At the time this article is being written, it is less than 24 hours after President Joe Biden announced his six-point plan for addressing the recent surge of COVID-19 infections. Regardless of one’s politics, the scale of the new policy and stated intention for implementation is nothing short of breathtaking.
The related executive orders and stated policy positions put out by the White House are heavy on platitudes and light on details. As a result, there are still many more questions than answers on where things are headed. That being said, here are several considerations worth pondering for those in the construction industry.
Is it really a vaccine mandate? It’s unclear. The president has indicated that OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workers are vaccinated or tested every week. By these terms, those who don’t want to vaccinate can test out each week. The more pertinent question is what actions employers will take in response to this policy (and the administration very likely anticipated this reality). Testing employees weekly will cost incredible amounts of money, and the easier route for employers is to mandate the vaccine as they are legally allowed to do. There are also procedural related questions.
“From the lawyer’s chair, [debate about the issues] is secondary to making preparations for how to deal with the impact these policies will have on your construction company and projects”
There is a formal process OSHA has to follow to adopt the rule, and this takes time. It also will be an “emergency rule,” which will likely have some sort of sunset provision in it. We don’t yet know about how these timing elements will play out. The missing detail makes it hard to plan next steps, and there will undeniably be a number of bumps between here and there.
Can President Biden legally mandate vaccines and will there be court challenges? The president likely cannot mandate that private employers insist on all of their employees being vaccinated. As a result, it’s highly likely there will be legal challenges. By way of some helpful context, the Executive Orders that President Biden actually signed only apply to those working for or contracting with the federal government. He can take those steps legally. His inability to mandate it directly in the private sector is likely why there is no formal executive order on the issue and the approach is more nuanced in that area. By turning the decision over to OSHA to address, any new regulation is subject to the aforementioned rulemaking process and provides the imprimatur of a law properly put in place.
This is a common trick that administrations of both political parties undertake when they cannot get a desired policy passed into law through Congress, or if they want to distance themselves from the decision politically.
Republicans in Congress and governors of both parties will likely have objections as this part of the president’s policy develops further. In addition to the threshold issue of whether OSHA should even be involved in the issue, there undeniably will be disagreements over what is actually in the rules, and how they are applied once they are put out for consideration. In the end, your takeaway should be that there is still some time before the rules go in place in the private sector, but pay attention since it could really impact operations.
What can I do to prepare for the impact of President Biden’s new policy? The debate about the motivations of the Biden administration in moving forward with this policy is already raging. From the lawyer’s chair, this chatter is secondary to making preparations for how to deal with the impact these policies will have on your construction company and projects. A lengthier conversation with your legal advisor is in order to assess your specific needs. Here are some general tips to consider though:
1. How will your customers react to President Biden’s policy? If, for example, you are working for a customer that has decided it will follow the policy and require all the companies working for them to do so, they are legally permitted to impose it on you in order to do business with them. In short, your decision will be guided in part by what the companies with whom you traditionally enter contracts chooses to do. Get out in front of it by communicating with them so you understand whether you need to find alternate work or what adjustments you will need to make to keep your current client base.
2. How do I deal with the OSHA element? The introduction of OSHA into the equation opens the way for additional compliance requirements and related problems. I suggested at the beginning of the pandemic that companies designate a pandemic safety officer. If you have not done that already, I recommend doing that now and identifying that person as the point of contact with OSHA. Single sourcing this work will allow one person to take the time to become the company expert and eliminate confusion, and it will eliminate communication problems if and when OSHA comes calling. All other employees should be told to refer OSHA to this designated person.
3. Mandates likely means there will be changes to your contract documents. It’s time to review them again to evaluate how others are trying to pass both the vaccination related rules and other related COVID protocols and risks to others; and you should similarly consider how you can do the same.
The construction industry has always been very fluid and required dynamic companies to perform well. A large part of that dynamism is the ability to adapt to the current environment by keeping a can-do attitude and finding solutions to new problems. The pandemic is both accentuating and testing that part of our industry. This new policy will require companies to make adjustments, so keep track of the details as they are provided and plan accordingly. (Send me an email if you want to be added to our update list.)
Josh Quinter is a commercial litigation attorney, with a focus on construction law. He is also a member of the Board of Directors and a department chair at his law firm, Offit Kurman. Active in a number of construction trade and business organizations, he presently serves as the president of the Mid-Atlantic Chapter of the Metal Building Contractors & Erectors Association (MBCEA), serves on the MBCEA national board and is the organization’s general counsel. Contact him at email@example.com or for more information go to www.offitkurman.com/attorney/joshua-quinter.