What Biden’s OSHA-enforced vaccine, testing mandate mean for construction

By Riley SimpsonSeptember 15, 2021

President Joe Biden announced the Path out of the Pandemic plan, which will require vaccinations or negative Covid-19 tests for companies with 100 or more workers, last week

Last week, President Joe Biden announced his Path out of the Pandemic plan, which tasks the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) with requiring all employers with 100 or more employees to mandate vaccines against Covid-19 or require unvaccinated workers to produce weekly negative tests.

The plan also requires vaccinations for more than 17 million healthcare workers, all federal workers and millions of contractors who do business with the federal government.

OSHA will be using an Emergency Temporary Standard (ETS) to implement the requirement in the coming weeks, and the White House said the ETS will affect approximately 80 million workers in private-sector businesses.

The ETS will also require covered employers to provide paid time off for workers’ vaccine appointments and recovery from post-vaccination side effects, according to the White House.

Addressing the nation last week, Biden said: “My message to unvaccinated Americans is this: What more is there to wait for? What more do you need to see? We’ve been patient, but our patience is wearing thin, and your refusal has cost all of us.”

According to Our World in Data, the U.S. has surpassed the 60% mark measuring people who have received at least one dose of the Covid-19 vaccine.

At the Access, Lift & Handlers 2021 Virtual Conference this week, attorney Iris Halpern, of the Denver-based law firm Rathod Mohamedbhai LLC, spoke about the mandate and what it means for construction.

Halpern, who actually predicted Biden’s direction of OSHA’s temporary standards back in January 2021, said that although Biden’s vaccination requirement will likely meet legal opposition, she expects that the president’s mandate will come down the pike in a practical way quickly.

“It’s about setting up best practices,” Halpern said. “I do think [contractors and employers are] opening [themselves] up for liability if someone gets sick or hurt. If you really feel like you can’t mandate a vaccine – although I think that’s coming down the pike – then you need to follow through other best practices.”

Other best practices include mask and other PPE mandates, in addition to social distancing and other precautions against the spread of Covid-19.

“If someone dies, you don’t want that liability tracing back to you,” Halpern said as advice to employers in construction. “It opens up liability if you don’t implement these best practices.”

With the U.S. still offering the Pfizer, Moderna and Johnson & Johnson vaccines for free, Halpern said the opportunity exists as Biden’s mandate rolls out.

“There’s no excuse not to get [the vaccine] in terms of it being available,” Halpern said.

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