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CURRENT HPSS LAW NEWS

12-18-21 HPSS Law eBlast

Sixth Circuit Court of Appeals Gives Life to OSHA’s Vaccine Mandate
Late Friday evening, December 17, the Sixth Circuit Court of Appeals issued a ruling which gave life to OSHA’s emergency temporary standard ("ETS") which requires employers with 100 or more employees to implement a vaccine mandate policy with a weekly testing option. OSHA’s ETS had been subject to a temporary stay issued by the Fifth Circuit of Appeals. Numerous lawsuits were filed across the country seeking to block OSHA’s enforcement of the ETS. Those lawsuits were consolidated while the Fifth Circuit’s stay remained in place. The Sixth Circuit Court of Appeals was chosen, by lottery, as the court to hear arguments on whether the stay should be enforced or dissolved. The Sixth Circuit’s decision dissolves the stay allowing OSHA to enforce the ETS.
With the decision from the Sixth Circuit, large employers subject to the ETS will need to scramble in order to meet the requirements of the standard. While the ETS first required compliance by January 4, shortly after the Sixth Circuit published its opinion, OSHA issued a press release noting that, given the uncertainties surrounding the ETS in light of the litigation filed across the country seeking to block its enforcement, it would not begin issuing citations for noncompliance with any requirements of the ETS before January 10, and it will not issue any citations for noncompliance with the testing requirements of the ETS until February 9, so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard. Employers subject to the ETS who fail or refuse to comply with the standard by these deadlines will be subject to OSHA citations, which, in 2021, equated to $13,653 for a serious violation. The penalty amount will increase beginning in January, 2022.
Immediately after the Sixth Circuit Court of Appeals issued its decision allowing OSHA's enforcement of the ETS, various conservative groups and business groups indicated that the decision would be appealed to the Supreme Court. To date, the Supreme Court has been hesitant to get involved in state and local vaccine mandates, allowing those mandates to remain in place. It remains to be seen whether the Supreme Court will agree to review the decision by the Sixth Circuit, and if so, whether the decision will be affirmed or reversed. What we know for sure is that there will be more to come, and we will be sure to provide you with the information as it is published.
The Sixth Circuit’s ruling has no effect on the current status of what is commonly referred to as the Federal Contractor Vaccine Mandate. The Federal Contractor Vaccine Mandate remains subject to a nationwide stay following a decision by the United States District Court for the Southern District of Georgia.
As we approach January 10, the date OSHA will begin issuing citations for noncompliance with the requirements of the ETS, those employers with 100 or more employees need to be sure to review our E-blast which provided all the details necessary for full compliance. You can access that particular E-blast by clicking here. You can also contact Philip Siegel with compliance questions via e-mail by clicking here, or you can reach him directly at (404) 469-9197.

11.19.21 HPSS Law eBlast

OSHA Emergency Temporary Standard with Vaccine Mandate Put on Hold
In our E-blast sent on Tuesday, November 9, we summarized the requirements of OSHA’s emergency temporary standard (ETS) addressing the COVID-19 health hazard, including its vaccine mandate. Our E-blast also informed you that on November 6, one day after OSHA published its ETS, the federal Fifth Circuit Court of Appeals issued an emergency temporary stay of the ETS pending further legal briefing and action. Just days later, on Friday, November 12, the same federal Fifth Circuit Court of Appeals issued a ruling reaffirming its emergency temporary stay, calling the ETS “a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers).”
The ruling is available here.
Notably, the lawsuit heard by the Fifth Circuit Court of Appeals was not the only lawsuit filed seeking to stop OSHA’s enforcement of the ETS. Indeed, lawsuits were filed in all 12 regional circuit courts. When multiple lawsuits are filed involving one or more common questions of fact, the law allows for the consolidation of the lawsuits to be heard by one court chosen at random. In this instance, a lottery was held, and the court with the winning ticket was the Sixth Circuit Court of Appeals, a court which tends to lean conservative. It is the Sixth Circuit Court of Appeals which is now charged with issuing a final ruling on the enforceability of the ETS.
It is unknown how long it will take the Sixth Circuit Court of Appeals to hear the case, but, in the meantime, OSHA has published the following on its website:
“On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
We will continue to keep you updated as information regarding the enforceability of OSHA’s ETS develops.

