The Des Moines Construction Council sees a growing need for signatory contractors, regardless of their trade, to have an outlet to share information and learn more about the challenges of managing not only collective bargaining agreements, but also the many aspects that union contractors face. Though the trades are different, there is a commonality amongst signatory contractors that DMCC hopes to serve.
Des Moines Construction Council Quarterly Meeting Scheduled
We are pleased to let you know that the DMCC Annual Meeting has been scheduled for Tuesday, December 14th from 3:00-5:00PM. The meeting will be held at the Holiday Inn Downtown Mercy Area – 1050 6th Avenue, Des Moines. DMCC members and all signatory contractors in Central Iowa are invited to attend. This meeting will serve as the formal business meeting for the year. On hand, you’ll have an opportunity to listen to a Q and A from Nate Borland, BrownWinick Law Firm on the impacts of the OSHA ETS and the Federal Contractor Mandate. You’ll also have a chance to hear from some of the Skilled Trades Academy instructors about their needs and how DMCC can continue our partnership with them in the future. 

BrownWinick Law Firm: Vaccinations Regulations Update
Four sets of federal workplace safety regulations will take effect in the coming months. Each of the four sets of regulations are likely to impact the operations of DMCC’s signatory contractors. Our signatory contractors will be required, either directly by the safety regulations or by owners bound by the regulations, to gather information about their employees’ vaccination status and to make staffing decisions and assignments based on employee vaccination status.
 
OSHA Healthcare ETS
In June 2021, OSHA released an Emergency Temporary Standard for “all settings where any employee provides healthcare services or healthcare support services.” As it relates to DMCC’s signatory contractors, the OSHA Healthcare ETS required the screening and triaging of every visitor entering a healthcare setting. The OSHA Healthcare ETS did not mandate vaccines, but it required employers to mandate face coverings and social distancing.
 
Executive Order 14042
On September 9, 2021, President Biden issued Executive Order 14042, which ordered federal departments and agencies to ensure that federal contracts and contract-like instruments include a clause requiring prime contractors to comply with guidance from the Safer Federal Workforce Task Force. EO 14042 required prime contractors to include the same clause in any lower-tier subcontracts, pushing the guideline compliance requirement down to subcontractors. On September 24, 2021, the Safer Federal Workforce Task Force issued the guidance required by EO 14042. The guidelines require:
  • All covered contractor employees must be fully vaccinated for COVID-19 unless they are legally entitled to an accommodation.
  • All covered contractors must ensure that all individuals, including covered contractor
  • employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace.
  • All covered contractors must designate a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
 
Covered contractors are required to review employees’ documentation to prove vaccination status, typically by taking a copy of an immunization record from a health care provider or a copy of the COVID-19 Vaccination Record Card. EO 14042 requires covered contractor employees to be fully vaccinated no later than January 18, 2022.
 
As is the case with every other COVID-19 safety regulation, employers must provide reasonable accommodations for employees who cannot be vaccinated due to a disability or sincerely held religious belief. Those employees must comply with masking and physical distancing requirements for not fully vaccinated individuals in covered workplaces.
 
For more information on these requirements, contractors should review the Safer Federal Workforce Task Force Guidance and FAQs.
 
CMS Interim Final Rule
The Centers for Medicare and Medicaid Services (CMS) announced an interim final rule that sets new conditions for payment and participation in Medicare and Medicaid. This regulation impacts virtually every facility regulated by CMS, including hospitals, surgery centers, dialysis centers, home health agencies, and long-term care centers. The CMS interim final rule is likely to impact signatory contractors if their employees use the same common areas used by healthcare staff, patients, and visitors. While signatory contractors have no direct obligations under the CMS interim final rule, owners regulated by CMS may require contractor employees to be fully vaccinated.
 
The rule requires covered entities to require their staff to be vaccinated by January 4, 2022. More detail on the CMS interim final rule is available here.
 
A federal judge recently stayed the CMS Interim Final Rule in Iowa, Missouri, and several other states. We expect healthcare providers will continue to prepare to comply with the mandate (or implement their own mandates notwithstanding the stay) in the meantime.
 
OSHA Large Employer ETS
On November 4, 2021, OSHA issued its second Emergency Temporary Standard, this time directed at employers with 100 or more employees. The Large Employer ETS requires that all employers with 100 or more employees ensure that all their employees are fully vaccinated by January 4, 2022. The ETS requires that employers establish a vaccination policy, obtain proof of vaccination from employees, maintain records on vaccination status, and inform employees about the ETS. Employers must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider. The ETS also requires employees who are not fully vaccinated to wear a face covering while in enclosed workspaces with others starting December 5, 2021. Employees who are not fully vaccinated must submit a negative COVID-19 test to their employer on a weekly basis.
 
The ETS requires employers to provide employees with up to four hours of paid leave (per dose) to get vaccinated, and to provide paid time off to recover from any side effects employees may experience that prevent them from working.
 
The Large Employer ETS is currently stayed by a federal court of appeals considering a challenge to the ETS. Employers are not currently required to comply with the Large Employer ETS, but this is subject to change at any time. 
Leading Construction Associations Challenge Emergency Temporary Standard, Noting it Will Put Firms at Risk of Losing Workers to Smaller Employers Instead of Getting More People Vaccinated

Today, the Associated General Contractors of America (AGC), the American Road & Transportation Builders Association (ARTBA) and the Signatory Wall & Ceiling Contractors Alliance (SWACCA) filed a petition for review of OSHA’s new COVID-19 vaccination mandate. The groups explain that the new rule will put many construction companies at grave risk of losing a substantial number of their workers to smaller companies, instead of leading to more people getting vaccinated in the sector.

“We all want to see more construction workers vaccinated and we are all doing our part to make that happen,” said Stephen E. Sandherr, the AGC’s chief executive officer. “Encouraging vaccine-hesitant workers to shift to smaller employers won’t improve health and safety. It will just put firms that employ 100 or more workers at grave risk of losing the workers they need to complete projects.”

The associations filed their petition today in the U.S. Court of Appeals for the Fourth Circuit. The petition notes that OSHA exceeded its statutory authority to promulgate an Emergency Temporary Standard, and otherwise failed to comply with the Occupational Safety and Health Act.

“The Biden Administration and Congress are in the process of launching a historic federal infrastructure investment initiative,” ARTBA President Dave Bauer said. “Unfortunately, OSHA’s proposal would disproportionally impact the same transportation construction industry employers and workers who proved they could safely deliver essential mobility improvements during the height of the COVID-19 pandemic.”

The new standard applies to all companies with 100 or more employees, but the construction groups noted that roughly 64 percent of all jobs in the construction industry are with smaller companies. With nearly 90 percent of construction firms reporting they are having a hard time filling positions, and many other sectors eager for workers, many vaccine-hesitant workers will have little difficulty finding career opportunities at the smaller firms that are not covered by the OSHA mandate.

“This industry supports the coronavirus vaccine and is working to get as many workers vaccinated as possible,” said Scott Casabona, the president of SWACCA. “But crafting an unworkable rule that will do little to get construction workers vaccinated is an approach that is not only wrong, but likely counterproductive.”

As the petition notes, the construction groups have been actively promoting vaccinations, “funding and sponsoring public service announcements and other positive and proactive measures intended to encourage employees to protect themselves against this pandemic.”