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 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.