AGC to Continue with Litigation on the Merits of the ETS

On Hold Until April, AGC Communicates with Agencies

Employers with 100 or More Employees Weigh Compliance Approaches

A December 17 decision by the U.S. Court of Appeals for the Eleventh Circuit will effectively maintain a Georgia federal district court’s nationwide stay of the federal contractor vaccine mandate until at least January 24, 2022. The Eleventh Circuit denied a Biden Administration request to immediately remove the nationwide stay and instead requested that the parties to the lawsuit fully brief their arguments on the stay by January 24. The argument here does not go to the merits of the mandate, but instead as to whether the existing freeze of the mandate should be maintained or not. As such, litigation is far from over in this particular case and those throughout the country, including by AGC in a federal court in Texas.

It is also important to note that regardless of any decision issued by the courts, OSHA will still proceed with the rulemaking process to issue a COVID-19 vaccination-or-testing permanent standard. Under current law, an emergency temporary standard remains in effect for six months and serves as a proposed rule for the proceeding. After such time, OSHA will determine if the standard should be made a permanent rule. As is the case with the litigation process, AGC is actively engaged in the rulemaking process and will submit comments highlighting the relevant differences between the construction and the other industries that the ETS covers.

On December 17, the U.S. Court of Appeals for the Sixth Circuit removed the stay on the OSHA COVID-19 vaccine-or-testing emergency temporary standard (ETS). The court’s decision to remove the stay has been appealed to the Supreme Court. The litigation of the ETS is far from over and AGC remains engaged, having filed its Construction Advocacy Fund-backed lawsuit in November.

Awaiting Court Decision on Nationwide Stay

On December 14, AGC of America and two of its chapters, the Dallas-based TEXO chapter of the association, and the statewide AGC of Texas chapter, filed suit in federal court to block the Biden administration’s effort to impose a COVID-19 vaccine mandate on federal contractors and subcontractors. AGC noted that many of its members that regularly construct federal projects are already being harmed, as key employees leave for other jobs in the industry to avoid the strict federal mandate. AGC’s filing includes a motion for a temporary restraining order and statements from a number of contractors detailing the damages they have already begun to experience because of the new federal contractor vaccine mandate. That mandate is different from the broader vaccine mandate that the Occupational Safety and Health Administration (OSHA) has sought to impose on all firms that employ 100 or more people. That rule gives workers the option to be tested weekly, instead of being vaccinated. AGC filed a legal challenge against that “emergency” OSHA standard in November.

Biden Administration Expected to Challenge

On November 15, AGC, 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.