ARTBA’s Challenge to OSHA Vaccine/Testing Mandate Continues

What happened: ARTBA’s legal challenge to the new emergency temporary standard (ETS) from the Occupational Safety & Health Administration (OSHA) continued to work its way through the federal court system. On Nov. 5, OSHA published the details of its ETS, which would mandate employers of 100 or more to require COVID-19 vaccinations or weekly testing and masking of its workers. On Nov. 15, ARTBA and its co-plaintiffs – the Associated General Contractors (AGC) of America and the Signatory Wall & Ceiling Contractors Alliance (SWACCA) – filed a petition for review of the ETS in the U.S. Court of Appeals for the 4th Circuit.

Because ARTBA’s challenge is one of dozens filed around the country, the federal court apparatus held a ‘lottery’ Nov. 16, through which all ETS-related cases were consolidated to be heard in the same randomly selected federal appeals court. As the result, the ARTBA/AGC/SWACCA petition has moved to the 6th Circuit, which is based in Cincinnati and encompasses Kentucky, Michigan, Ohio, and Tennessee.

Previously, the 5th Circuit Court of Appeals imposed a stay on OSHA, prohibiting it from implementing the ETS for the time being. The agency subsequently announced it has suspended ETS-related activities until the litigation is resolved.

Why it matters: The petition from ARTBA and its co-plaintiffs argues, among other points, that construction companies of 100 or more employees would likely lose staff to smaller firms or other industries because of the OSHA mandate. In public statements, ARTBA has noted this comes as the transportation construction industry is ramping up for new projects and opportunities made possible by record federal investment in the Infrastructure Investment & Jobs Act (IIJA).

What’s next: The 6th Circuit Court of Appeals is considering motions to continue or lift the stay prohibiting implementation of the ETS, as well as other legal and procedural issues. ARTBA and its co-plaintiffs will have opportunities to participate in the consolidated legal argument against the ETS in coming weeks. ARTBA will also continue providing educational resources for members so they can prepare for ETS compliance if it takes effect.