Vaccine mandate pushed to January for federal as well as private contractors

By Jenny LescohierNovember 10, 2021

U.S. President Joe Biden responds to a question from a reporter after speaking about Covid-19 vaccines and booster shots in the State Dining Room at the White House, September 24, 2021. REUTERS/Evelyn Hockstein/File Photo

Federal contractors now have until Jan. 4, 2022 to comply with the White House vaccine mandate which says companies with 100 employees or more must require vaccination against Covid-19.

The change is part of an effort to simplify compliance and make it consistent for both federal and private sector companies.

Effectively, all companies with more than 100 employees must now meet the requirements of OSHA’s emergency temporary standard (ETS) by Jan. 4, not Dec. 8, as previously set for federal contractors.

Reports say the the emergency temporary standard will apply to roughly 84 million Americans.

A White House statement explained that “The rules... ensure employers know which requirements apply to which workplaces. Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the newly released Covid-19 Vaccination and Testing ETS. To make it easy for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS.”

The statement continued, “Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022.”

The White House said it will not apply the OHSA emergency temporary standard or the CMS rule to workplaces subject to the federal vaccine mandate for contractors, so employers won’t have to track multiple requirements.

The White House said, “This will make it easier for employers to ensure their workforce is vaccinated, safe, and healthy, and ensure that federal contractors implement their requirements on the same timeline as other employers in their industries.

“We wanted to do this because we’re really aligning it to make it easier — to make it as easy as possible for businesses to implement these requirements and for workers to comply,” a senior administration official told reporters. “That said, there’s no reason to wait, and we know that many employers are not waiting. And we hope that employers and workers will get vaccinated as quickly as possible, because that’s obviously our path out of this pandemic.”

While federal contractors now have the same Jan. 4 deadline as other private sector companies, under the new OSHA standard, companies with 100 employees or more have to ensure their workers have received either one or both shots by Jan. 4 — or tests for Covid-19 at least weekly.

Under the federal vaccine mandate for contractors, employees don’t currently have the option to be tested weekly.

According to reports, the Biden administration’s Safer Federal Workforce Task Force has said contractor employees who have received an approved medical or religious accommodation from the mandate will have to follow masking, social distancing and other safety protocols, which may include testing.

The new deadline for contractors comes as nearly 20 states have sued the Biden administration over the federal vaccine mandate, and some members of industry had voiced oppostion to the policy.

Associated Builders and Contractors and its Alabama chapter filed a petition for review with the U.S. Court of Appeals in the 11th Circuit against OSHA for the ETS.

“The OSHA ETS rule presents one of the greatest sources of risk and uncertainty to the construction industry because it is likely to exacerbate the skilled labor shortage currently facing the industry and many small businesses like my company,” said Steve Klessig, vice president of architecture and engineering at employee-owned Keller Inc., Kaukauna, Wisconsin, and 2021 chair of the ABC board of directors. “ABC’s legal challenge pushes back against the Biden administration’s overreaching policy, which creates unnecessary tension between employers and employees and is likely to further disrupt America’s economic recovery.”

Ben Brubeck, ABC vice president of regulatory, labor and state affairs, added, “By creating excessive compliance costs and regulatory burdens, this unnecessary ETS will magnify economic challenges facing the construction industry, such as a workforce shortage of 430,000, rising materials prices and supply chain woes, and cause negative ripple effects throughout the overall American economy. ABC’s hope is that this legal challenge will encourage the justice system to examine this overreach, realize its irreparable harm to the construction industry and rule it unlawful.”

Others say cumbersome rules are pushing workers toward employment with smaller firms.

“The Biden administration’s new vaccine mandates will make the challenge of vaccinating more construction professionals harder, based on our initial analysis of the measure,” said Stephen E. Sandherr, chief executive officer of Associated General Contractors of America (AGC).

“The rule creates more confusion than clarity. For example, the measure claims to require workers to incur the costs of testing, yet it also says many employers will likely be required to pay those workers for the time spent getting tested. The rule also claims to exempt people who work outside – something many in construction do – but then defines outside in a way that excludes just about every occupation traditionally performed outdoors.

“The administration is doing more to encourage vaccine-reluctant workers to relocate to smaller firms than to get vaccinated,” he said.

Construction’s overall vaccination rate, which has been consistent since May at between 53% and 58%, according to data tracked by CPWR, a nonprofit construction safety research firm. Inoculation rates for all other occupations fall between 80% to 82%.

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