Almost half, 46.4 percent, of U.S. construction/extraction workers—union and non-union combined—said they probably or definitely would not get vaccinated against the still-potent coronavirus, a new study shows. That’s the highest refusal rate among all occupations, researchers at Carnegie Mellon University and the University of Pittsburgh report.

Thomas Tripodianos, a Partner at Welby, Brady & Greenblatt, LLP, where he is involved in all aspects of construction, labor and real estate law, addressed some of the most frequent questions regarding the vaccine and the construction industry:

Contractors must adhere to the ground rules surrounding a job 

I recommend they take into account the environment of the job. Will they be working with a population that either can’t be vaccinated (children) or somehow is immune compromised? Is the project in a hospital or nursing home? I think with the FDA approval of the vaccine, the employer hiring the contractor would be on much more solid footing to turn around and say, ‘hey, you have to be vaccinated if you’re going to work on those types of projects.’ The contractor can tell his workforce if there aren’t enough other jobs there could be layoffs.

Contractor first obligation to its employees

They have to commit to providing a safe work environment. Even before FDA approval the employer needed to maintain other safety protocols in terms of masks and social distancing. Now, requirements are coming from up above. A hospital says, ‘all medical personnel have to be vaccinated, that’s our policy, and we’re pushing that down the line to everybody, not just our own hospital employees but every outside independent contractor that comes to work.’ Now it’s a change in work conditions on that project. Either the employee meets those requirements, or they don’t. It’s simple. Like, either you have an OSHA 10 card – or you don’t. If you don’t, you can’t work.

Unions are not employers

They don’t have a direct concern as the contractor would. However, if they can’t supply the employer member with workers then that employer is free to go out and find an alternate work force in order to complete a project. From a practical standpoint, the unions are going to feel pressure because they’re not going to be able to put all their members to work. If the members don’t have the qualifications (being vaccinated) to work, then they’re going to sit on the bench and wait. The trend is that more and more jobs are going to require vaccination. The workforce will start dwindling if more workers don’t get vaccinated.

What are rules about asking

You’re well within your right to ask, ‘are you vaccinated?’ It’s limited to that yes or no question. ‘Are you or are you not?’ If the answer is yes, you can ask for proof of a vaccination. You don’t have to do it on the honor policy. They can show the Excelsior Pass or vaccination card. I would treat it similar to requesting documentation to fill out an I-9. They don’t need to make a photocopy and send it. It just needs to be seen by a supervisory person, office manager or a job foreman. It shouldn’t be common knowledge, or that everyone holds up their card. The only information the employer should keep track of is the person’s name, did they provide proof of vaccination, when are they scheduled to get or when they did get a second shot. Now you have one piece of paper with all employees listed and only the critical info that you need. A lot easier to track and keep secure.

What can’t you ask an employee?

‘Why?’ ‘Are You not getting vaccinated?’ I would not ask the question, ‘Do you intend to be vaccinated?’ It seems harmless. I’m sure other people might disagree with that and tell you it’s a proper question to ask. I think the safer bet is, if you are an employer, is to make sure you have a legitimate reason to ask the question, ‘Are you going to be vaccinated?’ You might want to ask to plan your workforce needs. You have a job that is going to require vaccinated personnel. Can you count on that employee to be available? You could say, `I’m considering you for this job, your start date will be this, and in order for you to work you have to be vaccinated by this date. Will you be eligible to work this job?’ You’re getting the same information, but you’re telling them why you are asking the question.

Should a company have one standard for everyone?

Should I mandate that my back-office personnel who basically come and sit at their desk all day and then go home, should they have to be vaccinated just because we have people in the field who are working at a hospital – no. It can’t be an across-the-board situation. Those people similarly situated, yes, they all should be treated the same.

 What do you hear from the trades?
They are very concerned about having enough workers available. That was a concern before COVID and had nothing to do with a vaccine. Now, it’s just becoming even worse. There’s even a smaller percentage of those people who are going to be available. The trend is more and more job sites are requiring vaccinated-only personnel.

What options are available to union members?

All orders are directed at the employer. The union is not the employer. They have no direct skin in the game. They can’t say, ‘in order to be a member of Local 17 you have to be vaccinated.’ That’s not going to happen. But from a practical standpoint, if they want their members to work they should engage in an informational campaign to let the workforce know that’s the situation, explain that executive orders and private mandates are valid, they’re enforceable, and not something the union is going to challenge.

You can’t harass someone based on their vaccination status 

It’s no different than discriminating against someone based upon race, creed, sexual orientation, gender. Is it one of the protected classes? No. But certainly a case could be made in court that discrimination because of vaccination status is a form of creating a hostile work environment.

Rules can change at a job site

Plan your workforce accordingly. If you’re going to work on jobs or bid on jobs that require vaccination, if you’re on a job and now you’re getting these mandates coming down, be vigilant. You have to put in a notice of claim. The owner, or the GC, if you’re a sub, is now requiring an additional condition and a job qualification for the workforce that didn’t exist at the time you bid or contracted. It’s a change condition so you should put in a claim. ‘You’re mandating a vaccine. I may not be able to field the job anymore. I’ll need additional time to complete this because I don’t have the workforce available and potentially I’m going to need additional money because in trying to meet this requirement, I’m going to engage in a campaign to get my people vaccinated. Incentivize them. Or, I’m going to have to pay vaccinated workers a premium; they can work on job a or b, they can choose an employer who will pay more per hour. Maybe even pay more than prevailing wage or union rate.’

What’s the next six months like?

I think you’re going to see a higher trend of jobs that are going to require vaccinations, as all three vaccines receive FDA approval. You had owners and large-scale companies that were on the fence that wanted to mandate vaccines but wouldn’t pull that trigger until there was an FDA approval. It’s a lot easier to take a philosophical or political stance when it doesn’t hit you in the pocket. You can maintain the position that `no one can tell me I should or shouldn’t be vaccinated, that’s my personal choice,’ but if that is coupled with the realization you might not be getting a paycheck, a lot of people are going to change their tune. That’s my suspicion. There are going to be fewer and fewer jobs for the unvaccinated.

TTripodianos@wbgllp.com