Court filing

21A244 074 Jan 05 2022 Main Document 20220105155856533 21A Osha Mandate Amicus (U.S.)

Filed November 4, 2021 in Scotus; one of 28 filings from this case.

Record facts

Court	Supreme Court of the United States
Filed	2021-11-04

Full text

Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249, 21A250,
21A251, 21A252, 21A258, 21A259, 21A260, and 21A267

In the Supreme Court of the United States

IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND
TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402,
ISSUED ON NOVEMBER 4, 2021
______________________________
On Application for Stay of Administrative Action and Petition for Writ of Certiorari
to the United States Court of Appeals for the Sixth Circuit
______________________________
MOTION OF JASON FELICIANO AND THE INTERNATIONAL
CONFERENCE OF EVANGELICAL CHAPLAIN ENDORSERS FOR LEAVE
TO FILE ATTACHED AMICUS BRIEF IN SUPPORT OF EMERGENCY
APPLICATIONS FOR A STAY OR INJUNCTION PENDING
______________________________

Arthur A. Schulcz, Sr.
Counsel of Record
Chaplains Counsel, PLLC
21043 Honeycreeper Pl.
Leesburg, VA 20175
(703) 645-4010
art@chaplainscounsel.com

Counsel for Amici Curiae

MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

Jason Feliciano and The International Conference of Evangelical Chaplain
Endorsers (“ICECE”) move for leave to file the attached brief as amici curiae
supporting the applications to reinstate the stay of the Occupational Safety and
Health Administration’s illegal emergency temporary standard without ten days’
notice to the parties of its intent to file as normally required by this Court’s Rule
37.2(a). Given the anticipated expedited briefing schedule, it was not feasible to give
the parties ten days’ notice of the filing of this Amici brief.
Counsel for the following parties either consented or did not object to the filing
of this brief: Heritage Foundation, et al., Job Creators Network, et al., National
Federation of Independent Business, et al., Ohio, et al., The Southern Baptist
Theological Seminary, et al., BST Holdings, LLC, et al., Word of God Fellowship, Inc.
d/b/a Daystar Television Network, Inc., et al., Associated Builders and Contractors,
Inc., et al., Republican National Committee, Betten Chevrolet, Inc., Bentkey Services,
LLC d/b/a The Daily Wire, FabArc Steel Supply, Inc., et al.
The following parties did not respond: Phillips Manufacturing & Tower
Company, et al., Scott Bedke, et al., The American Federation of Labor and Congress
of Industrial Organizations.
The International Conference of Evangelical Chaplain Endorsers (“ICECE”) is
a conference of evangelical organizations that endorse Christian clergy to be chaplains
in the military and other limited access organizations to provide for the free exercise

of religion.1 ICECE’s primary focus is the protection and advancement of religious
liberty for all chaplains and military personnel. ICECE supports challenges to
government threats to religious liberty and considers the vaccine mandate such a
threat.
These Amici support the Parties and Circuits opposing vaccine mandates,
testing mandates, and mask mandates.

The attached Amici Brief includes arguments and citations to authorities that
are not included in the pending applications for stay. It focuses on why OSHA’s
emergency temporary standard (“ETS”) does not meet the “grave danger” standard,
and that the ETS is invalid because it cannot prevent “exposure” to COVID-19
through vaccination, testing, and masks this mandate goes beyond the scope which is
necessary for OSHA to create an ETS. Lastly it concludes that animus is the reason
for OSHA’s Mandate.

To the extent that leave is required, the proposed amici respectfully move for
leave to file the attached brief on 8½- by 11-inch paper rather than in booklet form,
given the expedited briefing. Should the Clerk’s Office or the Court so require, the

1 Endorsement is the process by which a Department of Defense (“DOD”)
recognized religious organization certifies that its clergy or religious leaders meet
the required education, training and experience criteria for appointment as a
chaplain and are qualified to provide religious ministry to the endorsing agent’s
military members; facilitate the free exercise of other military personnel,
dependents and other authorized DOD personnel; and care for all service personnel.
See DOD Instruction 1304.28 (describing endorsement process and criteria).

iii

proposed amici commit to re-filing expeditiously in booklet format. See S. Ct. Rule
21.2(c).

Respectfully submitted,
Arthur A. Schulcz, Sr.
Counsel of Record
Chaplains Counsel, PLLC
21043 Honeycreeper Pl.
Leesburg, VA 20175
(703) 645-4010
art@chaplainscounsel.com

Counsel for Amici Curiae

QUESTION PRESENTED

Does the OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
(“OSHA”) have the legal authority to require employers to force employees to receive
a COVID-19 shot or mask with weekly testing mandate through an emergency
temporary standard (“ETS”)?

TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................. i
TABLE OF AUTHORITIES ......................................................................................... iii
INTERESTS OF AMICI CURIAE ................................................................................. 1
SUMMARY OF ARGUMENT ........................................................................................ 2
ARGUMENT .................................................................................................................. 3
I.
OSHA HAS EXCEEDED ITS AUTHORITY ...................................................... 3
II.
THE ETS DOES NOT PREVENT “EXPOSURE” TO THE VIRUS .................. 5

A.
THE VACCINE MANDATE PORTION OF THE ETS DOES NOT
PREVENT EXPOSURE TO THE COVID-19 VIRUS ............................. 5

