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The U.S. Occupational Safety and Health Administration (OSHA) has just issued an emergency temporary standard (ETS) to require employers to ensure their workers are fully vaccinated against COVID-19 or tested on at least a weekly basis. The legal and contractual implications will wreak havoc on existing and prospective construction contracts. The OSHA ETS applies to employers with 100 or more employees to either be vaccinated or test regularly and it will apply to both private and public construction contracts. Provisions in ConsensusDocs standard contract documents provide advantages in both substance and stylistic clarity as compared to other standard contract documents, including those by the American Institute of Architects (AIA), such as the AIA A201 Terms and General Conditions document.

BY BRIAN PERLBERG, EXECUTIVE DIRECTOR OF CONSENSUSDOCS AND �鶹��ý’S SENIOR COUNSEL FOR CONSTRUCTION LAW

The U.S. Fish and Wildlife Service (U.S. FWS) has undertaken several recent policy changes related to the incidental take (injury or harm) of migratory birds. On October 4, the Service officially reversed the Trump Administration’s policy that decriminalized take that was incidental (not the intended action) to an otherwise lawful activity. The Service also recently released a Director’s Order on Incidental Take (No. 225) to address how they plan to approach incidental take implementation and enforcement. Lastly, the Service released an advanced notice of proposed rulemaking (ANRPM) to solicit feedback on a potential permitting program that would authorize the incidental take of migratory birds. Feedback is due December 3.

Provides Additional Information on Religious Objections to Workplace Vaccine Requirements

Only 16 states and the District of Columbia have added construction jobs since just before the start of the pandemic in February 2020, according to a new analysis of federal employment data released today by the Associated General Contractors of America. Association officials noted that prospects for the sector’s recovery will be diminished should the House-passed Build Back Better bill become law.

Each year, �鶹��ý seeks nominations for qualified and motivated individuals from the �鶹��ý Environmental Forum to serve on the steering committee for the forum. Would you like to play a leadership role in �鶹��ý of America’s environmental advocacy, education and outreach efforts? If so, please respond to �鶹��ý’s call for volunteers and complete this form signifying your interest. The Volunteer Interest Form is also available through your �鶹��ý profile.

On October 21, 2021, the U.S. District Court for the Northern District of California vacated the 2020 State Water Quality Certification (WQC) Rule, which is considered to apply nationwide.  Subsequently, some U.S. Army Corps of Engineers Districts have advised permittees that they will not finalize permit decisions that rely on a Clean Water Act (CWA) Section 401 WQC or a waiver under the now vacated 2020 State WQC rule (click here for an example, scroll to “Latest News”).  This halt in permitting appeared to include the use of sixteen CWA Section 404 Nationwide Permits that the Corps finalized earlier this year.  Update: On Dec. 2, the Corps posted a notice on its website that it had resumed making decisions on all permit applications and requests for nationwide permit verifications.

Most Contractors Report Significant Flaws with 811 Utility Location System

Biden Administration Expected to Challenge

On November 15, �鶹��ý, along with industry allies, filed a lawsuit in the U.S. Court of Appeals for the Fourth Circuit challenging the recent OSHA COVID-19 emergency temporary standard (ETS). The suit highlights the many efforts the construction industry has collectively engaged in to combat COVID-19, including funding public service announcements and other proactive measures to encourage contractors to protect their workers throughout the pandemic. It also makes clear that the challenge is not in opposition to the ETS’s objective to get more people vaccinated, but the negative economic impact such a mandate will have on the construction industry and the fact that it exceeds the statutory authority of the U.S. Department of Labor. In all, there were 34 cases filed in 12 different circuits. On November 16, the U.S. Court of Appeals for the Sixth Circuit was randomly selected to consolidate all the cases.