Usually, the largest companies can offer the best perks to attract workers.

But as deadlines for federal COVID-19 vaccination mandates draw closer, small construction firms are emphasizing an enticement their bigger competitors just can't match: No shot? No problem.

That's what construction pros are seeing in the wake of the White House's executive order mandating vaccines for federal contractors, and OSHA's new emergency temporary standard, which applies to businesses with 100 employees or more.

"For the first time I can remember, small private contractors actually hold an advantage in being able to acquire talent," said Jacob Binke, a construction executive recruiter at the Detroit-based Birmingham Group. "They're using it as a selling point that they don't require the vaccine."

The attractiveness of that selling point lies in construction's overall vaccination rate, which has been stubbornly persistent since May, stuck in a narrow range between 53% and 58%, according to data tracked by CPWR, a nonprofit construction safety research firm. That compares to inoculation rates of 80% to 82% for all other occupations.

Likewise, construction's vaccine hesitancy rate, according to CPWR, has hovered just north of 40% for most of this year, though it briefly dipped into the high 30s this summer. That compares to a more steadily declining hesitancy rate that's currently around 16% for all other occupations.

That split within construction reflects both the national political divide in the country and the bifurcation of educational attainment within the industry itself, according to Binke.

"Construction is a predominantly conservative industry, and if you're on that side of the aisle, there's a higher chance you're going to be resistant to taking the vaccine," Binke said. "You also don't need a college degree to be successful in construction, and those tend to be the individuals who are more anti-vaccination."

Now, as construction contractors scramble to meet government and private owner vaccine mandates on jobs, they're running into smaller contractors in the marketplace trying to snare workers by luring them with a promise of forgoing the jab.  

"It's a huge issue right now," said Jamie Hodges, executive vice president at Colorado-based general contractor Industrial Constructors/Managers Inc. "The smaller companies are saying, 'We're not going to make you do it, come over here.'"

Indeed, the no-shot requirement is something the construction job candidates Binke places are increasingly asking about.

"I'm getting more and more candidates saying, 'I don't want to do government work,'" Binke said. "They're saying they don't want to work for companies like Amazon, FedEx and UPS, because if you're working on a project for those companies, you've got to be vaccinated."

At the Associated General Contractors of America, CEO Stephen Sandherr lamented that trend in a statement last week. "The administration is doing more to encourage vaccine-reluctant workers to relocate to smaller firms than to get vaccinated," Sandherr said. "This is something many workers will easily be able to do in a labor market where nearly 90% of construction firms are having a hard time finding workers to hire."

Due to that dynamic, ICM, which both works on federal contracts and falls within OSHA's 100-employee threshold, hadn't yet issued a 100% vaccination mandate for its own 185 employees prior to the ETS being issued Thursday.

"We highly encourage vaccination, but we don't want to drive other prospective employees away," Hodges said. "We're walking that tightrope, trying to encourage them, trying to get them to get vaccinated, but we're not mandating it until it 100% has to be mandated."

States push back

That point, however, is drawing closer.

Under the White House's executive order, barring allowances for legitimate medical or religious waivers, all employees of federal contractors will need to be vaccinated by Jan. 4, 2022. Under OSHA's ETS, employees of firms with 100 workers or more will need to do the same, or submit to weekly testing by the same date. (The deadline for federal contractors, which was originally Dec. 8, was pushed back last week to align with the OSHA ETS timeline.)

In addition, how long that hiring advantage lasts for smaller firms remains to be seen.

"For federal contractors, just being under 100 employees doesn't mean there will not be requirements," said Casey McKinnon, an attorney in the government contracting group at law firm Cohen Seglias. "If they serve as a subcontractor to a prime on a federal job, the same requirements will end up in their contract and apply to them, as well."

Over time, McKinnon said, at least at the federal level, it would likely become "increasingly difficult to find firms and workplaces where none of these requirements apply."

That said, 19 states, including Texas and Florida, filed four separate lawsuits against the federal contractor mandate earlier this week, and others have vowed to fight OSHA's ETS. 

On Saturday, the 5th U.S. Circuit Court of Appeals in New Orleans temporarily stayed the ETS, "because the petitions give cause to believe there are grave statutory and constitutional issues with the mandate." With multiple challenges filed in several federal courts, Bloomberg Law reported that the cases typically would be consolidated into one and heard by one court chosen by lottery. Circuit courts can rule on injunction requests before the lottery court is chosen, but the selected court will be able to lift the stay.

Texas Gov. Greg Abbott failed in October to ban all mandates in his state, when businesses rallied against doing so, and there is at least some anecdotal evidence that more construction workers who have been on the fence on inoculation are starting to get shots, even as industrywide numbers have remained stagnant.

For example, Binke said that at the same time more of his job candidates are looking for mandate-free workplaces, "more people are getting the shot," too. And at ICM, Hodges reported that a few more employees each week who hadn't yet been inoculated are getting their shots.

"I think they see they don't really have an option on it, and that everything is starting to go that direction," Hodges said. "It hasn't affected their income stream yet, but it's become more and more a reality that they're going to have to do it, if they want to be able to keep working."

What's next?

Tom Tortolani, co-founder of jobsite screening app Safe Site Check In, which can be customized to ask about vaccine status and counts 100,000 users at jobsites daily, has seen a similar tightening among his clients as mandate deadlines draw closer.

"The past two months, we've had varying degrees of customers trying to either get ahead of some of the mandates, or waiting till the last minute and then scrambling to get something together," said Tortolani.

Those efforts include asking workers to upload a picture of their vaccination cards to confirm their vaccination status. While only about 10% of clients are taking that step now, he's seen a large uptick in requests for that option in just the last two weeks.

"A lot of them are really putting a hard line enforcement on this," Tortolani said. "It seems like people have started to tighten up the reins, and that might kind of force people's hands to actually get the vaccination."  

In other industries, vaccine mandates have persuaded even the most stalwart anti-vaxxers to get shots, according to NPR. Employers ranging from Tyson Foods to the Houston Methodist hospital system have reported vaccination rates topping 96%. 

Still, on the macro level, construction vaccination numbers haven't changed yet, and they may not until the deadlines that are now firmly in place draw even closer.

"On an individual basis, whether particular employees have changed their minds to these requirements, that probably is an open question," said McKinnon. "That might be an answer we'll have a better idea on in about a month from now."