On Oct. 12, the U.S. Department of Labor’s Occupational Health and Safety Administration sent a COVID-19 Vaccination and Testing Emergency Temporary Standard rulemaking to the Office of Information and Regulatory Affairs at the Office of Management and Budget for review, which will apply to employers with 100 or more employees as required by President Biden’s Path Out of the Pandemic COVID-19 Action Plan. The review at OIRA is usually the final step in the process before a rule is officially published in the federal register.

At this time, neither OIRA nor DOL have made the contents of the ETS public. Generally, OIRA allows organizations to request meetings to discuss concerns about the rulemaking before it is issued. ABC will request a meeting to discuss our concerns, however it is unclear if OIRA will hold meetings on this ETS.

When the ETS is published in the federal register as an interim final rule, it will be effective immediately in states where OSHA has direct jurisdiction. The public will have an opportunity to submit comments on the ETS after it is published. The comments will then be used by OSHA to draft a final rule, which OSHA is expected to issue six months after the ETS is published in the federal register. ABC will submit comments to express any concerns. ABC will also provide further details as soon as the COVID-19 vaccination and testing ETS is published in the federal register.

Background:

On Sept. 27, ABC, a steering committee member of the Construction Industry Safety Coalition, sent a letter  to James Frederick, acting assistant secretary of the U.S. Department of Labor’s Occupational Safety and Health Administration, voicing concerns related to OSHA’s forthcoming COVID-19 vaccination and testing Emergency Temporary Standard, which will apply to employers with 100 or more employees as required by President Biden’s Path Out of the Pandemic COVID-19 Action Plan.

In an ABC press release on the CISC letter, Ben Brubeck, ABC vice president of regulatory, labor and state affairs, stated, “Because OSHA’s COVID-19 vaccination and testing ETS is expected to be the most far-reaching standard ever issued by the agency, it is imperative that OSHA listen to input from the construction industry, which employs 7.4 million individuals. 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. 

“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.

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.

On Sept. 24, ABC, as a steering committee member of the Coalition for Workplace Safety, also sent a letter to OSHA Acting Assistant Secretary James Frederick, stating that OSHA should consider questions and seek written input from stakeholders before issuing any ETS. To do otherwise invites avoidable implementation challenges and costs that would undermine achieving the goals of the ETS.

Additional resources:

• President Biden’s COVID-19 Vaccination Action Plan—What Employers Need to Know (Sept. 30 ABC archived webinar; members only and log-in required)
• ABC, CISC Caution OSHA About Emergency Temporary Standard on COVID-19 Vaccination and Testing (Sept. 24)
• President Biden Unveils Sweeping Six-Part Action Plan to Combat COVID-19 (Sept. 15)
• President Biden’s COVID-19 Action Plan—What Employers Want to Know (Sept. 14-Littler Mendelson)
• White House Announces Vaccine Mandates for Employees of Large Private Employers, Federal Contractors, and Most Healthcare Employers (Sept. 9-Littler Mendelson)
• ABC’s Coronavirus Update webpage