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.
Following the nationwide vacatur of the 2020 definition of waters of the United States (WOTUS) under the Clean Water Act, the U.S. Army Corps of Engineers (Corps) reverted to using the 1980s regulatory regime with prior guidance when making decisions on federal jurisdiction over waters and wetlands. The Biden Administration has also moved forward with its two-step process to repeal and replace the 2020 rule. On Dec. 7, they published a proposal to reinstate the 1980s regulatory regime with changes that would codify the Administration’s interpretations of the relevant Supreme Court rulings. AGC is preparing comments in advance of the Feb. 7 deadline.
On Dec. 3, AGC submitted comments to the U.S. Fish and Wildlife Service on proposed changes that would codify the Biden Administration’s interpretation that the Migratory Bird Treaty Act prohibits incidental take---injury or harm that occurs incidental to otherwise lawful activities. If a bird or nest is injured or harmed in the normal course of construction activities, then this could expose contractors to criminal liability should the Service take enforcement action. The Service also sought feedback on a potential new permitting program for incidental take.
Michael currently serves as the Director of Strategic Markets at Tarlton Corp. and is the Chair of AGC of America’s Building Division and a member of the Board of Directors. He is an experienced construction leader with past roles in project management, estimating, business development, and marketing. He has developed and informed company strategy, led teams and projects across multiple locations, built strong relationships with clients and partners, and won new business across markets
Only 18 states and the District of Columbia have added construction jobs since just before the start of the pandemic in February 2020 despite a pickup in most states from October to November, according to a new analysis of federal employment data released today by the Associated General Contractors of America. Association officials said one reason employment is below pre-pandemic levels in many parts of the country is the lack of available workers to hire.
On Dec. 13, AGC submitted comments (click here and here) on two proposals that seek to rescind rules put in place by the Trump Administration governing how the U.S. Fish and Wildlife Service (FWS) designates critical habit for endangered and threatened species. The first proposal would remove the definition of habitat that was implemented in response to a U.S. Supreme Court ruling that determined critical habitat first be habitat for the species in question. The second proposal would rescind a rule that guides how the Service considers impacts caused by critical habitat designations and whether it will exclude areas from listing.