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On Sept. 30 and Oct. 1, the Safer Federal Workforce Task Force posted new information for federal contactors, whose covered employees must be fully vaccinated for COVID-19 by Dec. 8 unless the covered contractor is legally required to provide an accommodation for medical or religious reasons.

The new information includes: 

Most of the Sept. 30 FAQs posted by the task force were taken directly from COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, which was issued on Sept. 24. However, one new FAQ was added to the list:

Q: What is the prime contractor’s responsibility for verifying that subcontractors are adhering to the mandate?
A: The prime contractor is responsible for ensuring that the required clause is incorporated into its first-tier subcontracts in accordance with the implementation schedule set forth in section 6 of Executive Order 14042. When the clause is incorporated into a subcontract, a subcontractor is required to comply with the Task Force Guidance for Federal Contractors and Subcontractors and the workplace safety protocols detailed herein. Additionally, first-tier subcontractors are expected to flow the clause down to their lower-tier subcontractors in similar fashion so that accountability for compliance is fully established throughout the Federal contract supply chain for covered subcontractor employees and workplaces at all tiers through application of the clause.

NEW Q: May the prime contractor assume the subcontractor is complying with the clause?
A: Yes, unless the prime contractor has credible evidence otherwise.

Background: On Sept. 9, President Biden announced his Path Out of the Pandemic: COVID-19 Action Plan and signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. As required by the EO, the Safer Federal Workforce Task Force issued guidance on COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. Additional information can be found in this Newsline article and in the archived members-only webinar President Biden’s COVID-19 Vaccination Action Plan—What Employers Need to Know.

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On Sept. 29, National Labor Relations Board General Counsel Jennifer Abruzzo issued Memorandum GC 21-08 to all field offices asserting that student-athletes receiving scholarships at private colleges and universities are employees under the National Labor Relations Act.

While this memo may not affect most employers, Abruzzo made two important assertions in the memo that may affect certain employers within the construction industry:

1. Misclassifying employees and making them believe they aren’t entitled to the NLRA’s protections has a chilling effect on employees’ collective bargaining rights and is an independent violation of the NLRA. (This is contrary to the Trump-era NLRB decision in Velox Express.)
2. Collective action for social justice “directly concerns the terms and conditions of employment and is protected activity.” The NLRB currently has a pending action against Home Depot with respect to this issue.

Read more about Memorandum GC 21-08 in an analysis issued by ABC National’s general counsel, Littler Mendelson P.C.

In addition to this memo, Abruzzo also issued Memorandum GC 21-04, which outlines the priorities of the Office of the General Counsel. It also includes issues identified for review, such as general handbook policies and the 2017 Boeing decision, definitions and limitations around protected and concerted activity, union access to the workplace and employer property, and more.

ABC plans to monitor the NLRB closely as it moves forward on these issues and cases and will provide further updates in Newsline.

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On Sept. 29, National Labor Relations Board General Counsel Jennifer Abruzzo issued Memorandum GC 21-08 to all Field offices asserting that student-athletes receiving scholarships at private colleges and universities are employees under the National Labor Relations Act.

While this memo may not impact the majority of the employer community, Abruzzo made two important assertions in the memo that may affect certain employers within the construction industry:

1. Misclassifying employees and making them believe they aren’t entitled to the NLRA’s protections has a chilling effect on employees’ collective bargaining rights and is an independent violation of the NLRA. (This is contrary to the Trump-era NLRB decision in Velox Express.)
2. Collective action for social justice “directly concerns the terms and conditions of employment, and is protected activity.” The Board currently has a pending action against Home Depot with respect to this issue, which can be reviewed here.

Read more about Memorandum GC 21-08 in an analysis issued by ABC National’s general counsel Littler Mendelson, P.C.

In addition to this memo, Abruzzo recently issued Memorandum GC 21-04, which outlines the priorities of the Office of the General Counsel and include issues identified for review such as general handbook policies and the 2017 Boeing decision, definitions and limitations around protected and concerted activity, union access to the workplace and employer property, and more.

ABC plans to monitor the NLRB closely as it moves forward on these issues and cases and will provide any updates in Newsline.

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On Sept. 28, the U.S. Department of Labor’s Wage and Hour Division published the Davis-Bacon Wage Determination Conformance Guide to assist construction contractors and other industry stakeholders in understanding the process of seeking a conformance under the DBA and Related Acts.

In addition to providing a general overview of the DBA and Related Acts, including prevailing wage and the agency’s wage determination process, the guide details how contractors and contracting agencies may seek a conformance, which is a request for a new class of laborer or mechanic to be added to a published wage determination for a specific contract. The agency also provides examples of when contractors do or do not need to seek a conformance.

Contractors must use Form SF-1444 to request a conformance. More information on the DBA and Related Acts can be found on the DOL website.

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On Sept. 9, President Biden announced his Path Out of the Pandemic: COVID-19 Action Plan and signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. As required by the EO, the Safer Federal Workforce Task Force recently issued guidance on COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. According to the guidance, covered employees must be fully vaccinated by Dec. 8, unless the covered contractor is legally required to provide an accommodation for medical or religious reasons.

