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In a Nov. 9 press release, ABC and its Alabama chapter announced that they filed a petition for review with the U.S. Court of Appeals in the 11th Circuit against the U.S. Department of Labor’s Occupational Safety and Health Administration for its COVID-19 Vaccination and Testing Emergency Temporary Standard, which applies to employers with 100 or more employees.

In ABC’s press release, Steve Klessig, vice president of architecture and engineering at employee-owned Keller Inc. in Kaukauna, Wisconsin, and 2021 chair of the ABC board of directors, said, “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. 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.”

“This ETS will create permanent and severe harm to construction industry employers and their 7.4 million employees, nearly 90,000 of whom live and work in Alabama,” said Jay Reed, president of ABC Alabama. “By exceeding the Department of Labor’s statutory authority, OSHA fails to comply with the standards for issuing an ETS, particularly as it relates to the construction industry. ABC continues to encourage vaccination against COVID-19 but cannot support this mandate.”

“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,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “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.”

Background on OSHA ETS and Resources:

On Nov. 5, OSHA published  a COVID-19 Vaccination and Testing Emergency Temporary Standard that applies to employers with 100 or more employees, as required by President Biden’s Path Out of the Pandemic COVID-19 Action Plan. The ETS went into effect on Nov. 5. Read ABC’s press release on the OSHA ETS.

The public can submit written comments on the ETS until Dec. 6. ABC will be participating in the rulemaking process and will provide information on how chapters and members can engage in the rulemaking in the near future.

Soon after the OSHA ETS was issued, the U.S. Court of Appeals for the 5th Circuit granted a temporary stay on Nov. 6, citing that the ETS raises “grave” concerns. The government now must respond and justify the rule. Following the government's response, the court will presumably address all the required elements of a stay of the ETS and clarify whether the stay, if any, will have nationwide effect.

On Nov. 16, there will be a consolidation of all petitions for review into a single circuit, which may or may not be the 5th Circuit. Whichever court gets the case(s) could revisit any stay orders issued in the preceding week. Any stay order that is issued will only stay in effect until the final consolidated court reviews the merits and decides whether the ETS is legal or not. It is not yet clear whether the court could expedite its review and conceivably act before the year is over.

To learn more about the OSHA ETS, register for ABC National’s webinar on Nov. 17 at 2 p.m. ET.

While ABC is continuing to review the details of the ETS, here is what we currently know from OSHA:

Ø  Covered employees are required to be vaccinated by Jan. 4 and unvaccinated employees are required to produce a negative test on at least a weekly basis.

By Jan. 4, all covered employers must ensure that their employees have received the necessary shots to be fully vaccinated—either two doses of Pfizer or Moderna or one dose of Johnson & Johnson.

By Jan. 4, all covered employers must ensure that any employees who have not received the necessary shots must begin producing a verified negative test to their employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider. The ETS includes a wide variety of tests that comply with the standard and does not require employers to provide or pay for tests. Covered employers may be required to pay for testing because of other laws or collective bargaining agreements.

The OSHA ETS generally requires covered employers to establish, implement and enforce a written mandatory vaccination policy, which includes a process for accommodations for employees that cannot get the vaccine due to medical or religious exemptions. However, there is an exemption from that requirement for covered employers that establish, implement and enforce a written policy allowing any employee not subject to a mandatory vaccination policy to either choose to be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear a face covering in lieu of vaccination. The OSHA Mandatory Vaccination Sample and Vaccination or Testing and Face Covering Sample templates are available on the DOL website.

Ø  Pay covered employees for the time it takes to get vaccinated.

By Dec. 6, all covered employers are required to provide paid time off for their employees to get vaccinated and, if needed, sick leave, to recover from vaccine side effects experienced that keep them from working.

Covered employers are required to support COVID-19 vaccination for each employee by providing reasonable time to each employee during work hours for each of their primary vaccination dose(s), including up to four hours of paid time, at the employee’s regular rate of pay, for the purposes of vaccination.

If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects experienced following a primary vaccination dose. In addition, if a covered employer does not specify between different types of leave (i.e., employees are granted only one type of leave), the employer may require employees to use that leave when recovering from vaccination side effects. If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects.

Ø  Ensure all unvaccinated covered employees are masked.

By Dec. 6, all covered employers must ensure that unvaccinated employees wear a face mask while in the workplace. Only employees who are not fully vaccinated are required to wear a face covering under the standard when indoors and when occupying a vehicle with another person for work purposes, except in certain limited circumstances. Covered employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (for example, interfering with the safe operation of equipment).

Ø Covered employers are required to provide information to employees.

The OSHA ETS requires covered employers to provide employees in a language and at a literacy level the employees understand the following: information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; the CDC document Key Things to Know About COVID-19 Vaccines; information about protections against retaliation and discrimination; and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Ø Covered employers are subject to requirements for reporting and recordkeeping.

The ETS requires employers to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

The ETS requires employers to make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

Ø  Streamline implementation and set one deadline across different vaccination requirements.

Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the COVID-19 Vaccination and Testing ETS. The deadline for the federal contractor vaccination requirement will be aligned with the deadline for the ETS.

Employees falling under the ETS or federal contractor rule will need to have their final vaccination dose—either their second dose of Pfizer or Moderna or single dose of Johnson & Johnson—by Jan. 4. The ETS will not be applied to workplaces subject to the federal contractor requirement, so employers will not have to track multiple vaccination requirements for the same employees.

For further details on scope and applicability, vaccination, testing, face coverings, reporting and availability of records, see OSHA’s Frequently Asked Questions.

Additional OSHA Resources:

This article is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.