVID-19 vaccines became available, AGC provided resources to its members about the vaccines, their safety, and their effectiveness. In addition, the association created an industry-specific public service message, tools to assist with employer vaccine policies, and more."

The letter to the Task Force and the FAR Council said the vaccine mandate for federal contractor employees could exacerbate the construction sector workforce shortage and significantly increase federal project costs and delays in meeting federal government infrastructure needs.

“The COVID-19 pandemic has taken its toll on the construction industry and its markets. The Delta variant of the virus has the vast majority of construction firms facing renewed economic uncertainty and hardship,” says the letter, also sent to the heads of several federal agencies, including the US Defense Dept. and the National Aeronautics and Space Administration. AGC quoted its own research from August that showed 89% of construction contractors are having a hard time finding craft workers, 88% of firms are experiencing project delays and 93% have been affected by rising materials prices.

AGC's letter to the FAR Council laments that despite its own efforts, and those of other industry groups and member firms, to promote or incentivize voluntary vaccination of construction workers, vaccines continues to face skepticism. An April 2021 study by the University of Pittsburgh and Carnegie Mellon University found that 46% of construction workers did not plan to get vaccinated.

“As such, AGC members justifiably fear that many of those workers, when faced with the choice between the vaccine and their job with a federal contractor, will quit and go to work for another contractor that does not have such a mandate,” says the letter. “Because the vast majority of the construction industry is comprised of small businesses of fewer than 100 employees, and so many firms are looking for workers, those workers could very well go elsewhere and avoid both this federal contractor mandate and the testing mandate" being put into effect for large employers by the U.S. Occupational Safety and Health Administration.”

It further asked the FAR Council and the Task Force to consider exempting federal construction that mainly occurs outdoors, where most work can be performed with a lower risk of spreading COVID-19. The letter to Walsh and Acting Assistant Secretary of Labor James Frederick warns that broadly applying an ETS from OSHA, as proposed by Biden's executive order, to all construction activities could impede the goal of increasing vaccination rates and could lead to significant supply chain delays for testing that could undermine efforts to protect those who are ineligible for vaccines.

In addition, AGC asks, in both letters, to neither hold prime contractors liable for subcontractor compliance, nor hold subcontractors liable for their own lower-tier subcontractor compliance with the mandate, and speculates that such a requirement could violate federal and state medical information privacy laws if prime contractors continue to be held liable for sub- and tier contractors' vaccination on sites. AGC also wants regulators to establish one U.S. agency, such as OSHA, to collect federal contractor employee vaccination disclosures from prime contractors and subcontractors. Firms would make "detailed disclosures of compliance" directly to that agency and be "solely liable" for them, both letters state.

The group also seeks a 75-day grace period for contractor vaccine compliance mandates to be applied to contracts.

According to AGC's letter to the Task Force and FAR Council, the Biden order now directs the FAR Council to amend the acquisition rule “and begin including the vaccine requirements to apply to new contracts, renewals, and exercises of options on or after October 15 ... a mere 21 days after the Task Force releases its guidance and draft contract clause” on Sept. 24.

This article was updated Sept. 20 to include information from AGC's letter to Labor Secretary Walsh and Acting Assistant Secretary Frederick dated Sept. 18, 2021.