B.
THE TESTING MANDATE PORTION OF THE ETS DOES NOT
PREVENT EXPOSURE TO THE COVID-19 VIRUS ........................... 10
III.
THE TESTING MANDATE CAN IMPOSE AN UNJUSTIFIED
ECONOMIC BURDEN THAT OPERATES AS A FINE OR PENALTY ........ 11
IV.
THE MASKING MANDATE PORTION OF THE ETS DOES NOT
PREVENT EXPOSURE TO THE COVID-19 VIRUS ...................................... 13
V.
OSHA’S MANDATE PUNISHES CITIZENS FOR EXERCISING THEIR
RIGHT TO MAINTAIN BODILY INTEGRITY ............................................... 16
VI.
THE ETS VACCINATION, TESTING, AND FACE MASK MANDATE
DO NOT PROVIDE RELIGIOUS EXEMPTIONS........................................... 18
VII. OSHA’S ETS CREATES A “SEPARATE BUT EQUAL” WORK
ENVIRONMENT, THROUGH MEDICAL SEGREGATION .......................... 19
CONCLUSION ............................................................................................................. 24

iii

TABLE OF AUTHORITIES
CASES

In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19
Vaccination and Testing, File Name: 21a0283p.06 (Slip op. 6th Cir. 12/15/21) ... 3, 4

Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo,

592 U. S. ___ (2020) ................................................................................................ 21

William Ouweleen vs. Howard Zucker in his official capacity as Commissioner
of the New York State Department of Health, Case 6:21-cv-06522 (MDNY) ......... 16

STATUTES

21 U.S.C. § 360bbb-3C(1)(A)(ii) ................................................................................... 14

U.S.C. § 655(c)(1) ............................................................................................................ 3

28 Pa. Code § 27.60(b) .................................................................................................. 19

Civil Rights Act 1964 § 201 Pub.L. 88-352, 78 Stat. 241, enacted July 2, 1964 ........ 21

OTHER AUTHORITIES
DOD Instruction 1304.28 ............................................................................................... 1

https://abcnews.go.com/Business/americans-inflation-hits-30-yearhigh/story?id=
8111 0162 ................................................................................................................. 13

https://apnews.com/article/coronavirus-pandemic-health-jacksonville-us-navycb
7d190b7c1c1c52f5441b56740d44de .......................................................................... 5

https://www.britannica.com/science/chemical-agent .................................................... 4
https://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm?s_cid=mm7031e2_w...... 9
https://childrenshealthdefense.org/defender/ny-health-commissioner-mask-
mandate-federal-lawchildrenshealthdefense ........................................................ 16
https://www.cnbc.com/2021/12/08/biden-vaccine-mandate-senatevotes-to-
overturn-O SHA-rule.html ...................................................................................... 18

https://www.cnn.com/2021/08/05/health/us-coronavirus-thursday/index.html ........... 9
https://www.cnn.com/2021/12/29/health/us-coronanavirus-
wednesday/index.html ............................................................................................. 11
https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-
19-vaccine ................................................................................................................. 17
https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-
emergency-use-authorization-face-masks-non-surgical ......................................... 14
https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf ......... 7
https://www.healthcare.gov/glossary/federalpoverty-level-FPL/ ............................... 12
https://www.irs.gov/affordablecare-act/employers/identifying-full-time-
employees ................................................................................................................. 12
https://www.masslive.com/coronavirus/2021/12/massachusetts-reports-13919-new-
breakthrough-covid-cases-over-last-week-as-state-ramps-up-testing-deploys-
national-guard-to-bolster-hospit als-and-ambulance-service.html ......................... 9
https://www.merriam-webster.com/dictionary/animus .............................................. 22
https://www.miamiherald.com/news/coronavirus/article254111268.html .................. 7
https://news.yahoo.com/revealed-thousands-of-double-jabbed-over-50-s-have-
died-in-the-last-4weeks-190548036.html ................................................................. 9
https://nypost.com/2021/12/27/bill-de-blasiosprivate-business-vaccine-mandate-
takes -effect-in-nyc/ .................................................................................................. 22
https://nypost.com/2021/12/27/bill-deblasios-private-business-vaccine-mandate-
takes -effect-in-nyc/ .................................................................................................. 22
https://pubmed.ncbi.nlm.nih.gov/31590667/ ................................................................. 5
https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf ................................ 21
https://www.talktomira.com/about .............................................................................. 12
https://www.talktomira.com/post/howmuch-does-coronavirus-COVID-19-testing-
costwith-or-without-insurance ................................................................................ 12

https://www.theatlantic.com/ideas/archive/2021/09/persuade-unvaccinated
protect-un vaccinated/620091/ ................................................................................ 22
https://www.verywellhealth.com/covid-19-vaccines-and-sterilizing-immunity-
5092148#toc-what-is-sterilizing-immunity ............................................................... 6
https://www.wbtw.com/trackingthevaccine/no-vaccine-needed-for-those-whove-
had-covid-19-cleveland-clinic-study-says-2/ ........................................................... 17
https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-
guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-
causes-it ..................................................................................................................... 3
SUPREME COURT OF PENNSYLVANIA, MIDDLE DISTRICT, J-86-2021, JACOB
DOYLE CORMAN v. DISTRICT ACTING SECRETARY OF THE
PENNSYLVANIA DEPARTMENT OF HEALTH ................................................. 20
Scarano A, Inchingolo F, Lorusso F., Facial Skin Temperature and Discomfort
When Wearing Protective Face Masks: Thermal Infrared Imaging Evaluation
and Hands Moving the Mask. Int J Environ Res Public Health. 2020;17(13):
4624. Published 2020 Jun 27. doi:10.3390/ijerph17134624 ................................... 15

