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On Sept. 9, President Biden unveiled a six-pronged national strategy to combat the spread of COVID-19, which will impact large private employers and federal contractors. Our current information comes from the White House and U.S. Department of Labor briefings as well as information posted on the White House website—Path Out of the Pandemic – President Biden’s COVID-19 Action Plan. 

Two issues of concern for ABC members are:

The Department of Labor’s Occupational Safety and Health Administration is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard to implement this requirement.

Also, OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. This requirement will be implemented through the ETS.

NOTE: OSHA indicated that the ETS will be issued in the coming weeks.

Building on his announcement in July, President Biden has signed an executive order to require all federal executive branch workers to be vaccinated. The president also signed an executive order directing that this standard be extended to employees of contractors that do business with the federal government.

NOTE: According to the EO, the Safer Federal Workforce Task Force is required to provide guidance outlining what is required of federal contractors by Sept. 24. Until the guidance is issued, it is unclear what will be required.

Frequently Asked Questions:

On Sept. 10, ABC participated in a conference call with OSHA officials and the below ETS FAQs reflect the latest information. Please note this information could change once the ETS is officially issued. 

• When does this policy affecting companies with more than 100 employees take effect, and will ABC be engaging with OSHA on the forthcoming ETS?

OSHA officials indicated that the ETS will be issued in the coming weeks. 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 only have an opportunity to submit comments on the ETS after it is published. (Generally, the comment period is 30 to 60 days.) 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. Because this new policy will create uncertainty and additional burdens on ABC members, ABC plans to engage with OSHA before the ETS is issued and submit comments when possible to express our concerns.

• How will the ETS impact State OSHA plans?

The 22 states with State OSHA plans will have 30 days to implement the ETS from the date the interim final rule is published in the federal register. OSHA will work with the states to get their plans into compliance.

• How is the 100+ employee threshold measured?

OSHA indicated that the 100+ threshold for coverage will be measured by company, not worksite.

• Will the ETS testing/vaccination requirement extend to all employees?

No. OSHA indicated that employees who work remotely and are never present at the worksite do not fall under the vaccination or testing requirements.

• Will the ETS require employers with 100+ employees to provide paid time off for the time it takes workers to get vaccinated or to recover from post-vaccination side effects?

Yes.

• If an employer has 100+ employees and is also a federal contractor, will it be expected to comply with both the ETS and federal contractor rules?

Yes. It is expected that OSHA and federal agencies will work to ensure the ETS and vaccination mandates imposed on federal contractors are consistent.

• What other issues is the ETS expected to cover?

Who will pay for weekly testing of unvaccinated employees, how employers can verify vaccination status and/or test results, and what level of vaccination is sufficient (i.e., one shot, two, boosters?) and possible exemptions. Additionally, OSHA said enforcement of the new requirements/disciplinary policies for workers who refuse to prove vaccination status and/or test will be up to the employer. 

• When does the vaccination policy affecting federal contractors take effect, and will ABC be commenting on the rule?

The EO affecting federal contractors directs the Director of the Office of Management and Budget to approve the Sept. 24 Safer Federal Workforce Task Force guidance if it will “promote economy and efficiency in Federal contracting.” If the guidance is approved by the OMB, the Federal Acquisition Regulatory Council shall amend the Federal Acquisition Regulations and shall take initial steps by Oct. 8 to “implement appropriate policy direction to acquisition offices” for federal contracts. The new policy will apply to federal contracts issued on or after Oct. 15. However, it is possible this implementation date will be delayed due to legal challenges or delays in the regulatory process.

Because this new policy will create uncertainty and additional burdens on ABC federal contractors, ABC plans to engage with the task force before the guidance is issued and express our concerns. Additionally, ABC plans to participate in the FAR rulemaking process.

• Does the EO apply to all employees of a federal contractor or just federal contractor employees on a covered jobsite?

This is unclear and will likely remain so until the task force guidance is issued. However, the EO says that the policy will apply to federal contractors and subcontractors at “…any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument (as described in section 5(a) of this order).”

• Will these polices be challenged in the courts?

