President Joe Biden last week announced a sweeping vaccine mandate to bring the latest surge in COVID-19 cases under control. Central to the administration’s plan is a requirement that every employer with more than 100 employees require the vaccine for its workforce or provide for weekly testing.
The new mandate will be levied and enforced through a new emergency temporary standard (ETS) from OSHA in the coming weeks.
OSHA’s authority allows the agency to immediately enact a rule if “workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards.”
The Biden administration will also require federal employees in the executive branch and government contractors to be vaccinated against COVID-19. The new OSHA mandate, which will apply to all private companies with more than 100 employees, does allow for weekly testing in lieu of vaccination. Specifically, unvaccinated workers must produce a negative test each week to be allowed onto a worksite.
The OSHA ETS will require employers to give paid time off to workers for their vaccinations and to recover from vaccination side effects.
During an information session late last week attended by NAHB staff, OSHA said it expects the ETS to be ready in six to eight weeks. There will be no opportunity for industry or the public to provide input on the ETS, and when it is published to the Federal Register, it will take effect immediately. There will be a chance to comment on a final rule, expected six months after the ETS is published.
OSHA will enforce the mandate with inspections and can levy fines up to $13,653 per violation, OSHA’s maximum penalty, although it is unclear whether that applies to each site or employee.
In fact, there are still many unanswered questions about the ETS. OSHA last week could not answer specific questions from industry stakeholders, including:
- Who pays for testing?
- How will employers verify vaccinations and test results?
- How do companies handle employees who refuse to vaccinate or test?
The vast majority of home builders in the United States have fewer than 100 employees, so the mandate should not directly affect most NAHB members. But the extension of strong federal workforce rules to contractors could be problematic down the road, as much of the home building industry is run on contracted relationships.
NAHB members should remain flexible and ready to act when the ETS is issued and be prepared for change even after the rule is in place. For any questions about COVID-19 vaccines or finding a vaccination center, see the resources compiled by NAHB for Vaccine Awareness Week held in April.