INTERESTS OF AMICI CURIAE1

Amicus Jason Feliciano is an Ohio Citizen concerned with the COVID-19
vaccine and mask with testing mandates with regard to Individual Freedoms,
financial burden, and undue hardship for employees, and employers.
Amicus The International Conference of Evangelical Chaplain Endorsers
(“ICECE”) is a conference of evangelical organizations that endorse Christian clergy
to be chaplains in the military and other limited access organizations to provide for
the free exercise of religion.2 ICECE’s primary focus is the protection and
advancement of religious liberty for all chaplains and military personnel. ICECE
supports challenges to government religious liberty threats and considers the vaccine
mandate such a threat. See § II.A infra.
The vaccine mandate especially concerns ICECE because it has military
chaplains under threat of discharge with the loss of careers and benefits after asking
for a religious accommodation (“RA”). They face possible stigmatization for

1 Amici have moved for leave to file this brief. No party’s counsel authored this brief,
in whole or in part, and no party or party’s counsel, nor anyone other than amicus
or their counsel, contributed money intended to fund its preparation or submission.

2 Endorsement is the process by which a Department of Defense (“DOD”) recognized
religious organization certifies that its clergy or religious leaders meet the required
education, training and experience criteria for appointment as a chaplain and are
qualified to provide religious ministry to the endorsing agent’s military members;
facilitate the free exercise of other military personnel, dependents and other
authorized DOD personnel; and care for all service personnel. See DOD Instruction
1304.28 (describing endorsement process and criteria).

life based on the type of discharge. The zero RAs granted to date shows this
Administration does not consider RAs or natural immunity to be politically correct.
The issue is not do real vaccines work. “Vaccine” used to mean a medical
procedure that immunized the recipient from a specific communicable disease.
History shows well-recognized “classic” vaccines meet that definition, e.g., measles.
COVID-19 vaccines do not meet the classic definition of a vaccine. See § II.A
below (USS Milwaukee and COVID surge and CDC changed vaccine definition). The
COVID-19 pseudo-vaccine fails the former “classic” vaccine immunization standard
and, under that standard this is merely a treatment or prophylactic because it is not
sterilizing vaccine against the virus.
These Amici believe legislators who pass laws after balancing competing factors
changes should change established medical terms with national standards, i.e.,
absolute immunization versus stimulation, that have punitive and legal effects for
all citizens, e.g., destroying careers and denying benefits. These Amici support the
Parties and Circuits opposing vaccine mandates.
SUMMARY OF ARGUMENT

OSHA’s ETS does not meet the “grave danger” standard. The ETS is invalid
because it cannot prevent “exposure” to COVID-19 through vaccination, testing, and
masks. The mandate goes beyond the scope which is necessary for OSHA to create an
ETS. The mandate depends on changing the definition for a vaccine from a procedure
that creates totally immunity against a disease to one that merely treats the disease.

ARGUMENT

OSHA’s actions are arbitrary, capricious, and contrary to law.
SARS-CoV-2 is the virus that is transmissible by air (not in a human body), Covid-19
is the infection once a person has it inside and it becomes a sickness.
(https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-
guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it)

I.
OSHA HAS EXCEEDED ITS AUTHORITY

Before issuing an ETS, OSHA must determine: (1) “that employees are
exposed to grave danger from exposure to substances or agents
determined to be toxic or physically harmful or from new hazards,” and
(2) that an “emergency standard is necessary to protect employees from
such danger.” Id. [29 U.S.C. ] § 655(c)(1).”

In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19
Vaccination and Testing, File Name: 21a0283p.06 at 6 (Slip op. 6th Cir. 12/15/21) (App.
A-6). That “grave danger” standard is not met here.
As of December 29, 2021, over a nearly two year period the CDC recorded
52,809,291 total COVID-19 cases with 816,239 deaths. This equates to a 98.45%
survival rate among the general population or a mortality rate of 1.55%; this does not
qualify as grave danger.
Adjusted for the working age of 16 to a government retirement age of 65-67
CDC reports 31,442,337 COVID working age (16-65) cases to date with 164,331

deaths. COVID-19's mortality rate, 0.52% (164,331/31,442,337), or a survivability rate
of 99.48% cannot qualify as grave danger.
The 6th Circuit claims that “800,000 people have died” from COVID-19, In re:
MCP No. 165 at 6, but OSHA has not measured how many of those COVID-19
deaths were contracted in American businesses, workplaces, or how many of those
were work related. This gives a false or misleading representation of the alleged
“grave risk” posed that OSHA claims gives it authority for an ETS. OSHA claims it is
protecting workplaces, but a 99.48% COVID-19 survival rate among the working age
population is hardly justification for the draconian mandate OSHA seeks to impose.
OSHA has not attempted to show the global virus specifically puts individuals in the
workplace at greater risk than non-workers. Workers do not have equal risk.
Corona Viruses are not agents. Agents are things that can kill someone in hours
or minutes and cause immediate danger such as chemical agents. “Since World War
I, several types of chemical agents have been developed [.] These include choking
agents, blister agents, blood agents, nerve agents, incapacitants, riot-control agents,
and herbicides.” https://www.britannica.com/science/chemical-agent. This traditional
understanding of agents should be separated from COVID-19. “Grave” means
exposure to an agent causes death.

II. THE ETS DOES NOT PREVENT “EXPOSURE” TO THE VIRUS

This mandate does not prevent “exposure” to COVID-19 because all three areas
imposed: vaccination, testing, and masks cannot and do not prevent “exposure” as
required by law and as “necessary” for the creation of an ETS. This standard cannot
be met therefore the mandate is illegal.