Both policies will almost certainly be challenged in the courts by a variety of government, private and business stakeholders, which may affect the regulatory process, rollout and effective date of the new policies. It is unclear at this time what role ABC will play in any legal proceedings.

Roundup of Resources on the President’s Action Plan:

ABC is closely monitoring the president’s action plan and will provide additional guidance as soon as significant details are made available.

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On Sept. 7, ABC issued an action alert opposing the U.S. House of Representative’s efforts to move forward with the partisan budget reconciliation process that could result in tax hikes and far-reaching labor requirements for ABC members. Please urge your representatives to oppose this package this week as House committees continue to mark up their sections of the package.

Ahead of the House committees’ markups, ABC sent a letter to the House opposing the reconciliation package and expressing concerns about the impact of the proposal’s tax hikes and labor requirements on the nation’s construction industry.

Of note, key votes by Senate Democrats Joe Manchin, W.Va., and Kyrsten Sinema, Ariz., have made clear their opposition to the $3.5 trillion price tag on the current budget package, while progressives have pledged not to support the Senate’s bipartisan infrastructure package without first passing the reconciliation package. These opposing views could potentially sink both proposals as discussions continue among Democrats on a viable proposal that can pass through both chambers and support the president’s policies. Though all provisions would have to eventually survive the scrutiny of budget reconciliation’s Byrd Rule, only a simple majority will be needed to pass the package through Congress.

House committees have already begun formulating legislative text that is in line with their budget resolution instructions. The tentative mark-up schedule puts all 13 House committees on track to hit the Sept. 15 deadline for drafting the full reconciliation bill. That would then enable the House to bring the reconciliation bill to the floor before it votes on the Infrastructure Investment and Jobs Act, the bipartisan infrastructure bill, on Sept. 27.

As committees mark up their portions of the reconciliation bill, Congress will also face critical deadlines at the end of September, including the expiration of the current surface transportation authorization and government funding for federal agencies.

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On Aug. 30, a U.S. District Court for the District of Arizona judge struck down the Trump administration’s final rule revising the definition of “waters of the United States” that are federally regulated under the Clean Water Act. As a member of the Waters Advocacy Coalition, ABC applauded the 2020 rule, known as the Navigable Waters Protection Rule, which provided four clear categories of waters under the CWA that businesses and landowners could easily understand. 

As a result, the areas affected by the decision must comply with the definition of WOTUS established in the 1980s, which is broader in scope and affects more categories of waters than the Trump rule. However, as of this writing, the Biden administration has not resolved whether the 1980s definition will be applied nationally or on a narrower scale—such as on land controlled by the six plaintiff tribes or the states in which those tribal lands are located—which will cause uncertainty for businesses in complying with federal regulations.

Additional clarity will be needed from the administration on how this new ruling will be put in place. ABC is currently reviewing the decision and will provide further guidance on how the decision impacts the construction industry at a later date.

In her decision, the judge wrote that although the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers have stated their intent to replace the definition of WOTUS under the NWPR, allowing the Trump-era regulation to stay in place while the administration works on a new definition of WOTUS could lead to serious environmental harm.

Sen. Shelley Moore Capito, R-W.Va., ranking member on the Senate Environment and Public Works Committee, released a statement following the decision to strike down the rule, stating in part that “while the ruling cites ‘the possibility of serious environmental harm if NWPR remains in place,’ there hasn’t been any evidence from either agency to support the claim.”

EPA and the Corps have held a series of public meetings to hear from interested stakeholders on their perspectives on defining WOTUS and how to implement that definition as the agencies pursue this process. Additionally, the agencies are accepting written comments on their intent to revise the definition of WOTUS. ABC plans to submit comments as a member of WAC before the Sept. 4 deadline.

ABC will continue to monitor and provide updates on this decision in Newsline. More information on WOTUS can be found on the EPA website.

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On Aug. 27, ABC submitted comments to the U.S. Department of Labor’s Wage and Hour Division in response to its notice of proposed rulemaking to increase the minimum wage for federal contractors.

