A recent study reported construction workers are among the least likely of essential workers to get the COVID-19 vaccine; as a result, construction employers could face challenges if they plan to either mandate or try to persuade employees to get the shot, according to www.constructiondive.com.
Brian Turmail, vice president of public affairs and strategic initiatives for the Associated General Contractors of America, said few construction firms are considering making vaccination a requirement, except for contractors who work in the health care industry.
“In most instances, it’s an owner mandate,” Turmail said. “Even in those cases, contractors still have to deal with reasonable accommodation requests for those employees that find a reason to resist.”
The Equal Employment Opportunity Commission’s position generally has been employers can mandate their employees get the vaccine, but the commission also acknowledges such a rule would require them to navigate federal, state and local laws.
Turmail said most contractors are choosing an approach with policy phrasing that includes language such as “we expect you to” get a vaccination. Some contractors are considering giving employees incentives if they voluntarily get the vaccine, but there are questions regarding the types of incentives contractors can offer while staying within the parameters of federal and other laws.
In an AGC document prepared by law firm Fisher Phillips, legal professionals recommend contractors consider consulting with an attorney before implementing an incentive program to ensure it does not violate EEOC regulations, including HIPAA. The EEOC has proposed new rules that would better define the types of incentives employers could offer without coercing employees to disclose protected medical information in exchange for a reward or to avoid a penalty. The regulations would limit acceptable incentives to those considered to be “de minimis,” or minor.
“Under these proposed regulations, even a $100 gift card is considered beyond de minimis,” said attorney Melissa Salimbene with Chiesa Shahinian & Giantomasi PC. “Another concern with giving these cash bonuses is there could be wage and hour implications.”
However, as part of President Joe Biden’s administrative freeze on new federal regulations, those new rules are on hold.
In the meantime, employers can educate employees regarding the vaccine and provide access to the latest and most accurate information.
