Transcription

Preparing for the OSHA COVID-19 Vaccine TestingMandate Webinar SeriesNovember 8, 2021Leveraging OutsideSolutions to Meet theMandate 2021 The Associated General Contractors of America, Inc.

Thank You to Our SponsorConstructionAdvocacyFund.agc.org2 2021 The Associated General Contractors of America, Inc.

PANELISTS Kevin Cannon, Senior Director, Safety & Health Services, AGC of America John Constantine, CEO, ARCPoint Franchise Group Reid Rubinstein, CEO, Field Control Analytics Lisa Howlett, General Counsel, Hunter Roberts Construction Group3 2021 The Associated General Contractors of America, Inc.

AGC VACCINATION BACKGROUND AGC has advocated for voluntary vaccinations Webinars with law firm explaining limitations onemployer mandates/bargaining requirements 4 Aligns with our safe workplaces strategiesCOVID vaccination toolkit on our website to assistmembers in discussing issue with employeesRecognition that mandating vaccination may leadto widespread resignations in industry/balancewith safe workplace responsibilities 2021 The Associated General Contractors of America, Inc.

OSHA VACCINE AND TESTING MANDATE FORALL EMPLOYERS WITH 100 OR MORE EMPLOYEES Nov. 5 OSHA issued Emergency Temporary Standard December 6, 2021 for requirements other than testingform those who are not fully vaccinated January 4, 2022 for testing of employees who have notreceived all doses required for vaccination. Will require vaccination OR regular testing foremployees Will require employers to provide paid time off to getvaccinated or recover from any adverse effects This is really a TESTING MANDATE AGC advocating for truly temporary ETS. The need forsuch a testing mandate will diminish as vaccinationrates increase and/or herd immunity is achieved.5 2021 The Associated General Contractors of America, Inc.

CURRENT STATUS OF OSHA VACCINE AND TESTINGMANDATE AND WHAT LIES AHEAD U.S. Court of Appeals for the Fifth Circuit in Louisianaissued a stay on Saturday Business and religious groups, advocacy organizationsand several states, including Louisiana and Texas, fileda petition on Friday with the court Attorneys general in 11 states also filed a lawsuit onFriday Arguments focus on the purpose of the OSH Actwhich is protecting workplace safety and notaddressing public health emergencies Currently, it is unclear what impact with will ultimatelyhave on the ETS AGC is monitoring the situation and exploringoptions/opportunities to engage in similar efforts.6 2021 The Associated General Contractors of America, Inc.

Introduction to ARCpoint National Third-Party Provider/ Administrator Diagnostic TestingEmployment/Background ChecksCorporate Wellness ProgramsOccupational Health, Clinical Services Certifications & Affiliations CLIA49CFRDATIASAPAA 125 Locations; National Presence

COVID-19 Experience Early Entry in COVID-19 Testing and Vaccination April 2020 Individual and Businesses Clients Experience Across Many Industries, Including Contracting, Construction Serve Thousands of Clients; Administered Hundreds of Thousands of Tests Customized Solutions In Lab & On-Site Concierge Services, 24 X 7 Individual Testing, Event Testing, Random Testing, Surveillance Testing Variety of Testing Options

Proven Results We Keep Businesses Moving Forward and Let Them Focus On What Matters Example: Company has productivity challenge due to COVID-19 or is mandated to vaccinate/test Create a customized vaccination, surveillance testing, reporting program Vaccinations provided in lab, at offices, on job sites Weekly testing and/or periodic random covid Antigen testing also conducted in lab, at offices, onjob sites Targeted testing symptomatic employees Outbreaks minimized or completely stopped due to surveillance testing program Productivity increased