11.09.21 HPSS Law eBlast

OSHA Publishes Emergency Temporary Standard with Vaccine Mandate
On November 5, the Occupational Safety and Health Administration (OSHA) published its emergency temporary standard (ETS) requiring certain employers to implement a mandatory COVID-19 vaccination policy or a weekly testing and mask policy. A complete copy of the ETS can be accessed here.
OSHA published its ETS to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address what it asserts is the “grave danger” of COVID-19 in the workplace. OSHA also intends for its ETS to preempt state and local laws that interfere with the employer’s authority to require vaccination, face covering, or testing.
The ETS requires employers to comply with provisions other than testing for employees who have not completed the entire primary vaccination by December 5. The ETS requires employers to comply with provisions for testing of employees who have not received all doses required for a primary vaccination by January 4, 2022.
On November 6, one day after OSHA published the ETS in the Federal Register, the United States Court of Appeals for the Fifth Circuit issued an emergency stay of the ETS pending further legal briefing and action. The Fifth Circuit wrote that the pending lawsuit, one of several lawsuits filed around the country, raised “cause to believe that there are grave statutory and constitutional issues” with the ETS. For now, the emergency stay temporarily halts enforcement of the ETS at least for employers located the states located within the Fifth Circuit, which includes Louisiana, Mississippi, and Texas. It is unclear what, if any, impact the Fifth Circuit’s language in its ruling has on employers outside the Fifth Circuit. However, it is important to note that the Fifth Circuit’s emergency stay is only temporary. As such, it is important for employers to prepare for the enforcement of the ETS.
Does the ETS apply to your company?
The ETS applies to employers in the construction industry who employ 100 or more employees. The employee count is taken from a corporate-wide perspective, rather than by looking at the number of employees in each separate office of the employer. The ETS remains in place for six months following its publication date in the Federal Register, or six months from November 5. If at any time while the ETS remains in place an employer employs 100 or more employees, the company is subject to the requirements of the standard.
Construction employers which employ 100 or more employees, but are subject to the “Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors,” are not covered by the ETS.
Notably, not every employee working for a covered employer will be subject to the vaccination or testing requirements in the ETS. Employees who do not report to a workplace where coworkers or customers are present are exempt from the requirements of the rule. Also exempt are employees who are working from home.
What about employees who work exclusively outdoors?
Of particular importance to the construction industry, other employees exempt from the requirements of the rule include those that work exclusively outdoors. OSHA has clarified that this exception only applies to employees who work outdoors for the duration of every workday except for de minimis use of indoor spaces. The exemption does not apply to construction workers who are working inside an ongoing construction project where substantial portions of the structure are in place, such as walls and ceilings that would impede the natural flow of fresh air at the job site.
Defining “COVID-19 Test” and “Fully Vaccinated”
Compliance with the ETS requires employers to become familiar with how the ETS defines a “COVID-19 test” and how the ETS defines “fully vaccinated.” The ETS defines a “COVID–19 test” as a test for SARS–CoV–2 that is: (i) Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the FDA to detect current infection with the SARS–CoV–2 virus (e.g., a viral test); (ii) Administered in accordance with the authorized instructions; and (iii) Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer. A home-test is not permitted unless it meets all of these requirements and the specific collection is observed by the employer or an authorized telehealth proctor.
The ETS defines “fully vaccinated” as a person’s status 2 weeks after completing primary vaccination with a COVID–19 vaccine with, if applicable, at least the minimum recommended interval between doses. The vaccine must be one that is approved, authorized, or listed: (A) Approved or authorized for emergency use by the FDA; (B) listed for emergency use by the World Health Organization (WHO); or (C) administered as part of a clinical trial at a U.S. site, subject to other requirements in the ETS. The ETS also permits “mixed dose” vaccinations, subject to additional details in the ETS.
Policy Requirements
The ETS does require covered employers to establish, implement and enforce a mandatory vaccination policy, unless the employer has a written policy permitting each employee to choose between vaccination or providing proof of regular testing and wearing a face covering. The policy must comply with certain requirements, as set forth in the ETS. OSHA has published a sample mandatory vaccination policy, which can be accessed here, and it also published a policy with a testing and mask wearing alternative, which can be accessed here.
Covered employers choosing a mandatory vaccine policy must have the policy in writing and require all existing and new employees to be fully vaccinated, other than employees with medical contraindications, for whom medical necessity requires a delay in vaccination, or who are legally entitled to a reasonable accommodation based on disability or sincerely held religious belief.
Proving Vaccination Status and Employee Roster Requirement
The ETS also requires covered employers to determine the vaccination status of each employee, to maintain records of each employees’ vaccination status, and to maintain a roster of each employees’ vaccination status. This information must be collected from every employee, regardless of vaccination status. Covered employers are required to preserve acceptable proof of vaccination. Proof of vaccination and the employee roster are considered to be and maintained as employee medical records while the ETS is in effect. Importantly, these records are not subject to OSHA’s 30-year record retention requirement.
The ETS also explains what is acceptable proof of an employee’s vaccination status. Under the ETS acceptable proof of an employee’s vaccination status includes: (1) a record of immunization from a health care provider; (2) a copy of a COVID-19 vaccination record card; (3) a copy of medical records documenting the vaccination; (4) a copy of an immunization record from a public health, state, or trial immunization system; (5) or a copy of other official documentation containing the type of vaccine, date(s) of administration, and the name of the health care professional or clinic administering the vaccine. An employee’s signed and dated attesting is only acceptable proof of an employee’s vaccination status where the employee has lost or is otherwise unable to produce other acceptable proof, and the attestation includes language required by the ETS.
Employers which have asked employees about their vaccination status prior to the effective date of the ETS and retained records of employee responses are not required to re-evaluate the vaccination status for fully vaccinated employees. These employers are also permitted to rely on records purportedly proving vaccination status, even though those records may not be acceptable records under the ETS. These employers are still required to create a roster of each employee’s vaccination status and maintain proof of vaccination status as medical records while the ETS is in effect.
Paid Leave for Vaccinations
The ETS also requires covered employers to provide support for employees who will be getting vaccinated in response to the ETS. The ETS requires covered employers to provide up to four hours of paid time, including travel time, for each primary vaccination series dose. The ETS also requires covered employers to provide a reasonable amount of paid sick leave to employees for employees to recover from any side effects experienced following each primary vaccination series dose. Employers are permitted to require that employees use any accrued paid sick leave benefit offered by the employer for this time away from work, but if the employee is without any accrued sick leave, the employer must still provide the paid leave.
