OSHA’s Emergency Temporary Standard – This Too Shall Pass (or Not)

Cohen Seglias Pallas Greenhall & Furman PC
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Compliance Notes for Construction Professionals Amid Pending Legal Challenges
 

Nationwide reverberations followed last week’s much-anticipated emergency temporary standard addressing COVID-19 (the ETS) from the Occupational Safety and Health Administration (OSHA). Businesses across all industries mobilized immediately to develop and implement the required mandatory vaccination policies the new standard required, and the construction industry was no exception. However, as the construction industry settles into this new regulatory obligation, contractors’ vaccination policies need to encompass the ETS’ finer compliance factors sometimes overlooked in the initial reviews about the ETS. Additionally, as anticipated, businesses and states have initiated litigation contesting OSHA’s authority to issue this emergency regulation, and last week the Fifth Circuit extended its halt on ETS enforcement until the court could fully evaluate its legality. Because such challenges to the ETS remain unresolved, construction companies should continue to develop their vaccination plans—either a mandatory vaccination plan or a partial one in which unvaccinated employees wear face coverings and have weekly COVID-19 testing.

Compliance Considerations for Construction Professionals

As contractors finalize their vaccination policies, they should keep these ETS requirements in mind.

  • Covered Employers and Jobsites: The ETS only applies to employers with 100 or more employees. In determining total employees, construction professionals must count all employees regardless of whether they work in their home office or a jobsite. However, employees of any subcontractor or independent contractor do not count towards the total number of employees. Similarly, in most cases, temporary employees provided by a staffing agency should be counted as employees of that staffing company only. The number of total employees at a construction jobsite does not affect ETS application. So, for a jobsite run by a general contractor with over 100 employees and therefore subject to the ETS, but with subcontractors having fewer than 100 employees, a handful of onsite general contractor employees would find themselves interacting with subcontractor employees completely exempt from the ETS.
  • Coverage Determination Date: ETS employer coverage is based on the number of employees an employer had on and after the day the ETS became effective, November 5, 2021. Covered contractors include those whose employee count reached 100 or more as of that date, and all such employers remain subject to ETS requirements for the standard’s entire six-month effective period, even if the total employee count subsequently falls below 100. Further, employees exempted from ETS rules still apply to contractor’s total employee count. However, employees of a subsidiary business do not apply to an employer’s count, provided the subsidiary and parent operate as separate companies. In such case, each company would need to have its own vaccination policy, unless one or both companies have fewer than 100 employees.
  • Exempted Workers: Even when an employer must follow the ETS, the standard exempts certain employees from its vaccination requirements. Especially relevant to the construction industry, the ETS does not apply to workers who work exclusively outdoors. But, to qualify for this exemption, employees must work outdoors every day, not ride in any vehicles with other workers, and only use indoor facilities on a de minimis basis, such as for restroom breaks. Outdoor work includes building construction where walls and ceilings remain incomplete. So a project qualifies as outdoor work until the building is “dried-in,” perhaps earlier. In enforcing this requirement OSHA will evaluate projects on a case-by-case basis.
  • Exceptions: The ETS requires employers to exempt employees from vaccination and testing and masking requirements due to certain medical reasons and “sincerely held religious beliefs” and to provide these employees with reasonable accommodations. Contractors should keep records related to such exemptions, including any supporting documentation explaining the belief—whether a completed form like the template published by the EEOC, a letter from a religious leader, or notes of a conversation with the worker.
  • Testing Costs: The ETS does not require employers to cover testing costs for unvaccinated employees, although certain states have laws that do. The ETS does not require employers to pay workers for time spent getting tested beyond any employer-sponsored testing occurring at the worksite during the work day. Regarding the required testing, the ETS permits any FDA approved test, including over-the-counter tests, provided the test is not both self-administered and self-read without employer oversight.
  • Duration: Under the OSH Act, any emergency regulation may last only for six months, during which the rule follows the procedure for a proposed rule subject to a period for public comments. If the emergency standard does not become a final rule within that time, it is no longer effective. The pandemic’s unpredictable and evolving nature will greatly affect the rule’s long-term sustainability.
  • Record Keeping: The ETS directs record-keeping for some vaccination information, including a log of vaccinated employees and collected written proof of vaccination status. OSHA compliance, however, hangs on the long-standing adage: “If it is not written, it does not exist.” So, contractors should keep written records of all aspects of ETS compliance. For example, daily logs can show that employees performed exclusively outdoor work, keeping them outside the ETS requirements. Contractors should also seek documentation for exceptions based on sincerely held religious believes, as explained earlier.
  • Testing Shortages: OSHA currently anticipates that existing COVID-19 testing supplies can meet the anticipated unvaccinated employee testing the ETS will bring. Should shortages make tests unavailable, the ETS requires contractors to make a good faith effort to comply with the ETS testing requirements, even though under the ETS, employers can shift responsibility for testing to its unvaccinated employees. OSHA has not clarified this contradiction.
  • Fines: Because the ETS addresses a potentially lethal virus that endangers employees in the workplace, failure to comply with the ETS likely will result in a citation for a “serious” violation. Such violations carry fines up to $13,653 and will likely be calculated on a per worker, per day basis. So, a contractor cited for four unvaccinated employees could face fines up to $54,612 ($13,653 x 4 workers). Nonetheless, with a limited pool of inspection officers nationwide, OSHA faces significant challenges in monitoring tens of millions of employees across thousands of worksites. In all likelihood, enforcement will originate in employee or union complaints to OSHA.

Conclusion

Despite the court’s current preliminary suspension of ETS enforcement, contractors should prepare for the possibility that the ETS will remain in place. With potential deadlines looming, contractors need to work on preparing their written vaccination policies as the ETS requires and educating personnel about those policies. In making such plans, however, each contractor can decide for itself exactly how it wants to comply with the ETS. As the above shows, employers do have some options and room to maneuver in developing a compliant vaccination plan. To achieve such ETS compliance and avoid the risk of serious violations with stiff fines, contractors should consult with competent OSHA counsel to ensure they properly navigate the nuances of ETS compliance. To assist contractors with such issues, the attorneys at Cohen Seglias can bring to bear their OSHA compliance experience and decades-long construction industry knowledge.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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