TestsTestAdvantagesChallengesAntibody TestsLook for AntibodiesSome Specific to Past InfectionOthers Better at Picking Up Antibodies fromVaccinesDOES NOT Satisfy OSHA ETS Mandate RequirementsAntigen(Lab/Prescription)Fast Results: 10-15 minLess Expensive Than PCREasy to AdministerHigher Risk of False Negatives (esp. if asymptomatic)Not as Universally AcceptedRequires CLIA Waiver to AdministerAntigen(Home Kits/OTC)Antigen Advantages AboveCan Procure IndependentlyDoes Not Require CLIA WaiverEmployee Can Self AdministerAntigen Challenges AbovePotential Supply Chain ChallengesCannot be Self Administered and Self Read – RequiresAuthorized ProctorPCRGold Standard for Viral TestingWidely AcceptedGreater AccuracyResults Take Longer: 1 Hour to 72 hours depending onmethodRequires Equipment to ProcessMost Expensive OptionPooled TestingEfficient Option for Large, Low Risk GroupsPresumes Negative ResultsBatches Initial SampleResults Take Longer: 1-5 days depending on the labbacklog and reflex processIndividual Tests Required if Batch is PositiveCosts More Than Antigen, Less Than PCR Testing

OSHA ETS Testing Requirements Tests Must Be: Screening for SARS-CoV-2Cleared, Approved or Authorized via an EUA by the FDA (a viral test)Administered in accordance with Authorized InstructionsCannot be Both Self-Administered and Self-Read Unless Observed by Employer or AuthorizedProctor Home/OTC Antigen Kits Do Not Require CLIA Waiver or Prescription Lab/Prescription/Standard Antigen Tests Require a CLIA waiver PCR Tests Require a Prescription/Medical Oversight Authorized Proctors Include: Licensed Healthcare Providers Point-of-Care Test Providers TeleHealth Providers

Partnership Benefits Customized Solutions Right Test at the Right Time, in the Right Place Right Program at the Right Budget Unbiased, Non-Discriminatory, Purpose-Driven Proven Expertise Professionally-Trained Collection and Diagnostics Appropriately Certified and Compliant (CLIA, HIPAA) Medical Review, Support, Testimony as Needed Worry Free Procurement, Supply Chain Management Documentation, Record-Keeping, Reporting, Communication You Focus On Your Business; We’ve Got it Covered!

Helpful Links OSHA ETSA Home Page: https://www.osha.gov/coronavirus/ets OSHA Webinar: https://www.youtube.com/watch?v ixxkn3Y8z6g OSHA FAQ: https://www.osha.gov/coronavirus/ets2/faqs Link to State Plans: https://www.osha.gov/stateplans/ Registration for ARCpoint Webinar and/or White Paper:(features medical, testing, legal experts)

COVID-19 VAX TrackerFCA 2021 . All Rights Reserved.

COVID-19 VAX Tracker presented by FCA Fast, reliable and efficient way to enter, keep and track all thevaccination data of your employees in one place Track vaccination status, type, date and expiration date Booster notifications based on vaccination type Accessible using web-app via any device On demand reports Role/permission configurationsFCA 2021 . All Rights Reserved.FR

FREnterprise Level ControlFCA 2021 . All Rights Reserved.

FRFCA 2021 . All Rights Reserved.

FCA 2021 . All Rights Reserved.

Thank You.

HUNTERROBERTSCONSTRUCTIONGROUPVACCINE &TESTINGMANDATESThe following is not legal advice, and no attorney-client relationship iscreated by this presentation. The views expressed are those of thispresenter in her individual capacity; liability expressly disclaimed.

Masking no making some maskingESSENTIALLEADERSHIP ANDCLEAR DIRECTIONCovid FatigueExemptionsPSA - MAKE ITPERSONAL? -Vaccine requested REQUIREDTesting Out

BLOCKING AND TACKLINGVaccines Timing – Status Survey, Advance Planning Onsite vs Worker Chosen Provider (control) Exemptions – where permitted Boosters – not for OSHA, but private clients?Others?

