Conservative opponents continue to score early wins in court against the Biden administration’s two-pronged effort to require COVID vaccination for most federal contractors and for workers at businesses with more than 100 employees.

As a result, preliminary injunctions have sidelined both the OSHA emergency temporary standard for private businesses and the Executive Order for federal contractors for the moment.


Injunction Junction

The most recent action has centered on the Executive Order (EO) that would affect federal contractors doing more than $250,000 of work.

A U.S. District Court in Kentucky first issued a preliminary junction that set aside the EO while its legal challenge there continued, but that ruling only affected Kentucky, Ohio, and Tennessee. Then, on Dec. 7, the Middle District of Georgia District Court issued its own temporary injunction and did not limit its geographical scope.

Associated Builders and Contractors filed the suit in Georgia. A major factor contributing to a preliminary injunction is whether the suit has a good chance of ultimately prevailing. The Court ruled that the national trade group indeed has a good chance of succeeding with its claim that the Biden administration’s EO exceeds the authorities accorded by the Procurement Act to the executive branch to manage certain federal affairs.

The nationwide pause on the federal contractor requirement joins the say issued by the Fifth Circuit Court of Appeals on Nov. 7, sidelining the proposed OSHA Emergency Temporary Standard for private businesses with over 100 employees.


Strong in Court, Weak in Vaccination

While requirement opponents can be encouraged by the tone set in these early decisions, contractors should keep in mind that none of these injunctions are final rulings.

The timing of a ruling — likely by the U.S. Supreme Court — settling the legality of either administration effort remains difficult. How quickly the assorted legal challenges continue, how they fare, and the speed of any appeals process will factor into that timeframe. If either or both administration efforts are upheld, it is likely that their enforcement deadlines would be adjusted.

As two employment attorneys advised in a recent MCAA webinar, the effects of either requirement would be substantial, and contractors should not use temporary rulings as an excuse to avoid planning for how they would comply with a possible requirement. The EO for federal contractors in its present form would be especially consequential, affecting many subcontractors and containing no option to undergo regular COVID testing instead of vaccination.

Outside courtroom doors, the CDC rolling 7-day average of new COVID cases has risen in December from 82,846 per day to 118,515 as of Dec. 8. The rolling average for daily COVID deaths has risen from 809 to 1,141 over the same period.

Construction-related trade groups generally have encouraged vaccination with varying degrees of involvement. However, the Center for Construction Research and Training’s COVID-19 vaccination dashboard indicates that while the U.S. vaccination rate among all other occupations has crossed 80% as of the end of November, the construction industry remains slightly below 60%.