Court filing
21A244 032 Dec 30 2021 Main Document 20211230132243997 21A244 247 Bsac American Public Health Assoc (U.S.)
Filed December 30, 2021 in Scotus; one of 28 filings from this case.
Record facts
| Court | Supreme Court of the United States |
|---|---|
| Filed | 2021-12-30 |
Full text
Nos. 21A244 & 21A247
In the Supreme Court of the United States
IN RE MCP NO. 165, OCCUPATIONAL SAFETY & HEALTH
ADMINISTRATION, INTERIM FINAL
RULE: COVID-19 VACCINATION & TESTING,
86 FED. REG. 61402
(Caption continued on inside cover)
On Applications for Stay Pending Certiorari
MOTION OF AMERICAN PUBLIC HEALTH
ASSOCIATION, ASSOCIATION OF SCHOOLS AND
PROGRAMS OF PUBLIC HEALTH, 12 LEADING
PUBLIC HEALTH AND HEALTH CARE
ORGANIZATIONS, 30 DEANS OF LEADING ACADEMIC
PROGRAMS, AND 109 LEADING PUBLIC HEALTH
AND HEALTH POLICY SCHOLARS FOR LEAVE TO
FILE ATTACHED BRIEF AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
NEIL K. SAWHNEY
GUPTA WESSLER PLLC
100 Pine Street, Suite 1250
San Francisco, CA 94111
(415) 573-0336
DEEPAK GUPTA
Counsel of Record
GUPTA WESSLER PLLC
2001 K Street, NW
Suite 850 North
Washington, DC 20006
(202) 888-1741
deepak@guptawessler.com
Counsel for Amici Curiae
December 30, 2021
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, et al.,
Applicants,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et
al.,
Respondents.
OHIO, et al.,
Applicants,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et
al.,
Respondents.
-1-
American Public Health Association, Association of
Schools and Programs of Public Health, Academy of Man-
aged Care Pharmacy, Alliance of Community Health
Plans, American College of Osteopathic Emergency Phy-
sicians, American College of Preventative Medicine, Asso-
ciation of American Medical Colleges, College of Ameri-
can Pathologists, Council of State and Territorial Epide-
miologists, National Hispanic Medical Association, Na-
tional Medical Association, National Safety Council, Asso-
ciation of periOperative Registered Nurses, and National
League for Nursing, 30 deans of leading academic pro-
grams, and 109 leading public health and health policy
scholars respectfully move for leave to file the attached
brief as amici curiae in support of the federal respondents
and affirmance.
The proposed amici seek to file this brief to demon-
strate to the Court that the overwhelming public-health
and scientific consensus supports the Occupational Health
and Safety Administration’s rule requiring employers to
ensure that employees are either vaccinated against
COVID-19, or wear masks and undergo regular testing.
Through this brief, the proposed amici also seek to ex-
plain that well-established evidence, buttressed by more
recent, cutting-edge empirical studies during the pan-
demic, shows that vaccination can effectively reduce
SARS-CoV-2 exposure and transmission in workplace set-
tings. The proposed amici are concerned that staying en-
try of OSHA’s vaccinate-or-test standard will delay
measures needed to control the spread of COVID-19 and
will further endanger American workers.
Given the Court’s expedited consideration of this mat-
ter of significant national interest, the proposed amici
provided notice to all parties of their intent to file by email
-2-
on December 28, 2021. Counsel for the applicants in No.
21A244 stated that they do not oppose this motion, and
counsel for the applicants in No. 21A247 consent to it. The
federal respondents take no position on this motion.
CONCLUSION
For the foregoing reasons, the proposed amici re-
spectfully request that the Court grant leave to file the
attached amicus brief at the time submitted.
