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On Oct. 21, the Safer Federal Workforce Task Force posted new Vaccination and Safety Protocols frequently asked questions for federal contractors, whose covered employees must be fully vaccinated for COVID-19 by Dec. 8 unless the contractor is legally required to provide an accommodation for medical or religious reasons.

Several new FAQs were posted, including:

Q: If a covered contractor employee requests an accommodation, and that accommodation is denied by the covered contractor, how long should the contractor employee be afforded to be fully vaccinated?

A: Covered contractors should establish a timeline for a covered contractor employee whose request for an accommodation is denied to promptly become fully vaccinated.

Q: Can a covered contractor grant a covered contractor employee an extension to the deadline for vaccination due to a documented medical necessity even if the contractor employee does not meet the legal definition of “disability” to be entitled to an accommodation?

A: Even in cases where the covered contractor employee does not meet the legal definition of “disability” to be entitled to an accommodation under the Rehabilitation Act, in some limited circumstances a covered contractor may grant the contractor employee an extension to a vaccination deadline based upon other medical considerations. For example, as explained in a separate FAQ, the CDC recommends delaying COVID-19 vaccination for at least 90 days after receiving monoclonal antibodies or convalescent plasma for COVID-19 treatment. Covered contractors that receive documented medical reasons that may not qualify as a disability but that necessitate a delay in vaccination can grant a covered contractor employee an extension, but covered contractors should specify, consistent with the nature of the medical necessity, by what date the contractor employee must be fully vaccinated.

Covered contractors should take note that an individual’s medical need should be considered on a case-by-case basis, including any medical evaluation that addresses the individual’s particular circumstance.

Q: What medical conditions does the CDC consider a contraindication to vaccination with COVID-19 vaccines?

A: The CDC considers a history of the following medical conditions to be contraindications to vaccination with COVID-19 vaccines:

• Severe allergic reaction (e.g., anaphylaxis) after a previous dose or to a component of the COVID-19 vaccine; and
• Immediate allergic reaction of any severity to a previous dose or known (diagnosed) allergy to a component of the COVID-19 vaccine.

If an individual is allergic to a component of one or more COVID-19 vaccines, that individual may not be allergic to components in all COVID-19 vaccines.

The other new FAQs can be found on the Safer Federal Workforce website.

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On Oct. 26, the U.S. Department of Labor’s Occupational Safety and Health Administration announced that it will be issuing an advance notice of proposed rulemaking for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, which will begin the process to consider a heat-specific workplace rule. The ANPRM will be officially published in the federal register on Oct. 27.

The ANPRM states, “OSHA is initiating rulemaking to protect indoor and outdoor workers from hazardous heat and is interested in obtaining additional information about the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related injury and illness. This ANPRM provides an overview of the problem of heat stress in the workplace and of measures that have been taken to prevent it. This ANPRM also seeks information on issues that OSHA can consider in developing the standard, including the scope of the standard and the types of controls that might be required.

 The public will have the opportunity to submit comments on the ANPRM and provide expertise on topics such as heat-stress thresholds, heat-acclimatization planning and exposure monitoring through Dec. 27. ABC is currently reviewing the heat illness ANPRM and plans to submit comments on behalf of its contractor members.

ABC strongly believes that employers must take steps to ensure that employees are protected from extreme heat. Planning for severe weather conditions is an integral part of the pre-planning stages of a construction project, as evidenced in ABC’s Safety Performance Report, an annual study that guides our members on effective planning and safety measures that save lives. ABC continuously issues guidance to members regarding the hazards of harsh weather conditions and appropriate measures to protect employees, our industry’s most valuable asset.

ABC members can access this guidance on the abc.org Emergency Preparedness and Safety Resources page.