Testing Option
Employees who are not fully vaccinated and report at least once every seven days to a workplace where coworkers or customers are present, and not otherwise exempt from the requirements of the ETS, must be tested at least once every seven days and provide their employer with test result documentation. Employees who do not provide test result documentation when required must be removed from the workplace. These employees may only return to the workplace after providing test result documentation. Test result documentation is considered a medical record and be maintained as such, while the ETS is in effect. These records are also not subject to OSHA’s 30-year record retention requirement.
For unvaccinated employees who do not report to a workplace where coworkers or customers are present for a period equal to or longer than seven days must be tested within seven days prior to returning to the workplace, with testing documentation to be provided upon return to the workplace.
Significantly, the ETS does not require the employer to pay for any costs associated with testing, although the employer may choose to do so. However, payment for the testing may be required by other laws, regulations, collective bargaining agreements, or collectively negotiated agreements. Indeed, if the employee’s cost for the testing has the result of bringing the employee’s wages for the week below minimum wage, this would present a violation of the Fair Labor Standards Act (FLSA). Moreover, state law may come into play on whether an employer can require the employee to be responsible for this cost. Notably, the ETS is silent on whether employers must pay employees for the time spent getting tested. If, however, testing occurs during the middle of a work shift, under the FLSA, employers may be required to pay for that time spent testing.
Different testing rules apply to employees who have tested positive for COVID-19 or received a positive diagnosis by a licensed health care provider. In these instances, the employer is prohibited from requiring regular COVID-19 testing for 90 days after the positive test result or positive diagnosis.
Mask Wearing Requirements
Unvaccinated workers are also subject to mask wearing requirements within the ETS. Covered employers must ensure employees who are not fully vaccinated wear a face covering which complies with CDC guidelines when indoors or when occupying another vehicle with another person for work purposes. Exceptions to this mask wearing requirement apply when the unvaccinated employee is alone in a fully enclosed room with the door closed, when eating or drinking or for safety and security identification purposes, when wearing respirators or facemasks, or where the use of a face covering is infeasible or creates a greater hazard.
Isolation Guidance
Regardless of vaccination status, the ETS provides that covered employers must require each employee to promptly notify the employer that they are COVID-19 positive following receipt of a positive test result or diagnosis. The ETS requires the employer to immediately remove the employee from the workplace. The employee who is COVID-19 positive may only return to work when they receive a negative result on a confirmatory COVID-19 Nucleic Acid Amplification Test (NAAT) following a positive result on a COVID-19 antigen test, or when the CDC’s isolation guidance criteria is met, or when recommended by a licensed health care provider. The ETS does not require employers to pay employees who are away from the workplace because they are COVID-19 positive, although pay may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements.
Keeping Employees Informed
The ETS also requires covered employers to provide information regarding the requirements of the ETS to their employees, workplaces policies and procedures established to implement the ETS, COVID-19 vaccine efficacy, safety, and benefits by providing the CDC document, “Key Things to Know about COVID-19 Vaccines,” the non-discrimination and anti-retaliation requirements under OSHA, and the prohibitions of U.S. law and OSHA which provide for criminal penalties associated with knowingly supplying false statements or documentations, such as a false COVID-19 vaccination card. The information must be provided to each employee in a language and literacy level understood by the employee.
Recordkeeping and Reporting Requirements
Lastly, the ETS contains reporting and recordkeeping requirements. Work-related COVID-19 fatalities must be reported to OSHA within eight hours of learning of the fatality. Moreover, unique to the ETS, the requirement to report these fatalities is not limited by the length of time between the work place exposure and the employee’s death. Work-related in-patient hospitalizations due to COVID-19 must be reported to OSHA within 24 hours of learning of the in-patient hospitalization.
The ETS requires that covered employers make available to its employees and anyone having written consent individual vaccine information and test results, and to do so by the end of the next business day after the request is made. Information on the aggregate number of fully vaccinated employees at the work place and the total number of employees at that work place must also be provided to any employee or employee representative by the end of the next business day after the request is made. This information must be provided to OSHA within four business hours of OSHA’s request. Similarly, the employer’s written vaccination policy required by the ETS must be made available to OSHA within four business hours of when the request was made. All other records and documents required by the ETS must be produced to OSHA by the end of the next business day after the request is made.
OSHA has a website that offers fact sheets regarding the ETS, compliance assistance materials, frequently asked questions, and enforcement policies and information, all of which can be accessed here. If you have any questions about OSHA’s ETS, please contact Philip Siegel. You can e-mail Philip by clicking here, or you can call him directly at (404) 469-9197.
Biden Administration Pushes Back Deadline for Federal Contractor Compliance with Vaccine Mandates after Providing Guidance on Enforcement
On Thursday, November 4, 2021, the Biden Administration announced that it would delay the requirement that all employees governed by federal contractor rules receive their final vaccination dose by December 8, 2021 to January 4, 2022. The fact sheet setting forth the announcement states that the change was made to make it easier for businesses and workers to comply with the new vaccine mandate rules. Notably, the deadline under the federal contractor rules is now consistent with the deadline for the newly established Centers for Medicare & Medicaid Services (CMS) and OSHA rules. These rules require all healthcare workers at facilities participating in Medicare and Medicaid be fully vaccinated and require all employers with 100 or more employee to ensure all employees are fully vaccinated or tested weekly, respectively, and each require compliance by January 4, 2022.
This announcement comes just days after the White House released new guidance providing federal contractors broad leeway to enforce the Administration’s vaccination mandate. The guidance released on Monday, November 1, 2021, gives discretion to employers to determine how they will enforce the vaccination requirements for workers who refuse to be vaccinated without a pending request for an accommodation. The guidance points contractors to federal agency guidance as a model for enforcing the vaccination mandate, which, utilizes encouraging compliance through periods of counseling and education, followed by disciplinary measures if necessary. The guidance also notes that an agency may deny a covered contractor employee who refuses to be vaccinated entry to a federal workplace and that a contractor who is not working in good faith with the agency contracting officer to overcoming compliance challenges may be subject to contract termination. Finally, the guidance states that the requirement, because it is promulgated under federal law, preempts contrary state and local law.
You can access the guidance by clicking here. However, several states have already sued the Administration over vaccine mandates and several others have announced intentions to do so. Clearly, the status and requirements of Covid-19 vaccine mandates will remain controversial and subject to change as the situation evolves. The attorneys at HPSS remain available to consult on all Covid-19 issues impacting your construction business.