Respectfully submitted,
DEEPAK GUPTA
Counsel of Record
Gupta Wessler PLLC
2001 K Street, NW
Suite 850 North
Washington, DC 20006
(202) 888-1741
deepak@guptawessler.com
NEIL K. SAWHNEY
Gupta Wessler PLLC
100 Pine Street, Suite 1250
San Francisco, CA 94111
(415) 573-0336
December 30, 2021
Counsel for Amici Curiae
Nos. 21A244 & 21A247
In the Supreme Court of the United States
IN RE MCP NO. 165, OCCUPATIONAL SAFETY & HEALTH
ADMINISTRATION, INTERIM FINAL
RULE: COVID-19 VACCINATION & TESTING,
86 FED. REG. 61402
(Caption continued on inside cover)
On Applications for Stay Pending Certiorari
BRIEF OF AMICI CURIAE AMERICAN PUBLIC
HEALTH ASSOCIATION, ASSOCIATION OF SCHOOLS
AND PROGRAMS OF PUBLIC HEALTH, 12 OTHER
LEADING PUBLIC HEALTH AND HEALTH CARE
ORGANIZATIONS, 30 DEANS OF LEADING ACADEMIC
PROGRAMS, AND 109 LEADING PUBLIC HEALTH
AND HEALTH POLICY SCHOLARS IN SUPPORT OF
RESPONDENTS
NEIL K. SAWHNEY
GUPTA WESSLER PLLC
100 Pine Street, Suite 1250
San Francisco, CA 94111
(415) 573-0336
DEEPAK GUPTA
Counsel of Record
GUPTA WESSLER PLLC
2001 K Street, NW
Suite 850 North
Washington, DC 20006
(202) 888-1741
deepak@guptawessler.com
Counsel for Amici Curiae
December 30, 2021
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, et al.,
Applicants,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et
al.,
Respondents.
OHIO, et al.,
Applicants,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et
al.,
Respondents.
-i-
TABLE OF CONTENTS
Table of authorities .............................................................. ii
Interest of amici curiae and summary of argument ........ 1
Argument ................................................................................ 3
I.
COVID-19 is a particularly severe
danger in the workplace, and it poses
special risks for workers. ................................... 3
II.
Vaccines are the most effective tools for
reducing COVID-19 transmission and
infection in the workplace. ................................. 9
III.
OSHA properly determined that its
vaccinate-or-test standard is essential to
protect workers. ................................................ 14
Conclusion ............................................................................ 17
-ii-
TABLE OF AUTHORITIES
Cases
American Dental Association v. Martin,
984 F.2d 823 (7th Cir. 1993) ......................................... 15
South Bay United Pentecostal Church v.
Newsom,
140 S. Ct. 1613 (2020) .................................................... 16
Statutes and Regulations
19 C.F.R. § 1910.1030(b) ..................................................... 15
29 C.F.R. § 1910.1030 .......................................................... 15
29 U.S.C. § 655(c)(1) ............................................................ 14
COVID-19 Vaccination and Testing; Emergency
Temporary Standard,
86 Fed. Reg. 61402 (Nov. 5, 2021) ...................... passim
Other Authorities
Alberto J. Caban-Martinez et al., High Burden of
COVID-19 among Unvaccinated Law
Enforcement Officers and Firefighters,
medRxiv (preprint, posted Nov. 26, 2021) ........... 11, 12
Anika Singanayagam et al., Community
transmission and viral load kinetics of
SARS-CoV-2 Delta (B.1.617.2) variant in
vaccinated and unvaccinated individuals,
Lancet Infectious Diseases (2021) ............................... 11
-iii-
Annalee Yassi et al., Infection control,
occupational and public health measures
