A federal judge has dismissed a legal challenge to Denver’s COVID-19 vaccination requirement for contractors providing services to the city, healthcare facilities and schools.

Denver argued that the lawsuit should not proceed because the half-dozen construction trade associations who claimed the city’s order was unenforceable and unconstitutional had not demonstrated the city’s public health orders had harmed any of the affected businesses.

“There are no allegations,” argued the Denver City Attorney’s Office, “that any employee has resigned or has threatened to resign because of the Orders, there are no allegations that any work on any Denver contract has actually been impacted or genuinely threatened to be impacted, there are no allegations that any Plaintiff is imminently in danger of violating any particular contract because of the Orders, and there are no allegations that Plaintiffs have suffered any injury because of enforcement efforts by Denver.”

On Friday, U.S. District Court Judge Christine M. Arguello agreed with the city. She found no credible threat of enforcement by Denver against the contractors and no infringement of their legal contractual rights. Although she dismissed the lawsuit, the judge gave the plaintiffs 30 days to file another complaint addressing the areas that Arguello found lacking, if they so choose.

“Local governments have the authority to protect public health and safety through vaccine mandates,” said City Attorney Kristin Bronson following the judge’s order. Michael A. Rollin, an attorney for the plaintiffs, said that his clients have, in fact, suffered from the city’s directive in the ensuing months.

“Since then, contractors have lost employees, some cannot bid on Denver jobs any more, and many have incurred costs associated with implementing or defending against the mandate’s conscription of private businesses to be Denver’s enforcer, which is really all the lawsuit challenges,” he told Colorado Politics.

Arguello’s decision follows a handful of other rulings from Colorado’s federal trial court turning aside challenges to government vaccination policies. Last month, U.S. District Court Judge Raymond P. Moore declined to block enforcement at the University of Colorado’s Anschutz Medical Campus, after more than a dozen staff and students challenged the vaccination mandate on religious freedom grounds. Moore also dismissed a lawsuit from two service members aimed at the U.S. military’s vaccine requirements.

The contractors’ lawsuit against Denver was filed on Sept. 30, 2021 after the city’s public health department issued an order requiring full vaccination for workers at governmental and healthcare facilities. Also affected were contractors and subcontractors providing services to those entities. The city placed responsibility on the covered organizations for ensuring compliance by Sept. 30 and for making sure workers hired after that date had received their COVID-19 vaccinations. 

Denver questioned Arguello’s ability to hear the case based on the plaintiffs’ lack of injury from the health order. In December, the judge instructed the parties to submit arguments about whether she had jurisdiction over the dispute.

The plaintiffs argued that Denver had promised to enforce violations and that abiding by the vaccination order would require firing unvaccinated workers and make it impossible to finish projects in Denver on deadline.

‘We will very likely see many employees quit (before being fired) and move to contractors that do not work for Denver and/or have fewer than 100 employees so as to avoid Biden’s federal vaccine mandate,” Dave Davia, CEO of the Rocky Mountain Mechanical Contractors Association, told the court in October. (The Biden administration since withdrew its vaccination directive for larger employers after the U.S. Supreme Court blocked its implementation.)

The trade associations provided examples from among their membership about the anticipated effect of the public health order. Reportedly, one contractor’s construction employees were 68% unvaccinated. Another company estimated 30% of its Denver workers were unvaccinated, and forcing them off of projects would result in a three-month delay. A third company claimed that half of its unvaccinated workforce would refuse vaccinations, and it would not bid for further work with the city.

Arguello was unmoved by those allegations.

“Plaintiffs fail to demonstrate how enforcement of the Order will lead to this hypothetical scenario in which the contractor incurs such significant losses of employees as to delay projects or affect bidding,” she wrote in a Feb. 4 order.

Arguello found insufficient evidence that the dire consequences the contractors predicted would necessarily flow from the fact that a large percentage of their workers was unvaccinated at the time of the lawsuit’s filing. Just as importantly, she did not see how the public health order would be responsible for those consequences.

It was a “highly speculative fear,” Arguello added, that those unvaccinated workers would remain unvaccinated, fail to qualify for an exemption or resign.

The plaintiffs included 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 were named as defendants.

Data from the city, which do not include contractors, show that 99.1% of full-time government workers have complied with the order by getting vaccinated or receiving an exemption. Statewide, at least three-quarters of the population has received at least one dose of the vaccine.

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