Background:

In a Sept. 20 press release, as part of an interagency Biden administration effort to protect workers from the hazards associated with extreme heat, indoors and out, OSHA announced the following actions:

• Issuing an Advance Notice of Proposed Rulemaking on heat injury and illness prevention in outdoor and indoor work settings. OSHA is expected to issue the rulemaking in October, which will include a comment period for the public to offer input.
• Implementing an enforcement initiative on heat-related hazards to prevent and protect employees from serious heat-related illnesses and deaths while working in hazardous, hot indoor or outdoor environments. The initiative prioritizes heat-related interventions and inspections of work activities on days when the heat index exceeds 80 degrees Fahrenheit. Employers will be encouraged to implement proactive interventions, such as water, rest, shade and other important prevention measures such as acclimatization of new or returning workers.
• Developing a National Emphasis Program on heat hazard cases, which will target high-risk industries and focus agency resources and staff time on heat inspections. The 2022 National Emphasis Program will build on the existing Regional Emphasis Program for Heat Illnesses in OSHA’s Region VI, which covers Arkansas, Louisiana, New Mexico, Oklahoma and Texas.
• Forming a National Advisory Committee on Occupational Safety and Health Heat Injury and Illness Prevention Work Group to provide better understanding of challenges and to identify and share best practices to protect workers.

The press release also stated that OSHA Area Directors across the nation will institute the following:

• Prioritize inspections of heat-related complaints, referrals and employer-reported illnesses and initiate an onsite investigation where possible.
• Instruct compliance safety and health officers, during their travels to jobsites, to conduct an intervention (providing the agency’s heat poster/wallet card, discuss the importance of easy access to cool water, cooling areas and acclimatization) or opening an inspection when they observe employees performing strenuous work in hot conditions.
• Expand the scope of other inspections to address heat-related hazards where worksite conditions or other evidence indicates these hazards may be present.

The OSHA initiative applies to indoor and outdoor worksites in general industry, construction, agriculture and maritime where potential heat-related hazards exist. Additional information on OSHA’s actions can be found in Newsline.

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The construction industry continues to feel the strain of ongoing supply chain disruptions, ABC said in a letter to the U.S. House Committee on Small Business Subcommittee on Oversight, Investigations and Regulations, which held a hearing on global supply chains and small business trade challenges on Oct. 10.

Citing its construction economic data and trends analysis, ABC said ongoing supply chain disruptions have resulted in persistent volatility of input prices, diminished contractor confidence and backlog challenges for small contractors.
 

“The fluctuation in construction input prices caused by supply chain disruptions has made it very difficult for businesses in the industry to predict budgets and bid work. As a result, many contractors, including small businesses, face additional cuts on profit margins. According to ABC’s Construction Confidence Index, contractors’ profit margin expectations have worsened in recent months. Readings for sales, profit margins and staffing levels each declined in September, but remain above the threshold of 50, indicating expectations of growth over the next six months. Additionally, contractor confidence still remains well below the October 2019 reading,” ABC wrote.

ABC also urged Congress to not place additional burdens on small businesses by passing the ABC- opposed Protecting the Right to Organize Act and  proposed tax increases in the partisan budget reconciliation bill.

“Congress should steer away from policies such as the Protecting the Right to Organize Act, which would limit opportunities for small businesses to compete and recover from the pandemic. Although the PRO Act has passed in the House of Representatives, it has yet to become law. The bill would enact harmful policy changes that would eliminate right-to-work protections in 27 states, violate employees’ privacy and upend the business community. ABC members urge Congress to reject this bill and its devastating policies,” ABC wrote.

ABC strongly urges its members to reach out to their members of Congress to voice their concerns with the partisan budget reconciliation package by using the ABC Action Center.

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On Oct. 20, ABC met with the Office of Management and Budget to express its concerns about the forthcoming U.S. Department of Labor’s Occupational Health and Safety Administration COVID-19 Vaccination and Testing Emergency Temporary Standard, which will apply to employers with 100 or more employees as required by President Biden’s Path Out of the Pandemic COVID-19 Action Plan. Currently, the OSHA ETS is at the Office of Information and Regulatory Affairs at OMB for final review before it is officially published in the federal register. At this time, neither OMB nor DOL have made the contents of the ETS public.

During the OMB meeting, ABC highlighted key areas of concern for members, including workforce shortages that would be exacerbated by the ETS, massive disruptions to an already stressed supply chain, employer and employee obligations for vaccinations and testing and availability of testing kits. The COVID-19 pandemic has already created and accelerated a host of challenges for the construction industry, including a skilled workforce shortage, rising material costs, supply chain disruptions and project and jobsite shut-downs. The forthcoming ETS only adds to this long list of concerns. Any rule that is developed by OSHA must be shaped in a way so as not to further disrupt the makeup of the construction workforce.