Vaccine Mandate for Federal Contractors and Subcontractors
On September 9, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which directed executive departments and agencies to ensure that contracts and contract-like instruments covered by the Order include a clause requiring the contractor – and their subcontractors at any tier – to, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (“Task Force”). On September 24, the Task Force did publish New Guidance on COVID-19 Workplace Safety for Federal Contractors (“Guidance”). In short summary, the Guidance requires:
(1) A vaccine mandate requiring full vaccination for employees of covered federal contractors by January 4, 2022, except in limited circumstances where an employee is legally entitled to an accommodation (for a disability or sincerely held religious belief, practice or observance);
(2) Mask and physical distancing requirements at covered contractor worksites (including for employees, visitors, and others); and
(3) A requirement that contractors designate a person or persons to coordinate COVID-19 workplace safety efforts at their workplaces.
The order applies to all “covered contractor employees”, including contractor or subcontractor employees in “covered contractor workplaces” who are not working on a covered Federal Government contract or contract-like instrument.
A “covered contract” includes federal contracts and other contracts subject to the Davis-Bacon Act.
A “covered contractor employee” means any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a “covered contractor workplace”.
A “covered contractor workplace” means a location controlled by the covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract (but does not include an employee’s residence).
The requirement that the vaccine mandate extends to employees at a “covered contractor workplace” means employees of covered contractors who are not themselves working on or in connection with a covered contract will need to be vaccinated. For example, if you have a Project Manager working on a federal project, he/she must be vaccinated. Moreover, if that PM is likely to be present in any of your company offices during the performance of the contract, the employees of those offices also must be vaccinated. The only exception is if the company can affirmatively determine that none of its employees on another floor or in separate areas of the building will come into contact with a covered contractor employee during the period of performance of a covered contract.
Office staff could also be included in the vaccine mandate, if they are working in connection with the covered contract. Employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review, perform working connection with a covered contract.
Covered contractors and subcontractors must review their covered employees’ documentation to prove vaccination status. Acceptable documentation includes a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card, a copy of medical records documenting the vaccination; a copy of immunization records from a public health or State immunization information system, or a copy of any other official documentation verifying vaccination information on the vaccine name, date(s) of administration, and the name of the health care professional or clinic site administering the vaccine. While digital copies of such documentation are permitted, an attestation from the covered employee is insufficient and is not permitted.
Covered contractors must also comply with published CDC guidance for masking and physical distancing at a covered contractor workplace. At least weekly, covered contractors must check the CDC COVID-19 Data Tracker County View website for community transmission information in all areas where they have a covered contractor workplace to determine proper workplace safety protocols. In areas of high or substantial community transmission, fully vaccinated people must wear a mask in indoor settings, except for limited exceptions. In areas of low or moderate community transmission, fully vaccinated people do not need to wear a mask. Fully vaccinated individuals do not need to physically distance regardless of the level of transmission in the area.
Individuals who are not fully vaccinated must wear a mask indoors and in certain outdoor settings, regardless of the level of community transmission in the area. To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least six feet from others at all times, including in offices, conferences rooms, and other communal and work spaces.
Lastly, the Executive Order requires covered contractors to designate a person or persons to coordinate implementation of and compliance with the Executive Order and the Task Force’s Guidance. The designated individual must ensure that information on required COVID-19 workplace safety protocols is provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces, including by communicating the required workplace safety protocols and related policies by email, websites, memoranda, flyers, or other means and posting signage at covered contractor workplaces that sets forth the requirements and workplace safety protocols in the Task Force’s Guidance in a readily understandable manner.
Federal contractors and subcontractors awarded contracts on or after November 14 will certainly see these requirements incorporated into those contracts. Between October 15 and November 14, agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time period, but are not required to do so unless the solicitation for such contract was issued on or after October 15.
If you have any questions about the federal vaccine mandate, or a vaccine mandate in any other context including private projects, please contact Philip Siegel or Ben Lowenthal. You can e-mail Philip and Ben by clicking here, or you can reach Philip directly at (404) 469-9197 and Ben directly at (404) 469-9177.
OSHA Notice of Proposed Heat Hazard Rule-making
Although coming at the beginning of fall with temperatures already cooling down, on October 27, 2021, OSHA issued an Advance Notice of Proposed Rulemaking for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. The Advance Notice of Proposed Rule Making, as published in the Federal Register, is available here.
Currently, without a specific federal heat hazard standard, OSHA relies upon the general duty clause under Section 5(a)(1) of the Occupational Safety and Health Act when citing contractors for heat-related hazards (California, Minnesota, Washington, and Oregon do have state specific heat hazard standards). The proposed heat hazard standard will likely change all of that.
The Advance Notice of Proposed Rulemaking specifically cites the current state specific heat hazard standards so we can get some indication of what the federal heat hazard standard might look like. First, all four states have a triggering temperature protection requirement of at least 80°F, require heat hazard training for employees, require some form of break requirement for employees during threshold temperatures, and medical monitoring. Three of the states (California, Oregon, and Washington) require at least 1 quarter of water per hour for each employee.
As for the scope of any final heat hazard standard, the Advance Notice of Proposed Rulemaking specifically mentions the construction industry (more specifically the roof, highway, street, and bridge construction). So we can expect any final heat hazard standard to include construction, and more specifically roofing contractor, specific requirements.
As for small business, the Advance Notice of Proposed Rulemaking does note that OSHA is concerned with the impact any final heat hazard standard will have on small businesses and will seek ways of minimizing the burdens on small businesses.
The Advance Notice of Proposed Rulemaking calls for the submission of comments on or before December 27, 2021.
If you have any questions regarding your OSHA compliance obligations as it concerns heat hazards in the workplace, please email Philip Siegel and Ben Lowenthal by clicking here. You can also call Philip directly at (404) 469-9197, and you can reach Ben directly at (404) 469-9177.
EEOC’s Updated Technical Assistance Concerning Religious Objections to Workplace Vaccine Requirements