In accordance with President Biden’s Executive Order 14026, Increasing the Minimum Wage for Federal Contractors, WHD issued a proposal that will require all agencies to incorporate a $15 minimum wage for all federal contractors in new contract solicitations beginning Jan. 30, 2022, and implement the minimum wage into new contracts by March 30, 2022. Additionally, the proposal states all agencies must raise the minimum wage annually by an amount determined by U.S. Secretary of Labor Marty Walsh beginning Jan. 1, 2023.

In its comments, ABC stated that most of ABC’s contractor members engaged in private construction and government construction already pay the substantial majority of their employees at wage rates higher than the newly proposed minimum wage of $15 per hour, because construction is a high-wage industry, and because of the requirements of the Davis-Bacon Act —and to a lesser extent the Service Contract Act—on government contracts. The primary concern in these comments is not the wage rate itself, but rather the unlawful arrogation of power by the executive branch to set a new minimum wage in direct contravention of the above-referenced acts of Congress. The department’s proposed rule will cause great confusion among government contractors and will needlessly increase the regulatory burden on contractors in the construction industry. Therefore, the NPRM should be withdrawn or substantially modified to avoid imposing any new minimum wage that is different from the minimum wages dictated by Congress.

ABC also urged DOL to modify the proposal to achieve greater conformity with the DBA and SCA in a way that is administratively prudent for the department and entirely consistent with the requirements under EO 14026, as this will minimize confusion for government contractors.  

More information on the proposed rule can be found in an analysis issued by ABC National’s general counsel, Littler Mendelson, P.C.

ABC will continue to provide updates on this rulemaking in Newsline.

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On Aug. 20, the Construction Industry Safety Coalition, of which ABC is a steering committee member, submitted comments in response to the U.S. Department of Labor’s Occupational Safety and Health Administration’s Occupational Exposure to COVID-19; Emergency Temporary Standard interim final rule. 

CISC’s comments support OSHA’s determination not to include the construction industry within the scope of the rule. In the comments, CISC stated that the construction industry has been consistently characterized as low risk for exposure to COVID-19 by OSHA and other regulatory agencies. Furthermore, the construction industry has been at the forefront of efforts to implement proactive mitigation measures specific to COVID-19. Any attempts by OSHA to expand the ETS to cover construction is not supported by the evidence and would be impermissible under the Occupational Safety and Health Act of 1970.

The comment letter discusses the following:

1. The proactive measures taken by CISC and the construction industry to address COVID-19 in construction. 
2. The process that OSHA has undertaken to develop the ETS and how applying the ETS to the construction industry without engaging the Advisory Committee on Construction Safety and Health and specifically raising construction-specific issues in the ETS would be inappropriate and unlawful. 
3. How and why the construction industry is low risk and thus applying the ETS to the construction industry would be impermissible. 
4. How it would be inappropriate to apply the requirements of the ETS, the vast majority of which would be inapplicable to the construction work environment, in the construction industry. 
5. How OSHA’s anti-retaliation paragraph permitting OSHA to pursue Citations and Notifications of Penalty for alleged retaliation is unlawful and impermissible under the OSH Act.

Read CISC’s comment letter to learn more.

In addition to CISC, ABC submitted comments to OSHA as steering committee member of the Coalition for Workplace Safety.

On June 10, OSHA announced the long-awaited COVID-19 Healthcare Emergency Temporary Standard. The ETS focuses requirements on healthcare workers who are most likely to have contact with someone infected with COVID-19. The ETS establishes new requirements for settings where employees provide healthcare or health care support services, including skilled nursing homes and home healthcare, with some exemptions for healthcare providers who screen out patients who may have COVID-19. 

“OSHA made the right decision to issue an ETS to cover tasks associated with high exposure risk levels and not construction operations, which are generally low risk,” said CISC in a June 10 statement. “Workplace safety and health are top priorities for members of CISC. At the outset of the pandemic, the coalition developed an industry-wide COVID-19 Exposure Prevention Preparedness and Response Plan to provide a comprehensive approach to keeping construction workers, deemed to be essential, safe.”

Visit OSHA for additional resources on COVID-19, including updated Aug. 13 guidance on Mitigation and Preventing the Spread of COVID-19 in the Workplace. 

Any further updates on the OSHA COVID-19 ETS will be included in Newsline.

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