With OSHA’s Emergency Temporary Standard (ETS) hanging in the balance of a special January 7, 2022, U.S. Supreme Court session, your organization should nonetheless prepare to comply with a Vaccine-or-Test COVID-19 policy. As it stands, the current OSHA ETS requires private businesses with at least 100 employees to ensure that their employees are either vaccinated against COVID-19 or tested weekly. Compliance requires a well-developed, written policy monitoring vaccination status among employees and a dialog with employees regarding exemptions based on disability, religion, and other state-required reasons.

An employer who implements a weekly COVID-19 testing program for unvaccinated employees may fear compliance challenges beyond its control. Namely, the limited number of testing resources in the face of ever-increasing demand. To address this issue, OSHA has provided guidance to covered employers on how to remain compliant with the ETS in the event of testing shortages or delays.

OSHA expects that most screening testing will be antigen testing that is conducted at point-of-care locations due to the reduced cost and faster processing time when compared to NAAT testing in laboratories. Most NAATs need to be processed in a laboratory with variable time to results (approximately 1–2 days). In contrast, most antigen tests can be processed at the point of care with results available in about 15-30 minutes. Rapid point-of-care tests are administered in various settings, such as: physician offices, urgent care facilities, pharmacies, school health clinics, workplace health clinics, long-term care facilities and nursing homes, and at temporary locations, such as drive-through sites managed by local organizations.

Employers should be cautioned about self-administered COVID-19 tests. Tests that are both self-administered and self-read do not meet the definition of “COVID-19 test” in the ETS (unless observed by the employer or an authorized telehealth proctor) and do not satisfy the testing requirements. Importantly, because unobserved, self-administered COVID-19 test results are not acceptable under the ETS, the current shortage of at-home tests does not directly impact compliance.

Currently, it is OSHA’s position that there is a sufficient supply of COVID-19 tests available and adequate laboratory capacity to meet the anticipated increased testing demand related to compliance with the ETS. However, if an individual employer is unable to comply with the testing requirement of the ETS due to inadequate test supply or laboratory capacity, OSHA will look at efforts made by the employer to comply, as well as the pattern and practice of the employer’s testing program and consider refraining from enforcement where the facts show good faith in attempting to comply with the standard.

OSHA also recognizes that where the employee or employer uses an off-site laboratory for testing, there may be delays beyond the employee’s or employer’s control. If there is a delay in the laboratory reporting results and the employer permits the employee to continue working, OSHA may refrain from enforcement where the facts show a good faith attempt at complying. To determine whether a good faith attempt has been made, OSHA will look at the pattern and practice of the individual employee or employer’s testing verification process.

Tips to Help Achieve Good Faith ETS Compliance

  • Develop a written policy that outlines the testing protocol and procedures in great detail.
  • Strictly follow and enforce your policy.
  • Keep thorough records – including past test results, dates, times, and correspondence.
  • Document any issues with obtaining test supplies or timely results.
  • Confirm the factual accuracy of any test supply or result issues raised by an employee.
  • Remain in contact with OSHA and other local government agencies.
  • When in doubt, contact a member of HLP’s Labor & Employment group. We are here to help and can assist with documentation of testing and result issues beyond your organization’s control.

Vaccine-or-Testing Contractual Obligations

Regardless of how the U.S. Supreme Court may rule on the January 7, 2022, arguments, employers in the construction industry may still find themselves having to comply with similar vaccine-or-test COVID-19 policies as contractual requirements. A trend may develop where project owners and employers are incorporating such policies into their contracts and sub-contracts, likely citing the impact COVID-19 has on project delays and manpower.

However, uniform guidance on how to comply with such requirements in the event of a testing shortage is not likely to exist in private contracting like it does for employers covered by the ETS. Additionally, methods and levels of enforcement are also likely to vary from project to project. Such variables may present unique compliance challenges and can lead to a failure to perform as obligated. Failure to strictly comply with a vaccine-or-test contractual requirement could constitute a breach, and if not cured, may result in extensive costs and damages. If your contract contains one of these private vaccine-or-test provisions, you may consider suggesting that any testing supply or results issue beyond your organization’s control should be handled in accordance with the claims, delays, or dispute provisions contained in your contract.

Tips to Help Avoid Breaching Private Vaccine-or-Test Contractual Obligations

  • Develop a written policy that outlines the testing protocol and procedures in great detail.
  • Strictly follow and enforce your policy.
  • Keep thorough records – including past test results, dates, times, and correspondence.
  • Document any issues with obtaining test supplies or timely results.
  • Confirm the factual accuracy of any test supply or result issues raised by an employee.
  • Consult notice provisions contained in your contract and contract documents.
  • Provide notice of testing issues beyond your control pursuant to the requisite time and manner contained in your contract and contract documents.
  • Demand guidance and or resolution.
  • Remain in communication with the project owner, general contractor, or contracting party.