On October 25, 2021, the United States Equal Employment Opportunity Commission (“EEOC”) published updated technical assistance specifically addressing religious objections to workplace vaccine requirements. The expanded technical assistance provides much-needed guidance about how Title VII of the Civil Rights Act of 1964 (“Title VII”) applies when an applicant or employee requests an exception from an employer’s COVID-19 vaccination requirement that conflicts with their sincerely held religious beliefs, practices, or observances. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. This includes an applicant or employee’s right to request an exception called a “religious accommodation” from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances. However, if the employer can demonstrate that it cannot reasonably accommodate an employee’s request without undue hardship on its operations, the employer is not required to grant the accommodation.
An employee who has a religious objection to receiving the COVID-19 vaccination must inform their employer of the reason for their objection. The employee need not use any specific language, but they must notify the employer of a conflict between their beliefs and the employer’s vaccination requirement. As a best practice, employers should provide employees and applicants with information about whom to contact, and the procedures to request a religious accommodation. Once an employee has notified their employer of an objection to a vaccination requirement, an employer should assume the request for a religious accommodation is based on a sincerely held religious belief. The sincerity of an employee or applicant’s stated beliefs is usually not a matter to be disputed. While prior inconsistent conduct is relevant to whether a belief is sincere, an employer should recognize that an individual’s beliefs or degree of adherence thereto may change over time. Nevertheless, if an employer has an objective basis for questioning the religious nature or the sincerity of the belief, the employer can make a limited factual inquiry seeking additional supporting information. If an employee fails to comply with their employer’s reasonable request for verification of the sincerity or religious nature of a professed belief, the employee risks losing any future claims that the employer improperly denied an accommodation.
Employers should note that under Title VII, the term “religion” protects nontraditional religious beliefs that may be unfamiliar. An employer should not assume that a request is invalid simply because it is based on unfamiliar or esoteric religious beliefs. Conversely, Title VII does not protect social, political, or economic views. This means that objections based on social, political, or economic views, personal preference, or nonreligious concerns about the possible effects of the vaccine do not qualify as religious beliefs. Accordingly, when an employee’s objection to a COVID-19 vaccination requirement is not religious in nature or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.
An employer is not required to grant a religious accommodation if granting such a request would be an undue burden on its business. An undue burden exists where complying with an accommodation requires the employer to bear more than a “de minimis,” or minimal, cost. Costs to be considered include not just direct monetary costs, but the burden on the conduct of the employer’s business (including the risk of spreading COVID-19 to other employees or the public). In the past, courts have found undue hardship where a religious accommodation impaired workplace safety, diminished efficiency, or caused coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Employers must remember, however, that undue hardship must be assessed by considering the particular facts of each situation. Employers must be able to factually demonstrate how much cost or disruption the employee’s proposed accommodation would involve, as an employer cannot rely on speculative hardships when faced with an employee’s religious objection. Employers, however, may take into consideration the cumulative cost or burden of granting accommodations to other employees—but they may not rely on the mere assumption that other employees will request similar accommodations.
Finally, where multiple reasonable accommodations resolve a conflict between the vaccination requirement and an employee’s sincerely held religious beliefs—the employer may choose which accommodation to offer. That is, if more than one accommodation is effective in eliminating the religious conflict, the employer should take into account the employee’s preference but is not obligated to provide the accommodation preferred by the employee. As a best practice, employers should always provide reasons for denying an employee’s preferred accommodation. Employers should also keep in mind that religious beliefs may evolve or change over time and may result in subsequent requests for additional or different religious accommodations. Any subsequent request for religious accommodation should be assessed under the same guidelines as new requests. Nevertheless, an employer may discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship to the employer’s business due to changed circumstances.
If you have any questions regarding religious objections to employer vaccine requirements, please contact Juan Rodriguez. You can e-mail Juan by clicking here, or contact him directly at (404) 469-9183.
Ongoing Issues with Materials and the Battle to Obtain Appropriate Relief
Even though general contractors and many owners are well aware by now of the problems in the construction industry with unavailability, delays in delivery, and price volatility of roofing materials, many roofing contractors are still fighting an uphill battle to obtain appropriate increases in price for cost escalation and extension of time for delays. Part of the battle is negotiating appropriate contract provisions. We continue to see contracts with very onerous “no escalation” provisions and delay provisions that specifically exclude delays in delivery of materials from the reasons that entitle roofing contractors to extensions of time. Another part of the battle is actually obtaining the increase in price and/or extension of time when the contract provides for such relief because some general contractors and owners are denying claims for increases in price and extensions of time when roofing contractors fail to strictly comply with contractual requirements for notice and submission of claims.
So, what can roofing contractors do to make sure they obtain appropriate price increases and extensions of time?
· It all starts with the proposal. It is more important than ever for roofing contractors to set the stage for contract negotiations by including appropriate language in their proposals notifying customers that pricing and delivery dates for materials are subject to change at any time because material suppliers will not provide firm pricing or delivery dates. Such language is also intended to notify general contractors that they should not rely upon the prices for materials when entering into contracts with their customers and to protect roofing contractors from liability if general contractors incur damages because they relied upon the pricing, knowing that it was subject to change. Also, roofing contractors should consider communicating with their customers before submitting a proposal to find out if they can provide labor only pricing or a fixed price for labor with materials to be provided at cost plus markup for overhead and profit.
· Do not sign fixed price contracts if you are providing materials. Roofing contractors should make sure their contracts include provisions that entitle them to increases in price if the cost of materials increases between the date of the contract and the date the materials are shipped to the project site. Also, roofing contractors should carefully review their contracts to make sure there are no conflicting provisions, such as “no escalation” clauses. “No damages for delay” provisions are also problematic if the increase in cost of materials is due to a delay caused by the general contractor, owner, another subcontractor, or other reasons beyond the roofing contractor’s control.
· Roofing contractors should make sure contracts include provisions that entitle them to extensions of time for delays in delivery of materials. They should also make sure there are no conflicting provisions, such as provisions making the roofing contractor responsible for delays in delivery of materials or excluding delays in delivery of materials from entitlement to an extension of time.