including mRNA-based vaccination against
SARS-CoV-2 infections to protect healthcare
workers from variants of concern: a 14-
month observational study using
surveillance data, 16 PLOS ONE (2021) ................... 13
Ashley Fowlkes et al., Centers for Disease
Control and Prevention, Effectiveness of
COVID-19 Vaccines in Preventing SARS-
CoV-2 Infection Among Frontline Workers
Before and During B.1.617.2 (Delta) Variant
Predominance, 70 Morbidity and Mortality
Weekly Rpt. 1167 (Aug. 27, 2021),
https://perma.cc/Q3EW-4GYM .................................... 12
Catherine H. Bozio et al., Centers for Disease
Control and Prevention, Laboratory-
Confirmed COVID-19 Among Adults
Hospitalized with COVID-19–Like Illness
with Infection-Induced or mRNA Vaccine-
Induced SARS-CoV-2 Immunity—Nine
States, January–September 2021, 70
Morbidity and Mortality Weekly Report 1539
(Oct. 29, 2021), https://perma.cc/RS9F-FPXJ ........... 10
Centers for Disease Control and Prevention,
Scientific Brief: SARS-CoV-2 Transmission
(May 7, 2021), https://perma.cc/RY72-9YAJ ................ 4
-iv-
Devan Hawkins, Letitia Davis, & David Kriebel,
COVID-19 deaths by occupation,
Massachusetts, March 1–July 31, 2020, 64
American Journal of Industrial Medicine 238
(2021) ................................................................................. 6
Earl Strum et al., Healthcare workers benefit
from second dose of COVID-19 mRNA
vaccine: Effects of partial and full
vaccination on sick leave duration and
symptoms (preprint, posted Nov. 21, 2021) ............... 12
Francis J. Mahoney et al., Progress Toward the
Elimination of Hepatitis B Virus
Transmission Among Health Care Workers
in the United States, 157 Archives of Internal
Med. 2601 (1997) ............................................................ 15
Hans R. House et al., Agricultural workers in
meatpacking plants presenting to an
emergency department with suspected
COVID-19 infection are disproportionately
Black and Hispanic, 28 Academic
Emergency Medicine [Special Issue:
(In)Equity in EM] 1012 (2021) ....................................... 9
Heather M. Scobie et al., Centers for Disease
Control and Prevention, Monitoring
Incidence of COVID–19 Cases,
Hospitalizations, and Deaths, by
Vaccination Status—13 U.S. Jurisdictions,
April 4–July 17, 2021, 70 Morbidity and
Mortality Weekly Report 1284 (Sept. 10,
2021), https://perma.cc/QD6J-P24N ........................... 10
-v-
Kaiser Family Foundation, Does The Public
Want To Get A COVID-19 Vaccine (Sept.
2021) ................................................................................ 13
Kevin P. Fennelly, Particle sizes of infectious
aerosols: Implications for infection control, 8
Lancet Respiratory Med. 914 (2020) ............................. 4
Kristin J. Cummings et al., Disparities in
COVID-19 Fatalities among Working
Californians, medRxiv (preprint, posted
Nov. 11, 2021) ................................................................... 5
Lauren Hirsch, Days away from its deadline,
Tyson Foods reaches a 96 percent
vaccination rate, N.Y. Times (Oct. 26, 2021),
https://perma.cc/B2EU-RSU6 ..................................... 13
Lok Wong Samson, et al., Associations Between
County-level Vaccination Rates and COVID-
19 Outcomes Among Medicare Beneficiaries,
Rep. No. HP-2021-23, Office of the Assistant
Secretary for Planning and Evaluation, U.S.
