Associated Builders and Contractors and its Alabama chapter filed a petition for review with the U.S. Court of Appeals in the 11th Circuit against the Occupational Safety and Health Administration (OSHA) for its COVID-19 vaccination and testing Emergency Temporary Standard (ETS), which applies to employers with 100 or more employees.
The ETS on Vaccination and Testing was officially filed in the Office of the Federal Register on Nov. 4, 2021, and it became effective when it was published on Nov. 5, 2021, according to OSHA.
“The OSHA ETS rule presents one of the greatest sources of risk and uncertainty to the construction industry because it is likely to exacerbate the skilled labor shortage currently facing the industry and many small businesses like my company,” said Steve Klessig, VP of architecture and engineering at employee-owned Keller Inc., Kaukauna, Wisconsin, and 2021 chair of the ABC board of directors. “ABC’s legal challenge pushes back against the Biden administration’s overreaching policy, which creates unnecessary tension between employers and employees and is likely to further disrupt America’s economic recovery.”
“This ETS will create permanent and severe harm to construction industry employers and their 7.4 million employees, nearly 90,000 of whom live and work in Alabama,” said Jay Reed, president of ABC Alabama. “By exceeding the Department of Labor’s statutory authority, OSHA fails to comply with the standards for issuing an ETS, particularly as it relates to the construction industry. ABC continues to encourage vaccination against COVID-19 but cannot support this mandate.”
“By creating excessive compliance costs and regulatory burdens, this unnecessary ETS will magnify economic challenges facing the construction industry, such as a workforce shortage of 430,000, rising materials prices and supply chain woes, and cause negative ripple effects throughout the overall American economy,” added Ben Brubeck, ABC VP of regulatory, labor and state affairs. “ABC’s hope is that this legal challenge will encourage the justice system to examine this overreach, realize its irreparable harm to the construction industry and rule it unlawful.”
According to OSHA, workers are becoming seriously ill and dying as a result of occupational exposures to COVID-19, when a simple measure, vaccination, can largely prevent those deaths and illnesses.
OSHA said the ETS "protects these workers through the most effective and efficient control available—vaccination—and further protects workers who remain unvaccinated through required regular testing, use of face coverings, and removal of all infected employees from the workplace."
Employers must comply with most provisions by 30 days after the date of publication in the Federal Register and must comply with the testing requirement by 60 days after the date of publication in the Federal Register, according to OSHA.