A.
THE VACCINE MANDATE PORTION OF THE ETS DOES NOT
PREVENT EXPOSURE TO THE COVID-19 VIRUS

The Covid-19 Vaccine does not immunize the vaccinated from Covid-19. Unlike
sterilizing vaccines, which prevent the vaccine recipient from contracting or spreading
the disease they are vaccinated against (https://pubmed.ncbi.nlm.nih.gov/31590667/),
the COVID-19 vaccine recipients are widely known to continue to contract and spread
the SARS-COV-2 virus which causes Covid-19 infections. The Associated Press
reported on December 27, 2021, the fully vaccinated USS Milwaukee had “[a]bout two
dozen sailors or roughly 25% of the crew — have now tested positive for COVID-19[.]”
“Officials: Nearly 25% [of fully vaccinated] Navy warship crew has COVID-19” as
reported
by
Lolita C.
Baldor.
https://apnews.com/article/coronavirus-
pandemic-health-jacksonville-us-navycb7d190b7c1c1c52f5441b56740d44de.
The Navy said in a statement Friday that the USS Milwaukee’s crew
was “100% immunized” and that all of those who tested positive for COVID-
19 were being isolated on the ship away from other crew members
***
Another warship, meanwhile, had to postpone its movement out to sea
earlier this month due to a separate outbreak. Navy Cmdr. Sean
Robertson, spokesman for 3rd Fleet, said the USS Halsey, a destroyer,
delayed its homeport move from Pearl Harbor, in Hawaii, to San Diego

because a significant number of the crew became infected with COVID-
19. Id. The Navy further reported “roughly one-third of the Halsey crew
tested positive for the virus.... A destroyer has about 300 crew members
[and ] “the crew was nearly 100% vaccinated.

Id.

The fact that the COVID-19 vaccine does not provide classic immunity to those
who receive it is because it is not a sterilizing “vaccine” in the classic, pre-COVID-19
sense (https://www.verywellhealth.com/covid-19-vaccines-and-sterilizing-immunity-
5092148#toc-what-is-sterilizing-immunity). Faced with the realization the COVID-19
vaccine would not provide classical immunity to the vaccinated and has not stopped
the contraction or spread among fully vaccinated individuals, CDC changed the
“vaccination” definition in 2021 from “The act of introducing a vaccine into the body
to produce immunity to a specific disease.” (emphasis added) to “The act of introducing
a vaccine into the body to produce protection from a specific disease.” (emphasis
added). The change has made these two formerly different definitions equal. This
change has legal implications without input from the public or congress.
In other words, CDC changed the “vaccine” definition in 2021 from a medical
procedure that protected the vaccinated against the disease by producing immunity
to one that merely stimulates the immune system and provides partial protection.
Before the change [the Centers for Disease Control and Prevention
modified ‘its definition of the words “vaccine” and “vaccination” on its
website’], the definition for “vaccination” read, “the act of introducing a
vaccine into the body to produce immunity to a specific disease.” Now,
the word “immunity” has been switched to “protection.” The term
“vaccine” also got a makeover. The CDC’s definition changed from “a

product that stimulates a person’s immune system to produce immunity
to a specific disease” to the current “a preparation that is used to
stimulate the body’s immune response against diseases.” Some people
have speculated that the unannounced changes were the CDC’s attempt
to hide the fact COVID-19 vaccines are not 100% effective at preventing
coronavirus infection.

https://www.miamiherald.com/news/coronavirus/article254111268.html. CDC has
effectively made two formerly completely different terms the same, destroying the old
understanding of “vaccine”, one that protected a person from disease.
Under the pre-COVID-19 standard, the COVID-19 treatment would be called a
prophylactic or a treatment, not a vaccine because it does not provide immunity. If
the vaccine makers were not currently protected from liability, they could be sued for
misleading advertising, offering and selling a faulty product, and damages. The same
fraud and deception. remedies should apply to the CDC.
CDC used its administrative process to change the meaning of the well-known
term “vaccine” and establish what is now a legal standard that is used to punish and
retaliate against those who object to something that does not work as originally
promised. The Fifth Amendment requires administrative changes and definitions
that become a legal standard and the basis for punitive actions against citizens, as
CDC, OSHA and the government have done here, must go through notice and
comment.
https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf. OSHA

has not done that. That’s the definition of arbitrary and capricious and contrary to
law.
OSHA should not be allowed to use a secret administrative process to effectively
criminalize the exercise of well-established rights or the rejection of a medical process
that does not do what it was expected and designed to do.
In the military context, the CDC established a standard that is now the legal
basis for the imposition of significant criminal liability, e.g., court-martial and
possible loss of VA benefits, and ruined penalties by refusing to be “vaccinated” which
is not vaccination under the old standard. In doing so the CDC has created law
without going through the required necessary notice and comment provisions.
It’s one thing for a person to choose to take a vaccine because it provides almost
100% immunity against a disease, it’s another to order a person to take what in effect
is an experimental vaccine that does not reduce the risk of catching or re-catching the
disease to almost zero. The Covid-19 vaccine is not a sterilizing vaccine as that term
is understood by the public. That is why the disease continues to spread among
vaccinated. On November 11, 2021 Yahoo News revealed that, “Thousands of double
jabbed over 50s have died from COVID in the last 4 weeks[.] In a report published by
the UK Health Security Agency, analysis revealed 2,683 double vaccinated over 50s
have died within 28 days of positive COVID test in the last four weeks.”

https://news.yahoo.com/revealed-thousands-of-double-jabbed-over-50-s-have-died-in-
the-last-4weeks-190548036.html.
Fully vaccinated individuals are still contracting and spreading the SARS-CoV-
2. "Fully vaccinated people who get a Covid-19 breakthrough infection can transmit
the virus, CDC chief says", https://www.cnn.com/2021/08/05/health/us-coronavirus-
thursday/index.html.
Also,
"Overall,
274
(79%)
vaccinated
patients
with
breakthrough infection were symptomatic. Among five COVID-19 patients who were
hospitalized, four were fully vaccinated[.]"
https://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm?s_cid=mm7031e2_w.

