COVID Vaccine FAQs
The Governor’s Office has updated the Vaccine Mandate Proclamation to offer more guidance on who the mandate applies to and how it will be implemented. They have also released a construction specific FAQ document. While each agency/facility operator may have their own unique requirements, the information below should be a good guiding document on how this will affect your projects.
Who does it apply to?
The vaccine mandate applies to any person engaged to work as an on-site contractor for a state agency, an education facility or a health care facility. This includes contractors and sub-contractors.
Who is not included:
- On site contractors if they are not working in places where students or persons receiving services are present (unoccupied schools and health care facilities).
- Parties to a lease or rental agreement, unless the agreement requires them to provide on site services.
- Contractors which are physically present on the site for only a short period of time and moments of close physical proximity are fleeting. Example – contractors delivering supplies to a construction site where they remain physically distanced from others.
What proof of vaccination is required?
The proclamation gives state agencies, education facility operators and health care facility operators the ability to require the contractor to assume responsibility for vaccine verification and accommodation requirements. Most likely all owners will pass this responsibility down to you as contractors so you will need to be prepared to manage this.
What is required?
To verify vaccination status, contractors must obtain a copy of or visually observe proof of full vaccination against COVID-19. Proof includes:
- CDC COVID-19 Vaccination Record Card or photo of the card;
- Documentation of vaccination from a health care provider or electronic health record;
- State immunization information system record; or
- For an individual who was vaccinated outside of the United States, a reasonable equivalent of any of the above.
Contractors must then submit a signed declaration to the owner stating they meet this requirement and sign additional declarations upon request. Additionally, the contractor must cooperate with any investigation or inquiry into their compliance, including by providing information and records upon request, except any information or records that the employer is prohibited by law from disclosing.
We are not sure at this time if each owner will have a declaration form they will require or if a general form will be acceptable.
Can I grant exemptions for employees for medical or religious reasons?
Yes, employers can grant exemptions based on some fairly narrow guidelines.
For medical exemptions, individuals must provide documentation from an appropriate health care or rehabilitation professional stating that the individual has a disability that necessitates an accommodation and the probable duration of the need for the accommodation.
For religious exemptions, individuals must provide documentation that include a statement in the document explaining the way in which the requirements of this order conflict with the sincerely held religious belief, practice, or observance of the individual.
You are prohibited from granting exemptions:
- That you know are based on false, misleading, or dishonest grounds or information;
- That you know are based on the personal preference of the individual and not on an inability to get vaccinated because of a disability or a conflict with a sincerely held religious belief, practice, or observance; or
- Without conducting an individualized assessment and determination of each individual’s need and justification for an accommodation; i.e., “rubberstamping” accommodation requests.
Is this even legal? Can’t we fight this in the courts? Unfortunately, yes, this is legal. The US Department of Justice issued a statement saying that there is no current federal law prohibiting vaccine mandates for students or employees and ruled that this is a state issue. Several states have since passed laws prohibiting vaccine mandates, but Washington is not one of them. The state joins a long list private employers that have already implemented this policy.
Additionally, the EEOC weighed in with guidance that there is nothing prohibiting employers from mandating vaccines but may require employers to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.
Will I be held liable for any side affects of the vaccine if it’s mandated? While it’s important to remember that anyone can sue anybody for anything, the COVID vaccine does fall under the PREP Act, which provides immunity from liability for any loss caused, arising out of, relating to, or resulting from administration or use of countermeasures to diseases, threats and conditions determined to constitute a present or credible risk during a public health emergency. While it is highly unlikely that a company could be held liable for adverse side effects, there are other liability considerations.
For example, if an employee receives the vaccine as a condition of employment or if it’s administered on the jobsite, any adverse reactions could be considered a jobsite incident and subject to workers comp.
Additionally, I would advise you contact your own legal counsel regarding the termination or dismissal of employees that do not comply with the vaccine mandate and any potential liability.
Isn’t a person’s vaccination status private medical information? While there is no federal law that prohibits an employer from requiring documentation of an employee’s vaccination status, that information is considered confidential under the ADA. This information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.
What about employees that have had COVID and now have natural immunity? Currently, the CDC is still recommending vaccination for those that have previously had the disease. We do not know of any considerations at the state level that would allow an exemption for this circumstance, even if the individual is tested for antibodies.
I am a signatory contractor – does this issue have to be collectively bargained? We are still working with our labor partners to determine how best to approach this issue with our union workforce.
Can I offer a vaccine clinic at my office? Yes, the Department of Health Care-A-Van program can bring the vaccines directly to your jobsite. The AGC will also be offering a vaccine clinic at our office in the near future. Dates will be sent out as soon as it is scheduled.
Are adverse reactions to the COVID-19 vaccine recordable on the OSHA recordkeeping log? DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.