New rules

In September 2021, the White House took significant steps aimed at reducing the spread of Covid-19 when it instructed U.S. Occupational Safety and Health Administration (OSHA) to develop and implement a Covid-19 Emergency Temporary Standard (ETS) for employers with 100 or more employees, and also issued Executive Order 14042 on Ensuring Adequate Covid Safety Protocols for Federal Contractors. Between these two directives, a significant number of American companies will be required to ensure that their employees are vaccinated against Covid-19, with few exceptions. The construction industry is not exempt.

Construction employers should take note and be prepared to act quickly when the new requirements take effect. While, as of this writing, OSHA has not implemented the new ETS, it has published the vaccination requirements for federal contractors.

Covid-19 ETS for employers with 100 or more employees
The Covid-19 ETS will require every employee of an employer with 100 or more employees to either be fully vaccinated or to submit to weekly Covid-19 testing. Until OSHA publishes the Covid-19 ETS for employers with 100+ employees, the existing Covid-19 ETS for healthcare workers sheds some light on what employers can expect.

The healthcare ETS requires employers to provide employees reasonable time off and paid leave to receive the vaccination, as well as for any side effects after vaccination. For employees who require a Covid-19 test to comply with the ETS, the employer must provide it at no cost to the employee.

The healthcare ETS imposes significant administrative burdens on employers. Employers must prepare a written plan to address the hazards of Covid-19 in the workplace and minimize the risk of transmission in the workplace. Employers must also maintain a log of every employee who becomes infected, including the employee’s name, position, contact information, work location, date that the employee was last at the workplace, date of the positive test or diagnosis of Covid-19, and the date of the employee’s first Covid-19 symptom. These records must be made available upon request, with personal information redacted. The healthcare ETS also includes a significant employee training requirement, including discussion of the use of protective measures, risk factors, and employee rights.

OSHA is authorized to impose penalties of up to $13,653 for serious offenses; the White House appears to intend that OSHA will use that authority to its full extent to enforce the ETS. OSHA has already issued more than 100 citations for Covid-19 related violations in worksite fatality cases. The ETS is likely to ramp up those numbers.

Federal contractor employees must be vaccinated
Executive Order 14042 on Ensuring Adequate Covid Safety Protocols for Federal Contractors seeks to ensure that contractors “provide adequate Covid-19 safeguards for their workforce …” Beginning on November 14, 2021, every new federal contract or contract-like instrument must include a clause stating that the contractor will follow guidance of the Safer Federal Workforce Task Force (Task Force Guidance). While the term “contract or contract-like instrument” brims with legal nuance, in general, the vaccination directive will apply to the vast majority contracts with the federal government, with the exception of grants, contracts with Indian Tribes, employees performing outside the US, and subcontracts solely for the provision of products. The clause will be included in the Federal Acquisition Regulation (FAR) by October 8, 2021. It must be flowed down to subcontractors at every tier.

All federal contractor employees, as well as the employees of all subcontractors at any tier, must be fully vaccinated against Covid-19 by December 8, 2021. Importantly for the construction industry, the vaccination requirement applies to outdoor workplaces. It also applies to employees working remotely, even if they never set foot in the office or on the project site.

The vaccination requirements apply to anyone “working on or in connection with” a federal contract, including back-office personnel and others who “perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract…”. Think human resources and accounting, for example. Moreover, at any workplace at which contractor employees are working on or in connection with a federal contract, all contractor employees at that workplace must be vaccinated – even those with no connection to a federal contract.

Employees must provide proof of vaccination in the form of an approved document, which are limited to a copy of the employee’s vaccination record from a doctor or pharmacy; a copy of a CDC vaccination card; a copy of the employee’s medical records documenting vaccination; a copy of immunization records from a public health system; or a copy of other official documentation including the name of the vaccine received, the date(s) it was received, and the name of the person who administered the dose(s). Employers can accept digital copies of such records. Antibody test results, previous Covid-19 infection, or attestation of vaccination do not meet the documentation requirement.

Are there exceptions?
The Task Force Guidance for federal contractors allows exception to the vaccination requirement on the basis of an approved medical or disability accommodation under the Americans with Disabilities Act, or for religious accommodation under Title VII of the Civil Rights Act. The OSHA ETS will allow the same exceptions.

But the White House has made it clear that requests for accommodation should be carefully considered on a case-by-case basis.

Things to consider
Site-based construction work presents unique challenges to complying with these new directives. Examples of such challenges would include: Added costs due to vaccination or testing, as well as paid-time off for vaccination or testing, or vaccination related illness; project delays and productivity impacts caused by labor shortages where workers may be unwilling to submit to vaccination or testing; added costs of developing and monitoring job-site specific Covid-19 plans that implement the new requirements; and, for general contractors, ensuring subcontractor compliance.

General contractors will be responsible for ensuring compliance by its own employees as well as subcontractor employees. The fact that work takes place outdoors may not in itself be enough to escape the vaccination requirement, particularly for federal projects.

Both the ETS and the Task Force Guidance for federal contractors are too complex to address here. Construction contractors should familiarize themselves with the new requirements and be prepared to comply with them. While we expect numerous legal challenges to both mandates, until a court rules otherwise, they impose significant burdens that employers should take seriously.

Jake Scott is a partner in the Washington, D.C. office of Smith, Currie & Hancock, LLP. He represents federal contracting clients in protests, certified claims and appeals, suspension and debarment, terminations, and responses to subpoenas and government investigations before numerous administrative bodies and federal courts.
He can be reached at jwscott@smithcurrie.com.

Jeanne Harrison is an associate in the Atlanta office of Smith, Currie & Hancock, LLP. She concentrates her practice in the areas of construction law and litigation, including the representation of contractors, construction managers, sureties, architects, and engineers.
She can be contacted at jmharrison@smithcurrie.com.
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