Since OSHA issued its emergency temporary standard (ETS) on COVID-19 vaccines and testing, the standard has generated a strong response both within the construction industry and across the nation.
The ETS, published on Nov. 5, requires all employers with more than 100 employees to mandate vaccinations for their workers or weekly COVID-19 tests to attend work. Specifically, employers will be required to determine employee vaccination status, provide paid time off for vaccinations and recovery, require face coverings for unvaccinated employees, and create a written company policy.
The U.S. Court of Appeals for the Fifth Circuit blocked implementation of the OSHA ETS shortly after its publication. In an opinion published Nov. 12, the court said the ETS imposes a financial burden on employers and exposes them to “severe financial risk if they refuse or fail to comply, and threatens to decimate their workforce (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.” The injunction issued by the 5th Circuit is temporary and will be taken up again beginning Nov. 16.
Within the construction industry, the NAHB, the Associated Builders and Contractors (ABC), and the Associated General Contractors of America (AGC) are among groups who have challenged the ETS legally.
The NAHB filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit, stating its belief that OSHA does not have the authority to issue an ETS on vaccinations and weekly testing. According to the NAHB, OSHA “has failed to demonstrate that there is a grave danger from exposure to COVID-19 in the construction work environment” and “failed to demonstrate that the ETS is reasonably necessary and appropriate to protect construction workers.”
In its challenge of the ETS, the AGC suggested the standard would put construction companies at the risk of losing workers to smaller companies with fewer than 100 employees rather than boosting vaccinations within the construction sector.
Despite the legal challenges, barring a long-lasting injunction, employers with more than 100 employees will have to comply with many parts of the ETS by Dec. 6. Companies without written vaccination policies, mask policies for unvaccinated workers, and awareness of employee vaccination status could be subject to OSHA inspection. The NAHB has published guidance with answers to many commonly asked questions to help companies comply with the ETS.