· Identify and comply with contractual requirements for providing notice and submitting claims. Failure of roofing contractors to strictly comply with contractual notice and submission requirements may result in a waiver of their rights to extensions of time and increases in price.
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The above information is not a substitute for having an attorney provide advice regarding compliance with applicable law and does not constitute legal advice. If you have questions about this information, please contact Stephen Phillips, Leanne Prybylski, or Mark Husted of Hendrick, Phillips, Salzman & Siegel at (404) 522-1410 or via e-mail (respectively) at smp@hpsslaw.com; clp@hpsslaw.com; or mah@hpsslaw.com.
Expansion of NLRB Pro-Union Priorities
In a recent Memorandum, the new General Counsel of the National Labor Relations Board announced significant changes to the enforcement priorities of the NLRB and its regional field offices. The clear policy goal of the NLRB under the current administration is to promote more and better union jobs and to overturn many pro-business rulings implemented under the previous administration. .
The General Counsel of the NLRB has substantial authority in deciding priorities with respect to which cases are pursued, which in turn establishes precedent for future decisions. In a previous blast, we discussed the NLRB’s stated goal of broadening the interpretation of “mutual aid and protection” of employees in order to encourage union organizing activity. In her recent memo, the new General Counsel specifically focuses on a number of specific prior rulings that will be re-examined (and presumably sought to be overturned), which address issues including classification of workers as independent contractors, the use of e-mail for union organization purposes, and the permissible scope of using employee handbooks to oversee employee conduct in the workplace.
Two notable items on the new GC’s agenda are reversing prior decisions that the misclassification of a worker as an independent contract rather than an employee is not an unfair labor practice. If a misclassification case turns into an unfair labor practices case, the consequences for the employer can be significant. Second, and perhaps most controversially, the GC has stated her goal to establish a requirement that employers recognize a union based on a majority of workers signing authorization cards, without a formal union campaign and elections. These goals arguably exceed the authority of the NLRB under the National Labor Relations Act and are certain to generate significant litigation.
The memo also proposes new remedies, which again may go beyond the specific statutory authority of the NLRB. One such remedy is imposing liquidated damages in addition to restoring an employee’s back pay – including front pay and healthcare expenses due to the loss of coverage because of a wrongful termination. Imposing these types of damages turns an unfair labor practice case into something similar to a personal injury tort action. In addition, the new GC proposes new penalties for employer misconduct during a union organizing drive, including requiring the employer to reimburse the union for its organizing costs, broadening access to certain workplace information, and requiring the employer to pay for education and training on employee rights under the NLRA. Finally, the GC is encouraging regional NLRB director to impose collective bargaining orders in cases where unfair labor practices are found, meaning that bargaining could be imposed by administrative action instead of through an election.
As a way of implementing policy, the GC is recommending that all settlements of unfair labor practices charges include a requirement that the employer pay for all costs that could have been achieved in successful litigation, such as 100% of back pay and benefits owed. In addition, employers who are repeat violators should be required to agree to an admission of liability in any such settlement agreement. Most likely, this policy will result in far fewer settlement agreements being reached, because employers will not generally find much benefit in signing such a one-sided settlement agreement.
Clearly, the new General Counsel is focused on implementing changes to promote union labor. Some argue that these efforts far exceed the statutory authority of the NLRB and we anticipate much litigation over these and other similar policy initiatives. Employers should take notice of the aggressive nature of the activist policies being sought by this administration, as we again deal with a shift in focus based on the political party controlling the administration.
Further Questions? If you are facing an employee issue that might have NLRB implications or if you have any other questions about this article, please contact Philip Siegel at pjs@hpsslaw.com or Scott Calhoun at sdc@hpsslaw.com.
Congress Passes Infrastructure Bill - Highlights
On November 5, the House passed the Bipartisan Infrastructure Investment and Jobs Act, which will provide $550 billion in new funding for roads, bridges, public transit and other projects over the next several years. The legislation is lengthy and covers a broad range of issues, including some beyond traditional notions of infrastructure. Here are some brief highlights from an early analysis of the bill:
· Funding for roads and bridges: new spending on federal highway programs, funding for several additional transportation programs, transfer of funds to bolster the Highway Trust Fund. About $110 billion in new spending.
· Energy Infrastructure: funding to focus on electric grid security programs, construction of new transmission lines, funding to promote energy cybersecurity initiatives, plus clean energy and efficiency programs. About $73 billion.
· Rail Transportation: new grants for Amtrak and other rail programs, funding for rail improvement efforts, new safety rules and policy changes for Amtrak. About $66 billion.
· Broadband: new grant funds to provide for greater connectivity in rural and underserved areas, funds to promote affordability and equitable access to broadband, and promotion of service projects designed to increase connectivity by providing new devices, connecting schools and libraries, and related projects. About $65 billion.
· Water Infrastructure: New funds to support local drinking water infrastructure projects, replacement of lines for reduction of lead content, grants to states for clean water initiatives, and funding to assist with sewer overflow problems. About $55 billion.
· Public Transit: Increased funding for mass transit grant programs, additional capitalized investment for specific transit projects, plus fund to improve transit in rural areas and for seniors and individuals with disabilities. About $39 billion.
The bill also revises Buy American requirements, so that all iron, steel manufactured products, and construction materials used in infrastructure projects must be produced in the U.S., with exceptions for cement and aggregates and waivers in cases of insufficient supplies or where compliance results in an increase of costs by more than 25%.
The new law is lengthy and relies on the creation of significant additional regulations and rules. But ultimately, this bill represents the most significant investment in infrastructure programs in decades. We will keep you informed of any significant developments that may impact the construction industry as the new rules and programs are implemented.
If you have further questions about how the new infrastructure bill may affect your business, please contact Scott Calhoun. You can call Scott directly at (404) 469-9195, or you can e-mail him by clicking here.
Firm News:
- We are excited to welcome to our firm our newest associate: Mark Husted. Before joining the firm, Mark spent nearly 3 years at a construction boutique, where he litigated cases and reviewed contracts for a variety of subcontractors. Mark’s clients included numerous steel fabricators and erectors, roofers, scaffolding contractors, awning contractors, cement suppliers, residential builders, and demolition contractors.
- Philip Siegel will be presenting this seminar titled, Killer Contract Clauses to the Associated Builders and Contractors of Georgia on November 17.
- Ben Lowenthal will be presenting to the Construction Financial Management Association's Central Texas Chapter on Price Escalation Issues in Austin, Texas on November 16.
- Ben also recently returned from his speaking engagement on the Contractors Forum panel at the annual convention of the National Tile Contractor Association.

