Organizations representing Colorado’s construction industry contractors are challenging the City and County of Denver’s vaccine mandate for workers who provide services to the city, schools and hospitals.

The trade organizations are claiming the policy will “create chaos” for construction across Denver, forcing anti-vaccine employees out of the workforce and delaying city projects. Consequently, they are seeking a court’s determination that the order is unconstitutional, unenforceable and that they are not responsible for carrying out its directive.

But last week, U.S. District Court Judge Christine M. Arguello canceled a hearing in which she would have decided whether to grant an injunction against the city. Instead, Arguello instructed the plaintiffs to make a case for why she had jurisdiction to hear their claims in the first place.

Her order stemmed from an argument that Denver made earlier this month in its motion to dismiss the lawsuit, disputing whether the trade associations and their members had been harmed by the public health order.

“These feared injuries include the potential mass resignation of employees, possible delay in Denver-related projects and possible fines they may receive from Denver in the future should they fail to comply with the Order,” wrote attorneys for the city. “While Plaintiffs articulate potential harms they fear may befall them in the future, they have not established that they have been actually or concretely injured.”

Suing the city are the Colorado Contractors Association; Colorado Stone, Sand, & Gravel Association; Colorado Ready Mixed Concrete Association; Colorado Motor Carriers Association; Colorado Asphalt Pavement Association; Hispanic Contractors of Colorado; and the Rocky Mountain Mechanical Contractors Association. Mayor Michael Hancock and public health director Bob McDonald are also named as defendants.

Lawsuits across the country are challenging a variety of vaccination requirements, with limited success. Within the last week, the federal appeals court headquartered in Cincinnati cleared the way for an emergency rule by the Occupational Safety and Health Administration that requires larger employers to implement mandatory vaccinations or COVID-19 testing. On Tuesday, Justice Neil M. Gorsuch of the U.S. Supreme Court turned away a challenge to New Mexico’s vaccine mandate for healthcare workers.

“States generally are empowered to mandate vaccination, stemming back to the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, which upheld a smallpox vaccine mandate,” said Jennifer L. Piatt, research scholar for the Center for Public Health Law and Policy at Arizona State University. “Because Jacobson remains good law, so long as medical exemptions are permitted, public-sector COVID-19 vaccine mandates have, for the most part, been upheld.”

At issue in the Denver lawsuit is an Aug. 2 order from the city’s Department of Public Health and Environment in reaction to the spread of the contagious Delta variant of the novel coronavirus. The order, subsequently updated on Sept. 1, required the city, healthcare employers and schools – plus entities that contract with those organizations – to ensure their personnel received vaccinations by Sept. 30. All workers hired after that date would also need vaccinations.

The order acknowledged that some employees may have religious or medical exemptions. Data from the city, which do not include contractors, show that 99.1% of government workers complied with the order.

The lawsuit claims that the construction industry made an effort to encourage its workers to receive vaccinations.

“This was especially important because up to half of the employees in the construction industry are vaccine hesitant – not because, as may be argued, they have some political opposition, but because the construction industry is largely made up of communities of color who are vaccine hesitant due to mistrust of the government,” the trade associations wrote.

They alleged that contractors will have to expend their own resources to enforce the order, be forced to validate religious or medical exemptions, and face fines for noncompliance. The trade organizations sent a letter to the city in late August warning that the mandate “is going to make the [labor] shortage worse and create chaos on construction projects across the City & County. It will also cost Denver millions of dollars in change orders for existing contracts along with attendant delay to many projects.”

The plaintiffs asked Arguello to block enforcement of the public health order, worrying contractors would go out of business through loss of workers or via civil lawsuits from employees who “suffer adverse effects from vaccinations.” In justifying their claims, they argued Denver was exceeding its authority by delegating enforcement to the private sector and was in violation of the Contracts Cause of the U.S. Constitution.

In response, Denver contended that any negative effects to the contractors would not be directly attributable to the Sept. 2 order.

“Rather, according to the scenario pled by Plaintiffs, the hypothetical future harm is caused by the intervening actions of employees who, potentially, may resign rather than become vaccinated,” the city wrote. “Thus, not only is the alleged possible future harm not concrete, actual or imminent, it is also caused by actions of third parties not before this Court.”

Arguello has given the trade associations until Dec. 23 to respond to the city’s argument that they lack the standing to challenge Denver’s vaccination order. Depending on that ruling, she may again take up the contractors’ request for an injunction against the city.

Jeffrey D. Jackson, a professor at Washburn University School of Law in Topeka, believed the trade associations did have a basis to sue based on the constitutional provision that prohibits government intrusion into contracts.

“What the contractors are arguing is basically that the city, in passing the vaccine requirement, is impairing their current contracts because they would be unable to fulfill them or could only fulfill them at great cost because of the workers they would lose. It’s a pretty novel claim,” he said.

In order to prevail, Jackson added, the plaintiffs would have to show the city’s mandate substantially impaired their contracts.

“Whether they could do this depends on a number of things, including whether the contract itself allows the city to pass health and safety requirements. Even if they pass this hurdle, the city probably has a good chance of meeting the test to allow the requirements to continue,” Jackson said.

The case is Colorado Contractors Association et al. v. City and County of Denver et al.