Department of Health and Human Services
(Oct. 2021), https://perma.cc/PN3Y-8J32 ................... 10
Mark W. Tenforde, Wesley H. Self, Katherine
Adams et al., Association Between mRNA
Vaccination and COVID-19 Hospitalization
and Disease Severity, 326 JAMA 2043 (2021) ........... 10
North Carolina Department of Health and
Human Services, COVID-19 Clusters in
North Carolina, https://perma.cc/SGW8-
USTM (last updated Nov. 22, 2021) .............................. 4
-vi-
Oregon Health Authority, COVID-19 Weekly
Report (Nov. 17, 2021),
https://perma.cc/4VFR-V2BR ....................................... 6
Po Ying Chia et al., Virological and serological
kinetics of SARS-CoV-2 Delta variant
vaccine-breakthrough infections: a multi-
center cohort study, medRxiv (preprint,
posted July 31, 2021) ..................................................... 11
Pouran D. Faghri et al., COVID-19 Pandemic:
What has work got to do with it?, 63 Journal
of Occupational and Environmental Medicine
e245 (2021) ........................................................................ 9
Ross J. Harris et al., Effect of Vaccination on
Household Transmission of SARS-CoV-2 in
England, New England Journal of Medicine
(Aug. 19, 2021), https://perma.cc/MP8W-
DSPM .............................................................................. 11
Seyed M. Moghadas et al., The impact of
vaccination on COVID-19 outbreaks in the
United States, National Institute of Health
(preprint, revised Jan. 2, 2021) ................................ 9, 10
Shawn Hubler, ‘Mandates Are Working’:
Employer Ultimatums Lift Vaccination
Rates, So Far, N.Y. Times (Sept. 30, 2021) ................ 13
-vii-
Staff of House Select Subcommittee on the
Coronavirus Crisis, 117th Congress,
Memorandum re: Coronavirus Infections
and Deaths Among Meatpacking Workers at
Top Five Companies Were Nearly Three
Times Higher Than Previous Estimates
(Committee Print 2021),
https://perma.cc/ZAC7-264F ..................................... 7, 9
Sumehda Gupta, et al., Vaccinations Against
COVID-19 May Have Averted Up to 140,000
Deaths in the United States, 40 Health
Affairs 1465 (2021) ......................................................... 10
Tamara Pilishvili et al., Effectiveness of mRNA
Covid-19 Vaccine among U.S. Health Care
Personnel, New England Journal of Medicine
(Sept. 22, 2021) ......................................................... 12, 13
Tiana N. Rogers et al., Racial Disparities in
COVID-19 Mortality Among Essential
Workers in the United States, 12 World
Medical & Health Policy (Special Issue:
Symposium on Coronavirus 2019: Social
Determinants, Disparities, and Impacts) 1
(2020) ................................................................................. 8
Ting-Yu Yeh & Gregory P. Contreras, Full
vaccination against COVID-19 suppresses
SARS-CoV-2 delta variant and spike gene
mutation frequencies and generates
purifying selection pressure, medRxiv
(preprint, posted Aug. 10, 2021) .................................. 14
-viii-
Washington State Department of Health,
Statewide COVID-19 Outbreak Report (2021),
https://perma.cc/S5KQ-CU7N ....................................... 6
Yea-Hung Chen et al., Excess mortality
associated with the COVID-19 pandemic
among Californians 18-65 years of age, by
occupational sector and occupation: March
through November 2020, 16 PLOS ONE
(2021) ......................................................................... 5, 6, 8
Zuelma Contreras et al., Industry Sectors
Highly Affected by Worksite Outbreaks of
Coronavirus Disease, Los Angeles County,
California, USA, March 19–September 30,
2020, 27 Emerging Infectious Diseases 1769
(2021) ......................................................................... 5, 7, 8
-1-
INTEREST OF AMICI CURIAE AND
SUMMARY OF ARGUMENT1
Even before the Delta and Omicron variants, COVID-
19 had profoundly transformed American working life.
The virus has shut down workplaces, triggered significant
workplace restrictions, infected millions of employees, and
sent hundreds of thousands to the hospital or the morgue.
And particular workplaces, such as meatpacking plants,
have repeatedly emerged as our nation’s worst hotspots,
bringing illness and death to those who toil in them.
Recent weeks have made clear that the pandemic is far
from over. As the Sixth Circuit observed below, “the virus
rages on, mutating into different variants, and posing new
risks” to employers and employees alike. Ohio App. for
Stay, App.A-4. Still, in the past two years, we have devel-
oped two critical tools—vaccination and testing—to effec-
tively prevent the virus’s spread. In light of these develop-
ments, and exercising its responsibility to protect the
health of America’s workers and the safety of its work-
places, OSHA issued an emergency temporary standard
requiring covered employers to ensure that employees are
either vaccinated against COVID-19, or wear masks and
undergo regular testing. See COVID-19 Vaccination and
Testing; Emergency Temporary Standard, 86 Fed. Reg.
