ConDig (28-Oct-21) Leaders of the US house building industry have questioned the legality of the government’s planned rollout of a vaccine mandate by the end of next month.
The National Association of Home Builders (NAHB) and its partners in the Construction Industry Safety Coalition (CISC) questioned the authority of the U.S. Department of Labor’s Occupational Safety and Health Administration’s (OSHA) ability to issue an emergency temporary standard (ETS) that requires vaccine mandates for workers.
NAHB noted that an ETS is permitted only upon showing there is a “grave danger” from exposure to a hazard in the workplace and that OSHA cannot make this showing in the construction industry.
It comes as the NAHB said that the residential construction industry was at a very low risk for COVID-19 transmission as most work is performed outdoors, while the nature of indoor tasks allow workers to remain at least six feet apart. Moreover, home building involves little contact with the public, visitors or customers during construction.
OSHA’s own assessment found that construction work is considered a “high exposure risk” occupation only in rare and specific circumstances, such as when work is being done indoors with persons suspected or known to have COVID-19.
The construction industry was excluded from the June ETS from OSHA on COVID-19 workplace safety.
The mandate requires businesses with 100 or more workers to be vaccinated or face weekly testing. If businesses do not comply, the government will “take enforcement actions,” which could include “substantial fines up to nearly $14,000 per violation, Whitehouse officials said in September.
NAHB said that if a vaccine mandate ETS is issued, it will raise many unanswered questions on implementation and requirements placed on businesses.
“Will adverse vaccine reactions, common in many adults 12-36 hours after injection, be a recordable event under current OSHA guidelines? What if the employee misses work? What should companies do about the lack of availability of testing kits for private businesses to test employees who are unvaccinated?” NAHB said.
“The CISC also took issue with the process OSHA has used to draft the vaccine ETS. OSHA never sought even informal feedback from private stakeholders. OSHA typically conducts listening sessions and stakeholder meetings while promulgating rules. And nearly all rules have public comment periods. But this was not the case with this ETS.”
The rollout of a vaccine mandate will exacerbate a skilled workers shortage currently gripping the construction industry, contractors warned last month.
“We will be reviewing the guidance carefully with industry stakeholders to understand its full impact and unintended consequences,” said Ben Brubeck, Associated Builders and Contractors vice president of regulatory, labor and state affairs.