Construction companies may be venturing into a new universe in the weeks to come after a federal ruling addressing the question of employee Covid-19 vaccinations.
Three weeks ago, the U.S. Equal Employment Opportunity Commission issued a guidance essentially saying that it is legal for businesses to require those vaccinations.
But in so doing, said the EEOC, employers must also demonstrate that a demand for proof of vaccination is both job related and seen as a “business necessity.”
At the same time, an advisory committee for the Center for Disease Control and Prevention has determined that while construction workers are not in the category of front line workers, they are classified as essential in a group that also includes public safety engineers, and water and wastewater treatment system personnel.
The EEOC ruling makes certain to spell out that requiring proof of a vaccine will in no way involve the employers’ use or disclosure of genetic information belonging to the employee.
In fact, the EEOC guidance recommends that the employer in question “may want to warn the employee not to provide genetic information as part of the proof” of a vaccine.
In a webinar sponsored by the Associated General Contractors of America, Dr. Albert Brannen, a partner in the Atlanta-based law firm of Fisher Phillips, recommended that construction companies spell out clearly the reasons why a vaccination is important for their workers, while also providing free vaccines on the job site and during working hours.
Said Brannan: “We are a critical industry and we need to communicate that to our employees, as an explanation of why we expect you to take a vaccination when we make it available.
Kevin Troutman, also with the Fisher Phillips firm, noted that federal law has been supportive of efforts to require the vaccination of healthcare workers on the premise that doing so protects patients.
So, too, said Troutman, employers everywhere, including those in the construction industry, are being given a wide berth in requiring vaccines because of a “significant risk of substantial harm if they don’t do it.”
Challenges for construction companies may come in cases where an employee’s health may be endangered by a vaccine, or when a vaccine is in violation of an employee’s religious beliefs.
Industry analysts suggest that in the case of a vaccine posing a medical risk, a doctor’s statement may be required.
Meanwhile, on the religious belief question, such employees may be offered the alternative of working off-site.
Companies with labor unions, notes the publication Construction Dive, “may need to first consider bargaining with their unions before issuing a mandate.”
More than 17 million doses of Covid-19 vaccines produced by the Moderna and Pfizer companies have so far been shipped across the country, according to the CDC, with 4.8 million people, as of this week, getting shots.
By Garry Boulard