On Sept. 24, ABC National issued a press release on the guidance, Federal Contractor Vaccine Mandate Guidance Raises Concerns, Says ABC.

ABC staff and counsel are currently reviewing the extremely broad guidance as well as evaluating any legal implications. Further updates will be provided in forthcoming editions of Newsline and during a Sept. 30 webinar.

Here is the summary of the guidance:

• The guidance requires vaccination of covered federal contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation. Covered employees include:
  • Employees working on or in connection with a covered federal contract, including employees working on a covered federal contract remotely.
  • All employees working at a covered contractor workplace (even if they are not working on or in connection with any federal contract).

For further information on which employees are covered, refer to ABC general counsel Littler Mendelson’s analysis.  

• Although covered contractors may choose to provide vaccinations at their facilities or workplaces, given the widespread availability of vaccinations, covered contractors are not required to do so.

• Covered employees must be vaccinated by Dec. 8. Covered contractors are required to view or retain a copy of the vaccination card or other approved form of proof of vaccination. Self-attestation of vaccination by the covered contractor employee is not an acceptable substitute for documentation of proof of vaccine.

• There is a religious and disability (which would include medical conditions) accommodation, but no testing scheme for them.
• Requirements flow down from general contractor to subcontractors.
• It is unclear if enforcement or penalties apply for noncompliance.
• Covered contractors must also follow the CDC’s guidance for mask wearing and physical distancing for covered contractor employees and visitors.
• There is no special accommodation for outdoor work or the construction industry.
• The guidance is unclear on acceptable recordkeeping requirements.
• The guidance says requirements are promulgated pursuant to federal law and supersede any contrary state or local law or ordinance.
• Covered contractors shall designate a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
• For contracts awarded prior to Oct. 15 where performance is ongoing, the requirements must be incorporated at the point at which an option is exercised or an extension is made.
• For new contracts, the requirements must be incorporated into contracts awarded on or after Nov. 14. Between Oct. 15 and Nov. 14, agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time period, but are not required to do so unless the solicitation for such contract was issued on or after Oct. 15.

The guidance also includes several FAQs. Littler’s analysis is also available.

ABC plans to participate in the rulemaking process and submit comments on the guidance. Prior to the release of the guidance, ABC sent a letter to Office of Management and Budget on behalf of its federal contractor members with practical feedback on the EO, which includes 25 questions and concerns raised by the federal contracting community since the EO’s release on Sept. 9.

To learn more about the guidance and the forthcoming OSHA ETS rule that applies to all employers of 100 or more employees, register for the Sept. 30 webinar on President Biden’s COVID-19 Vaccination Action Plan—What Employers Need to Know.

The information contained in this article is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.

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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.

For more information on this ETS, register for ABC National’s webinar for ABC members only on President Biden’s COVID-19 Vaccination Action Plan—What Employers Need to Know on Sept. 30 at 3 p.m. ET. ABC members can also read ABC’s general counsel Littler Mendelson’s analysis: Biden Announces Vaccine Mandates for Employees of Large Private Employers, Federal Contractors, and Most Healthcare Employers (Sept. 9) and President Biden’s COVID-19 Action Plan—What Employers Want to Know (Sept. 14).

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As part of an interagency Biden administration effort to protect workers from the hazards associated with extreme heat, indoors and out, the U.S. Department of Labor’s Occupational Health and Safety Administration announced the following actions in a Sept. 20 press release:

• 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 and 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 states 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 job sites, 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.

For additional information, see ABC general counsel Littler Mendelson’s analysis, OSHA Announces Increased Focus on Heat-Related Hazards. 

ABC National will continue to monitor the above-referenced actions and plans to offer input on behalf of our contractor members and provide updates in the Beltway Blueprint as well as Newsline.

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On Sept. 15, the U.S. Department of Labor’s Wage and Hour Division announced the minimum wage for federal contractors will increase from $10.95 per hour to $11.25 per hour beginning Jan. 1, 2022.

According to a DOL news release, the increase is a result of the DOL’s 2014 final rule, which implemented Executive Order 13658, Establishing a Minimum Wage for Contractors, and raised the hourly minimum wage paid by contractors to workers on covered federal contracts to $10.10 with annual increases thereafter.

The minimum wage increase to $11.25 per hour is separate from the proposed rule issued by the DOL that would require federal contractors to pay a $15 minimum wage beginning Jan. 30, 2022. Until this rulemaking is finalized and in effect, federal contractors should comply with the $11.25 per hour minimum wage requirement beginning Jan. 1, 2022.

More information on EO 13658 and the annual wage increase can be found on the DOL website, and more information on the proposal can be found in an analysis issued by ABC National’s general counsel, Littler Mendelson, P.C.

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In light of changing guidance regarding vaccine policies, ABC has updated resources on the COVID-19 Vaccine Toolkit as part of the Coronavirus Update webpage to help inform and educate members about the latest available resources and information on the COVID-19 vaccine.

