The 11th Circuit Court of Appeals in Atlanta on Aug. 26 granted a further stay of the Biden administration's federal contractor COVID-19 vaccine mandate in seven states and also for members of the Associated Builders and Contractors of America.

The ruling removes the requirement for more than 1 million construction workers who are ABC members.

At the same time, the court's three-judge panel potentially cleared the way for the Biden administration to enforce the mandate on federal contractors in other states.

The Biden administration said its Office of Management and Budget was still reviewing the court's ruling, which heard the case after ABC joined the lawsuit against the federal contractor mandate in October 2021. It was originally filed by the states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia. The Biden executive order had been enjoined by a district court judge in December and has yet to go into effect. The 11th circuit includes Florida, Georgia and Alabama. 

Writing for the majority, Judge Britt Cagle Grant, who was appointed by President Donald Trump, wrote, "a presidential directive can stand only if those subordinate officials have the statutory authority that they are told to exercise."

"As for architectural and engineering contracts," Grant continued, "agency heads are tasked with selecting the 'most highly qualified firm' based on 'statements of qualifications and performance data.'"

Therefore, the court found that the executive order regarding COVID-19 vaccinations for federal construction contractors would need to take those factors into account. Contract language would have to be different from other agreements the federal government enters into and cannot fit alongside those other contracts based on subordinate authority.

Major Victory for ABC

"This evening’s decision by the U.S. Court of Appeals for the 11th Circuit on the federal contractor COVID-19 vaccine mandate case is a major victory for ABC and our members as the court has made it clear that ABC members and state plaintiffs 'need not comply' with the vaccination requirement in their capacity as contractors, and they are not responsible for including that requirement in lower-tier subcontracts," Ben Brubeck, ABC vice president of regulatory, labor and state affairs, said in a statement about the ruling. 

The association continued in its statement that "ABC will continue to lead efforts to push back on the Biden administration’s executive overreach harming federal contractors with respect to COVID-19 vaccine mandates."

The other major U.S. trade organization that represents contractors, the Associated General Contractors of America, told its members that the ruling was unusual, in a letter sent to member contractors shortly after it became public.

"From a legal standpoint, it is highly unusual for a court to limit the applicability of an injunction to 'members' of any particular association." AGC's letter said. "It is unclear how membership in a particular association could be demonstrated to a federal agency. In addition, it complicates the court’s stated decision to narrow the geographic reach of its ruling."

AGC also told its members that the ruling is good news for its own lawsuit against the federal contractor mandate filed by the association and two of its Texas member chapters in federal court there. 

"The legal conclusions the 11th Circuit uses to justify its decision to uphold the injunction aligns with AGC of America’s arguments and increases our odds of prevailing in court," the letter stated.  

ABC says it has member contractors in all 50 states, so enforcing a vaccine mandate in the 43 states that were not plaintiffs in the matter would be difficult if any ABC member bids on federal contracts in those states. The ruling says that subcontractors on projects where an ABC contractor was a prime contractor also would not need to comply with any mandate.

Officials from OMB said they were still reviewing the decision and would not make any changes to policy until after that review is complete.

"To be honest the mandates have not stuck in our region," says Chris Carson, president and COO of Carson-Mitchell, Inc., an AGC of Missouri contractor based in Springfield, Mo. "This really does not help or hurt our relationship with clients. Even the most stringent of entities has relaxed their policies to the extent that I can tell."

In contrast, Michael Bennett, vice president of the Cianbro Cos., which is an ABC member, said, "Those who make a living in this industry just had a significant weight lifted and one less requirement to meet. This decision will bring peace of mind to many knowing that they can focus on the project they are building."

Bennett also noted that federal contractors "take our responsibility to ensure a healthy and safe work environment very seriously and believe we have demonstrated this responsibility throughout the COVID-19 pandemic as our government deemed us as essential workers," and thanked ABC for advocating on its members' behalf by joining the lawsuit.