On July 9, President Biden unveiled his Path Out of the Pandemic Plan, which implements a six-pronged national strategy to combat the surge of the Delta variant. One of the key aspects of the plan is a requirement that OSHA issue an Emergency Temporary Standard (ETS)—reportedly within a matter of weeks—that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. While there are few details to make a completely informed decision on the potential impacts of the ETS on the construction industry, AGC has communicated concerns to OSHA as it relates to the practical impacts such a mandate may have on the industry amidst a workforce shortage, issues relating to controlling contractor responsibilities and recordkeeping obligations, availability of test kits, and laboratory capacity for analyzing the anticipated increase in testing that may result from such a mandate, among other things.

All Employers 100+ Must Ensure Vaccinated or Tested Weekly

On July 29, the Federal Acquisition Regulation (FAR) Council issued a proposed rule to add and expand Buy American Act requirements on direct federal construction projects (not federal-aid transportation projects). The proposed rule increases the domestic content required to 60% with increases in two years to 70% and then 75% in five years. It permits acceptance of products and construction materials up to six years after publication of the rule which are unavailable at an acceptable cost. It also states that a higher price preference may be identified for critical end products and construction materials. The rule was initiated as a result of President Biden’s Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers. White House staff briefed AGC on the direction of the proposed rulemaking and AGC gave feedback to inform the FAR Council’s process. AGC will provide feedback on how this rule should not exacerbate continuing construction material shortages and price spikes.

On June 10, U.S. Labor Secretary Marty Walsh announced that the long-anticipated federal COVID-19 Emergency Temporary Standard (ETS) from the Occupational Safety and Health Administration (OSHA) will only apply to healthcare settings. This represents a significant change from early reports that the new standard would apply to a broad range of industries, including construction. The fact that the ETS only applies to healthcare settings is a significant victory for AGC and the industry. AGC led a broad coalition effort to question the need for the standard, considering the widespread adoption of coronavirus vaccines and the fact the construction industry has been operating, safely, since the start of the pandemic. This announcement comes just a few weeks after AGC successfully convinced OSHA to suspend enforcement of the agency’s recordkeeping regulations related to adverse reactions to COVID-19 vaccines, whether required or recommended.

In April, the Occupational Safety and Health Administration (OSHA) issued updated COVID-19 FAQs related to contractor vaccine policies. The FAQs established that when vaccination is mandated by employers, adverse reactions related to employees receiving the vaccine are a recordable injury/illness, and, in some cases, may be recordable even when contractors only recommend, or encourage, employees receive the vaccine (for background, click here). On May 12, AGC put forth its concerns to OSHA. On May 21, OSHA issued a single FAQ stating that “DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.” This is a significant win not only for construction, but all other industry sectors required to maintain an OSHA 300 Log.

Annual Survey by HCSS and Associated General Contractors of America Finds Drivers and Passengers are at Greater Risk of Injury and Death in Work Zone Crashes As Officials Urge Drivers to Be Careful this Summer

In late April, the Occupational Safety and Health Administration (OSHA) issued updated COVID-19 FAQs related to contractor vaccine policies. Consistent with the Center for Disease Control and Prevention (CDC) messaging, contractors have been recommending—and in some instances mandating—employees receive the vaccine. OSHA’s new interpretation of recordability stemming from adverse reactions to the COVID-19 vaccine when contractors mandate employees take the vaccine, or simply recommend it, has the potential to deter vaccination efforts. AGC is not opposing the requirement for contractors that—at their own discretion—mandate employee vaccination to record adverse reactions on their OSHA 300 Log. However, AGC is concerned when construction owners or clients pass the mandate down to contractors to vaccinate their employees.

On April 30, AGC and its coalition partners met with the White House Office of Management and Budget (OMB) to raise concerns about and question the need for a federal Occupational Safety and Health Administration (OSHA) COVID-19 emergency temporary standard (ETS) 14 months into the pandemic. AGC highlighted the conflicting messages delivered by the administration. On the one hand, the administration continues to highlight the significant decline in case rates, hospitalizations, and great progress towards ending the pandemic through vaccination efforts. On the other hand, OSHA remains determined to issue an ETS to address what it calls grave dangers posed to workers, despite construction remaining an OSHA-identified low exposure industry. AGC and its partners also stressed the importance of the Centers for Disease Control and Prevention (CDC) and OSHA aligning their respective protocols if an ETS is to be issued. Confusion remains among employers and employees alike due to conflicts between the April 27 CDC guidance and OSHA’s January 29 guidance. The CDC guidance allows for different protocols for the vaccinated versus unvaccinated. The OSHA guidance provides that the vaccinated and unvaccinated should be treated the same and follow established mask and social distancing requirements.

AGC of America and our survey partner, HCSS are asking all highway and transportation members involved in highway construction work to evaluate the state of highway work zone safety by completing this annual survey. We want to collect information on the number, severity, impacts and potential solutions to highway work zone crashes. Our intention is to use the information we collect from this survey as the main focus of a media and public education campaign we will launch the week before Memorial Day and the traditional start of the summer driving season.