HPSS Update: Hendrick Phillips Salzman & Siegel Now Has A Local Presence In Eastern Pennsylvania

The law firm of Hendrick Phillips Salzman & Siegel P.C. (“HPSS”), which has been serving the construction industry for forty years, now has a local presence in Eastern Pennsylvania. Mr. J.T. Gallagher has started operating out of Allentown, Pennsylvania and brings with him the resources, experience, and knowledge of a law firm known nationwide for its expertise in the roofing industry and dedication to roofing contractor clients. [View Full Release]

09.17.21 HPSS Law eBlast

President Biden's Vaccine Mandate
On September 9, President Biden announced a series of proposals intended to combat the resurgence of the COVID pandemic. Most notable about the President’s announcement was his plan to mandate that private businesses with more than 100 employees require their employees to be vaccinated or undergo weekly COVID testing. On September 9, President Biden announced a series of proposals intended to combat the resurgence of the COVID pandemic. Most notable about the President’s announcement was his plan to mandate that private businesses with more than 100 employees require their employees to be vaccinated or undergo weekly COVID testing.

The President intends to push this mandate through OSHA’s issuance of an emergency temporary standard. OSHA issues an emergency temporary standard under very limited circumstances. The agency must first determine that a grave danger to which workers are exposed exists, and that the emergency temporary standard is needed to provide protection from the danger. Once published in the Federal Register, an emergency temporary standard becomes effective immediately, without any opportunity for public comment. Notably, the emergency temporary standard does serve as a proposal for a permanent standard and is subject to the usual notice and comment rulemaking procedure for adopting a permanent standard, which must be finalized within six months. But, in the meantime, the emergency temporary standard is in place.

The OSHA emergency temporary standard is expected to require that employers with more than 100 employees provide paid time off for the time it takes workers to get vaccinated or recover if they are under the weather post-vaccination. For unvaccinated workers, the emergency temporary standard is expected to require that these workers produce a negative test result on at least a weekly basis before coming to work. It is unknown whether the employer or the unvaccinated worker will be responsible for the cost of weekly COVID testing, and it is also unknown whether the standard will require employers to pay unvaccinated workers for time spent getting a COVID test. Employers who do not comply with the standard, when published, will face penalties of up to $13,653 per violation. When the emergency temporary standard will be published and effective is currently unknown, but it may be as soon as a couple of weeks.