BLOCKING AND TACKLINGVaccines Acceptable evidenceCDC CardState/Locality PassesPharmacy QRDoctor RecordsAttestations – OSHA ETS (where employee unable to produce – loststolen) Others

BLOCKING AND TACKLINGTesting Type – Rapid, PCR, Self-administered/Self-read (unlessobserved) Onsite – Cost and Productivity Impacts Come Mondays showing with Negative Result to Enter Cost – Insurance, Escalation

BLOCKING AND TACKLINGVaccine and Testing Records Record Requirements OSHA ETS – “The employer must retain either a physical ordigital copy of the documentation.” Confidential Medical Records Responsibilities Maintenance Employee Consent to Examination by Others Confirming Accuracy

BLOCKING AND TACKLINGLeveraging Resources to Monitor, Track and Report 3rd Party Providers Testing Tech – Analytics to Monitor Masking? Affirmations and Delegation to Trades (where permitted) Existing Resources Human resources On-site medics Badging

QUESTIONS?27 2021 The Associated General Contractors of America, Inc.

Preparing for the OSHA COVID-19 Vaccine/Testing MandateWebinar SeriesNovember 10, 2021Practical Considerationsfor Construction FirmsJimmy Christianson, Vice President, Government Relations, AGC of AmericaKevin Cannon, Senior Director, Safety & Health Services, AGC of AmericaLeah Ramos, Regulatory Compliance Counsel, STO Building GroupTyler L. Henson, Senior Vice President / Senior Risk Management Director, JE Dunn Construction Company 2021 The Associated General Contractors of America, Inc.

THANK YOU TO OUR SPONSORConstructionAdvocacyFund.agc.org2 2021 The Associated General Contractors of America, Inc.

Q&A OPPORTUNITY; SLIDES/RECORDING Please type your question usingthe Questions Box located withinthe GoToWebinar Toolbar. The slides for today’s webinar canbe found under the “Handout”Box located within theGoToWebinar Toolbar. A recording of today’s webinaralong with a copy of the slideswill be emailed to all registrantsshortly.3 2021 The Associated General Contractors of America, Inc.

Presentation Overview AGC of America Advocacy The OSHA ETS in Sum Discussion on PracticalCompliance Considerations forConstruction Firms Open Q&A (questions encouragedthroughout)4 2021 The Associated General Contractors of America, Inc.

AGC VACCINATION BACKGROUND AGC has advocated for voluntary vaccinations Aligns with our safe workplaces strategies COVID vaccination toolkit on our website toassist members in discussing issue withemployees Webinars with law firm explaining limitations onemployer mandates/bargaining requirements Recognition that mandating vaccination may leadto widespread resignations in industry/balancewith safe workplace responsibilities5 2021 The Associated General Contractors of America, Inc.

OSHA VACCINE AND TESTING MANDATE FORALL EMPLOYERS WITH 100 OR MORE EMPLOYEES Nov. 5 OSHA issued Emergency Temporary Standard December 6, 2021 for requirements other than testing form those whoare not fully vaccinated January 4, 2022 for testing of employees who have not received alldoses required for vaccination. Will require vaccination OR regular testing for employees Will require employers to provide paid time off to getvaccinated or recover from any adverse effects This is really a TESTING MANDATE AGC advocating for truly temporary ETS. The need for such atesting mandate will diminish as vaccination rates increaseand/or herd immunity is achieved.6 2021 The Associated General Contractors of America, Inc.

OSHA VACCINE AND TESTING MANDATE FORALL EMPLOYERS WITH 100 OR MORE EMPLOYEES December 6, 2021 Requirements Employer Policy on Vaccinations; Information Provided toEmployees Determining Employee Vaccination Status Employer Support for Employee Vaccination Employee notification to employer of a positive COVID-19 Testand Removal Face Coverings for Unvaccinated Employees Information Provided to Employees. Reporting COVID-19 fatalities and hospitalizations to OSHA. Maintaining Medical Records January 4, 2022 Requirement COVID-19 Testing for Employees who are Not Fully Vaccinated.7 2021 The Associated General Contractors of America, Inc.