The webpage, which includes information from the Centers for Disease Control and Prevention and the U.S. Equal Employment Opportunity Commission, is organized in seven different categories so that members can easily navigate through the available resources:

1. COVID-19 Vaccines – Important Things to Know
2. COVID-19 Vaccination for Workplaces
3. EEOC Guidance on EEO Law and COVID-19 Vaccination
4. COVID-19 Vaccine Mandates
5. Common Questions Regarding COVID-19 Vaccines
6. Additional Resources
7. ABC National Webinars

Disclaimer: Issues related to COVID-19 vaccination in the workplace are governed by various laws and regulations. The resources available on the COVID-19 Vaccine Toolkit webpage do not convey or constitute legal advice, nor are they intended to be acted upon as such. Employers should consult with counsel for guidance on legal questions related to COVID-19 vaccinations in the workplace.

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On Sept. 15, House Democrats released additional details on planned tax increases to pay for their $3.5 trillion budget reconciliation package. The House Ways and Means Committee continues to mark up its portion of the budget reconciliation package, and some of the top-line tax provisions already revealed may affect ABC members.

• A top combined rate on pass-through income of 46.4%. The bill’s cap on the Section 199A deduction for pass-through businesses would limit individuals to a $400,000 deduction and married couples to $500,000, along with enforcement of a 3.8% tax on their active business income, a 3% surtax on top earners and an increase in the top marginal rate.
• An increase in the top marginal individual income tax rate to 39.6% for married individuals filing jointly with taxable income over $450,000, heads of households with taxable income over $425,000, unmarried individuals with taxable income over $400,000, married individuals filing separate returns with taxable income over $225,000 and estates and trusts with taxable income over $12,500.
• A corporate tax rate hike from 21% to 26.5% for large profitable businesses.*
• The doubling of the estate tax exemption from the Republican’s Tax Cuts and Jobs Act of 2017 would expire at end of 2021 rather than the end of 2025, along with changes to various valuation and trust rules under the current tax code.
• A capital gains rate tax hike from 20% to 25% and a top combined capital gains rate of 31.8%.
• A 3% surtax on the nation’s top earners earning over $5 million.
• An allowance of up to $250 for dues to a labor organization can be claimed as an above-the-line deduction.

* The proposed corporate rate does contain a lower rate of 18% for small businesses (income below $400,000). The 26.5% rate applies only to businesses with income in excess of $5,000,000 and remains at 21% for businesses below that threshold. The proposal does not currently include ABC-opposed provisions that would cap Section 1031 like-kind exchanges and change stepped-up basis for family-owned businesses.

ABC believes that these proposed tax increases would have a devastating impact on ABC members and the economy, making it tougher for many construction businesses to hire new workers and provide competitive pay and benefits for their employees. Last week, ABC sent a letter to the House Ways and Means Committee expressing concerns with the tax proposals and paid leave mandate ahead of the committee’s recent markup. ABC also joined coalitions in three additional letters addressing the Section 199A deduction,  stepped-up basis and Section 1031 like-kind exchanges. The stepped-up basis and 1031 exchange proposals were not included in the Ways and Means package.

The Ways and Means Committee’s proposal also revisits areas of the bipartisan infrastructure bill, which may cause heartburn for the bipartisan group of senators that orchestrated the infrastructure deal earlier this summer. The reconciliation package would impose prevailing wage and apprenticeship requirements on clean energy and facility bonds for construction. Specifically, the bill applies Davis-Bacon prevailing wage requirements to all proceeds of exempt facility bonds used for the construction, alteration or repair of water furnishing facilities, sewage facilities, highway or surface freight transfer facilities and zero-emissions vehicle infrastructure facilities.

Further, the bill creates a “bonus rate” tax credit for contractors and subcontractors that provide prevailing wage rates to employees and provide 5% to 15% of labor hours on a project for “qualified apprenticeships.” ABC previously opposed a similar proposal in Sen. Ron Wyden’s, D-Ore., partisan Clean Energy for America Act (S. 1298), which was marked up in the Senate Finance Committee. ABC joined a coalition of organizations in highlighting these concerns in a letter to the committee.

Additionally, on Sept. 10, the House Committee on Education and Labor marked up and approved its $761 billion portion of the bill on a party-line vote. It contains provisions similar to policies included in the ABC-opposed Protecting the Right to Organize Act: 

• $5 million for the implementation of electronic voting in union elections.
• Financial penalties on employers for unfair labor practices.
• Personal liability for company directors and officers for unfair labor practices.
• Prohibitions against employers permanently replacing strikers, employers locking out workers, captive audience meetings and arbitration agreements.

Of note, it is not yet clear if the House of Representatives has the votes to approve this proposal. Additionally, the package must pass through the evenly divided U.S. Senate, where, even if the House is able to include all of these provisions in a final package, they will be subject to change under the Senate Byrd Rule that removes extraneous provisions from budget reconciliation packages.

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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