This shows vaccinated individuals can receive, transmit, and spread the
COVID-19 virus. The CDC has revealed fully vaccinated individuals can carry the
same
viral
load
as
unvaccinated
when
infected
with
SARS-CoV-2.
https://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm?s_cid=mm7031e2_w.
On December 21, 2021,

Massachusetts public health officials reported 13,919 new COVID-19
cases among fully vaccinated residents over the last week, nearly 2,500
more breakthrough cases than the prior week. [and] Through the week
ending Dec. 18, [2021] there were 114,318 cumulative [Covid-19] cases
in vaccinated people — representing… 2.3% of Massachusetts’ fully
vaccinated residents. (emphasis added).

(https://www.masslive.com/coronavirus/2021/12/massachusetts-reports-13919-new-
breakthrough-covid-cases-over-last-week-as-state-ramps-up-testing-deploys-
national-guard-to-bolster-hospit als-and-ambulance-service.html).

Vaccinated people infected with COVID-19 can infect both unvaccinated or
vaccinated, therefore the vaccine portion of the OSHA mandate does not prevent
“exposure” to COVID-19 and cannot meet the “necessary” clause of the ETA
requirement. Only testing unvaccinated while not testing vaccinated does not prevent
“exposure” because the vaccinated can receive, spread, infect, and transmit the SARS-
CoV-2 virus. If only half the population is required to test, the other half can still
spread the virus in the workplace. OSHA’s mandate does not stop the spread of SARS-
CoV-2 in the workplace, nor stop the “exposure” to SARS-CoV-2. Therefore, OSHA
has not met it’s ETS requirement set forth in the law as “necessary” to stop
“exposure”.

B.
THE TESTING MANDATE PORTION OF THE ETS DOES NOT
PREVENT EXPOSURE TO THE COVID-19 VIRUS

Tests don’t work.

Many have asked why the CDC reduced isolation times for some people
with Covid-19 – but didn’t recommend taking a test to confirm whether
they were still infected. PCR and antigen tests aren’t always good
indicators of whether someone is still contagious, CDC Director Dr.

Rochelle
Walensky
told
news
outlets
Wednesday.
(December 29, 2021):
What we do know is that the PCR test after infection can be positive for
up to 12 weeks, so that is not going to be helpful. You’re not going to be
transmitting during all of that period of time,” Walensky told NBC.
PCR and antigen tests aren't always good indicators of whether someone
is still contagious, CDC Director Dr. Rochelle Walensky told news outlets
Wednesday. "So, then the question is, well why not do an antigen test at
five days? We do know some people at five days will be negative and still

be able to transmit. We also know that some people will be positive and
still be able to transmit," she said.
"So that antigen test was actually not authorized for this purpose, and
its information will not be useful. Regardless of what the antigen test
said,”

(https://www.cnn.com/2021/12/29/health/us-coronanavirus-wednesday/index.html). If
a PCR test can test positive for up to 12 weeks according to the CDC Director, then
an employee required by OSHA's Mandate to test weekly would be forced to stay out
of work for up to four months due to faulty testing. Also, PCR tests are not authorized
to tell if a person is virus free. According to the CDC Director, the testing as required
by OSHA does not work to reveal sickness, and or viral load. Again, a person can test
negative and still spread the disease. This is the definition of a not working test.
CNN medical analyst Dr. Jonathan Reiner claimed PCR tests can sometimes "detect
the virus
when a
person
is
no
longer infectious,"
(https://www.cnn.com/2021/12/29/health/us-coronanavirus-wednesday/index.html)
The Testing portion of the OSHA mandate does not prevent “exposure” to SARS-CoV-
2.
III.
THE
TESTING
MANDATE
CAN
IMPOSE
AN
UNJUSTIFIED
ECONOMIC BURDEN THAT OPERATES AS A FINE OR PENALTY

The Testing Mandate can drive full time federal minimum wage workers into
poverty. For example, an Alabama resident receiving the federal minimum wage of
$7.25 per hour with no state minimum wage and working 37 work hours a

week3would earn $13,949 per year. That is above the 2021 Federal poverty level
(FPL) of $12,880
for
individuals. See:
https://www.healthcare.gov/glossary/federalpoverty-level-FPL/. A testing cost of
$20.00 a week would cost the employee $1,040.00 for 52 weeks. The OSHA test
mandate would therefore put that full time worker making federal minimum wage
below the federal poverty rate.

The cost of tests. While some rapid tests are on the market for $20, others cost
more. Mira is a non-insurance membership that helps members get affordable
healthcare. See https://www.talktomira.com/about. Mira wrote an extensive analysis
on the COVID-19 test costs of the very type the OSHA Rule requires. “The price of
COVID-19 diagnostic testing at urgent care typically ranges from $100 to $200.
However, it is possible to be charged additional fees to see a provider, administration
of the test, or additional lab work. With these fees, you may be charged upwards of
$600.”
https://www.talktomira.com/post/howmuch-does-coronavirus-COVID-19-
testing-costwith-or-without-insurance.
For At-Home Tests, “Several companies are now offering FDA-approved self-
administered at-home COVID tests. The out-of-pocket cost for an at-home COVID test
is typically between $109 and $155.” Id. For Emergency Room Tests, “Based on data
collected by Peterson-KFF, the median price of a COVID test done at a hospital is

3 The federal government has determined 30 hours a week is full time.
https://www.irs.gov/affordablecare-act/employers/identifying-full-time-employees.