CURRENT STATUS OF OSHA VACCINE AND TESTINGMANDATE AND WHAT LIES AHEAD U.S. Court of Appeals for the Fifth Circuit in Louisiana issued a stayon Saturday Business and religious groups, advocacy organizations and severalstates, including Louisiana and Texas, filed a petition on Friday withthe court Attorneys general in 11 states also filed a lawsuit on Friday Arguments focus on the purpose of the OSH Act which is protectingworkplace safety and not addressing public health emergencies Currently, it is unclear what impact with will ultimately have on theETS AGC is monitoring the situation and exploring options/opportunites toengage in similar efforts.8 2021 The Associated General Contractors of America, Inc.

TODAY’S PANELISTS Leah Ramos, RegulatoryCompliance Counsel, STOBuilding GroupThe Big / Little Picture Discussion Tyler L. Henson, Senior VicePresident / Senior RiskManagement Director, JE DunnConstruction Company Kevin Cannon, Senior Director,Safety & Health Services, AGCof America9 2021 The Associated General Contractors of America, Inc.

TOPIC ONE:Determining Vaccination Status What considerations have gone into best determining who in your company isvaccinated or unvaccinated? Review information from previous/ongoing jobs with vaccine mandates Clear communication on why we need vax status: Necessary for us to meet government requirement and keep working What we need to do to keep our people, their families, our communities safe and healthy. Consequences for both the individual and the company if we do not have this information. Limit requests for vax status to legit business needs (ADA/anti-discrimination) Consider impacts on how your vaxed/unvaxed employees treated (culture, morale)10 2021 The Associated General Contractors of America, Inc.

TOPIC ONE:Determining Vaccination Status What different ways are you looking at obtaining this informationor communicating the need for it from all your employees,especially those hard-to-reach employees in the field? Know and understand the limitations of your tools / approaches No one tool / approach will likely get every employee; layered approach Communicate, exhibit and maintain confidentiality11 2021 The Associated General Contractors of America, Inc.

TOPIC TWO:Testing & Tracking How are you looking at approaching the weekly testingrequirement? Professional testing service Individual kits administered by employee while supervised The right approach may depend upon the specific location Need POC on recordkeeping; may want to consider vendor May have to share records with employees upon request and OSHA quickly Be mindful of red flags that call into question document's authenticity Understand state / local laws regarding who pays for testing12 2021 The Associated General Contractors of America, Inc.

TOPIC TWO:Testing & Tracking How do you track and ensure you appropriately utilize yourvaccinated/unvaccinated workers? Again, have a POC (e.g., someone in HR project teams can reach out to) By wary of visually identifying your vaccinated vs. unvaccinated Unsure of the GC/subcontactor liability under the multiemployer workplaceOSHA policy; Owners could have differingmore stringent requirements13 2021 The Associated General Contractors of America, Inc.

TOPIC THREE:Accommodation Process When it comes to vaccine and testing mandates, employers haveto provide various types of accommodations to employees for avariety of reasons. How are you considering managing andprocessing accommodations? Know the standards for both medical & religious accomodations andpresumptions; o-laws Decide on how you want to manage and process accomodation requests;communuicate that to employees Who is/are your decisions makers? Communicate determination request in writing14 2021 The Associated General Contractors of America, Inc.

TOPIC FOUR:Company Policy Comms. & Employee Relations Everything we have discussed requires clear and coordinatedcommunication of the company policy, while also managingemployee relations and expectations. What considerations are youthinking about on this topic? Determine who is right to deliver the message to the right audiences Think about different types/forms of communication (obviously policy inwriting, but may need more personal and open touches) Guidance is evolving; but we're in this together and support each other We are all striving to put the pandemic behind us15 2021 The Associated General Contractors of America, Inc.

TOPIC FIVE:Collective Bargaining Issues When it comes to instituting this ETS, what considerations are yougiving to your existing collective bargaining agreements? Too soon to know (as determining how to implement) Keep lines of communication open (we're all in this together)16 2021 The Associated General Contractors of America, Inc.

17 2021 The Associated General Contractors of America, Inc.

