Important Updates on Employer Vaccine Mandates

OCA members should be aware of several important updates regarding the COVID Vaccine Mandates for employers. Following are the latest updates.

OSHA ETS Vaccine Mandate for Employers with 100+ Employees Reinstated!

On Friday, December 17, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the OSHA Vaccination and Testing Emergency Temporary Standard (ETS). This decision allows OSHA to proceed with implementation and enforcement of the rule issued on November 5, 2021. AGC is a party to the proceedings in the Sixth Circuit, having filed its own petition for petition for review, and is actively engaged in a review of its legal options moving forward. AGC will continue to keep its chapters and members updated on any future developments.

To account for any uncertainty created by the Fifth Circuit's stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

Click here for OSHA’s webpage for the ETS mandate which includes updates on the extended compliance dates, as well as specific requirements for employers to follow.

Another resource to aid OCA members in complying with the OSHA ETS requirements, is a vaccine tool kit webpage set up by our national affiliate, AGC. It contains a construction-oriented summary of the OSHA ETS, detailing employers’ compliance options and obligations as well as additional resources. You can access the AGC resources by clicking on the following links: 

Summary of the ETS

Vaccine tool kit webpage

Exemption From the OSHA ETS for Outside Workers

Contractor employers should be aware that included in the ETS summary is an explanation of the exemption for employees who work exclusively outside. Contractor employers can take advantage of this exemption when outside construction crews qualify per the guidelines.

Update on the Federal Contractors Vaccine Mandate

On December 7th, a U.S. district court in Georgia halted the Biden administration’s vaccine mandate for federal contractors, writing that the president likely exceeded his authority. The court told the Biden administration to halt enforcement of the mandate “in all covered contracts in any state or territory of the United States of America.” The court’s decision to issue a nationwide injunction came a week after another federal district court in Kentucky halted enforcement in Kentucky, Ohio, and Tennessee.

To follow up that action, OCA’s national affiliate, AGC of America and two of its chapters, the Dallas-based TEXO chapter of the association, and the statewide AGC of Texas chapter, filed suit in federal court on December 14 to block the Biden administration’s effort to impose a COVID-19 vaccine mandate on federal contractors and subcontractors. AGC noted that many of its members that regularly construct federal projects are already being harmed, as key employees leave for other jobs in the industry to avoid the strict federal mandate. AGC’s filing includes a motion for a temporary restraining order and statements from a number of contractors detailing the damages they have already begun to experience because of the new federal contractor vaccine mandate. That mandate is different from the broader vaccine mandate that the Occupational Safety and Health Administration (OSHA) has sought to impose on all firms that employ 100 or more people. That rule gives workers the option to be tested weekly, instead of being vaccinated. AGC filed a legal challenge against that “emergency” OSHA standard in November.

“We are as eager as anyone to see more construction workers become fully vaccinated,” said Stephen E. Sandherr, the AGC’s chief executive officer. “But imposing a strict mandate on a small sector of the construction industry will only drive vaccine-hesitant workers out of that sector, and to one of the many other sectors also desperate for more workers.” 

Sandherr added that even as the association challenges the administration’s two coronavirus vaccine mandates, it continues to work to encourage all construction workers to get vaccinated. AGC recently released a series of public service ads featuring construction workers who nearly died from the virus, urging their peers to get vaccinated. AGC has been urging its members to show the videos to all their workers and is also placing ads featuring the videos in key construction markets. AGC also created a vaccine toolkit for the industry.

For questions or comments about the vaccine mandates please contact Mark Potnick in the OCA office.