When the ETS is published in the federal register as an interim final rule, it will be effective immediately in states where OSHA has direct jurisdiction. The public will have an opportunity to submit comments on the ETS after it is published. The comments will then be used by OSHA to draft a final rule, which OSHA is expected to issue six months after the ETS is published in the federal register. ABC will submit comments to express any concerns.

ABC is philosophically opposed to federal mandates that undermine the desired policy outcome and plans to be fully engaged in the forthcoming OSHA ETS rule. ABC will also provide further details as soon as the COVID-19 vaccination and testing ETS is published in the federal register.

In addition to meeting with OMB, ABC, as a steering committee member of the Construction Industry Safety Coalition, sent a letter to James Frederick, acting assistant secretary of the Occupational Safety and Health Administration, on Sept. 27, expressing its concerns about the forthcoming OSHA ETS.

On Sept. 24, ABC, as a steering committee member of the Coalition for Workplace Safety, also sent a letter to OSHA Acting Assistant Secretary James Frederick, stating that OSHA should consider questions and seek written input from stakeholders before issuing any ETS. To do otherwise invites avoidable implementation challenges and costs that would undermine achieving the goals of the ETS.

Additional resources on the OSHA ETS:

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Of the nation’s top 10 specialty contractors, five are ABC members, according to Engineering News-Record’s recently published list of Top 600 Specialty Contractors. These successful contractors were ranked based on 2020 revenue. Congratulations to these #ABCMeritShopProud members!

• Emcor Group Inc. (#2)
• Mastec Inc. (#3)
• BrandSafway (#4)
• Primoris (#6)
• Comfort Systems USA Inc. (#9)

View the rest of ENR’s list of the Top 600 Specialty Contractors at enr.com.  

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On Oct. 12, the U.S. Department of Labor’s Occupational Health and Safety Administration sent a COVID-19 Vaccination and Testing Emergency Temporary Standard rulemaking to the Office of Information and Regulatory Affairs at the Office of Management and Budget for review, which will apply to employers with 100 or more employees as required by President Biden’s Path Out of the Pandemic COVID-19 Action Plan. The review at OIRA is usually the final step in the process before a rule is officially published in the federal register.

At this time, neither OIRA nor DOL have made the contents of the ETS public. Generally, OIRA allows organizations to request meetings to discuss concerns about the rulemaking before it is issued. ABC will request a meeting to discuss our concerns, however it is unclear if OIRA will hold meetings on this ETS.

When the ETS is published in the federal register as an interim final rule, it will be effective immediately in states where OSHA has direct jurisdiction. The public will have an opportunity to submit comments on the ETS after it is published. The comments will then be used by OSHA to draft a final rule, which OSHA is expected to issue six months after the ETS is published in the federal register. ABC will submit comments to express any concerns. ABC will also provide further details as soon as the COVID-19 vaccination and testing ETS is published in the federal register.

Background:

On Sept. 27, ABC, a steering committee member of the Construction Industry Safety Coalition, sent a letter  to James Frederick, acting assistant secretary of the U.S. Department of Labor’s Occupational Safety and Health Administration, voicing concerns related to OSHA’s forthcoming COVID-19 vaccination and testing Emergency Temporary Standard, which will apply to employers with 100 or more employees as required by President Biden’s Path Out of the Pandemic COVID-19 Action Plan.

In an ABC press release on the CISC letter, Ben Brubeck, ABC vice president of regulatory, labor and state affairs, stated, “Because OSHA’s COVID-19 vaccination and testing ETS is expected to be the most far-reaching standard ever issued by the agency, it is imperative that OSHA listen to input from the construction industry, which employs 7.4 million individuals. Despite the efforts of a range of stakeholders, vaccine hesitancy remains an ongoing, complicated reality in countless industries. How the ETS is crafted will have significant, lasting impacts by driving workers away from larger firms and disrupting construction projects without raising the vaccination rate. 

“Our key areas of concern are workforce shortages that would be exacerbated by the ETS, employer and employee obligations for vaccinations and testing, paperwork burdens, recordability of adverse reactions to the COVID-19 vaccine, cost of paid time off for vaccinations and adverse reactions, and availability of testing kits. The COVID-19 pandemic has already created and accelerated a host of challenges for the construction industry, including a skilled workforce shortage, rising material costs, supply chain disruptions, jobsite shut-downs, additional health and safety protocols and new government regulations. The forthcoming ETS only adds to this long list of concerns.

