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.
Joins DOL & NLRB in Interagency Initiative to End Retaliation
The Associated General Contractors of America and two of its chapters, the Dallas-based TEXO chapter and the statewide AGC of Texas chapter, filed suit in federal court on Dec. 14 to block the Biden administration’s effort to impose a COVID-19 vaccination mandate on federal contractors and subcontractors. The groups noted that many of their 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 Preparing Lawsuit to Further Bolster Mandate Challenges
The Vote, However, Is Largely Symbolic
All 34 lawsuits—including AGC’s, supported by the Construction Advocacy Fund—challenging OSHA’s Emergency Temporary Standard (ETS) on COVID-19 are now consolidated in the U.S. Court of Appeals for the Sixth Circuit. The federal government has filed a motion in that court to dissolve the current stay of any enforcement of that standard, including its vaccination/testing mandate, and on December 10, the parties will complete their briefing of that motion. Since November 6, that stay has precluded OSHA from implementing or enforcing the ETS, including requirements that OSHA had scheduled to take effect on December 6. AGC of America expects the court to grant or deny the government’s motion within a matter of days. While significant, the court’s decision will not end the litigation. Its decision on the stay will not be a final decision on the merits of the ETS. That will come later.