Adobe Stock
Construction Worker Gets Vaccine Min 61c20f135d9b1

Appeals Court Reinstates OSHA Vaccine Mandate

Dec. 21, 2021
Ruling on consolidated cases, the U.S. Sixth Circuit has reinstated the federal vaccinate-or-test mandate, prompting new deadlines from OSHA, and new appeals to the U.S. Supreme Court.

DECEMBER 20, 2021 -- Ruling 2-1 on consolidated cases brought by multiple parties, including 27 states, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati has lifted an earlier stay of the Occupational Safety and Health Administration’s new Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing for employers with at least 100 employees. 

In a 57-page opinion issued Dec. 17 by Judge Jane B. Stanch, the court said that, in light of the continued spread of COVID-19 variants, OSHA “must be able to respond to dangers as they evolve.” She concluded:

The costs of delaying implementation of the ETS are comparatively high. Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs. In a conservative estimate, OSHA finds that the ETS will “save over 6,500 worker lives and prevent over 250,000 hospitalizations” in just six months... A stay would risk compromising these numbers, indisputably a significant injury to the public. The harm to the Government and the public interest outweighs any irreparable injury to the individual Petitioners who may be subject to a vaccination policy, particularly here where Petitioners have not shown a likelihood of success on the merits.     

In response, OSHA said in a statement it was "gratified" by the ruling and it then reset the deadlines for compliance:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

Nevertheless, both union and nonunion construction contracting associations remain opposed to the OSHA mandate, even as they contiunue to urge members to get vaccinated. Associated Builders and Contractors (ABC) was first out of the gate with a response

“ABC is deeply disappointed that the 6th Circuit Court lifted the 5th Circuit’s stay of the U.S. Department of Labor’s Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard, which applies to employers with 100 or more employees," said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “ABC today filed an emergency appeal to the U.S. Supreme Court to stay the ETS because it creates excessive compliance costs and regulatory burdens for job creators and threatens the national economy at a time when it is already contending with rising materials prices, supply chain disruptions and workforce shortages. ABC continues to encourage vaccination but rejects the damaging regulatory overreach that exceeds the Department of Labor’s statutory authority.”


Last week, even before the 6th Circuit ruling, the Associated General Contractors of America (AGC) and two of its Texas chapters filed suit in federal court to block the Biden administration’s effort to impose a COVID-19 vaccine 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.

“We are as eager as anyone to see more construction workers become fully vaccinated,” said AGC CEO Stephen E. Sandherr. “But imposing a strict mandate on a small sector of the construction industry will only drive vaccine-hesitant workers out of that sector, and to one of the many other sectors also desperate for more workers.”

With nearly half of the construction workforce estimated to be vaccine-hesitant, and 89 percent of construction firms struggling to fill open positions, the new federal contractor mandate will encourage many workers to leave federal contractors for other companies, association officials noted. Instead of boosting vaccination rates within the workforce, the new mandate will leave federal construction projects struggling to reach completion on time and within budget. Nearly 15 percent of the federal contractors and subcontractors among the association’s members report they have already lost workers because of the new mandate.

The association’s filing included a motion for a temporary restraining order and statements from a number of AGC member contractors detailing the damages they have already begun to experience because of the new federal contractor vaccine mandate.

That mandate is different from the broader vaccine mandate that the Occupational Safety and Health Administration has sought to impose on all firms that employ 100 or more people. That rule gives workers the option to be tested weekly, instead of being vaccinated. The association filed a legal challenge against that “emergency” OSHA standard in November.

“The federal contractor vaccine mandate is unlikely to increase vaccination rates among construction workers, but it will make it much harder for federal contractors to complete projects,” Sandherr noted. “Making federal construction slower, harder and more expensive won’t improve federal procurement or public health.”

Sandherr stressed that even as AGC challenges the administration’s two coronavirus vaccine mandates, it continues to work to encourage all construction workers to get vaccinated. Specifically, the association has created a vaccine toolkit for members and it recently released a series of public service ads featuring construction workers who have almost died from the virus, urging peers to get vaccinated. AGC has encouraged member chapters to show those videos to all members and is also placing ads featuring the videos in key construction markets. 


About the Author

Rob McManamy | Editor in Chief

An industry reporter and editor since 1987, McManamy joined HPAC Engineering in September 2017, after three years with, a Chicago-based media startup focused on tech innovation in the built environment. He has been covering design and construction issues for more than 30 years, having started at Engineering News-Record (ENR) in New York, before becoming its Midwest Bureau Chief in 1990. In 1998, McManamy was named Editor-in-Chief of Design-Build magazine, where he served for four years. He subsequently worked as an editor and freelance writer for Building Design + Construction and Public Works magazines.

A native of Bronx, NY, he is a graduate of both the University of Virginia, and The John Marshall Law School in Chicago.

Contact him at [email protected].