Vaccination Requirements Put Trades in the Middle but Path Forward is Clear

The construction industry, like many others, was hit hard by the COVID-19 pandemic. As the industry adjusts to the new normal, not everyone is on the same page.

Many project owners, rather than risk site shutdowns and potential inefficiencies from social distancing, are beginning to require that all project site personnel show proof of vaccination in order to work on site. Vaccine hesitancy, however, is relatively high among the labor force of the construction trades leaving contractors stuck in the middle between their clients and their workers.

Does a small to medium sized trade contractor risk alienating its clients, whether they be owners directly or general contractors, who require that everyone working on site be vaccinated, or risk upsetting its employees who may not want to be vaccinated?

For contractors with 100 or more employees, this conflict will arise whether or not the project owner demands vaccination for workers at the project site. The forthcoming OSHA Emergency Temporary Standard spearheaded by the Biden Administration will almost certainly mandate either vaccination or weekly testing for all companies that size or larger. For them, there will be no negotiation or discussion with the project owner. The costs imposed by regular weekly testing – assuming that tests will even be available on the scale required – will be significant.

Employers who are also federal contractors already have a mandate under Executive Order 14042 to ensure that all employees working in connection with a project covered by that order and not entitled to an exemption are vaccinated by December 8, 2021. The business requirements of staffing and workforce allocation effectively necessitate that all worksite employees be vaccinated by the deadline. This is the case whether or not the project owner would accept unvaccinated construction personnel.

Ultimately, we have seen across industries and across the country that threats of mass employee refusals to accept vaccine mandates have generally sputtered out. Holdouts have caved in hospitals, hospitality, and airline industries, where nearly all employees who are required to get vaccinated do so in the end. What we are seeing across the board is that people typically comply with mandates. So while contractors may feel the need to phase in vaccination requirements over time, having an owner that demands vaccination can provide the contractor cover to require its workforce to be vaccinated and help to minimize sick time and promote public health at the same time.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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