For those contractors in states with state OSHA plans, the state agency must have an emergency temporary standard that is at least as effective as federal OSHA’s emergency temporary standard, and to have it in place within 30 days of the publication of the federal standard.

Litigation is sure to follow the publication of OSHA’s anticipated emergency temporary standard. Indeed, as of the drafting of this e-blast, 24 republican state attorneys general have threatened a lawsuit over the vaccine mandate. While we wait to see what will follow the publication of this emergency temporary standard, construction employers would be wise to check with their workforce now to determine which of its employees are vaccinated. In this regard, the law does permit employers to ask whether employees are vaccinated. But the law does not permit employees to ask those employees who are not vaccinated why they are not vaccinated because that would be a violation of the Americans with Disabilities Act.

In the meantime, on the same day the President announced his intentions with regard to private employment, he also issued an Executive Order, effective immediately, which requires employees of federal contractors to be vaccinated, without a testing alternative, with an exception only for those who qualify for an accommodation.

When OSHA does publish its emergency temporary standard implementing the President’s vaccine mandate, we will be sure to provide you with the details necessary for compliance. In the meantime, if you have any questions about vaccine mandates, please contact Philip Siegel via e-mail by clicking here, or you can reach him directly at (404) 469-9197.

08.12.21 HPSS Law eBlast

Heat-Hazards and Potential OSHA Heat Hazard Standard
If you have any questions regarding your OSHA compliance obligations as it concerns heat hazards in the workplace, please call or email either Philip Siegelor Ben Lowenthal. Philip can be reached directly at (404) 469-9197. Ben can be reached directly at (404) 469-9177.

Changes to NLRB Enforcement Priorities
If you are facing an employee issue that might have NLRB implications or if you have any other questions about this article, please contact Scott Calhoun. You can e-mail Scott by clicking here, or contact him directly at (404) 469-9195.

Is an Adverse Reaction to a COVID-19 Vaccine a Recordable OSHA Event?
If you have any questions concerning requiring, suggesting, or incentivizing employees to get vaccinated, please contact Philip Siegel. You can e-mail Philip by clicking here, or contact him directly at (404) 469-9197.

Indemnity Clauses Encompassing Non-Third-Party Losses
If you have any questions regarding indemnity, please contact Juan Rodriguez. You can e-mail Juan by clicking here, or contact him directly at (404) 469-9183.

Firm News

Philip Siegel and Leanne Prybylski presented in Las Vegas at the International Roofing Expo in August 2021. Philip spoke on OSHA issues, while Leanne discussed current material availability and price volatility crises.
Philip is scheduled to speak in Las Vegas to speak at the Western States Roofing Expo on September 22. Philip will present his session on Killer Contract Clauses, and he will present a second session on Real Live Wins and Losses in labor and employment law.
On September 25, Philip and Ben Lowenthal will present to the Insulation Contractors Association of America at its annual conference in San Antonio. Philip will discuss the most common employment issues affecting insulation contractors, while Ben will cover key contract provisions for insulation contractors.
Ben Lowenthal recently authored several articles for the construction industry. You can access Ben's article on Increased OSHA Inspections, Enforcement, and Penalties here. You can access his article on The Pro Act here. Ben's article on the unforeseeable employee misconduct defense to an OSHA citation can be accessed here. Ben also recently presented an educational for Levelset regarding How to Use Contract Clauses to Defend Against Material Price Swings. The presentation can be viewed here.
Leanne Prybylski recently spoke to the Mississippi Roofing Contractors Association at its annual conference in Destin, Florida. Leanne presented on how to use contracts to manage volatile material availability and pricing.

08.12.21 HPSS Law eBlast

Firm News

Philip Siegel and Leanne Prybylski presented in Las Vegas at the International Roofing Expo in August 2021. Philip spoke on OSHA issues, while Leanne discussed current material availability and price volatility crises.
Philip is scheduled to speak in Las Vegas to speak at the Western States Roofing Expo on September 22. Philip will present his session on Killer Contract Clauses, and he will present a second session on Real Live Wins and Losses in labor and employment law.
On September 25, Philip and Ben Lowenthal will present to the Insulation Contractors Association of America at its annual conference in San Antonio. Philip will discuss the most common employment issues affecting insulation contractors, while Ben will cover key contract provisions for insulation contractors.
Ben Lowenthal recently authored several articles for the construction industry. You can access Ben's article on Increased OSHA Inspections, Enforcement, and Penalties here. You can access his article on The Pro Act here. Ben's article on the unforeseeable employee misconduct defense to an OSHA citation can be accessed here. Ben also recently presented an educational for Levelset regarding How to Use Contract Clauses to Defend Against Material Price Swings. The presentation can be viewed here.
Leanne Prybylski recently spoke to the Mississippi Roofing Contractors Association at its annual conference in Destin, Florida. Leanne presented on how to use contracts to manage volatile material availability and pricing.

06.11.2021 HPSS Law eBlast

Construction Industry Escapes OSHA’s COVID-19 Emergency Standard

You can access OSHA’s Guidance by clicking here. If you have any questions concerning implementing any aspect of OSHA’s guidance, or if you have any other questions on mask policies, vaccinations, or COVID-19, please contact Philip Siegel by clicking here.

05.04.2021 HPSS LAW eBlast