61402 (Nov. 5, 2021).
The Sixth Circuit correctly held that OSHA acted well
within its statutory authority in issuing its vaccinate-or-
test standard. See App.A-9–17. This brief, on behalf of
1 All parties have consented to the filing of this brief. No counsel
for a party authored this brief in whole or in part and no person other
than amici and their counsel made a monetary contribution to its
preparation or submission.
-2-
many of the nation’s leading public-health and healthcare
scholars and professional organizations, explains how that
rule also reflects the most recent scientific evidence and
research. And it also directly responds to the petitioners’
repeated assertions that COVID-19 is “not an occupa-
tional danger”—that, in other words, “the COVID-19-re-
lated risk presented by work is the same risk that arises
from human interaction more broadly.” Ohio App. for
Stay, 12; see, e.g., id. at 9 (arguing that COVID-19 is a dan-
ger “presented by human life generally,” not by work).
Nothing could be further from the truth. The evidence
is clear: The nature of both the virus and in-person work
makes the workplace particularly at risk for COVID-19
transmission and infection. Because it is an airborne path-
ogen primarily transmitted through the inhalation of
small respiratory particles, SARS-CoV-2 spreads espe-
cially well between people who must spend hours together
in close quarters indoors.2 That accurately describes the
wide range of America’s workplaces—from food-pro-
cessing plants and car factories to retail stores and offices.
The science is also clear about the best way to combat
COVID-19’s spread—vaccines. All the evidence shows
that vaccination significantly reduces the likelihood that
workers will transmit COVID-19 and infect other work-
ers, especially when combined with regular testing and
other mitigation measures. And vaccination drastically
reduces the chance of hospitalization and death. For these
reasons, numerous employers have already imposed
2 “SARS-CoV-2” refers to the virus and “COVID-19” refers to the
disease it causes. For the reader’s convenience, however, this brief
(like much of the scientific literature) will often refer to “COVID-19”
to mean both the virus and the disease.
-3-
vaccine requirements, which have engendered widespread
vaccination uptake and have consistently proven effective.
Amici curiae file this brief to explain that OSHA’s vac-
cinate-or-test standard reflects this overwhelming scien-
tific and public-health consensus. Amici are a diverse
group of scholars and professional organizations of public
health and healthcare practitioners who share a deep com-
mitment to the health and safety of America’s workers.
They include more than one hundred of the country’s lead-
ing educators, scholars, and public health and healthcare
professionals, as well as 30 deans and associate deans of
leading academic programs across the United States. The
individual amici are joined by 14 of the country’s leading
public health and healthcare organizations, which collec-
tively represent tens of thousands of public health and
healthcare practitioners.
ARGUMENT
I.
COVID-19 is a particularly severe danger in the
workplace, and it poses special risks for workers.
Workers, and the workplaces in which they work, are
particularly at risk of COVID-19 infection. The mechanics
of how the virus is transmitted should make this proposi-
tion self-evident. SARS-CoV-2 is an airborne virus that
spreads through an infected person’s respiratory parti-
cles. See 86 Fed. Reg. at 61409.3 As OSHA explains in its
rule, airborne transmission may occur “when people are in
close contact with one another in indoor spaces,” particu-
larly “in indoor spaces without adequate ventilation where
small respiratory particles are able to remain suspended
in the air and accumulate.” Id. High risk exposure and
3 All subsequent citations to the OSHA rule’s preamble are la-
beled “Pmbl.”
-4-
infection can occur with relatively brief exposure (less
than 15 minutes), and “employees can be exposed to the
virus in almost any work setting.” Id. at 61409, 61411–12.4
Whether working in cubicles clustered in an office build-
ing or shoulder-to-shoulder in a food-processing plant,
employees “share common areas like hallways, restrooms,
lunch rooms[,] and meeting rooms.” Id. It is little surprise,
then, that indoor workplace environments—where indi-
viduals work in close contact with other employees for
many hours each day—are particularly susceptible to the
risk of a COVID-19 outbreak as compared to other set-
tings.
