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Contractors’ association challenging OSHA COVID ruling in court

The group’s leaders say the rule could exacerbate issues facing the construction industry, including a labor shortage.


The Associated Builders and Contractors and its Alabama chapter are challenging the federal Occupational Health and Safety Administration’s COVID-19 vaccination and testing Emergency Temporary Standard.

The organization filed a petition to review the rule in the 11th Circuit of the U.S. Court of Appeals on Tuesday, arguing it is “likely to exacerbate the skilled labor shortage currently facing the industry.”

“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.”

OSHA published the much-anticipated rule last Thursday.

The rule would require workers at companies with more than 100 employees to be fully vaccinated against COVID-19 or face weekly testing and a requirement to wear a mask while at work. It is set to go into effect on Jan. 4, 2022.

Companies that fail to comply with the regulations could face penalties of nearly $14,000 per employee who doesn’t meet the requirements. The rule will impact 84 million workers the federal government estimates. 

“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,” said Ben Brubeck, ABC vice president 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.”

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The Alabama Legislature passed two bills on the same day that OSHA published the rule requiring employers to honor medical and religious exemptions to COVID-19 vaccinations.

OSHA’s rule states that it “will preempt inconsistent state and local requirements, including requirements that ban or limit employers’ authority to require vaccination,” but also states that employees can ask for exemptions from the vaccine mandate on medical or religious grounds

The Business Council of Alabama on Tuesday said anti-vaccine mandate bills would cause confusion and put jobs at risk. 

Republican legislators said the bills work within the federal mandate and could give businesses something to justify granting exemptions to employees who do not want to get the vaccine.

Jacob Holmes is a reporter at the Alabama Political Reporter. You can reach him at [email protected]

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