What will a vaccine/testing mandate cost your construction company?

Employers with 100 or more employees will be required to mandate Covid-19 vaccination or test unvaccinated workers on at least a weekly basis if OSHA’s emergency temporary standard is issued. If it is, are you prepared?

On October 12, the U.S. Occupational Safety & Health Administration (OSHA) sent its draft emergency temporary standard (ETS) to the White House for review, a signal that a final ETS could be issued within a matter of days or weeks.

How you decide to comply with the ETS depends on many factors, with the option to require regular testing a way for companies to avoid the pitfalls of mandating vaccination. But testing comes with its own challenges as well, and understanding the logistics involved is a key first step.

The Society for Human Resource Management (SHRM) offers some questions to consider:

• Are there testing locations near the workplace?
• What are their hours and procedures for testing?
• How long does it take to get testing results?
• What capacity is there for handling your employee testing?
• Is on-site testing a more convenient option? For employers with large numbers of unvaccinated workers, a vendor-run testing program at the workplace might be a good approach.
• What day(s) of the week will you require testing? If testing during the workday is the only available option, how will employee late arrivals or early departures for testing affect productivity?
• Which test will you accept? The rapid test (an antigen test) yields results in about 15 minutes but can give inaccurate results. The PCR test (polymerase chain reaction) provides results in two to four days and is the most accurate test. (The ETS should offer some details on which tests will be acceptable.) 
• Will home testing kits be allowed? How will results documentation be handled?

What could OSHA’s ETS cost your company?

While the Families First Coronavirus Response Act, as amended by the Coronavirus Aid, Relief, and Economic Security Act, provides for free Covid-19 testing of insured and uninsured individuals when determined medically necessary by a health care professional, the law does not currently require free testing for general employment purposes.

The ETS will hopefully address this issue as to whether employers or employees must bear the cost of testing, but OSHA cannot legislate insurance companies to do so. Therefore, it’s important to understand the cost implications of testing before implementing a policy.

The SHRM advises considering the following:

• Are there current state laws that would require you to pay for employment-related costs? Check all applicable states as employees are governed by the laws of the state in which they perform work, which may not be where company headquarters is located.
• What are the projected costs for both the employee and employer for testing? The IRS has stated that in-home tests would be reimbursable under flexible benefits plans such as flexible spending accounts and health savings accounts.
• Will the cost of testing, if paid for by the employee, bring the employee’s weekly pay below minimum wage? Both the Fair Labor Standards Act and some state laws would not allow this.
• Will your company’s budget allow for employer-paid testing for as long as the ETS is in place (which would be six months to start, then it could be extended for another six months or made a permanent standard)? Or is mandatory vaccination, which is free, the better option?

Paid time-off requirements and remote worker considerations bring up additional questions. 

Besides the health-related, political and philosophical dilemmas associated with the Covid-19 vaccine and the workplace, the questions posed here open up a more practical debate over how the goverment mandate will affect a construction company’s productivity and financial well-being. 

To that point, Associated Builders and Contractors (ABC) issued a statement asking OSHA to consider the unprecedented scope of the mandate which will affect 7.4 million individuals employed in construction.

“Despite the efforts of a range of stakeholders, vaccine hesitancy remains an ongoing, complicated reality in countless industries. How the ETS is crafted will have significant, lasting impacts by driving workers away from larger firms and disrupting construction projects without raising the vaccination rate,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs.

“Our key areas of concern are workforce shortages that would be exacerbated by the ETS, employer and employee obligations for vaccinations and testing, paperwork burdens, recordability of adverse reactions to the Covid-19 vaccine, cost of paid time off for vaccinations and adverse reactions, and availability of testing kits.

“The Covid-19 pandemic has already created and accelerated a host of challenges for the construction industry, including a skilled workforce shortage, rising material costs, supply chain disruptions, jobsite shut-downs, additional health and safety protocols and new government regulations. The forthcoming ETS only adds to this long list of concerns.”

Brubeck continued, “ABC continues to encourage construction industry stakeholders to implement effective Covid-19 safety plans and to get vaccinated, because ensuring healthy and safe work environments for employees is a top priority of ABC and its members. ABC is philosophically opposed to federal mandates that undermine the desired policy outcome. ABC plans to be fully engaged in the forthcoming OSHA ETS rule and is evaluating legal options on compliance.”