That is precisely what the public-health evidence has
shown. OSHA’s vaccinate-or-test standard relies on nu-
merous empirical studies that have found that workers in
various occupational sectors have had COVID-19 at sub-
stantially higher rates than their surrounding communi-
ties. See, e.g., Pmbl.61412–14 (citing studies). State-level
data confirm that the workplace environment often facili-
tates and accelerates the spread of the disease—in North
Carolina, for example, nearly 80% of COVID-19 “clusters”
in the state, and nearly 40% of deaths, have been work-
place-related.5 Workers in a wide range of workplaces—
like grocery stores, fitness facilities, schools, corrections
and detention facilities, and others—experienced up to
4 See also, e.g., Centers for Disease Control and Prevention, Sci-
entific
Brief:
SARS-CoV-2
Transmission
(May
7,
2021),
https://perma.cc/RY72-9YAJ; Kevin P. Fennelly, Particle sizes of in-
fectious aerosols: Implications for infection control, 8 Lancet Respir-
atory Med. 914, 914–24 (2020), https://perma.cc/9XHX-FNFW.
5 See N.C. Dep’t of Health and Human Servs., COVID-19 Clusters
in
North
Carolina
(last
updated
Nov.
22,
2021),
https://perma.cc/SGW8-USTM; see Pmbl.6412.
-5-
five times greater rates of infection than the general pub-
lic. Id. at 61414 (citing studies).
Moreover, “larger employers are more likely to have
many employees gathered in the same location” and
therefore more likely to have “larger,” “longer” out-
breaks.6 For this reason, OSHA’s decision to focus on em-
ployers with more than 100 employees is not just reason-
able—it is empirically supported. See App.A-29–30.
The increased risk of viral transmission in workplaces
has had a devastating effect on workers. That workers
who are required to work in person experience dispropor-
tionate COVID-19 mortality rates is empirically well-es-
tablished.7 Indeed, substantial evidence confirms links be-
tween in-person occupational sectors and “high excess
mortality during the pandemic.”8 Evidence from Califor-
nia, for instance, shows that “excess mortality rose
sharply in several essential sectors” where “[i]n-person
essential workers” were “not protected by shelter-in-place
policies,” suggesting that the rise in mortality is associ-
ated with in-person work.9 Data from other states
6 Id. at 61512; see, e.g., Zuelma Contreras et al., Industry Sectors
Highly Affected by Worksite Outbreaks of Coronavirus Disease, Los
Angeles County, California, USA, March 19–September 30, 2020, 27
Emerging Infectious Diseases 1769 (2021), https://perma.cc/7RTS-
KDRU (“[F]acilities employing more on-site staff had larger and
longer outbreaks.”).
7 See, e.g., Kristin J. Cummings et al., Disparities in COVID-19
Fatalities among Working Californians, medRxiv (preprint, posted
Nov. 11, 2021), https://perma.cc/9V7C-WALA.
8 Yea-Hung Chen et al., Excess mortality associated with the
COVID-19 pandemic among Californians 18-65 years of age, by oc-
cupational sector and occupation: March through November 2020, 16
PLOS ONE at 2 (2021), https://perma.cc/AZK2-QZZG.
9 Id. at 8.
-6-
similarly finds a statistically significant higher excess
mortality rate for workers who predominately work in
person.10
These empirical findings are consistent with a “grow-
ing body of literature demonstrating occupational risks
for SARS-CoV-2 infection.”11 And they dovetail with
OSHA’s determination that workers who have no choice
but to work in person—and who have “little ability to limit
contact with . . . coworkers, clients, members of the public,
patients, and others”—face increased risk of illness, hos-
pitalization, and death as a result of COVID-19.
