By DAVID A. LIEB, Associated Press
(AP) More than 1 million construction workers across the U.S. won’t have to comply with a federal COVID-19 vaccination requirement, but an appeals court cleared the way for President Joe Biden’s administration to potentially enforce the mandate on some federal contractors.
Biden’s Office of Management and Budget said Monday that federal attorneys were still reviewing the ruling issued Friday and that no immediate steps have been taken to implement it.
The vaccine requirement for employees of federal contractors has been on hold nationwide since a U.S. district judge in Georgia issued an order in December barring its enforcement.
A split ruling by a three-judge panel of the 11th Circuit Court of Appeals in Atlanta lifted that nationwide injunction but continues to bar enforcement of the vaccine mandate against seven states that sued — Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia. It also bars enforcement against members of Associated Builders and Contractors — which joined the lawsuit — or any of their subcontractors on federal projects.
The association, which has about 21,000 member companies employing more than 1 million workers, called the ruling a “huge victory” even though it narrows the scope of the previous injunction.
“A lot of the contractors were concerned about the record-keeping” and the potential to lose workers, said Ben Brubeck, the association’s vice president of regulatory, labor and state affairs. “There’s a lot of employees who didn’t want to get vaccinated in the construction industry.”
Taking into account previous court orders stemming from lawsuits by other states, the vaccine mandate now is blocked for federal contracts involving half the states but allowed in the other half. It’s unclear whether, when or how Biden’s administration will seek to enforce the mandate.
The contractor requirement had been part of Biden’s broader plan to fight COVID-19 by boosting vaccination rates. Separate orders had mandated vaccinations for health care employers participating in Medicare or Medicaid and had mandated employers with at least 100 workers to either require vaccinations or make employees wear masks and get regularly tested for COVID-19.
The vaccine mandates spawned a bevy of lawsuits, primarily from Republican-led states, but also from some employers. The U.S. Supreme Court in January blocked the vaccine requirement for large private employers but allowed it to proceed for most health care workers.
In requiring COVID-19 vaccinations for federal contractors, Biden’s administration contended that a federal procurement law gives the president broad authority to implement workplace safety guidelines. The appeals court panel disagreed and said Biden likely exceeded his authority. But it said the lower court judge also pushed the boundaries of judicial power by applying an injunction nationwide instead of limiting it only to those involved in the lawsuit.
The appellate decision was written by Circuit Judge Britt C. Grant, who was appointed by former Republican President Donald Trump in 2018. Senior Circuit Judge J. L. Edmondson, an appointee of former Republican President Ronald Reagan, concurred in the decision.
Senior Circuit Judge R. Lanier Anderson III, an appointee of former Democratic President Jimmy Carter, wrote that he believes Biden had the legal authority to issue the vaccine requirement.
Meanwhile, members of Associated Builders and Contractors (ABC) are exempt from the Federal COVID-19 Vaccine Mandate. It issued the following statement:
WASHINGTON — Associated Builders and Contractors today released the following statement from Ben Brubeck, ABC vice president of regulatory, labor and state affairs, on the 11th Circuit Court decision on vaccination mandates for federal contractors announced on Friday evening.
“This evening’s decision by the U.S. Court of Appeals for the 11th Circuit on the federal contractor COVID-19 vaccine mandate case is a major victory for ABC and our members as the court has made it clear that ABC members and state plaintiffs ‘need not comply with the vaccination requirement in their capacity as contractors, and they are not responsible for including that requirement in lower-tier subcontracts.’
“The 11th Circuit’s decision narrowed the December 2021 nationwide preliminary injunction granted by the Georgia District Court to only ABC members who bid on federal contracts and the state plaintiffs in the case. The injunction was a direct result of ABC intervening as the lone business group challenging the federal contractor vaccine mandate, along with the plaintiff state governments.
“ABC will continue to lead efforts to push back on the Biden administration’s executive overreach harming federal contractors with respect to COVID-19 vaccine mandates and other anti-competitive and costly policies targeting federal contractors, such as the proposed rule implementing President Biden’s Executive Order 14063, which requires controversial union-favoring government-mandated project labor agreements on federal construction projects of $35 million or more.”
In another COVID-19 vaccine case, ABC applauded the U.S. Supreme Court for its Jan. 13, 2022, decision reinstating the stay on 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. On behalf of the construction industry, ABC filed one of the emergency appeals to the Supreme Court leading to this successful outcome.
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