On Sept. 24, the Safer Federal Workplace Task Force issued guidance on the president’s executive order calling for a broad vaccination mandate for direct federal contractors. The guidance raises many questions without clear answers, including but not limited to how the mandate will be enforced and employer liabilities stemming from the mandate; the precise (but clearly broad) applicability of the mandate to federal contractors’ employees (whether or not they are working directly on a federal project); and whether there will be provisions for testing employees who do not receive exemptions for medical or religious reasons. AGC has retained outside legal counsel—and is asking some of the brightest legal minds within the industry—to help it review its legal options. AGC cannot, however, complete its review until the FAR Council issues a contract clause, which would, unlike recent guidance, be legally binding. The association has directly spoken with the White House Office of Management and Budget, and key federal construction owner agencies to explain the significant disruptions this mandate will cause the construction of federal projects, among other things.
Linbeck Group was honored for having the nation’s best construction safety and wellness plan in 2020 by the Associated General Contractors of America. The association, which oversees the Willis Towers Watson Construction Safety Excellence Awards, an annual ranking of construction safety programs, noted that 43 other companies were also selected as winners for the quality of their safety programs.
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The Administration released general details of President Biden's COVID-19 Action Plan and two Executive Orders that will require all federal employees and federal contractors and subcontractors to be vaccinated against COVID-19. The Executive Order impacting federal contractors requires the Safer Federal Workforce Task Force provide further guidance and a draft contract clause by September 24th. The Federal Acquisition Regulation will be amended to include these requirements in a contract clause in federal solicitations and contracts. Direct federal contracts can expect this new contract clause to appear in all covered federal contracts, extensions, and renewals by October 15th. The E.O. essentially requires all direct federal contractor and subcontractors to be vaccinated, without the option of submitting a weekly test. The E.O. requires the Task Force to define key terms like “contractors workplace locations.” These types of definitions will be key in understanding the breadth of the vaccination requirements. However, everything that AGC has heard from the White House and Task Force is that the vaccine mandate will likely apply to all employees of federal contractors and subcontractors, with limited exceptions.
On July 9, President Biden unveiled his Path Out of the Pandemic Plan, which implements a six-pronged national strategy to combat the surge of the Delta variant. One of the key aspects of the plan is a requirement that OSHA issue an Emergency Temporary Standard (ETS)—reportedly within a matter of weeks—that will require all employers with 100 or more employees to 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. While there are few details to make a completely informed decision on the potential impacts of the ETS on the construction industry, AGC has communicated concerns to OSHA as it relates to the practical impacts such a mandate may have on the industry amidst a workforce shortage, issues relating to controlling contractor responsibilities and recordkeeping obligations, availability of test kits, and laboratory capacity for analyzing the anticipated increase in testing that may result from such a mandate, among other things.
All Employers 100+ Must Ensure Vaccinated or Tested Weekly
On July 29, the Federal Acquisition Regulation (FAR) Council issued a proposed rule to add and expand Buy American Act requirements on direct federal construction projects (not federal-aid transportation projects). The proposed rule increases the domestic content required to 60% with increases in two years to 70% and then 75% in five years. It permits acceptance of products and construction materials up to six years after publication of the rule which are unavailable at an acceptable cost. It also states that a higher price preference may be identified for critical end products and construction materials. The rule was initiated as a result of President Biden’s Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers. White House staff briefed AGC on the direction of the proposed rulemaking and AGC gave feedback to inform the FAR Council’s process. AGC will provide feedback on how this rule should not exacerbate continuing construction material shortages and price spikes.
On June 10, U.S. Labor Secretary Marty Walsh announced that the long-anticipated federal COVID-19 Emergency Temporary Standard (ETS) from the Occupational Safety and Health Administration (OSHA) will only apply to healthcare settings. This represents a significant change from early reports that the new standard would apply to a broad range of industries, including construction. The fact that the ETS only applies to healthcare settings is a significant victory for AGC and the industry. AGC led a broad coalition effort to question the need for the standard, considering the widespread adoption of coronavirus vaccines and the fact the construction industry has been operating, safely, since the start of the pandemic. This announcement comes just a few weeks after AGC successfully convinced OSHA to suspend enforcement of the agency’s recordkeeping regulations related to adverse reactions to COVID-19 vaccines, whether required or recommended.