On November 15, 2021, AGC of America filed this lawsuit in the Fourth Circuit in conjunction with the American Road and Transportation Builders Association (ARTBA) and the Signatory Wall and Ceiling Contractors Alliance (SWACCA).  Two days later, the Judicial Panel on Multidistrict Litigation ordered that court to transfer the case to the Sixth Circuit for consolidation with approximately 34 other cases also brought against OSHA’s ETS on COVID-19.

By that time, a large group of temporary staffing agencies had already persuaded the Fifth Circuit to issue a nationwide stay of the of the ETS, pending a final decision on the merits of their case.  OSHA responded on November 23, 2021, moving the Sixth Circuit to dissolve that stay.  On December 17, 2021, a divided three-judge panel of that court agreed to allow the ETS to go into effect.

Immediately, a large coalition of 26 trade associations representing the trucking, retail, food and other industries filed an emergency application for a stay of the ETS in the Supreme Court.  A coalition of 27 states quickly followed suit.  The Supreme Court consolidated those applications and set a December 30 deadline for OSHA to file a response.  The Court also scheduled the applications for oral argument on January 7. On January 13, the Supreme Court reinstated the nationwide stay on implementation and enforcement of the ETS.

It is unclear at the moment if OSHA will continue to defend the ETS. The case now moves back to the Sixth Circuit Court of Appeals for litigation—where AGC remains engaged via its lawsuit—on the merits of the ETS, which could take months. During this time, the ETS will be stayed, and OSHA will not be able to enforce the ETS until and unless the court upholds the ETS, at the earliest.

AGC has commissioned an expert report that promises (1) to strengthen the brief that AGC will later file in the Sixth Circuit on the merits of the case and (2) to support the regulatory comments that AGC will be submitting to OSHA on the ETS. In this regard, AGC would underscore that the ETS also serves as a proposal for a permanent standard on COVID-19 and that the courts do not review the agency’s permanent standards as stringently as they review its Emergency Temporary Standards.  AGC is keenly aware of the risk that a permanent standard along the lines of the ETS might survive judicial review even if the ETS does not.

The ETS requires all employers with 100 or more employees to require their employees to be fully vaccinated for COVID-19 or tested on a weekly basis.  In the pending case, the association’s core contentions are that:

• OSHA exceeded its authority when it went beyond workplace safety and health and sought to address a broader threat to public health;
• OSHA failed to establish that COVID-19 is a grave workplace hazard;
• OSHA failed to establish that the ETS is necessary to protect employees from such a hazard;
• OSHA failed to make obvious distinctions between the construction and other industries; and
• in many of the settings that the ETS covers, the risk of contracting COVID-19 is merely hypothetical.

Latest Update:

• On January 25, the U.S. Occupational Health and Safety Administration (OSHA) revoked its COVID-19 vaccination-or-testing emergency temporary standard (ETS) applicable to private businesses with 100 or more employees in light of the recent U.S. Supreme Court decision. In addition, it is AGC’s understanding that the agency will no longer pursue a permanent infectious disease standard broadly applicable to private businesses, ending the threat of such a mandate enduring forever. The agency will, however, pursue a more tailored permanent standard applicable to healthcare.
• This is a clear and complete legal victory for AGC of America and its Construction Advocacy Fund-financed lawsuit challenging the ETS.
• The U.S. Supreme Court agreed with AGC’s argument, among others, that OSHA overreached and exceeded its authority under the law. The ETS represented a general public health measure—which Congress never authorized it to issue—instead of a narrower occupational safety or health standard based on risks limited to the workplace.
• Although this lawsuit against OSHA is over, AGC of America continues to press forward in another Construction Advocacy Fund-financed lawsuit against the federal contractor vaccine mandate, currently under nationwide stay.
• In an effort to assist AGC members with increasing the vaccination rates among their workforce and, in the event they have to comply with the ETS requirements, the association created a vaccine tool kit webpage that contains a construction-oriented summary of the ETS detailing employers’ compliance options and obligations as well as additional resources. This toolkit also includes a series of vaccine Public Service Ads AGC of America created specifically targeting construction workers.