Pmbl.614,08. In fact, public-health scholars have con-
cluded that “there would have been 57% fewer COVID-19
deaths” if, among other factors, “all individuals had the
COVID-19 mortality associated with the safest … occupa-
tional position”—“non-essential, telework.”12 The evi-
dence thus supports OSHA’s decision to focus its vac-
cinate-or-test standard on in-person workers, and to ex-
empt employees who work alone, remotely, or exclusively
outdoors. See Pmbl.61419.
The meatpacking industry’s experience with COVID-
19 is a particularly instructive—and well-studied—
10 See Oregon Health Auth., COVID-19 Weekly Report at 79–85
(Nov. 17, 2021), https://perma.cc/4VFR-V2BR; Devan Hawkins,
Letitia Davis & David Kriebel, COVID-19 deaths by occupation, Mas-
sachusetts, March 1–July 31, 2020, 64 Am. J. of Indust. Med. 238
(2021), https://perma.cc/E3L7-R6DN; Washington State Dep’t of
Health,
Statewide
COVID-19
Outbreak
Report
(2021),
https://perma.cc/S5KQ-CU7N.
11 Chen, supra n.8, at 7.
12 Ellicott C. Matthay et al., Contributions of occupation charac-
teristics and educational attainment to racial/ethnic inequities in
COVID-19 mortality, medRxiv at 3 (preprint, posted Oct. 30, 2021),
https://perma.cc/476F-Q39C.
-7-
example of how the virus can sweep through workplaces.
Disease spread in meatpacking plants has been so severe
that, following “multiple reports of widescale coronavirus
outbreaks within and around meatpacking facilities, the
[Congressional] Select Subcommittee initiated an investi-
gation into coronavirus infections and deaths in meatpack-
ing plants.”13 Data from “five of the largest meatpacking
conglomerates, which represent over 80 percent of the
market for beef and over 60 percent of the market for pork
in the United States,” indicated that certain plants had
nearly half of their workforce contract COVID-19 in the
first year of the pandemic—multiples higher than the per-
centage of the U.S. population that had contracted the dis-
ease at that time.14
That food processing workers are particularly at risk
of transmission might not come as a surprise. They endure
“long shifts in enclosed facilities” shared “with hundreds,
if not thousands, of other workers,” with “collective[]”
breaks in the “same” “common areas,” in “close quarters”
on the “facility floor,” “unable to socially distance by vir-
tue of the production line layout[].” Id. at 4. But while the
“high-density, fast-paced environments of food production
facilities pose a barrier to proper adherence to COVID-19
prevention measures, such as social distancing . . . and
cleaning of shared spaces,” “these challenges are not
unique to food production facilities.”15
13 Staff of H. Select Subcomm. on the Coronavirus Crisis, 117th
Cong., Memorandum re: Coronavirus Infections and Deaths Among
Meatpacking Workers at Top Five Companies Were Nearly Three
Times Higher Than Previous Estimates at 1 (Comm. Print 2021),
https://perma.cc/ZAC7-264F.
14 Id. at 1–2.
15 Contreras, supra n.6, at 1769.
-8-
Like those in food production and meatpacking, work-
ers in “other sectors” encounter “distinctive” factors re-
lated to in-person work, such as “increased contact with
the public” or “shared equipment[] and common spaces,”
that “similarly increase the risk of COVID-19 worksite ex-
posure.”16 High COVID-19 case incidence rates have oc-
curred in the workforces of many important economic sec-
tors—in manufacturing, transportation and warehousing,
and wholesale trade. “High-density environments,” “close
contact in production lines, long shifts, shared equip-
ment[] and common spaces,” “shared transportation,”
