On January 26, ³Ô¹ÏºÚÁÏÍø of America, along with its Construction Industry Safety Coalition Partners, responded to OSHA on its first regulatory step towards establishing a federal heat standard for indoor and outdoor work, a rule with the potential to have far-reaching impacts on the construction industry. While the proposal issued by OSHA lacked actual, draft regulatory language, and was presented in a series of questions, ³Ô¹ÏºÚÁÏÍø’s responses took the opportunity to highlight proactive efforts the industry has taken, confusion surrounding existing state standards, and the impracticality of an 80-degree trigger threshold for such a standard from the perspective of the wide array of climates nationwide. ³Ô¹ÏºÚÁÏÍø will continue to engage with members to better inform the agency as they proceed, which is most likely the case for this initiative.
Victory for Construction Advocacy Fund-Financed ³Ô¹ÏºÚÁÏÍø Lawsuit
On January 19, ³Ô¹ÏºÚÁÏÍø, along with the American Road and Transportation Builders Association (ARTBA) and Signatory Wall and Ceiling Contractors Alliance (SWACCA), submitted comprehensive comments to OSHA reiterating the construction industry’s success in protecting workers throughout the pandemic, while also reminding the agency of the low-risk nature of construction work. The joint comments further detailed how the ETS will exacerbate the workforce shortage for covered contractors, significantly increase construction project costs, and potentially result in delays that will undermine the nation’s economic recovery.
³Ô¹ÏºÚÁÏÍø to Continue with Litigation on the Merits of the ETS
On Hold Until April, ³Ô¹ÏºÚÁÏÍø Communicates with Agencies
Employers with 100 or More Employees Weigh Compliance Approaches
A December 17 decision by the U.S. Court of Appeals for the Eleventh Circuit will effectively maintain a Georgia federal district court’s nationwide stay of the federal contractor vaccine mandate until at least January 24, 2022. The Eleventh Circuit denied a Biden Administration request to immediately remove the nationwide stay and instead requested that the parties to the lawsuit fully brief their arguments on the stay by January 24. The argument here does not go to the merits of the mandate, but instead as to whether the existing freeze of the mandate should be maintained or not. As such, litigation is far from over in this particular case and those throughout the country, including by ³Ô¹ÏºÚÁÏÍø in a federal court in Texas.
It is also important to note that regardless of any decision issued by the courts, OSHA will still proceed with the rulemaking process to issue a COVID-19 vaccination-or-testing permanent standard. Under current law, an emergency temporary standard remains in effect for six months and serves as a proposed rule for the proceeding. After such time, OSHA will determine if the standard should be made a permanent rule. As is the case with the litigation process, ³Ô¹ÏºÚÁÏÍø is actively engaged in the rulemaking process and will submit comments highlighting the relevant differences between the construction and the other industries that the ETS covers.
On December 17, the U.S. Court of Appeals for the Sixth Circuit removed the stay on the OSHA COVID-19 vaccine-or-testing emergency temporary standard (ETS). The court’s decision to remove the stay has been appealed to the Supreme Court. The litigation of the ETS is far from over and ³Ô¹ÏºÚÁÏÍø remains engaged, having filed its Construction Advocacy Fund-backed lawsuit in November.