Guidance Expected as soon as September 24

On September 18, AGC put forth a bevy of concerns for OSHA to consider as the agency works on regulations requiring all employers with 100 or more employees to ensure their workforce is either fully vaccinated against COVID-19 or mandate that any workers who remain unvaccinated produce a negative test result on at least a weekly basis. AGC and its members have encouraged voluntary COVID-19 vaccination for their employees since the vaccines became available. The construction industry has proven throughout the pandemic that it can work in a safe and essential manner. OSHA has previously deemed many construction activities as low exposure risks. AGC is reviewing viable legal options in the event the regulations put forth by OSHA exceed the agency’s authority.

The chief executive officer of the Associated General Contractors of America, Stephen E. Sandherr, issued the following statement in reaction to the announcement today that the House Republican leadership will encourage its party members to vote against the Bipartisan Infrastructure Bill:

ORLANDO – Louisiana, Mo.’s Champ Clark Mississippi River Bridge replacement was the most significant construction project of 2020, the Associated General Contractors of America announced today. As a result, the project’s contractor, Massman Construction Co., received the association’s Construction Risk Partners Build America Grand Award, as well as the award for the best design-build civil and a Marvin M. Black Partnering Excellence Merit award.

The Associated General Contractors of America and Procore Technologies, Inc. (NYSE: PCOR), a leading provider of construction management software, are launching a new scholarship program to assist African American and disadvantaged minority students who are studying construction fields at historically black colleges and universities, or HBCUs. The new scholarship is being made possible thanks to a $250,000 challenge gift from Procore that the association will now fundraise to meet and exceed.

The National Labor Relations Board (NLRB or Board) must reconsider its newest ruling on the rights of certain employees to access private property to engage in activity on behalf of a union, the U.S. Court of Appeals for the District of Columbia Circuit directed in an August 31, 2021, decision in NLRB v. Local 23, American Federation of Musicians. If the Board changes its holding on remand, it will be the third time the policy on access to private property has changed in the last 10 years. This case comes to the NLRB at a time opportune for change.

Construction employment in August remained below the levels reached before the pre-pandemic peak in February 2020 in 39 states, according to an analysis by the Associated General Contractors of America of government employment data released today. Association officials urged the House of Representatives to quickly pass the bipartisan infrastructure bill to avoid further cutbacks in construction activity and jobs.

On Sept. 13, House Democrats released legislative text detailing significant tax increases to pay for their upwards of $3.5 trillion human infrastructure bill. Those tax increases include but are not limited to: (1) increasing the top rate to 26.5% from 21% for corporations with incomes of $5 million; (2) creating a new 3% surtax on individuals/pass-through businesses with modified adjusted gross income exceeding $5 million; (3) increasing the top tax rate for pass-through businesses to 46.4 percent (39.6 percent top individual tax bracket + 3.8 percent net investment income tax (NIIT) + 3 percent surtax); (4) increasing the top capital gains rate to 31.8 percent (25 percent statutory rate + 3.8 percent NIIT + 3 percent surtax); and (5) capping the maximum Section 199A qualified business income deduction for high income individuals. The proposal also includes registered apprenticeship requirements, among other things, for entities to receive certain construction development tax incentives largely used in private construction markets. AGC opposes these proposals and will fight their enactment, as they would hinder economic recovery and growth.

The Administration released general details of President Biden's COVID-19 Action Plan and two Executive Orders that will require all federal employees and federal contractors and subcontractors to be vaccinated against COVID-19. The Executive Order impacting federal contractors requires the Safer Federal Workforce Task Force provide further guidance and a draft contract clause by September 24th. The Federal Acquisition Regulation will be amended to include these requirements in a contract clause in federal solicitations and contracts. Direct federal contracts can expect this new contract clause to appear in all covered federal contracts, extensions, and renewals by October 15th. The E.O. essentially requires all direct federal contractor and subcontractors to be vaccinated, without the option of submitting a weekly test. The E.O. requires the Task Force to define key terms like “contractors workplace locations.” These types of definitions will be key in understanding the breadth of the vaccination requirements. However, everything that AGC has heard from the White House and Task Force is that the vaccine mandate will likely apply to all employees of federal contractors and subcontractors, with limited exceptions.

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.