Yesterday, the U.S. Occupational Health and Safety Administration (OSHA) revoked its COVID-19 vaccination-or-testing emergency temporary standard (ETS) applicable to private businesses with 100 or more employees in light of the recent U.S. Supreme Court decision. In addition, it is AGC’s understanding that the agency will no longer pursue a permanent infectious disease standard broadly applicable to private businesses, ending the threat of such a mandate enduring forever. The agency will, however, pursue a more tailored permanent standard applicable to healthcare.
This is a clear and complete legal victory for AGC of America and its Construction Advocacy Fund-financed lawsuit challenging the ETS. The U.S. Supreme Court agreed with AGC’s argument, among others, that OSHA overreached and exceeded its authority under the law. The ETS represented a general public health measure—which Congress never authorized it to issue—instead of a narrower occupational safety or health standard based on risks limited to the workplace.
Although this lawsuit against OSHA is over, AGC of America continues to press forward in another Construction Advocacy Fund-financed lawsuit against the federal contractor vaccine mandate, currently under nationwide stay.
And the association’s broader efforts to support the construction industry’s voluntary encouragement for the use of COVID-19 vaccines remain. AGC of America has put forth a host of construction industry-specific resources on its COVID-19 Vaccine Toolkit webpage. The resources include a series of Construction Advocacy Fund-financed public service ads AGC of America created specifically targeting construction workers.
AGC members should continue to follow OSHA’s COVID-19 guidance, as the agency plans general enforcement of COVID-19 protocols via the Occupational Safety and Health Act’s General Duty Clause.