On Nov. 16, via lottery, the U.S. Court of Appeals for the 6th Circuit was chosen to hear challenges to the Occupational Safety and Health Administration COVID-19 Vaccination and Testing Emergency Temporary Standard, which applies to employers with 100 or more employees. This development follows the U.S. Court of Appeals for the 5th Circuit’s Nov. 12 stay order and OSHA’s announcement that it has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

Implementation of the ETS will be at the least delayed until the 6th Circuit decides whether to keep the 5th Circuit stay in place or lift it, which could happen in a few days, subject to Supreme Court review after that. Either way, the 5th Circuit decision makes clear that the OSHA ETS—and the federal contractor mandate—face serious legal headwinds prior to being implemented.

While contractors are not obligated to implement the federal vaccine mandates at this time, they may want to engage in contingency planning in case the OSHA ETS and/or federal contractor mandate are upheld later; contractors can also choose voluntarily to move forward with their own vaccination mandates, subject to conflicting state laws on such mandates that should be closely monitored.

ABC Files Petition:

On Nov. 9, ABC and its Alabama chapter filed a petition for review with the U.S. Court of Appeals in the 11th Circuit against the OSHA ETS. In ABC’s press release, Steve Klessig, vice president of architecture and engineering at employee-owned Keller Inc. in Kaukauna, Wisconsin, and 2021 chair of the ABC board of directors, said, “The OSHA ETS rule presents one of the greatest sources of risk and uncertainty to the construction industry because it is likely to exacerbate the skilled labor shortage currently facing the industry and many small businesses like my company. ABC’s legal challenge pushes back against the Biden administration’s overreaching policy, which creates unnecessary tension between employers and employees and is likely to further disrupt America’s economic recovery.”

“This ETS will create permanent and severe harm to construction industry employers and their 7.4 million employees, nearly 90,000 of whom live and work in Alabama,” said Jay Reed, president of ABC Alabama. “By exceeding the Department of Labor’s statutory authority, OSHA fails to comply with the standards for issuing an ETS, particularly as it relates to the construction industry. ABC continues to encourage vaccination against COVID-19 but cannot support this mandate.” Read more.