The U.S. Occupational Safety and Health Administration (federal OSHA) has reportedly threatened to repeal several states’—Arizona, South Carolina and Utah—state OSHA plans because they have not adopted federal OSHA’s COVID-19 healthcare emergency temporary standard (ETS) issued on June 17. State plans are federal OSHA-approved workplace safety and health programs operated by individual states or U.S. territories. There are currently 22 state plans covering both private sector and state and local government workers. When federal OSHA issues a new standard, state plans usually have six months to adopt the new standard. State plans, however, have only 30 days to adopt an ETS. This situation between federal OSHA and state OSHA plan states could foreshadow how federal OSHA handles disputes that may be yet to come when it issues its broader COVID-19 Testing ETS impacting private employers with 100 or more employees.
On October 19, AGC met with the White House Office of Management and Budget (OMB) to share a host of concerns about the U.S. Occupational Safety & Health Administration’s (OSHA) draft emergency temporary standard (ETS). OSHA sent the draft ETS—the details of which remain unknown—to OMB for review on October 12, a signal that a final ETS could be issued within a matter of days or weeks. The OSHA ETS will require employers with 100 or more employees to ensure their workers are fully vaccinated against COVID-19 or tested for infection on at least a weekly basis. It should be noted, however, that AGC engaged outside legal counsel weeks ago to provide a legal memorandum that identifies the standards OSHA must meet to justify using the ETS process instead of the normal administrative procedures typically employed. After AGC reviews the final ETS, the association will measure it against its legal memorandum to determine whether a court challenge is warranted and evaluate our chances for success. No legal challenge can be successfully mounted until the ETS is released in final form.
AGC Seeks Meeting with White House; Engaged Legal Counsel
AGC continues to wait for more information from OSHA on an emergency temporary standard (ETS) expected to require employers with 100 or more employees to ensure their workers are fully vaccinated against COVID-19 or tested for infection on least a weekly basis. There is little clarity as to exactly when agency will formally issue this ETS testing mandate or when it will take effect. AGC has also retained outside legal counsel—and is asking some of the brightest legal minds within the industry—to help it review its legal options. Previously, AGC conveyed its serious reservations about such an ETS. The association 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.
On Sept. 24, the Safer Federal Workplace Task Force issued guidance on the president’s executive order calling for a broad vaccination mandate for direct federal contractors. The guidance raises many questions without clear answers, including but not limited to how the mandate will be enforced and employer liabilities stemming from the mandate; the precise (but clearly broad) applicability of the mandate to federal contractors’ employees (whether or not they are working directly on a federal project); and whether there will be provisions for testing employees who do not receive exemptions for medical or religious reasons. AGC has retained outside legal counsel—and is asking some of the brightest legal minds within the industry—to help it review its legal options. AGC cannot, however, complete its review until the FAR Council issues a contract clause, which would, unlike recent guidance, be legally binding. The association has directly spoken with the White House Office of Management and Budget, and key federal construction owner agencies to explain the significant disruptions this mandate will cause the construction of federal projects, among other things.
Linbeck Group was honored for having the nation’s best construction safety and wellness plan in 2020 by the Associated General Contractors of America. The association, which oversees the Willis Towers Watson Construction Safety Excellence Awards, an annual ranking of construction safety programs, noted that 43 other companies were also selected as winners for the quality of their safety programs.
Apply by Wednesday, October 20, 2021!
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 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.