$127, and most tests cost between $100 and $199. However, you will likely be charged
additional fees for being tested and treated in a hospital. These fees may exceed
$3,100 in some circumstances.” Id.
Some locations currently provide free testing options, however the availability
of centers by location, and availability of tests are always changing factors. Therefore
there is no guarantee that a center will be available by geographical location or will
have tests available. Without zero cost testing widely and perpetually available, this
will cause undue burden on the most economically disadvantaged, and those already
struggling with pandemic wage loss. This is a recipe for disaster with rising inflation
recently hitting a reported 30 year high. https://abcnews.go.com/Business/americans-
inflation-hits-30-yearhigh/story?id=8111 0162.
This will cause irreparable economic harm for workers who have to pay $100
to $3,100 per test per week out of pocket. There is no authority or rationale for this
test mandate.
IV.
THE MASKING MANDATE PORTION OF THE ETS DOES NOT
PREVENT EXPOSURE TO THE COVID-19 VIRUS

The masks do not prevent “exposure” because cloth masks are unable to stop
the spread of the virus. Masks required by ETS cannot and do not stop the spread of
the virus. Evidence of this is the rising number of cases in locations where masking
is required.

Non-surgical face masks are authorized only under Emergency Use
Authorization (EUA), they are not FDA approved and therefore are experimental.
Thus, the federal Government cannot require or force people to take part in medical
experimentation. This is a violation of well-established human rights recognized by
courts.
Pursuant to Title 21 of the United States Code, products and devices authorized
under an EUA must be optional to the user as the basic standards for testing,
evaluation, and approval have been bypassed by the FDA due to an emergency. Title
21 United States Code, Section 360bbb-3C(1)(A)(ii).
If OSHA’s mask mandate stands, then the human rights of unvaccinated
workers will be violated forcing them to participate in experimental mask wearing
that is not FDA approved and not tested or proven to prevent the exposure of COVID-
19 in the workplace. Under title “Why did the FDA re-issue the Emergency Use
Authorization (EUA) for face masks?” the FDA states,
On April 24, 2020, the FDA updated and re-issued the EUA to
clarify that face masks, including cloth face coverings, that are
authorized by the EUA are only authorized for use by the general public
and health care personnel as source control. These face masks are not
authorized to be personal protective equipment, meaning they are not a
substitute for filtering face piece respirators or for surgical face masks.

https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-
emergency-use-authorization-face-masks-non-surgical

Masks have a negative effect, produce harm and cause further diseases. Dr.
Anthony Fauci wrote the pandemic of 1918 was not mainly caused by the virus, but
by bacterial infections from mask wearing. (Scarano A, Inchingolo F, Lorusso F.,
Facial Skin Temperature and Discomfort When Wearing Protective Face Masks:
Thermal Infrared Imaging Evaluation and Hands Moving the Mask. Int J Environ
Res
Public
Health.
2020;17(13):4624.
Published
2020
Jun
27.
doi:10.3390/ijerph17134624). Cloth masks can cause harm to the wearer today by the
spread of bacterial infections as well.

Masks of cloth material such as the ETA requires, are not possible to prevent
the exposure to Covid-19 because the virus is much smaller than the mask fibers. In
a federal lawsuit brought to the district court in New York petitioners state,
From a physical standpoint, the properties of masks versus the SARS-
CoV-2 virus prove that masks simply cannot prevent the virus from
exiting the nose and mouth of infected individuals into the air around
them to be breathed in by others. According to current knowledge, the
SARS-CoV-2 virus has a diameter of 60 nm to 140 nm [nanometers (a
billionth of a meter)]. Medical and non-medical facemasks’ thread
diameter, on the other hand, ranges from 55 μm to 440 μm [micrometers
(one millionth of a meter)], which is more than 1,000 times larger than
the diameter of the virus. Due to the difference in sizes between SARS-
CoV-2 diameter and facemasks thread diameter (the virus is 1000 times
smaller), SARS-CoV-2 can easily pass through any face mask like a
mosquito through a chain link fence. Historians and public health
scholars similarly describe the known futility of the masks employed
during influenza 1918, often referencing the famous quote that 'it is like
trying to keep out dust with chicken wire.' [see https://www-
tc.pbs.org/wgbh/americanexperience/media/pdf/transcript/influenza_tra
nscript.pdf]

William Ouweleen vs. Howard Zucker in his official capacity as Commissioner of the
New York State Department of Health Case 6:21-cv-06522 (MDNY). Twenty-two days
after this lawsuit was filed the, “New York Health Commissioner Repeal[ed the] Mask
Mandate
for
Unvaxxed
After
Federal
Lawsuit
Filed."
https://childrenshealthdefense.org/defender/ny-health-commissioner-mask-mandate-
federal-lawchildrenshealthdefense. The mask portion of the OSHA mandate does not
prevent “exposure” to SARS-CoV-2 and is illegal under FDA EUA rule for masks. The
Mask Mandate does not meet the “necessary” clause requirements for an ETA because
it cannot prevent “exposure”.
V. OSHA’S MANDATE PUNISHES CITIZENS FOR EXERCISING THEIR
RIGHT TO MAINTAIN BODILY INTEGRITY

