President Biden Issues Sweeping Vaccine Mandate for U.S. Workers

By Trent Cotney, Cotney Attorneys & Consultants.

It is still unclear what impact this will have on the construction industry. 

On Thursday, September 9, President Biden announced the government’s most significant push to vaccinate the country. The proposed rules will require that all companies with more than 100 workers mandate COVID-19 vaccination or weekly testing, affecting some 50 million workers. The White House also called for the Occupational Safety and Health Administration (OSHA) to draft an emergency temporary standard (ETS) for the mandate, which the Department of Labor will enforce.

This announcement by the president provides validation for companies that have already enacted mandates while also forcing the issue for other businesses. Some unions and professional associations are already questioning the legality of the president’s move, and it seems likely that it will be challenged.

Mandate Details

In addition to the mandate for businesses with 100 or more employees, the Biden administration is requiring that all federal employees and contractors be vaccinated, and this touches on many industries, including construction. The mandate also impacts some 17 million healthcare professionals in medical facilities that receive funding from Medicare and Medicaid.

Employees who comply with the vaccination mandate must be given paid time off from their employers to get the shot. Those who refuse the vaccination will face weekly testing, and the costs for such testing may be passed along to the employees.

The OSHA Component

Although OSHA is tasked with overseeing workplace safety and may agree that its regulations extend to vaccine mandates, the agency’s actions on COVID-19 have been inconsistent. It provided pandemic precautions and guidelines but was slow to issue an ETS related to the pandemic. When it finally did issue the ETS, it was narrow and applied only to the healthcare industry and related professions.

However, OSHA does have the authority to quickly issue an ETS, if it can prove that workers are exposed to a serious danger, the ETS is necessary to alleviate that danger, and it is feasible for employers to enact and enforce. If OSHA issues such a standard, it will pre-empt existing state government rules, except in states with their own OSHA-approved agencies.  

Where We Go from Here

There is no doubt that employers, unions, states, and professional associations will challenge these proposed regulations in court. Specifically, the construction industry was not affected by the COVID-19 ETS since it is not considered at high risk for coronavirus transmission. So, it seems inevitable that this industry will resist the mandate.

Beyond facing litigation or other forms of pushback, the proposed rules pose other questions. For example, it is unclear how vaccination information will be gathered and stored, and there was no specific direction on accommodating exemptions.

For now, your best advice is to keep current COVID-19 precautions in place, including wearing masks and social distancing. Encourage your workers to be safe and stay tuned for more details.

In the meantime, if you have questions about your obligations as an employer, do not hesitate to consult us. Our experienced employment attorneys are staying up to date on this issue and can help you determine your best course of action.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Trent Cotney is an advocate for the roofing industry, General Counsel of the National Roofing Contractors Association (NRCA) and several other industry associations. For more information, contact the author at 866.303.5868 or go to www.cotneycl.com.