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Construction Groups Sue Over Vaccine Mandate

Monday, October 11, 2021

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Amidst the string of local and federal U.S. government officials instating COVID-19 vaccination mandates for workers, another lawsuit was recently filed alleging that the requirement is unconstitutional.

In a case filed in the federal U.S. District Court for Colorado against the City of Denver, the Colorado Contractors Association—alongside six other construction associations—argue that the mandate violates the U.S. Constitution's contracts clause in that it impairs firms’ existing contract rights with the city.

Vaccine Mandate Background

Last month, in statement issued by the White House, the U.S. Department of Labor's Occupational Safety and Health Administration announced that it was drafting a new temporary emergency standard that would require employers with more than 100 employees to ensure that their workforces are fully vaccinated against COVID-19.

The alternative option for unvaccinated workers requires proof of a weekly negative test result. In addition, the proposed rules would also mandate that businesses offer employees paid time off to get vaccinated and/or to recover from post-vaccination side effects.

The announcement arrives as a part of President Joe Biden’s six-pronged comprehensive national strategy to combat COVID-19. The prongs of the White House plan are as follows:

  • Vaccinating the Unvaccinated;
  • Further Protecting the Vaccinated;
  • Keeping Schools Safely Open;
  • Increasing Testing & Requiring Masking;
  • Protecting Our Economic Recovery; and
  • Improving Care for those with COVID-19.

At the beginning of the month, President Biden took the ETS a step further, announcing that federal contractors and subcontractors would be required to be fully vaccinated against COVID-19 by Dec. 8.

isayildiz / Getty Images

Amidst the string of local and federal U.S. government officials instating vaccination mandates for workers against COVID-19, another lawsuit was recently filed alleging the requirement is unconstitutional.

The recently issued guidance from the Safer Federal Workforce Task Force applies to all covered contractor employees, including “contractor or subcontractor employees in covered contractor workplaces who are not working on a federal government contract or contract-like instrument.”

The guidance goes on to report that it will also apply to “subcontractors at all tiers, except for subcontracts solely for the provision of products,” in addition to all workplace locations as well as individuals on remote work or who work outside.

Companies that are currently doing business with the government directly have been required to designate a coordinator to implement the new workplace safety requirements.

Under the new rules, federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:                    

  • COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
  • Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
  • Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

A full copy of the new guidance can be viewed here.

State Mandates

In other U.S. locations taking on their own mandates, Oregon Gov. Kate Brown recently required that all employees working as K-12 educators, health care workers and all state employees would need to be vaccinated to work.

The newly mandated employees were given until Oct. 18 to be vaccinated or they could face termination. For those opposing the mandate, some have also gone to protesting; however, a group of state police and firefighters went as far to sue Brown over the requirement.

The friction between employees and employers over vaccinations was likely to increase over the following weeks.

Prior to that, in Denver, Mayor Michael B. Hancock announced that all city employees, as well as private-sector workers in high-risk settings, would be required to be fully vaccinated against COVID-19 by Sept. 30.

The new Public Health Order applies to the city’s municipal workforce of more than 10,000 employees, including police officers, firefighters and sheriff’s deputies. The requirement also applies to contractors as well as health care, correctional and education workers.

“Denver is now experiencing the most infectious strain of the virus—the Delta variant, which is responsible for 90% of new cases statewide,” Mayor Hancock said at the time. “To achieve the highest level of protection and recovery from the pandemic, especially among high-risk and vulnerable groups, we need to maximize vaccinations as quickly as possible, and mandates will do just that.” 

CO Lawsuit

Tony Milo, Executive Director of the CCA, reports that although the organization is non anti-vaccine, he and the other construction associations feel that Denver’s mandate is too restrictive compared to the federal mandate issued by President Biden.

“Our members are pro vaccine,” Milo told reporters. “We've met with Denver officials and suggested mirroring the Biden plan, which is much more doable. But they flatly rejected all of our requests.”

According to the lawsuit, however, if the contractors are not compliant, the city intends to fine companies as much as $5,000 per day.

In addition to restriction issues, Milo also cited that those contractors were not given enough time to comply, due to the elevated rates of vaccine hesitancy among construction workers. The Center for Construction Research and Training recently issued a report, revealing that only 57% of construction workers are vaccinated, compared to 80% for all other industries. In Colorado, that number is 64.9%.

The CCA's lawsuit also argues that “up to half of the employees in the construction industry are vaccine hesitant—not because, as may be argued, they have some political opposition, but because the construction industry is largely made up of communities of color who are vaccine hesitant due to mistrust of the government.”

A spokesperson for the Denver City Attorney's Office declined to comment, citing a policy of not speaking publicly about ongoing litigation.

Additional Industry Response

While officials in states like Oregon and Colorado are fighting city-issued mandates, the Associated Builders and Contractors have also released its own statement regarding President Biden’s federal mandate.

“ABC continues to encourage construction industry stakeholders to get vaccinated, because ensuring healthy and safe work environments for employees is a top priority of ABC and its members. However, today’s Task Force guidance is very broad in scope and raises a number of unresolved questions,” said Ben Brubeck, Vice President of Regulatory, Labor and State Affairs of the Associated Builders and Contractors, the same day the guidance was issued.

“We will be reviewing the guidance carefully with industry stakeholders to understand its full impact and unintended consequences. However, based on our initial reading, this guidance will result in additional compliance burdens, exacerbate the construction industry’s skilled workforce shortage and increase costs for federal contractors and taxpayers.

“This is a top issue for the contracting community and adds to a list of concerns. As with most industries, the COVID-19 pandemic has already created and accelerated a host of challenges facing the construction industry, which includes a skilled workforce shortage, rising material costs, supply chain disruptions, jobsite shut-downs, additional health and safety protocols and new government regulations.”

Looking ahead, Brubeck reported that ABC would be participating in the Federal Acquisition Regulatory Council’s rulemaking process for this rule and will be fully engaged in the forthcoming OSHA ETS rule applying to all employers with 100 or more employees.

In Victoria, Australia, construction union workers were reported to engage in peaceful and violent protests over the country’s recent vaccine mandate.

As a result of the ongoing protests, Melbourne construction and state officials announced that jobsites in the area, and surrounding areas, would be closed for at least two weeks. Victorian Premier Daniel Andrews reported that multiple outbreaks—as high as 13% of all cases, according to local media reports—have been linked to construction sites.

The Minister for Industrial Relations Tim Pallas reported that despite the industry response, workers would still be required to show proof of vaccination of at least one vaccine dose when sites reopened on Oct. 5.


Tagged categories: Contractors; COVID-19; Government; Health & Safety; Health and safety; Laws and litigation; Lawsuits; NA; North America; President Biden; Program/Project Management; Regulations; Safety

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