Source: Cotney Construction Law website resource articles 1/14/2021
As health providers continue to roll out the COVID-19 vaccination, you may encounter a customer—such as a developer or building owner—who states that all your workers must be vaccinated, or they will not be allowed on the worksite. Can a customer make such a demand? Yes and no.
With an Existing Contract
If your project has an existing contract that does not mention a vaccination requirement, you do not have to agree to the customer’s request. You signed based on one set of rules, and you do not have to accommodate. Your customer will be in breach if your crew is not allowed back on the property.
However, be aware that there may be instances in which you should capitulate. For example, if you are working at a nursing home or hospital, your employees must not endanger residents or patients. Also, there could be local, state, or federal ordinances that require workers to be vaccinated. Check those issues before you respond to the customer.
If you choose to accommodate such a request, be sure to submit a change order. It will take time to get all of your workers vaccinated—especially since two inoculations, weeks apart, are necessary—and there may be some downtime if workers experience side effects and cannot perform their duties. A change order will protect you from any delays that result from the vaccination process. It can also take into account any costs associated with the vaccine.
With a New Contract
If you are bidding on a new project with a contract that includes a vaccination requirement, then yes, your workers will have to be vaccinated. In this case, before you sign, be sure you are prepared. You will need enough vaccinated workers to do the job, as well as some back-up if any of them are suddenly unavailable. You do not want to be caught short-staffed after you have committed to the work.
Practical Issues to Consider
Before you agree to vaccinations, be sure to consider workers who are part of a union. Review the language of the collective bargaining agreement, as well as individual employment contracts, which may not allow a vaccine requirement.
If you do agree to have your workers vaccinated, you may want to stagger the process. Remember that some people have reported flu-like symptoms after receiving the vaccine, so you want to avoid all your crew or production staff calling out sick at the same time. Spreading out the vaccination schedule will benefit your productivity and keep projects moving.
The cost of the vaccination should be covered by insurance. However, if it is not or if any of your workers are not insured, you should expect to pay for any fees or related charges.
As we continue to navigate the COVID-19 pandemic with the hope that it will soon abate, many challenges will continue to crop up. The smartest advice is to keep the best interests of your employees and customers in mind. If your workers remain healthy, your jobs will stay on schedule, which will please your clients, and your business can thrive.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Cotney is an advocate for the industry and General Counsel of the Florida Air Conditioning Contractors Association (FRACCA). For more information, please visit www.cotneycl.com or call 866-303-5868.
