Construction workers are among the least important workers to receive the COVID-19 vaccination, according to a recent study. This means construction employers may have to cut their jobs for them if they plan to hire or convince employees to get the shot.
Not many construction companies are considering making vaccinations mandatory, with the exception of contractors who work in the healthcare industry, said Brian Turmail, vice president of public affairs and strategic initiatives for the Associated General Contractors of America.
“In most cases it is an owner mandate,” he said. “Even in these cases, contractors still need to make reasonable arrangements for housing those workers who find cause for resistance.”
The only place to stay, he said, would be to move her to another project if available.
The Equal Employment Opportunity Commission’s position in general was that employers could prescribe the vaccine to their employees, but the commission also recognizes that such a rule would require them to abide by federal laws such as the Disabled Americans Act. the Rehabilitation Act, which requires reasonable accommodation and non-discrimination based on disability and sets out rules about when and how an employer can conduct medical examinations and examinations; Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, national origin, religion and gender; and other state, state, and local regulations.
“A sensitive subject”
However, most contractors take a soft, yet firm, approach to the problem with policy wordings that include language like “We expect you to get vaccinated,” Turmail said.
As an added boost, some contractors are considering incentivizing employees when they volunteer to receive the vaccine. However, what incentives can contractors provide while still staying within federal and other laws?
“It was actually a very difficult subject to advise clients,” said lawyer Jill Cohen of Eckert Seamans Cherin & Mellott LLC. One of the problems, she said, is that some incentives could be viewed as a wellness benefit, subject to federal regulation.
In an AGC document produced by the Fisher Phillips law firm, lawyers recommend contractors to consult an attorney prior to implementing an incentive program to ensure it does not violate EEOC regulations, including the HIPAA.
The EEOC has proposed new rules that better define what types of incentives employers could offer without actually forcing them to disclose proprietary medical information in exchange for a reward or to avoid punishment, according to the Society for Human Resources Management. The rules would limit acceptable incentives to those considered de minimis or minor.
“Under these proposed regulations, even a $ 100 gift card is considered beyond the minimis,” said Attorney Melissa Salimbene of Chiesa Shahinian & Giantomasi PC. “Another problem with granting these cash rewards is that it could affect wages and hours.”
However, as part of President Joe Biden’s administrative freeze on new federal regulations, these new rules are being put on hold.
More than 40 business groups and employers’ organizations, including the AGC, Associated Builders and Contractors, and the National Ready Mixed Concrete Association, have written a letter to the EEOC asking for guidance on what incentives are acceptable and not against those offered by the EEOC violate monitored regulations. Turmail said there was no indication of when the EEOC would provide these guidelines.
Until then, however, there are some incentives that are most likely not against the law.
“I think the safest way for employers to do this is to allow workers to get a vaccine during work hours and pay them up to a certain number of hours,” Cohen said.
Employers could also give workers who feel sick after taking paid sick leave the option to offer an alternative for people who can’t or don’t want to get the vaccine, she said. If employers do not have sick leave arrangements, they can handle these situations as if an employee were sick for some other reason.
Employers who have the basics might also consider setting up a vaccination clinic, Salimbene said so that employees can get the vaccine as easily as possible.
“That way,” she said, “there is no expense, no travel, no time off from work.”
Many US states that have their own rollout plans are not yet offering vaccines to the broader population and are instead focusing on risk categories of people such as older Americans and healthcare workers. This gives employers time to figure out how they’re going to deal with the vaccination issue, Salimbene said.
“Employers need to slow down, proceed with caution and take the time to speak to their legal counsel about the proposed plan,” she said.
This is also the time to educate staff about the vaccine and get access to the latest and most accurate information, Salimbene said.
“That in and of itself is kind of a free incentive,” she said.
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