Since President Joe Biden issued plans to mandate vaccines in some workplaces earlier this month, a number of construction companies are encouraging their employees to get vaccinated and are trying to figure out what the new rules mean for their workplace.

Biden announced on Sept. 9 that private employers with more than 100 employees will be required to either mandate vaccines or conduct weekly COVID-19 testing, while government employees and employees of government contractors will be required to get vaccinated, with no option for regular testing in lieu of vaccination. These policies are expected to affect over 100 million workers.

DPR Construction, a California-based commercial contractor with over 9,000 employees, is gearing up to meet the new mandate, according to Jay Weisberger, communications leader at DPR. The company recently implemented a system where employees can share their vaccination documents with the human resources department. Company officials estimate that more than 50% of the workforce is vaccinated. 

EllisDon and PCL Construction, two of Canada's largest general contractors, announced last week that they are implementing vaccination verification requirements. Both companies will require Canadian employees working at any location on company business to be fully vaccinated for COVID-19 by Nov. 1. Unlike the Biden administration mandate on government employees, testing will be offered as an alternative to full immunization.

Concerns and questions

While Associated Builders and Contractors encourages people in the construction industry to get vaccinated, the group has concerns about several “unresolved questions” related to the new COVID-19 vaccine policies, according to Ben Brubeck, ABC vice president of regulatory, labor and state affairs. ABC officials plan to share these concerns with the Biden administration.

Other contractor groups said Biden's actions are too broad and would put undue burdens on firms that are already having a hard time finding workers. They are concerned that workers will leave their jobs rather than get vaccinated.

Executive Director of the Association of Oklahoma General Contractors Bobby Stem believes the executive order will impact highway construction in Oklahoma and across the United States by "effectively shutting down much-needed work to build, maintain and replace dangerous roads and bridges," he said in a statement to The City Sentinel. 

"Yes, we do, and need to, take the new COVID variant very seriously," said Stem. "However, a blanket mandate on companies with more than 100 workers who do highway construction is grossly unreasonable and not a fit for every workplace."

Confusion on policy implementation

There is some confusion as to exactly who these mandates will affect and when they will begin.

The Biden administration announced the plan will go into effect immediately, "but we expect there will be some notice period that employers can react to," said Gabrielle Wirth, partner at law firm Dorsey & Whitney, during a recent company webinar. Panelists during the webinar said they believe that the mandate for employers with 100 or more employees will go into effect sometime in October.

The proposed OSHA action plan requires all private employers with more than 100 employees to either 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. Several questions arise from this mandate, such as:

• How do you determine whether an employer has more than 100 employees?
• Are subcontractors counted in this number?
• Who will pay for the weekly testing? 
• What are the penalties for non-compliance?

"Right now, we don’t know what kind of employees will be covered. For example, do part-time employees count? Do seasonal employees count?" said Katie Ervin Carlson, senior attorney at Dorsey & Whitney, during the webinar. "I've also had questions that I don't know how to answer yet in terms of how do you calculate 100. So, what if an employer has a few employees in multiple states, is there going to be some sort of distance requirement?"

There is also confusion as to what classifies a federal contractor or a federal subcontractor. A federal contractor is an organization that has a direct contract with the federal government. By comparison, a federal subcontractor is a company that does business with another company that holds direct contracts with the U.S. federal government.

Federal contractors and subcontractors, unlike private employers with more than 100 employees, will be required to get the vaccine and will not have the option for testing.

There are a number of ways to find out if a business is considered a federal contractor or a federal subcontractor. The easiest way to know is to receive a letter from a governmental contractor saying that your organization is a subcontractor necessary for the performance of a government contract. Other ways include checking the Federal Procurement Data System or a recent EEO-1 report, said Drew James, associate at Dorsey & Whitney, during the webinar.

"If one of your customers has ever asked you to sign an affirmative action plan, sometimes that's a signal that you might be a [federal] contractor," said James. "If you're part of a large company that has a parent organization and that parent has contracts with the federal government, it's worth calling a good lawyer because you may well be a [federal] contractor."

Some states will fight the ruling in the courts

Nearly two dozen governors have threatened to sue the Biden administration over the vaccine requirement on private sector employees, claiming the federal government cannot impose a nationwide mandate. Arizona's attorney general filed the first lawsuit challenging the new mandate on Sept. 14.

But Wirth said lawsuits like these will most likely not be successful. There's a lot of legal history confirming that as long as there's evidence of grave danger, the executive branch has the power to have OSHA issue these kinds of regulations, she said.

Some health and safety advocates said they would like to see the mandates go even further by adding requirements for other types of COVID-19 mitigation protocols.

The new vaccine mandate for private sector workers is a "missed opportunity" for a broad, comprehensive effort to prevent the spread of COVID-19, said Marcy Goldstein-Gelb, a co-executive director of the National Council for Occupational Safety and Health, in a press release shared with Construction Dive.

Social distancing, improved ventilation, shift rotation and protective equipment to reduce exposure are all important components of an overall plan to reduce risk and stop the virus, said Jessica E. Martinez, co-executive director of National COSH. But those strategies are missing from the mandate.

"COVID-19 vaccines are safe and effective, but they are only one piece of a broad effort needed to keep workers safe," said Martinez. "The highly contagious delta variant of COVID-19 requires a comprehensive approach to protect all workers."