With vaccine supplies limited at this writing, commercial construction contractors and subcontractors will have to wait behind frontline healthcare workers and those Americans above age 75. The first doses of the Pfizer and Moderna COVID-19 vaccine were shipped to all 50 states in late December, and employers should be prepared to deal with vaccine issues in the workplace within the next few months. What should employers know in the meantime?

When Will Vaccines Be Available to Workers?

The CDC’s Advisory Committee on Immunization Practices has released interim recommendations regarding how to prioritize distribution of the vaccines. The CDC has recommended residential construction workers be vaccinated in Phase 1c, which includes:

• people aged 65-74 years outside of long-term facilities because they are at high risk of hospitalization, illness and death from COVID-19;
• people aged 16-64 years with underlying medical conditions which increase the risk of serious, life-threatening complications from COVID-19; and
• other essential workers, such as people who work in transportation and logistics, food service, housing construction, finance, information technology, communications, energy, law, media, public safety and public health.

The CDC is silent, however, on commercial construction workers. States, however, will have the responsibility to determine the priority for distribution of the vaccinations to individuals in those states. Most states have submitted proposed COVID-19 Vaccination Plan defining what their phases look like. Georgia, for example, does not specifically delineate which phase will cover construction workers, but its vaccine rollout plan also includes a Phase 1-C that covers all other essential workers after persons serving in a healthcare setting who have the potential for direct or indirect exposure to patients and pharmacy staff, educational faculty and staff, correctional facility staff, court employees, food processors, grocery store workers, transportation staff, nuclear power plant employees, and air traffic controllers, etc. Therefore, employers should check state websites to find where in the line commercial construction workers fall. Links to in-progress state vaccine distribution plans can be downloaded here.

Can Workers Be Required to Get Vaccinated?

Regardless of when the vaccine becomes available, contractors and subcontractors may mandate the COVID-19 vaccine in certain circumstances without violating federal anti-discrimination laws, according to guidance from the Equal Employment Opportunity Commission. While the EEOC’s FAQs do not explicitly state that employers can require the vaccine, the guidance implies that there are situations where employers are permitted to require their workers to be vaccinated.

The Americans with Disabilities Act allows an employer to require vaccinations if it can show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Therefore, to comply with the ADA, employers should conduct an individualized assessment of four factors in determining whether a direct threat exists from unvaccinated employees at a worksite and the exposure of employees to COVID-19. Those factors are:

• the duration of the risk;
• the nature and severity of the potential harm;
• the likelihood that the potential harm will occur; and
• the imminence of the potential harm.

Given the global pandemic and the close-quarters at some construction worksites, many employers will not have difficulty determining that an unvaccinated individual will expose others to COVID-19 at their worksite.

Reasonable Accommodations for Unvaccinated Workers

Even if an employer determines that an unvaccinated worker poses a direct threat at the worksite, the employer must also determine whether any accommodations under the ADA can be made for those employees that cannot be vaccinated due to a disability. That is, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk of spreading COVID-19 so the unvaccinated employee does not pose a direct threat. Therefore, the employer must engage in the interactive process with any employee who refuses to get vaccinated to ensure ADA compliance.

Importantly, the EEOC recommends that managers responsible for communicating with employees about a workplace-vaccination requirement should know how to recognize an employee’s accommodation request. Similar steps should be taken for any employee who refuses a vaccination on religious grounds. As such, employers should train their managers about the process to refer accommodation requests to the appropriate person for consideration (such as Human Resources), and employers should strongly consider providing written details about the accommodation request procedure to their workforce.

Conclusion

Although the EEOC permits mandating vaccinations of employees in certain instances, construction contractors and subcontractors should encourage, rather than mandate, vaccinations. Also, as noted above, commercial construction workers will be lower on the priority list for vaccination, and each state has a different plan on how and when vaccines will become available. Nevertheless, employers should:

• stay informed as to the vaccine distribution plan for each state where they have worksites;
• stay tuned for more guidance from the EEOC;
• develop a plan as a part of an employer’s vaccination policy and determine what additional resources will be required; and
• continue to consult applicable Occupational Safety and Health Administration standards and guidance. Employers can find Fed-OSHA COVID-specific resources at www.osha.gov/SLTC/covid-19/.