ABC continues to encourage construction industry stakeholders to implement effective COVID-19 safety plans and to get vaccinated, because ensuring healthy and safe work environments for employees is a top priority of ABC and its members. ABC is philosophically opposed to federal mandates that undermine the desired policy outcome. ABC plans to be fully engaged in the forthcoming OSHA ETS rule and is evaluating legal options on compliance.”

On Sept. 24, ABC, as a steering committee member of the Coalition for Workplace Safety, also sent a letter to OSHA Acting Assistant Secretary James Frederick, stating that OSHA should consider questions and seek written input from stakeholders before issuing any ETS. To do otherwise invites avoidable implementation challenges and costs that would undermine achieving the goals of the ETS.

Additional resources:

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According to the Centers for Disease Control and Prevention, construction occupations have the highest rate of suicide, as well as the highest number of suicides, across all occupational groups. To combat these statistics and spread awareness, Greg Sizemore, ABC’s vice president of health, safety, environment and workforce development and chair of the Construction Industry Alliance for Suicide Prevention, traveled to five ABC chapters across the country to speak about what ABC chapters and members can do to help those who may be struggling. He was also interviewed in various trade publications and news outlets, such as the Marietta Daily Journal, For Construction Pros and Workwear Guru.

In addition, ABC created a variety of digital assets for its members to use online and on their social media channels, including:

• Nine social media graphics from the Construction Industry Alliance for Suicide Prevention available on Flickr
• Social media language
• Links to additional resources

Between the media coverage, in-person presentations and leveraging ABC’s social media network, ABC reached more than 35,000 people on this topic.

For more information on suicide prevention and resources for help, visit preventconstructionsuicide.com.

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Congress passed a 30-day extension of the highway funding bill, just hours before surface transportation authorization lapsed. The extension came at the end of a weekslong negotiation and interparty disagreement on a trillion-dollar-plus budget reconciliation package and the bipartisan Senate-passed infrastructure bill, H.R.3684, the Infrastructure Investment and Jobs Act.

After initially seeking to hold votes on both measures, the House was forced to postpone consideration on the IIJA after progressive Democrats refused to back it without an accompanying deal on a partisan budget reconciliation proposal. President Biden met with House Democrats last week, making it clear that the IIJA will not pass until there is a bicameral deal on reconciliation, essentially backing progressive’s stance against the vote and again tying the success of the two packages together for the time being.

Consideration of the packages could now be pushed to the end of October, as Democrats now work to craft a scaled back reconciliation package in attempts to persuade moderate senators, including key Democratic Sens. Joe Manchin, W.Va., and Kyrsten Sinema, Ariz., to back the proposal. President Biden stated that he expects an agreement on $1.9 trillion to $2.3 trillion, while Sen. Joe Manchin has proposed a $1.5 trillion top line for the reconciliation package, which includes a corporate tax rate of 25%, top income tax rate of 39.6% and a capital gains tax rate of 28%.

Republicans, concerned with Democrats’ go-it-alone approach on reconciliation’s tax hikes and spending, are also withholding votes to raise the nation’s debt limit and could force Democrats to include the debt limit increase in a separate reconciliation bill. In a letter to President Biden, Senate Majority Leader Mitch McConnell, R-Ky., reiterated the Republicans’ position that Democrats have the tools necessary through reconciliation to raise the debt ceiling before the U.S. Treasury-announced deadline of Oct. 18, and called on Democrats to formulate a plan and for Biden to engage with congressional Democrats to address the “avoidable catastrophe.”

In a recent Construction Dive article, Kristen Swearingen, ABC’s vice president of legislative & political affairs, said “ABC continues to monitor any new developments on the bipartisan infrastructure deal and update members accordingly, and we do remain concerned with the president’s insistence on tying the bipartisan negotiated bill to the partisan reconciliation package. ABC is continuing to meet with members of Congress and urge them to oppose dangerous tax hikes and costly labor policies that have been proposed for inclusion in reconciliation.”

ABC strongly urges its members to reach out to their members of Congress to voice their concerns with the partisan budget reconciliation package by using the ABC Action Center.

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