November 15, 2021

Leading Construction Associations Challenge Emergency Temporary Standard, Noting it Will Put Firms at Risk of Losing Workers to Smaller Employers Instead of Getting More People Vaccinated

Today, the Associated General Contractors of America (AGC), the American Road & Transportation Builders Association (ARTBA) and the Signatory Wall & Ceiling Contractors Alliance (SWACCA) filed a petition for review of OSHA’s new COVID-19 vaccination mandate. The groups explain that the new rule will put many construction companies at grave risk of losing a substantial number of their workers to smaller companies, instead of leading to more people getting vaccinated in the sector.

“We all want to see more construction workers vaccinated and we are all doing our part to make that happen,” said Stephen E. Sandherr, the AGC’s chief executive officer. “Encouraging vaccine-hesitant workers to shift to smaller employers won’t improve health and safety. It will just put firms that employ 100 or more workers at grave risk of losing the workers they need to complete projects.”

The associations filed their petition today in the U.S. Court of Appeals for the Fourth Circuit.  The petition notes that OSHA exceeded its statutory authority to promulgate an Emergency Temporary Standard, and otherwise failed to comply with the Occupational Safety and Health Act.

“The Biden Administration and Congress are in the process of launching a historic federal infrastructure investment initiative,” ARTBA President Dave Bauer said.  “Unfortunately, OSHA’s proposal would disproportionally impact the same transportation construction industry employers and workers who proved they could safely deliver essential mobility improvements during the height of the COVID-19 pandemic.”

The new standard applies to all companies with 100 or more employees, but the construction groups noted that roughly 64 percent of all jobs in the construction industry are with smaller companies. With nearly 90 percent of construction firms reporting they are having a hard time filling positions, and many other sectors eager for workers, many vaccine-hesitant workers will have little difficulty finding career opportunities at the smaller firms that are not covered by the OSHA mandate.

“This industry supports the coronavirus vaccine and is working to get as many workers vaccinated as possible,” said Scott Casabona, the president of SWACCA. “But crafting an unworkable rule that will do little to get construction workers vaccinated is an approach that is not only wrong, but likely counterproductive.”

As the petition notes, the construction groups have been actively promoting vaccinations, “funding and sponsoring public service announcements and other positive and proactive measures intended to encourage employees to protect themselves against this pandemic.”