What the Biden Vaccine Mandate Means for Home Builders

Filed in Disaster Response, Safety by on September 14, 2021 13 Comments

Banner with two cartoon home builders after vaccinationPresident Joe Biden last week announced a sweeping vaccine mandate to bring the latest surge in COVID-19 cases under control. Central to the administration’s plan is a requirement that every employer with more than 100 employees require the vaccine for its workforce or provide for weekly testing.

The new mandate will be levied and enforced through a new emergency temporary standard (ETS) from OSHA in the coming weeks.

OSHA’s authority allows the agency to immediately enact a rule if “workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards.”

The Biden administration will also require federal employees in the executive branch and government contractors to be vaccinated against COVID-19. The new OSHA mandate, which will apply to all private companies with more than 100 employees, does allow for weekly testing in lieu of vaccination. Specifically, unvaccinated workers must produce a negative test each week to be allowed onto a worksite.

The OSHA ETS will require employers to give paid time off to workers for their vaccinations and to recover from vaccination side effects.

During an information session late last week attended by NAHB staff, OSHA said it expects the ETS to be ready in six to eight weeks. There will be no opportunity for industry or the public to provide input on the ETS, and when it is published to the Federal Register, it will take effect immediately. There will be a chance to comment on a final rule, expected six months after the ETS is published.

OSHA will enforce the mandate with inspections and can levy fines up to $13,653 per violation, OSHA’s maximum penalty, although it is unclear whether that applies to each site or employee.

In fact, there are still many unanswered questions about the ETS. OSHA last week could not answer specific questions from industry stakeholders, including:

  • Who pays for testing?
  • How will employers verify vaccinations and test results?
  • How do companies handle employees who refuse to vaccinate or test?

The vast majority of home builders in the United States have fewer than 100 employees, so the mandate should not directly affect most NAHB members. But the extension of strong federal workforce rules to contractors could be problematic down the road, as much of the home building industry is run on contracted relationships.

NAHB members should remain flexible and ready to act when the ETS is issued and be prepared for change even after the rule is in place. For any questions about COVID-19 vaccines or finding a vaccination center, see the resources compiled by NAHB for Vaccine Awareness Week held in April.

For questions about jobsite safety and OSHA, contact Rob Matuga.


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Comments (13)

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  1. Gretchen L Wilmer says:

    There is so much controversy on this subject. People with vaccinations are getting covid so I don’t think vaccinations are the answer.

    But if the government feels the need to enforce something, than why not determine who has immunity verses no immunity. That way people who have immunity from the vaccine or because they have recovered from Covid are deemed safe and the rest should be tested for Covid?

    That way people are not forced to have a vaccine.

    • Tom Causgrove says:

      With all due respect Gretchen, the fact remains that at least 90-95% of the people with Covid-19 occupying hospital beds which are in short supply are the unvaccinated. Surely you can understand the governments efforts to increase the number of vaccinated citizens.

      • Allen Harrison says:

        Ever heard of the Constitution?

        • Catherine Taylor says:

          Agree with Allen 100%. Our rights as citizens in this country are being stolen from us. Reply to Tom; statistics can so easily be manipulated and with COVID they have been. For good reason, many citizens feel that the government is not a reliable source of information. I shouldn’t feel afraid in the great country to post this, but I am because free speech and open discussion are no longer tolerated.

          • Michael San Angelo says:

            Having served in the United States Marine Corp I signed up to fight and die if I had for “ALL” our countries freedoms…..even the ones I would never do. I am also vaccinated but to be forced to be vaccinated is clearly the beginning of the end of all our freedoms. This sounds like something you would see in a country run by a dictator. We currently allow people to drink and smoke themselves to death, among other things. Forced vaccination will not solve this problem….but will surely create a good many more. Just wait until good hardworking employees walk off the job simply because they refuse to be treated like they like they have no rights. I can decide my gender but have no right to determine what is put inside my body….crazy world we live in. God Bless!

        • Jeff H says:

          Yes I have. And I have read it and all of the amendments, have you?

          The Supreme Court ruled in Jacobson v. Massachusetts (1905) that enforcing vaccines DID NOT violate the constitution. And in subsequent cases that ruling was upheld.

          The Supreme Court voted 7-2 and ruled in effect that one man’s liberty cannot deprive his neighbors of their own liberty — in this case by allowing the spread of disease. They made it clear that a community in danger has every right to protect itself

          And before you spout off about liberal courts taking away our freedom, this was not a liberal court. This was a court that used its power to protect businesses from “unwanted intrusions” such as minimum-wage laws and safety regulations.

          The ruling majority opinion states, in part:
          “There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, but it is equally true that, in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

      • Anne Keith says:

        My understanding is that there is controversy over how the statistics showing hospital beds being full of unvaccinated versus vaccinated has been manipulated. This needs to be transparent and the public needs to be able to trust the numbers. It seems to be all about testing and vaccines, not preventative measures and early treatment. I don’t know what to believe but I do question why the antibodies are not checked before people get the vaccine because having the antibodies is the best defense from getting COVID.

      • Dawn Wiksten says:

        Amen! I am curious how many people leaving comments about hospitalizations , as well as their personal, “freedoms” work in, or are related to folks in the medical and scientific world. Seems, “freedoms” are seriously lacking both education and responsibility. If we stop believing these insane internet, self proclaimed experts, we will be safer, and more productive. Or, we can all relive the Dark Ages.

  2. Kevin says:

    I don’t like goverment forcing me and my family to
    Inject something in my body whats next microchips to track our movements

  3. Jay W Small says:

    It will be interesting to see how the U.S. Supreme Court handles this issue if it gets that far. For well over a century, it’s been Black Letter law that, when a state mandates vaccines to curb the spread of communicable diseases, it does not derogate federal protections secured by the 14th Amendment.

    In the leading case, Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), Justice Harlan, the Great Dissenter, famously wrote that “[T]he liberty secured by the Constitution of the United States to every person with its jurisdiction doe not impart an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”

    The Court rejected an argument many still make today. Jacobson argued that the state’s vaccine mandate defeated the purposes of the Constitution as declared in its preamble which secured the “Blessings of Liberty” to all. Justice Harlan observed that while the “preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States.”

    Jacobson involved a state exercise of its police power to promote general health, safety, and welfare. I imagine the counter argument would be that the 10th Amendment reserves police powers to the states. Absent an express delegation of authority to the federal government, a vaccine mandate is not authorized.

    And the counterpoint argument to this 10th Amendment objection would be that the federal government has near plenary power under the Commerce Clause to regulate interstate and intrastate business relations that affect interstate commerce.

    • Jay W Small says:

      See United States v. Morrison, 529 U. S. 598 (2000) for the proposition that the Constitution does not grant police powers to the federal government, the Founders having decided to all the states to retain that power.

  4. George says:

    I’m intrigued by the underlying OSHA authority cited in this article: “workers in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards.”

    It seems rather novel to claim that a respiratory virus completely unrelated to worksite conditions counts as a “toxic substance”.

    It also seems novel to claim that addressing this respiratory virus, 18+ months after its first appearance on US worksites, qualifies for ETS rather than a full rule-making process.

    If OSHA proceeds on these paths, it seems likely that we’ll see challenges under the Administrative Procedures Act, which was the path used to block many of the initiatives from the prior administration.

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