When in doubt, contact a member of HLP’s Labor and Employment Group. We are here to help and can assist with documentation of testing and result issues beyond your organizations control. Timely notice is vital.

Hahn Loeser & Parks LLP’s Construction Law Practice Group has been ranked as a National Tier 1 practice for Litigation – Construction in the 2022 “Best Law Firms” report, which was released today by U.S. News & World Report and Best Lawyers®.

“This national recognition is a testament of the hard work of every member of our growing construction team,” said Rob Remington, Hahn Loeser’s Construction Law Practice Group Chair. “We are proud to receive this high praise for our standout work and our deep commitment to providing the highest level of client service to our clients across the construction industry.  I am fortunate to work with this incredibly talented team of attorneys and construction professionals.”

In addition to this national ranking, Hahn Loeser is listed in Tier 1 in four construction-related categories in the report’s metropolitan rankings in the 2022 “Best Law Firms” report, including recognition in both Construction Law and Litigation – Construction for both the Cleveland and Columbus, Ohio markets.

The 2022 “Best Law Firms” rankings are based on a rigorous evaluation process, which includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas based on its abilities, its professionalism, and its integrity.

In addition to this recent honor, Hahn Loeser’s Construction Law Practice Group was recognized earlier this year in the Top 50 Construction Law Firms by Construction Executive magazine for 2021 as the only Ohio-based firm to be included in the top 30 spots for the second straight year. Hahn Loeser is also recognized as having one of the leading Construction Law Practices in Ohio by Chambers USA in its 2021 edition.

New York Governor Kathy Hochul recently signed into law an amendment to New York Labor Law that holds prime and general construction contractors jointly and severally liable for unpaid wages, benefits, and wage supplements owed by a subcontractor at any tier to the subcontractor’s employees.

Read more about this new law in this legal alert from Hahn Loeser’s Labor & Employment Practice Group.

Over the past few months, the COVID-19 vaccine has dominated news coverage and is at the forefront of the current administration’s agenda. In this recent legal alert, our employment team considers several important vaccination questions for employers to consider as they navigate the rapidly evolving issues that COVID-19 presents to the workplace.

Read the full legal alert here.

Earlier today, the 11th District Court of Appeals for the State of Ohio upheld a judgment for $1.1 million in compensatory damages in favor of Hahn Loeser’s client — TRAX Construction Co. — against OHM Advisors, Inc., and Eugene Esser, the former Engineer for the Village of Reminderville, as well as an award of $375,000 in punitive damages and attorney fees and expert fees in the amount of $483,870.53.  The decision can be found here.

Please read more about this decision and its impact on the construction industry on our website.

 

Yesterday, June 14, 2021, Ohio Senate Bill 13 went into effect. This bill shortens the statute of limitations for breach of written contract actions from eight years to six and, for oral contracts, from six years to four.

As Greg Thompson and Alayna Bridgett shared earlier this year, while S.B. 13 amends the statute of limitations for contract claims in general, it is important for construction project stakeholders to consider provisions within their own contracts that limit contract claims periods. Nearly every construction contract will include provisions shortening the time frame in which a party may bring a claim (oftentimes to just days). These provisions provide a period much shorter than the enumerated statute of limitations. It is important to remember that, regardless of whatever appears in the Ohio Revised Code, parties must comply with the claims provisions provided in their contracts.

Hahn Loeser is pleased to announce that the firm has been recognized by Construction Executive magazine in the Top 50 Construction Law Firms™ for 2021, ranking number 30 out of the 50 firms included in this year’s list. This year’s list marked the second straight year of Hahn Loeser’s Construction Team being the only Ohio-based law firm in the top 30 spots.

Based on research through a proprietary survey of hundreds of U.S. law firms with construction law practices, the 2021 list was published in Construction Executive’s June issue.

To read more, visit our website.

Yesterday, the Ohio House of Representatives passed a bill (H.B. No. 68) that would amend Ohio’s Prompt Pay Act (ORC Section 4113.61) to provide general contractors with payment protection akin to that currently enjoyed by subcontractors under the Act.  HLP construction attorney Sonja Rice discusses the details of this bill in a recent Legal Alert.

A strong and clear financial foundation is crucial for every construction company.  During this webinar, you will learn strategies to help involve your whole team in ensuring your job accounting is accurate and understand best practices to make claims for delays and extra work.  These pieces work together to help build on the value of your business that you have worked so hard to create over the years.

Tuesday, June 8 – 12:30 – 1:30 p.m. ET

Please click here to register.

 

The Biden Administration’s Department of Transportation (DOT) recently paused a highway widening project in Houston, Texas. The project, known as the North Houston Highway Improvement Project, would widen Interstate 45. The DOT decided to halt the project so that it could evaluate whether it violates Title VI of the Civil Rights Act of 1964. This move comes after an outpouring of complaints from local activists that African American and Hispanic communities would be disproportionately harmed by this project.

Download our full Legal Alert by Aaron Evenchik and Caroline Hamilton here.