President Biden’s September executive orders mean that most federal workers, federal contractors and millions of healthcare workers employed by hospitals that accept Medicare and Medicaid will now be required to get vaccinated for COVID-19. Unlike many other vaccine mandates issued by private companies, the executive order does not include an alternative to vaccination such as weekly testing.

Experts have speculated for months that some kind of vaccine mandate would eventually happen at the federal level. It was clear from President Biden’s press conference that the time for encouraging vaccination was over. “We’ve been patient. But our patience is wearing thin. And your refusal has cost all of us,” said Biden in a message to Americans who have yet to be vaccinated.

However, the arguably bigger news is that the series of executive orders also directs OSHA to issue an emergency temporary standard (ETS) that all private-sector businesses with 100 or more employees must also mandate vaccination for workers. Unlike the mandate for federal workers, this ETS will allow workers to test negative at least once a week as an alternative to vaccination. Under the ETS, employers will also be required to give paid time off for workers to get vaccinated.

Impact of the Coming COVID-19 Vaccine ETS

Once in place, the ETS will affect roughly 80 million people, or about two-thirds of American workers. Officials at OSHA estimated the ETS would be issued in two to eight weeks, suggesting a release sometime between October and mid-November.

While the main issues the ETS will cover are already known, many smaller details won’t be clear until it’s released, such as what proof of vaccination document employers will need to collect or whether vaccines without full FDA approval will be allowed.

In the meantime, private companies with 100 or more workers, including those in the construction industry, should start considering how they’ll comply, because the ETS will go into effect immediately once it’s issued. Businesses with fewer workers can also choose to implement such a program to increase vaccination among their workforce.

Because the vast majority of construction contractors have fewer than 100 employees, much of the industry won’t automatically fall under OSHA’s upcoming ETS. However, President Biden’s September executive orders do also mandate vaccination for federal contractors and subcontractors, so construction contractors bidding on new projects that involve federal dollars will need to make sure their workers are vaccinated.

In Canada, the federal government recently took a similar strategy to the Biden administration by requiring COVID-19 vaccination for federal employees. (They have also gone a step further and banned unvaccinated people from traveling on planes and trains.) Private companies, including those in the construction industry, have followed suit with vaccine mandates. Two of Canada’s largest construction employers, EllisDon and PCL, jointly announced they will require employees to be fully vaccinated.

Growing Support for Mandatory Vaccination Programs

According to a new study, 64 percent of Americans say they support universal COVID-19 vaccine mandates. At least 18 states and the District of Columbia already have vaccine mandates in place for some or all state employees. On the other hand, at least seven states have banned such mandates.

The LHSFNA recommends LIUNA signatory contractors and other LIUNA affiliates consult a lawyer during the development of any mandatory vaccination policy. Here are several issues such a policy should clearly address:

• How will employers confirm workers’ vaccination status?
• Will periodic testing be an alternative to mandatory vaccination? If so, who is responsible for the cost of testing, how often will testing be administered and what types of tests will be accepted (e.g., rapid vs. PCR)?
• Does the policy outline how workers with sincerely held religious beliefs or medical exemptions can file for reasonable accommodations due under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA)?
• Does the policy include a deadline for compliance? Will workers need to be fully vaccinated by this deadline or only partially vaccinated?
• What will be the penalty for non-compliance?
• Will workers be granted paid time off or other scheduling flexibility to get vaccinated?

While mandatory vaccination may not be popular with some companies or some workers, it’s the next logical step after months of vaccine promotion, encouragement and incentives have failed to get enough eligible Americans vaccinated. “When you have 75 to 80 million people who are eligible to be vaccinated, who don’t get vaccinated, you’re going to have a dynamic of continual smoldering spread of the infection,” said Dr. Anthony Fauci.

In addition to making sure workers’ civil rights and disability rights aren’t infringed on during the implementation of a mandatory vaccination policy, construction contractors and other companies should also be cognizant of union workers’ rights under the collective bargaining process and take steps to involve union representatives during the planning stages as well.

Employers should also take steps to educate workers about the safety and effectiveness of COVID-19 vaccines, encourage vaccination and work to understand and overcome barriers to vaccination among workers. The LHSFNA’s COVID-19 resources, including Promoting COVID-19 Vaccination at Your Workplace and COVID-19 Vaccines: Key Facts & Benefits, can provide more information.