If OSHA’s ETS is allowed to proceed, millions will face fines for exercising their
constitutional right to body autonomy. There are many reasons for opposing a vaccine
that does not protect the way our classic sterilizing vaccines have in the past, e.g.,
Polio, smallpox, measles. These include religious objections based on various deeply
held beliefs and natural immunity which the Administration and CDC continue to
ignore despite unchallenged scientific evidence it is superior to the vaccines. The
Cleveland Clinic did an extensive study to immunity from previous infections and
they concluded,

No vaccine needed for those who’ve had COVID-19, Cleveland
Clinic study says … During the study that was conducted on 52,238
employees in the Cleveland Clinic, the clinic says, ‘not a single incidence

of SARS-CoV-2 infection was observed in previously infected
participants with or without vaccination.’

https://www.wbtw.com/trackingthevaccine/no-vaccine-needed-for-those-whove-had-
covid-19-cleveland-clinic-study-says-2/).
A real harm to vaccinated individuals can be caused by the vaccine
itself.. The FDA has acknowledged a danger to males who take the vaccine and the
FDA Press Release dated August 23, 2021 stated that
Additionally, the FDA conducted a rigorous evaluation of the post-
authorization safety surveillance data pertaining to myocarditis and
pericarditis following administration of the Pfizer-BioNTech COVID-19
Vaccine and has determined that the data demonstrate increased risks,
particularly within the seven days following the second dose. The
observed risk is higher among males under 40 years of age compared to
females and older males. The observed risk is highest in males 12
through 17 years of age. Available data from short-term follow-up
suggest that most individuals have had resolution of symptoms.
However, some individuals required intensive care support. Information
is not yet available about potential long-term health outcomes. The
Comirnaty Prescribing Information includes a warning about these
risks.

https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-
vaccine
Under OSHA’s ETS males under 40 are required to take the Covid-19 vaccine
however the FDA acknowledged risk of danger is prevalent among that group. OSHA
is therefore putting employees in harm’s way by requiring the vaccine.
The Sixth Circuit Court of Appeals wrongly said that no vaccine is required by
the OSHA mandate. However it failed to acknowledge that those who do not get

vaccinated are fined as employers for each unvaccinated, and employees are fined by
requiring to pay for tests. These fines are in effect only when a person is not
vaccinated, therefor OSHA has created a rule that has the penalty and weight of law
without going through the required rule making and legislative process.
“The Senate voted [on December 8, 2021] to block President Joe Biden’s
vaccine mandate on private employers.” https://www.cnbc.com/2021/12/08/biden-
vaccine-mandate-senatevotes-to-overturn-O SHA-rule.html.
VI.
THE ETS VACCINATION, TESTING, AND FACE MASK MANDATE DO
NOT PROVIDE RELIGIOUS EXEMPTIONS

The OSHA mandate violates the deeply held religious beliefs of millions of
Americans without providing religious exemptions to employers or employees. For
example those whose religious beliefs prevent them from taking a vaccine that was
made with abortion fetal tissue, are not exempt. Also in regards with those with
beards and masks, the CDC recommended trimming beards, in violation of many
religious beliefs, a violation of the First Amendment. OSHA claims that they have
been given legislative authority from Congress to violate the religious beliefs of
employees in the workplace, this is a violation of the First Amendment “Free Exercise”
Clause. Congress cannot authorize violations of the First Amendment.

VII. OSHA’S ETS CREATES A “SEPARATE BUT EQUAL” WORK
ENVIRONMENT, THROUGH MEDICAL SEGREGATION

OSHA’S ETS creates a “separate but equal” work environment that segregates
healthy which cannot be upheld as trying to stop COVID-19. While medical
segregation is often used once a person is infected with a disease, the Supreme Court
of Pennsylvania has recently determined that segregating people who are otherwise
healthy is a violation of the extension to which government interest can apply.

The Pennsylvania Supreme Court overturned a statewide school mask
mandate (December 2021).
Reasoning that the Secretary “intended to, and actually [did], dictate
citizens’ standards of conduct within Pennsylvania’s schools” by
“requir[ing] all persons physically within a School Entity . . . to wear a
face covering regardless of COVID-19 infection…,” the Commonwealth
Court rejected the notion that the Mask Mandate was “mere guidance”
in pursuit of statutory interpretation, rather than a substantive rule
with “the force and effect of law.” Id. at *8-10.
***
The court also noted that Section 27.60(b) requires the Department to
“determine the appropriate disease control measure based upon the
disease or infection, the patient’s circumstances, the type of facility
available and any other available information relating to the patient and
the disease or infection.” Id. (quoting 28 Pa. Code § 27.60(b)).
***

In referring to “the patient’s circumstances,” the court found that this
language “specifically limits the authority and possible actions of the
Department [ ] to those individuals who have already contracted specific
diseases, not the general, uninfected population as a whole.” Id.
Likewise, the court reasoned that the subsection’s reference to available
facilities indicates a focus upon facilities for surveilling, segregating, or
quarantining individuals already known to have been exposed to a
disease or infection. Id.

Accordingly, the court concluded that this subsection could not provide
the broad authority asserted by the Secretary in support of ordering
“otherwise healthy Pennsylvanians attending, working in, or otherwise
visiting Pennsylvania’s” schools to wear masks. Id.

SUPREME COURT OF PENNSYLVANIA, MIDDLE DISTRICT, J-86-2021, JACOB
DOYLE CORMAN v. DISTRICT ACTING SECRETARY OF THE PENNSYLVANIA
DEPARTMENT OF HEALTH

A rule that goes beyond the scope of the Health and Human Services (HHS) to
stop a communicable disease cannot be enforced. Once the mandate for masks went
to people who are healthy the HHS went outside its legal parameters set forth by law
to stop the spread of communicable diseases.

