What OSHA's New COVID-19 Vaccine Standard Means for Construction

Late last week, OSHA issued an emergency temporary standard requiring companies with 100 or more employees to create, deploy, and enforce a mandatory COVID-19 vaccination policy for their workers. The ETS does allow an exception for employers to adopt a policy that requires employees to get vaccinated or, instead of being vaccinated, be tested regularly for COVID-19, and be required to wear a face covering while at work.

To help construction business owners and employees understand and ensure compliance with the new ETS, we’ve compiled a list of important dates and key aspects of the new standard.

Important Dates

Effective Date:

The new rule is effective as of November 5, 2021, when it was published in the Federal Register.

Compliance Dates:

December 6, 2021 – Employers must comply with all requirements of the rule, except those involving testing of employees who are not fully vaccinated.

January 4, 2022 – Employers must comply with testing requirements for unvaccinated workers by this date. Employees who have completed their entire primary vaccination, even if they haven’t completed the two-week waiting period, do not have to be tested.

Comment Dates:

December 6, 2021 – All written comments, including comments on any aspect of the ETS and whether it should become a final rule, are due in n Docket No. OSHA-2021-0007

January 4, 2022 – Comments on the information collection determination described in Additional Requirements are due in Docket No. OSHA-2021-0008.

Who Is Covered Under the ETS?

All employers with 100 employees or more are covered and required to comply with the rule. Employee count is companywide and not by individual office locations. So, if a construction business has 10 office locations with 10 employees at each location, they would be covered under the ETS and required to comply with the new rule.

What About Counting Employees at a Multi-Employer Worksite (Like a Construction Site)?

On a typical multi-employer worksite such as a construction site, each company represented—the host employer, the general contractor, and each subcontractor—would only need to count its own employees. The host employer and general contractor would not need to count the total number of workers at each site.

That said, each employer must count the total number of workers it employs regardless of where they report for work on a particular day. Thus, for example, if a general contractor has more than 100 employees spread out over multiple construction sites, that employer is covered under this ETS even if it does not have 100 or more employees present at any one worksite.

Do Employees Who Work Exclusively Outdoors Count?

Employees who work exclusively outdoors count towards a company’s total employee count. The rule’s protections and requirements would only apply to the employees who work indoors. So, if you had 100 employees and 50 of them work outdoors exclusively, only the 50 that work indoors would be required to comply with the vaccination policy.

Under the ETS, What Qualifies as Work Done Exclusively Outdoors?

In order to qualify as work performed exclusively outdoors, the following criteria must be met:

• The employee must work outdoors on all days (i.e., an employee who works indoors on some days and outdoors on other days would not be exempt from the requirements of this ETS).
• The employee must not routinely occupy vehicles with other employees as part of work duties (i.e., do not drive to worksites together in a company vehicle).
• The employee works outdoors for the duration of every workday except for de minimis use of indoor spaces where other individuals may be present—such as a multi-stall bathroom or an administrative office—as long as the time spent indoors is brief, or occurs exclusively in the employee’s home (e.g., a lunch break at home).

IMPORTANT: The employee’s work must truly occur “outdoors,” which does not include buildings under construction where substantial portions of the structure are in place, such as walls and ceiling elements that would impede the natural flow of fresh air at the worksite.

Which Employees Are Exempt From Being Required to Get a COVID-19 Vaccination?

The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.

Other Exemptions

For employers who opt for a mandatory vaccination policy, every employee other than those employees who fall into one of three categories: those for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

What Must Employers Do to Verify Vaccination Status?

Employers are required to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

What Are Employers Required to Do to Support Employee Vaccinations?

Employers are required to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.

What Are the Requirements for Testing Employees for COVID-19?

Employers are required to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements, or other collectively negotiated agreements. In addition, nothing prohibits employers from voluntarily assuming the costs associated with testing.

Are Employees Required to Report a Positive COVID-19 Test to Employers?

Employers are required to: (1) require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; (3) keep removed employees out of the workplace until they meet criteria for returning to work.

Do Employers Have to Require Employees to Wear Face Coverings?

Employers are required to ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances. Employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (e.g., interfering with the safe operation of equipment).

For more information and answers to other frequently asked questions, be sure to check out OSHA's COVID-19 Vaccination & Testing ETS page.

Legal Challenges

Numerous legal challenges were filed shortly after the ETS was published in the Federal Register. On Saturday, November 6, a day after the ETS was published, the U.S. Court of Appeals for the Fifth Circuit put the rule on hold citing “grave statutory and constitutional issues," following a suit filed with the court.