Supreme Court vaccine mandate decision could come within days

Dive Brief:

The Supreme Court today is scheduled to hear oral arguments for two cases related to court-ordered stays on federal COVID-19 vaccine mandates.
The first case, which has far-reaching implications for construction firms across the country, concerns OSHA's emergency temporary standard requiring vaccination or regular testing for companies with more than 100 employees.
While no one knows exactly when a decision will come, Ben Brubeck, vice president of regulatory, labor and state affairs at Associated Builders and Contractors, expects the court to rule on the issue as early as tonight or by Tuesday at the latest. "We really don't know what the ruling will say, or when we'll get it, [or] how extensive it is," he said.

Dive Insight:

Today's cases are the first before the Supreme Court in 2022, scheduled for a rare Friday argument owing to their urgency, according to The Texas Lawbook.

The OSHA ETS, which was stayed on Nov. 7 by the 5th Circuit Court, was dissolved by the 6th Circuit Court of Appeals on Dec. 17. OSHA has delayed enforcement until Jan. 10, and will not issue citations for noncompliance with testing requirements until Feb. 9.

With enforcement restarting in only three days, Brubeck told Construction Dive that contractors are on pins and needles. "It is a quick turnaround time for those who have maybe not done everything they need to do," he said, "or were hoping for a favorable decision."

While the thrust of all the arguments is going to be whether or not the Biden administration has the constitutional and administrative authority to require mandates, there will also be some practical issues raised, Brubeck said.

"If you look at the shortage of testing across the country and the world, then the next question is, how are we going to address the fact that employers may or may not be able to get those tests going forward, if all of a sudden every employer has to do testing?" he said.

Getting ready

ABC has provided a series of recommendations for contractors ahead of OSHA's resumption of enforcement. Once the ruling is issued, Brubeck said that ABC intends to issue an update for contractors with guidance on what they "should or shouldn’t be doing."

The COVID-19 vaccination mandate for federal contractors, which has been under a nationwide injunction since Dec. 7, is not included in today’s arguments. The Biden administration is currently in the process of appealing the injunction in the 11th Circuit Court, following a declined appeal in the 6th Circuit Court on Wednesday. Brubeck said he does not expect a resolution on this case until late February at the earliest.

The high court will hear arguments today on the Centers for Medicare and Medicaid Services' vaccine mandate, which applies to workers at healthcare facilities. The CMS vaccine mandate is currently subject to a limited injunction effective in 25 states, according to the CMS FAQs. In the other 25 states, the District of Columbia, and U.S. territories, the mandate will be implemented and enforced in two phases. Phase 1 will take effect on Jan. 27, and Phase 2 on Feb. 28.

Handling vaccine hesitancy

While construction employer organizations support measures to keep workers healthy during the pandemic, they have largely come out against vaccine mandates.

"ABC continues to encourage vaccination but rejects the damaging regulatory overreach that exceeds the Department of Labor's statutory authority," Brubeck said last month in a statement.

The ETS "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," he said.

According to the Associated General Contractors of America, nearly half of the construction workforce is estimated to be vaccine-hesitant, and nearly 15% of the federal contractors and subcontractors among the association’s membership report they have already lost workers because of the mandate.

"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," said Stephen E. Sandherr, the AGC's chief executive officer, in a statement.

Today’s oral arguments will be broadcast live on C-SPAN starting at 10:00 a.m. EST for the OSHA Emergency Temporary Standard and 11:00 a.m. EST for the CMS vaccine mandate.