Likewise the OSHA mandate must be struck down upon similar grounds.

By using medical segregation to create a barrier between those who are
vaccinated and the unvaccinated rather than those who are sick vs healthy OSHA has
exceeded its authority.
The civil rights act of 1964 deals with the atrocity of segregation and can be
thus reminded that medical segregation among otherwise healthy individuals would
pose a similar threat to civil liberties.
SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment
of the goods, services, facilities, and privileges, advantages, and
accommodations of any place of public accommodation, as defined in this
section, without discrimination or segregation. [It further clarified that
public accommodation includes] (1) any inn, hotel, motel, or other
establishment which provides lodging to transient guests, other than an
establishment located within a building which contains not more than

five rooms for rent or hire and which is actually occupied by the
proprietor of such establishment as his residence;
"(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain,
or other facility principally engaged in selling food for consumption on
the premises, including, but not limited to, any such facility located on
the premises of any retail establishment; or any gasoline station;
"(3) any motion picture house, theater, concert hall, sports arena,
stadium or other place of exhibition or entertainment; and
"(4) any establishment (A)(i) which is physically located within the
premises of any establishment otherwise covered by this subsection, or
(ii) within the premises of which is physically located any such covered
establishment, and (B) which holds itself out as serving patrons of such
covered establishment.

Civil Rights Act 1964 § 201 Pub.L. 88-352, 78 Stat. 241, enacted July 2, 1964.

This Civil Liberty is at currently under threat of being ignored by the executive
branch of government by adding punitive measures that act as law by never ending
executive orders and emergency declarations. As a time like this our fundamental
human rights must be upheld and this court must uphold the purpose of these
liberties and not allow the executive branch to remove these Civil Liberties. As this
court recently said, “[E]ven in a pandemic, the Constitution cannot be put away and
forgotten.” (592 U. S. ___ (2020) ROMAN CATHOLIC DIOCESE OF BROOKLYN,
NEW YORK v. ANDREW M. CUOMO, GOVERNOR OF NEW YORK ON
APPLICATION
FOR
INJUNCTIVE
RELIEF)
https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf
The medical segregation is a result of animus toward unvaccinated individuals
because both vaccinated and unvaccinated are able to contract Covid-19. “Animus”

defined as “a usually prejudiced and often spiteful or malevolent ill will harbored”
https://www.merriam-webster.com/dictionary/animus
The president’s own speeches show an animus for hatred of unvaccinated individuals.

False claims made by the administration, that say this is “a pandemic of the
unvaccinated”
…
or
that
his
patience
“is
running
thin.”
https://www.theatlantic.com/ideas/archive/2021/09/persuade-unvaccinatedprotect-un
vaccinated/620091/.
This Animus is currently being echoed by other members of the executive
branch, e.g., Secretary of Defense Austin, and other prominent civic leaders, e.g., New
York City’s outgoing mayor, Bill De Blasio in his Dec. 6, 2021, vaccine mandate says
employers, “may not allow any unvaccinated workers to come to their workplace,”
https://nypost.com/2021/12/27/bill-de-blasiosprivate-business-vaccine-mandate-takes
-effect-in-nyc/. This in effect establishes a local medical segregation outside of
infection for New York City. This segregation includes not allowing U.S. citizens to
eat in public restaurants without vaccine papers shown at the door. “Fines for non-
compliant businesses start at $1,000, and rise upon subsequent infractions, City
Hall’s
instructions
warn.”
https://nypost.com/2021/12/27/bill-deblasios-private-
business-vaccine-mandate-takes -effect-in-nyc/.
It is clear that animus is the cause for these types of measures because
unvaccinated individuals are treated separately not because of a current or past

infection but solely because of their vaccine status. This modern day segregation is
based on hatred of the unvaccinated.
Recently, some have called on hospitals to take less or slower care of the
unvaccinated; others call for their mistreatment. On August 26, the Toronto Star,
Canada’s largest newspaper, filled its front page with vitriolic and mocking comments
collected from social media toward people who have not taken experimental COVID
vaccines.

This hatred has continued as some propose removing jobs from the
unvaccinated, not because of current infection, or transmission of the virus, but
simply because that individual has chosen to exercise legal authority to medical
freedom and bodily autonomy.

These types of medical segregation regardless of whether someone has been
exposed to a disease or infection go outside of the legal authority given to OSHA from
Congress.

CONCLUSION

The Sixth Circuit’s ruling should be overruled. OSHA has exceeded its
authority; its mandate is arbitrary, capricious, and unconstitutional. OSHA has not
proved a “grave danger” exists, the standard to protect employees from “exposure” to
such dangers. The mandate relies on the CDC's administrative change to the “classic"
definition of vaccine as immunity, so vaccine now means treatment. This change
which has the impact of law was made without notice and comment. The ETS does
not prevent exposure to COVID-19 through vaccination, weekly testing, and mask
mandates. Therefore, the OSHA mandate does not meet the necessary clause of the
ETA requirements. This Court should approve the emergency applications for a stay
or Injunction in connection with OSHA’s COVID-19 Vaccination and Testing
Emergency Temporary Standard.
Respectfully submitted,
Arthur A. Schulcz, Sr.
Counsel of Record
Chaplains Counsel, PLLC
21043 Honeycreeper Pl.
Leesburg, VA 20175
(703) 645-4010
art@chaplainscounsel.com

Counsel for Amici Curiae

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