This feature is part of The Dotted Line series, which delves deeply into the complex legal landscape of the construction industry. To view the entire series, click here.
With construction workers experiencing some of the highest vaccination hesitations of any job, contractors are increasingly torn between the personal preferences of their employees in a tight labor market and the demands of owners that all workers on their construction sites be vaccinated against COVID-19.
“Contractors are certainly in an unenviable position,” said labor attorney Amanda Baer, partner at Mirick, O’Connell, DeMallie & Lougee, LLP. “They could be completely unemployed if they don’t follow the owners’ vaccination regulations.”
They also inevitably wear two hats in this situation, one as a party to the owner and another as an employer to their employees, said Lauren Blair, a Chicago lawyer and labor lawyer. “You have to approach the subject from both angles,” she said.
But while the tug-of-war between workers’ reluctance and owner orders scares many contractors about whether they will be able to fill their jobs, attorneys say there are options – and even benefits – that construction companies should consider in the current situation.
“I like the owner to say we have a mandate,” said D. Albert Brannen, an associate with Fisher Phillips law firm, during a vaccine guidelines webinar hosted last week by the Associated General Contractors of America. “It eliminates the employee relationship problem that we’ve all danced around because everyone in the construction industry knows we won’t get jobs if the owner isn’t happy.”
Or as Baer puts it: “In situations like this, it’s not about politics, it’s just about business.”
A “business necessity”
Aside from preventing contractors from being portrayed as bad guys for “forcing” workers to do something against their will, there can also be business and legal benefits to the construction companies that can convince their workers to roll up their sleeves for a stab.
“For some contractors, a vaccine mandate can be the most efficient way to ensure compliance and give them a competitive advantage,” said Robert W. Sanders, senior associate at the law firm Husch Blackwell, LLP. “With more project owners implementing vaccine mandates, contractors likely have a legitimate business purpose to inquire about the vaccine status of their employees.”
The last element is key, as any vaccination status or employer’s requirements to get an injection must be “job-related and in line with business needs,” as the Americans with Disabilities Act and Equal Employment Threshold do Opportunity Commission for the introduction of a vaccination order.
But it also means that contractors have an increasing interest in having their workers vaccinated. “Employers should be highly motivated to increase the number of people they vaccinate in the workplace,” Brannen said.
Also orders from contractors
Contractors considering creating their own vaccine requirements for employees now have a stronger legal footing to do so with the recent full approval of Pfizer vaccine by the Food and Drug Administration, as well as numerous supporting jurisdictions, lawyers say. “Vaccine mandates are legal in the United States and have been repeatedly upheld by the Supreme Court,” said JR Skrabanek, partner at Thompson & Skrabanek law firm, PLLC.
Any mandated vaccination guidelines that are adopted internally for their own employees should be in writing based on the guidelines of the EEOC and should allow employees to seek shelter if they have a legitimate medical reason or sincere religious belief for their being not receiving any vaccinations.
Housing could include unvaccinated workers being able to continue working from home, taking weekly tests or wearing masks in the office until the pandemic ends. However, any incentives offered to other employees must also be available to them, such as by watching a COVID-19 safety video or reviewing CDC literature. All employees should confirm in writing that they have received, understood, and will comply with the policy. Finally, if you require workers to get the syringe or take other training to do so, you should pay them for that time.
“Contractors should require their workforce to be vaccinated by a specific date and follow up in writing to ensure compliance,” said Skrabanek. “It would also be advisable to give paid time off to workers who need to make vaccination appointments.”
Use a soft stick
But while contractors can legally require workers to adhere to owners’ guidelines and implement their own internal vaccine requirements, attorneys say a mandatory approach should still be the last resort for contractors. Since 40% of construction workers keep saying they don’t want the vaccine, it might be better for contractors to do a soft sell first.
“It’s a double-edged sword,” says Carol A. Sigmond, partner in the construction practice group at the law firm Greenspoon Marder LLP. “The real problem in the industry is the labor shortage. When employers place an order, they have to worry about losing an unvaccinated workforce. At the same time, a smaller vaccinated workforce can be more reliable in the long run than a largely unvaccinated workforce. “That gets sick.”
For these reasons, construction attorneys keep telling their clients to encourage their workers to get the vaccine first before placing a mandate from above.
“Like most employers, contractors have to balance the need for vaccinations and the current job market,” says Chase Hattaway, partner in the construction practice at the RumbergerKirk law firm. “Some companies may not have a choice, while others may be better off encouraging their employees to get the vaccine and requiring unvaccinated employees to take other measures to prevent the spread of the disease. These companies may also want to incentivize employees to encourage employees to “volunteer to receive the vaccine.”
These incentives can include something as small as a restaurant gift card, adequate cash bonuses, or extra paid time off. But contractors shouldn’t really offer so much on this front that it would be perceived as a punishment for employees who choose not to get the vaccine.
“If the incentive is too high, it could act as a penalty or a coercive measure,” said Brannen.
Another way to promote vaccinations is through education. Many contractors and lawyers find that workers are often unsure who to believe about information about vaccines and that they are often skeptical about the standard recommendations of the Centers for Disease Control. Some companies have succeeded in bringing in health professionals to talk to workers about the vaccines, a move that can depoliticize the issue.
“TThere is all kinds of information and disinformation here. People don’t really know who to trust, “Brannen said.” To get the needle moving in your workplace, you need some kind of targeted information campaign that raises concerns, questions, and misunderstandings.
Who is vaccinated and who is not
Critical in any approach to vaccination policy, whether mandatory or not, is establishing a baseline for the vaccination status of each worker. While contractors have a clear business reason for requesting this information, how they deal with it once they have received it is a detail they need to get right in the process.
“Ideally, the contractor would receive a copy of the employee’s vaccination card,” said Jorge Piedra, construction attorney and partner at Kozyak Tropin & Throckmorton. “If that is not possible, a written confirmation from the employee that he has been vaccinated should suffice.”
Charles Krugel, a Chicago-based labor and employment management attorney, said it was imperative that these records be kept in a separate file from the employees’ main personnel files.
“Keep these the same way you would keep medical or immigration records,” Krugel said. “I would suggest that the vaccination cards be kept separate and with some kind of security like lock and key or encryption.”
While confirmation of workers’ overall vaccination rates may be required to meet owner’s mandates, attorneys warn against disclosing specific vaccine information to anyone.
“Contracts can contain specific documentation requirements that should be concluded as far as permitted by law,” said Sanders. “Contractors should never agree to reveal the vaccination status of individual employees.”
The Dotted Line series is brought to you by AIA Contract Documents®, a recognized leader in design and construction contracts. To learn more about their 200+ contracts and access free resources, visit their website here. AIA Contract Documents has no control over Construction Dive’s reporting in the articles, and the content does not reflect the views or opinions of the American Institute of Architects, AIA Contract Documents, or its employees.