For some small firms, their size offers a new advantage in the fight for talent.

Some firms in the construction industry are using the fact that they don’t have enough employees to qualify for the Biden administration's vaccine mandate as a recruitment tool, HR Dive reports.

“For the first time I can remember, small private contractors actually hold an advantage in being able to acquire talent," Jacob Binke, a construction executive recruiter at the Detroit-based Birmingham Group, told HR Dive. "They're using it as a selling point that they don't require the vaccine."

The federal vaccine mandate, technically an Emergency Temporary Standard issued by the Occupational Safety and Health Administration, only applies to companies with 100 or more employees.

Being able to avoid the mandate is especially attractive in the construction industry, which has a lower vaccination rate, around 53% to 58%, per CPWR, a nonprofit construction safety research firm, as opposed to most other occupations, where 80% or more workers have gotten the jab.

“This guidance will result in additional compliance burdens, exacerbate the construction industry’s skilled workforce shortage and increase costs for federal contractors and taxpayers," Association of Builders and Contractors Vice President of Regulatory, Labor and State Ben Brubeck said when the Biden administration announced the ETS. "This is a top issue for the contracting community and adds to a list of concerns.”

Construction executives have lamented that many employees say they don’t want to work on projects for the government, or companies like Amazon, FedEx or UPS, which require vaccinations, HR Dive reports. Others say the mandate as it is formulated is simply driving more workers to smaller firms.

Currently, the vaccine mandate is embroiled in lawsuits and legal action, including lawsuits from 19 states, and a judge recently issued a stay preventing it from being implemented. The cases against the mandate will be heard in the U.S. 6th Circuit Court of Appeals, NPR reports, though it is widely expected to go to the Supreme Court.