That first volley of what is likely to be a multistep judicial battle puts the OSHA emergency temporary standard (ETS) in limbo roughly 48 hours after the agency had released it.

While the ETS may or may not get enacted in the coming weeks and months, it certainly could, and OSHA’s Nov. 4 submission to the Federal Register did clarify some details of interest to contractors regarding the proposed standard.

Employees & Exceptions

As President Biden originally announced, the ETS is designed to apply to private employers with 100 or more employees. One potential source of confusion is that certain workers would count toward the 100-employee threshold for a company but would not then be subject to the actual vaccine/testing requirement themselves.

Such employees include:

• Those who do not report to a workplace where other individuals are present.
• Those who work from home.
• Those who work exclusively outdoors.

That last item might raise eyebrows and the hopes of those in the construction industry. However, given that construction workers may still work in partially enclosed or totally enclosed spaces, they do not qualify as working exclusively outdoors for the purposes of this standard.

HARDI director for government affairs Alex Ayers pointed out to HARDI’s distributors that furthermore, “Workers who primarily work in customer homes and not in the employer office are still considered in-office workers for the vaccine or testing requirement.”

Who Must Do (and Pay for) What?

Under the terms of the ETS, qualifying employers must “develop, implement, and enforce” a mandatory COVID-19 vaccination policy. As expected, employers may allow workers the choice of vaccination or weekly testing, although that is up to employer discretion.

Ayers added that employers are required to provide paid time off of up to four hours to get each dose of the vaccine, and must allow for “reasonable” paid sick time to recover from any side effects.

However, employers are not obliged to pay for the vaccine itself beyond what any existing insurance plan may cover.

Vaccinated employees would have to provide proof of vaccination, which the employer would document.

Workers who are in the office at least once a week and who prefer to remain unvaccinated would have to get tested weekly and provide those results to the employer, who would document and store the results. And as with vaccinations, employers are only obliged to collect weekly testing results and enforce testing policy, not to pay for those COVID tests themselves.

VAX OR MASK: The OSHA fact sheet for this proposed standard states that outside of special circumstances, employers “must ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.” (Courtesy of Bicanski (CC0))

Of note, unvaccinated workers would have to mask up. The ETS fact sheet (PDF) states that outside of special limited circumstances, employers “must ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.”

Should any worker, vaccinated or unvaccinated, test positive, as Ayers passed along for HARDI, they “must be removed from the workplace immediately.”

As Chris Czarnecki, ACCA government relations manager, advised members, “OSHA will also be able to conduct COVID-19 inspections, allowing agents to inspect workplaces. Individual, ‘willful’ violations of the rule will carry a ~$14,000 fine.”

Industry Reactions

Associated General Contractors of America (AGC) issued a largely critical statement from CEO Stephen E. Sandherr following OSHA’s announcement.

Sandherr emphasized that AGC “has been an ardent advocate for the coronavirus vaccine. We were among the first to organize a nationwide coronavirus vaccine awareness week, have worked with the CDC to provide resources and public service ads specific to the construction industry, and continue to take every possible step to urge construction professionals at all levels to get vaccinated.”

That said, Sandherr expressed frustration at OSHA’s narrow definition of employees working outdoors. He also cited the nature of the current labor market in criticizing OSHA’s choice to leave smaller companies out of this regulatory effort entirely.

“By opting to have one standard apply to federal contractors, a different standard apply to firms that employ 100 or more people, and no standard for firms with 99 or fewer workers, the administration is doing more to encourage vaccine-reluctant workers to relocate to smaller firms than to get vaccinated.”

The federal government does indeed address the issue separately for federal employees and contractors, but that is essentially because it acts as the government toward private employers but also as an employer itself for its own workers.

OSHA did align the deadlines for private and public employees to some degree with its formal announcement. The federal deadline to begin its own testing was bumped back to Jan. 4, 2022, the same as for employees at qualifying private businesses.

ACCA “is neither officially in favor or opposed to the mandate,” according to Czarnecki, and is focused on keeping members informed on all developments.

Boosters and Beyond

Much as the association lobbied to define HVAC workers as “essential personnel” early in the pandemic, ACCA has pressed the CDC for clarification that HVAC professionals’ work meets the criterion of “people who work or live in high-risk settings.”

This would qualify technicians and others for COVID booster shots, should they wish to obtain them.

A week into November, Pfizer-BioNTech reportedly was preparing to seek FDA authorization to expand COVID booster eligibility to anyone 18 or older, regardless of work status. The White House has expressed support for such a policy.

In the near term, the Biden administration faces the more urgent matter of legal challenges to its OSHA ETS. The question will likely receive some expedited treatment in the courts due to the nature of COVID, the potential impact on qualifying businesses, and the proximity of the ETS’ proposed deadlines.

The ETS might come to nothing — previous emergency proposals have not fared that well in court challenges — or its implementation could be delayed. But swift judicial consideration could also mean that it takes effect on schedule, leaving larger contractors only a matter of weeks for organizing their policies and considering how to safely retain as many employees as possible.