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