Though it’s being fought across the board and will likely wind up in front of the Supreme Court, the countdown to the OSHA vaccine mandates is ticking away. With the December holidays and 2022 fast approaching, the January 4th deadline will creep up quickly and contractors should start planning for the requirements OSHA is putting forward.
Here’s what we know so far:
- On November 5th, OSHA published an emergency temporary standard, or ETS, in the Federal Reserve.
- The ETS does not require that every employee be vaccinated. However, unvaccinated workers must wear a mask at work as of Dec. 6th, and be tested for COVID-19 on a weekly basis at the least, starting January 4th, 2022.
- On November 6th, the 5th U.S. Circuit Court of Appeals temporarily suspended the ETS pending further action by the court
- The ETS mandate is for contractors with 100 or more employees. For more information about whether companies meet the 100-employee threshold, ConstructionDive breaks down the specific requirements here.
Does OSHA have the authority to enforce this mandate?
For the ETS to be upheld, OSHA needs to be able to prove the following:
- Workers are exposed to grave danger from the hazard
- The ETS is necessary to protect workers from that danger
How have emergency temporary standards played out in the past? According to the Congressional Research Service, OSHA has issued an ETS nine times before this and the courts either fully vacated or stayed them in 4 cases, and partially vacated one other.
While each ETS is different, if we take prior attempts into consideration, we’re looking at about a 50/50 chance it’s upheld.
What do vaccine mandates mean for general contractors?
While the status of the ETS is uncertain, it will take weeks for contractors to prepare and comply with the deadline put forward. On top of that, contractors need to prepare for clients to begin requesting that everyone present on their projects be fully vaccinated, or comply with the ETS to some degree.
It’s pretty clear that vaccine mandates are a hot button issue in North America, but whether or not a contractor (or their employees) are for or against the mandate, general contractors need to start preparing for the potential fallout, including:
- Contractors with over 100 employees may see increased turnover as workers that oppose the mandate may seek work elsewhere
- To reduce risk on their projects, clients have begun requesting that contractors ensure everyone on their job sites are vaccinated against COVID-19
- Clients may also hesitate to work with contractors with less than 100 people since they aren’t being asked to comply with the ETS
How can general contractors prepare for vaccine mandates?
Like mentioned above, it may take weeks for contractors to be fully compliant with the ETS. Add to that the growing concern from clients about vaccinated workers on-site, and suddenly it seems as though tracking vaccination statuses across the organization will be crucial to keep projects and pursuits moving forward.
Here’s a couple steps that contractors can take to help minimize the impact on their projects.
1. Start tracking vaccination statuses
For example, in Bridgit Bench, our workforce management solution, contractors can create a custom field for vaccination status. It’s as simple as creating a yes/no checkbox that our customers can filter on to ensure everyone onsite is vaccinated.
- If vaccination status is ‘yes’ – Contractors are clear to allocate to any project. If the ETS is vacated (doesn’t go forward), this information will still be available should clients demand their project teams are fully vaccinated.
- If vaccination status is ‘no’ – Contractors will need to arrange testing on a weekly basis (at least) to comply with the ETS. Again, in the case the ETS is vacated, this information will be important to avoid conflicts with clients that are demanding vaccinated project teams.
By tracking vaccination status, our customers can quickly apply filters for it when allocating their team members to their projects. This makes it easy to ensure client requests are being met, and should the ETS be upheld, ensures the right steps can be taken with unvaccinated team members to remain compliant. Like every custom field in Bridgit Bench, this field can be kept private should contractors not want that information accessible to every user.
2. Begin collecting proof of vaccinations (POV) from vaccinated employees
In the event that a general contractor will be required to prove their project teams are fully vaccinated to avoid legal ramifications, they should begin collecting and storing their team’s POVs.
In some cases, that may mean collecting POVs and storing them for safekeeping. For Bridgit Bench customers, they can add any POVs as attachments to their team member profiles where they can easily be accessed to share with OSHA, or their clients.
3. Track projects that clients have requested vaccinated project teams
Similar to tracking individual vaccinations for team members, contractors should make sure their team is aware of projects where clients have asked that project teams be fully vaccinated.
This can be achieved in Bridgit Bench by creating a custom field for “Client vaccination request”, or by simply adding a project note that will be seen by the people that are allocating the project team.
Regardless of personal feelings towards vaccine mandates, and though the ETS is still up in the air, general contractors may want to continue to prepare for it as though it is going to take effect. This will help to ensure they are staying compliant should the mandate be upheld, or keep them a step ahead should the ETS be vacated, but clients request vaccinated project teams.