Dive Brief:
- A Tennessee law passed last month restricted employers from requiring workers to get vaccinated against COVID-19, but provided exemptions to companies that would lose federal funds if their employees didn't get the shots. On Dec. 2, the state suspended those exemptions, as a federal court ruling has made them unnecessary for the time being.
- Although the law says that employers cannot require workers to be vaccinated, the state comptroller's office began allowing private businesses and other entities with federally awarded funds to impose vaccine requirements to prevent them from losing that money. Last week, a U.S. District Judge from the Eastern District of Kentucky issued a preliminary injunction, prohibiting the federal government from enforcing the vaccine mandate for federal contractors and subcontractors in Kentucky, Ohio and Tennessee.
- As a result, the state comptroller's office said it no longer finds that compliance with the state law would result in the loss of federal funding. President Joe Biden signed an executive order in September requiring federal contractors to be fully vaccinated against COVID-19.
Dive Insight:
In its statement about the ruling, the Tennessee Comptroller's office said it will continue to accept and process notices concerning exemption, but not grant any new ones until they become legally permissible again. Greenville, Tennessee-based construction firm Summers-Taylor and engineering services firm Stantec were among the companies granted an exemption from Tennessee's law that has since been suspended.
Several Ohio companies that originally required vaccines changed their policy as a result of the recent court ruling, the Columbus Dispatch reported.
The seemingly ever-changing rules surrounding vaccine mandates have made things tougher for construction employers, Trent Cotney, CEO of Cotney Attorneys and Consultants, told Construction Dive.
"It has become almost impossible for contractors to navigate the quagmire of regulations governing COVID-19 and vaccines," Cotney said. "The uncertainty has left many contractors to do little or nothing in the form of preparation because it is unclear what current regulations will remain after judicial scrutiny."
Legal battles
The ruling is the latest in a series of battles against the federal vaccine mandate. Several states, including Alabama, Arkansas, Iowa and West Virginia have passed legislation intended to nullify Biden's executive order.
Meanwhile, Texas Gov. Greg Abbott issued an executive order in October with the same approach. Several other states are reportedly looking into or have passed COVID-19 vaccine discrimination laws, which essentially ban termination of workers on vaccination status.
District Judge Gregory F. Van Tatenhove wrote in his decision last week that the question wasn't about if vaccines are effective or if the government can, in some circumstances, mandate vaccines, but rather if Biden could impose the vaccination on federal contractors and subcontractors. Tatenhove ruled Biden did not have that authority.
The goal behind the Tennessee law was to ensure that companies were not disadvantaged to compete for federally funded projects, while still safeguarding "the constitutional rights and liberty interests of persons during the COVID-19 pandemic," Cotney said.
Workers who quit their jobs or are fired over vaccine requirements may collect unemployment in states that oppose mandates. Usually, workers who quit their job or who are terminated for not following a company rule defy the terms of employment, and therefore are ineligible for unemployment benefits. Florida, Iowa, Kansas and Tennessee have amended their unemployment laws to include benefits for those terminated over vaccine status.
Cotney, however, predicts the mandates may not even get that far.
"I anticipate that many of the current, overreaching vaccine mandates as well as the OSHA ETS [emergency temporary standard] will not survive judicial review as evidenced by the myriad of initial court opinions issuing preliminary injunctions," he said.
