Three construction industry groups have joined in the landslide of legal challenges to the Biden administration’s vaccine mandate for businesses with 100 or more employees.
They filed a petition for review November 15 with the 4th Circuit U.S. Court of Appeals, saying the mandate risks causing workers at larger construction companies to quit to work for smaller firms.
“Encouraging vaccine-hesitant workers to shift to smaller employers won’t improve health and safety,” said Stephen Sandherr, CEO of the Associated General Contractors. “It will just put firms that employ 100 or more workers at grave risk of losing the workers they need to complete projects.” The AGC is joined in the legal challenge with the American Road and Transportation Builders Association and the Signatory Wall & Ceiling Contractors Alliance.
The mandate is currently blocked from being enforced by the 5th Circuit Court of Appeals, which extended a stay of the emergency temporary standard issued by the U.S. Occupational Safety and Health Administration. OSHA’s standard would require employees of companies with 100 or more workers to get vaccinated by January 4 or undergo weekly Covid testing. Unvaccinated workers would also have to wear masks at work starting December 5.
The 5th Circuit opined November 12 that OSHA overstepped its authority, and that “the mandate has contributed to untold economic upheaval in recent months.”
The construction industry groups reiterated that position in their legal challenge. They also note that 64 percent of construction jobs are with smaller companies, and with the current labor shortage, employees at larger firms have plenty of options to move to smaller ones.
“The Biden Administration and Congress are in the process of launching a historic federal infrastructure investment initiative,” ARTBA President Dave Bauer said. “Unfortunately, OSHA’s proposal would disproportionally impact the same transportation construction industry employers and workers who proved they could safely deliver essential mobility improvements during the height of the Covid-19 pandemic.”
OSHA’s response to the 5th Circuit petition says the emergency standard “is necessary to address a grave danger” and that the “legal objections lack merit.”
OSHA has argued that the emergency standard is not a mandate because employees have a choice on whether to get vaccinated or get tested.
The standard does not require employers to pay for weekly Covid testing, and Covid vaccines are free. However, employers would be required to pay for time off for workers to get tested and vaccinated, as well as time off for any side effects from the vaccine.
The construction groups say they are supporting successful promotion efforts to get workers vaccinated, but the mandate would have the opposite effect.
“This industry supports the coronavirus vaccine and is working to get as many workers vaccinated as possible,” said Scott Casabona, spresident of SWACCA. “But crafting an unworkable rule that will do little to get construction workers vaccinated is an approach that is not only wrong, but likely counterproductive.”
A random drawing is expected to be held this week to determine which appeals court will hear the case, according to NPR. The cases will be consolidated into one.