Preparing for the OSHA COVID-19 Vaccine TestingMandate Webinar SeriesNovember 11, 2021OSHA COVID-19 Vaccine/Testing Mandate:Contractual and Legal Considerations(We will begin in a moment) 2021 The Associated General Contractors of America, Inc.

PANELISTSLori Lange: Partner, Peckar & AbramsonHoward Mavity: Partner, Fisher PhillipsDoug Tabeling: General Counsel, Carroll Daniel ConstructionModerator: Brian Perlberg, AGC of America Senior Counsel2 2021 The Associated General Contractors of America, Inc.

Webinar Overview What the new law requires How OSHA will enforce it Impact existing contracts and new contracts Considerations for change orders andsubcontract flow down issues3 2021 The Associated General Contractors of America, Inc.

NEW OSHA ETS: WHAT DOES IT REQUIRE?WHO DOES IT APPLY TO? Private and Some PublicEmployers 100 or More Total Employees Employer Can Select Jab or Test Medical and ReligiousAccommodations Exempt Employees4 2021 The Associated General Contractors of America, Inc.

OSHA ETS Standard for OSHA to issue an ETS What is Grave Danger? How often does OSHA issue emergencystandards? Enforcement and Penalties5 2021 The Associated General Contractors of America, Inc.

OSHA ETS Testing Which tests are acceptable Who pays for the testing Time off Time for getting the vaccine Time for recovering from possible side effects Time for testing6 2021 The Associated General Contractors of America, Inc.

OSHA ETS Relationship Between OSHA ETS andFederal Contractor Vaccine Mandate(Executive Order 14042) OSHA State Level Action vs FederalAction7 2021 The Associated General Contractors of America, Inc.

WE TALKIN BOUT CONTRACTS!?!?!HOW’S THIS GONNA WORK FOR EXISTING CONTRACTS? Potential Impacts on Existing Contracts Cost impacts Schedule delay Delay Claims in Construction ContractsGenerally Private Owners’ and General Contractors’View Public Owners’ View8 2021 The Associated General Contractors of America, Inc.

IS THE ETS A FORCE MAJEURE EVENT? Can contractors andsubcontractors get an equitableadjustment? Public Owners’ View Private Owners’ View ConsensusDocs mentionsadverse government action9 2021 The Associated General Contractors of America, Inc.

IS THE ETS A CHANGE OF LAW?The Contract Price or Contract Timeshall be equitably adjusted by ChangeOrder for additional costs or timeneeded resulting from any change inLaw, including increased taxes,enacted after the date of thisAgreement.ConsensusDocs 3.21.110 2021 The Associated General Contractors of America, Inc.

SUBCONTRACT FLOWDOWN Is this just another safetycompliance issue? What if a GC has actual knowledgeof subcontractor non-compliance? New Contracts: Should GCsPrequalify subcontractors based onvaccination rates?11 2021 The Associated General Contractors of America, Inc.

CURRENT STATUS OF THE OSHA ETS ANDWHAT LIES AHEAD On Saturday, November 6th, the U.S. Court of Appeals for the FifthCircuit in Louisiana issued a stay Business and religious groups, advocacy organizations and severalstates, including Louisiana and Texas, filed a petition with the court Attorneys general in 11 states also filed lawsuits challenging the ETS Arguments focus on the purpose of the OSH Act which is protectingworkplace safety and not addressing public health emergencies Currently, it is unclear what impact the suits ultimately will have onthe ETS AGC is monitoring the situation and exploring options/opportunitiesto engage in similar efforts12 2021 The Associated General Contractors of America, Inc.

Questions?Lori Lange: Partner, Peckar & AbramsonHoward Mavity: Partner, Fisher PhillipsDoug Tabeling: General Counsel, Carroll Daniel ConstructionModerator: Brian Perlberg, AGC of America Senior Counsel14 2021 The Associated General Contractors of America, Inc.

Home/OTC Antigen Kits Do Not Require CLIA Waiver or Prescription . states, including Louisiana and Texas, filed a petition on Friday with the court Attorneys general in 11 states also filed a lawsuit on Friday Argument