On Nov. 4, the Occupational Safety and Health Administration (OSHA) released its long anticipated COVID-19 vaccination and testing emergency temporary standard (ETS). As anticipated, the ETS requires all employers with 100 or more employees to either mandate vaccinations, or encourage vaccination or weekly testing of all employees. Those who remain unvaccinated must also wear a face covering at work. AGC will provide comments to this measure designed to fix its many flaws and continue to explore all other possible options to protect the construction industry from the many risks created by this measure. For AGC’s complete statement on the ETS release, click here.

On October 25, the Senate voted 50-41 to confirm President Biden’s nominee to be the Assistant Secretary of Labor for OSHA. Doug Parker, formerly the chief of California’s Division of Occupational Safety and Health, as well as serving as deputy assistant secretary for policy at the Mine Safety and Health Administration (MSHA) under the Obama administration, was part of the Biden transition team on worker health and safety issues. He will become the first to fill the position since David Michaels left the agency in 2017. Doug’s confirmation could signal the beginning of more regulatory and enforcement activity within OSHA, which has been understood to be agency priority.

On October 27, the U.S. Occupational and Safety Administration (OSHA) officially signaled that it is moving closer to developing a national workplace heat standard. AGC previously testified against legislation requiring such a standard, citing the industry’s thorough, proactive work in this area and informed lawmakers that quickly establishing a one-size-fits-all national standard to address workplace heat exposure is unwarranted. In addition, AGC has pointed out how the Obama administration’s OSHA previously decided against issuing such a standard, giving existing agency authority to take enforcement action when heat hazards exist on the jobsite. AGC will work with its members, chapters, and coalition partners to respond to this proposal.

The AGC Education and Research Foundation has funded the development of a series of construction case studies that can be used by faculty members in college and university construction education programs to supplement their primary instructional materials. The latest in this seres was completed in partnership with Developed by Alex Albert, Kevin Han, Edward Jaselskis, and Min Liu, North Carolina State University; Joe Polansky, Fred Smith Company; Korey Merritt, C. T. Wilson Construction Company; and David Duke, S&ME:

The U.S. Occupational Safety and Health Administration (federal OSHA) has reportedly threatened to repeal several states’—Arizona, South Carolina and Utah—state OSHA plans because they have not adopted federal OSHA’s COVID-19 healthcare emergency temporary standard (ETS) issued on June 17. State plans are federal OSHA-approved workplace safety and health programs operated by individual states or U.S. territories. There are currently 22 state plans covering both private sector and state and local government workers. When federal OSHA issues a new standard, state plans usually have six months to adopt the new standard. State plans, however, have only 30 days to adopt an ETS. This situation between federal OSHA and state OSHA plan states could foreshadow how federal OSHA handles disputes that may be yet to come when it issues its broader COVID-19 Testing ETS impacting private employers with 100 or more employees.

On October 19, AGC met with the White House Office of Management and Budget (OMB) to share a host of concerns about the U.S. Occupational Safety & Health Administration’s (OSHA) draft emergency temporary standard (ETS). OSHA sent the draft ETS—the details of which remain unknown—to OMB for review on October 12, a signal that a final ETS could be issued within a matter of days or weeks. The OSHA ETS will require employers with 100 or more employees to ensure their workers are fully vaccinated against COVID-19 or tested for infection on at least a weekly basis. It should be noted, however, that AGC engaged outside legal counsel weeks ago to provide a legal memorandum that identifies the standards OSHA must meet to justify using the ETS process instead of the normal administrative procedures typically employed. After AGC reviews the final ETS, the association will measure it against its legal memorandum to determine whether a court challenge is warranted and evaluate our chances for success. No legal challenge can be successfully mounted until the ETS is released in final form.

AGC Seeks Meeting with White House; Engaged Legal Counsel

AGC continues to wait for more information from OSHA on an emergency temporary standard (ETS) expected to require employers with 100 or more employees to ensure their workers are fully vaccinated against COVID-19 or tested for infection on least a weekly basis. There is little clarity as to exactly when agency will formally issue this ETS testing mandate or when it will take effect. AGC has also retained outside legal counsel—and is asking some of the brightest legal minds within the industry—to help it review its legal options. Previously, AGC conveyed its serious reservations about such an ETS. The association and its members have encouraged voluntary COVID-19 vaccination for their employees since the vaccines became available. The construction industry has proven throughout the pandemic that it can work in a safe and essential manner. OSHA has previously deemed many construction activities as low exposure risks.

On Sept. 24, the Safer Federal Workplace Task Force issued guidance on the president’s executive order calling for a broad vaccination mandate for direct federal contractors. The guidance raises many questions without clear answers, including but not limited to how the mandate will be enforced and employer liabilities stemming from the mandate; the precise (but clearly broad) applicability of the mandate to federal contractors’ employees (whether or not they are working directly on a federal project); and whether there will be provisions for testing employees who do not receive exemptions for medical or religious reasons. AGC has retained outside legal counsel—and is asking some of the brightest legal minds within the industry—to help it review its legal options. AGC cannot, however, complete its review until the FAR Council issues a contract clause, which would, unlike recent guidance, be legally binding. The association has directly spoken with the White House Office of Management and Budget, and key federal construction owner agencies to explain the significant disruptions this mandate will cause the construction of federal projects, among other things.