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Construction Groups See Biden Administration’s Decision to Exclude Construction From the COVID-19 Emergency Temporary Standard a Smart One

June 16, 2021

The U.S. Department of Labor’s Occupational Safety and Health Administration announced the long-awaited COVID-19 Healthcare Emergency Temporary Standard on June 10. The Construction Industry Safety Coalition, which ABC is a steering committee member, said that it is pleased that the Biden administration and OSHA listened to the concerns and recommendations of the construction industry in formulating the ETS.

“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 recent 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.”

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. 

Even though this ETS may not apply to all construction workers directly, it may affect ABC members who perform work at health care facilities. While it is not entirely clear at this time, ABC encourages its members involved in health care facility work to consult counsel. ABC is currently reviewing the OSHA COVID-19 ETS with counsel and will provide further details once available.

In addition, OSHA updated its Jan. 29 guidance on Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, which applies to nonhealthcare employers. The summary of changes as of June 10 include focusing protections on unvaccinated and otherwise at-risk workers, encouraging COVID-19 vaccination and adding links to guidance with the most up-to-date content.

ABC’s general counsel, Littler Mendelson P.C., wrote an analysis of the OSHA ETS and updated guidance, titled Federal OSHA Issues Emergency Temporary Standard for Health Care. The article states that the update clarifies how OSHA wants employers “to engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19.”

These steps include:

• Granting paid time off for employees to get vaccinated
• Instructing any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-Co-V-2 and all workers with COVID-19 symptoms to stay home from work
• Implementing physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas
• Providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE
• Educating and training workers on the employer’s COVID-19 policies and procedures using accessible formats and language(s) they understand
• Suggesting that unvaccinated customers, visitors, or guests wear face coverings
• Maintaining ventilation systems
• Performing routine cleaning and disinfection
• Recording and reporting COVID-19 infections and deaths
• Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards
• Following other applicable mandatory OSHA standards.

The Littler article further states, “While many of the items on this updated list were previously present in the initial guidance, the fact that OSHA reviewed and noted updates further confirms OSHA’s expectations for employers in all industries.  Employers outside of the healthcare industry are advised to closely review the updated guidance and make further adjustments to their own internal policies and procedures, as appropriate.”

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