“poor ventilation and sanitation,” and “increased contact
with the public” all contribute to “particular[] risk for
COVID-19 exposure.”17
The COVID-19 pandemic has also pulled back the cur-
tain on the way that workplace conditions and risks can
exacerbate the existing health disparities between white
workers and workers of color. The early months of the
pandemic sickened and killed people of color in the United
States at higher rates than non-Hispanic white people.18
This is not only a result of underlying economic and health
disparities but is also because people of color occupy a dis-
proportionately high number of jobs that qualify as
16 Id. at 1769, 1772.
17 Id. at 1770, 1772–73.
18 See Tiana N. Rogers et al., Racial Disparities in COVID-19
Mortality Among Essential Workers in the United States, 12 World
Med. & Health Pol’y (Special Issue: Symposium on Coronavirus 2019:
Social
Determinants,
Disparities,
and
Impacts)
1
(2020),
https://perma.cc/AJW8-C8AV; Chen, supra n.8, at 7 (“Excess mortal-
ity in high-risk occupational sectors was evident across all race and
ethnic groups in stratified analyses, with notably high relative and
per-capita excess in Latino and Black Californians.”).
-9-
“essential work” or otherwise require them to work in per-
son.19
Regardless of race or socioeconomic status, the evi-
dence is clear: In-person workers “are at greater risk of
SARS-CoV-2 infection” because their “working conditions
bring[] them into closer contact with those already in-
fected,” and are “at greater risk of more severe infections
when exposed to SARS-CoV-2.”20 The workplace, in other
words, presents particularized and special dangers of
COVID-19 transmission and infection. OSHA was there-
fore right to determine that the virus poses an especially
grave danger to America’s in-person workers and to act
quickly and decisively to address that grave danger.
II. Vaccines are the most effective tools for reducing
COVID-19 transmission and infection in the
workplace.
There is no better way to prevent the transmission,
morbidity, and mortality of COVID-19 than vaccination.
The scientific evidence supporting this conclusion, too, is
clear. As OSHA explained, numerous large-scale studies
have confirmed the “power of vaccines to safely protect in-
dividuals” from transmission and infection of COVID-19,
including from the Delta variant. Pmbl.614117–19, 61431.21
19 See also, e.g., Contreras, supra n.6, at 1773; 117th Cong., Mem-
orandum re: Coronavirus, supra n.13, at 8; Hans R. House et al., Ag-
ricultural workers in meatpacking plants presenting to an emer-
gency department with suspected COVID-19 infection are dispropor-
tionately Black and Hispanic, 28 Acad. Emergency Med. [Special Is-
sue: (In)Equity in EM] 1012 (2021), https://perma.cc/8CNQ-T6QV.
20 Pouran D. Faghri et al., COVID-19 Pandemic: What has work
got to do with it?, 63 J. of Occupational & Envtl. Med. e245, e247
(2021), https://bit.ly/3Eu2q1f.
21 See, e.g., Seyed M. Moghadas et al., The impact of vaccination
on COVID-19 outbreaks in the United States, Nat’l Inst. of Health at
-10-
Unvaccinated adults of prime working age (18 to 49 years)
are 15.2 times more likely to be hospitalized and 17.2 times
more likely to die of COVID-19 than fully vaccinated peo-
ple in the same age range.22 And so-called “natural immun-
ity” is no substitute: Vaccines are five times more effective
in preventing serious illness and hospitalization than a
previous COVID-19 infection.23
Although vaccines are generally effective at prevent-
ing infection, hospitalization, and death, they are
2 (preprint, revised Jan. 2, 2021), https://perma.cc/9MRU-PKBB
(finding that widespread COVID-19 vaccination has made a “substan-
tial impact on mitigating COVID-19 outbreaks”); Lok Wong Samson,
et al., Associations Between County-level Vaccination Rates and
COVID-19 Outcomes Among Medicare Beneficiaries, Rep. No. HP-
2021-23, Office of the Assistant Secretary for Planning and Evalua-
tion, U.S. Dep’t of Health and Hum. Servs., at 1 (Oct. 2021),
https://perma.cc/PN3Y-8J32 (estimating reduction of approximately
265,000 COVID-19 infections and 39,000 deaths among Medicare ben-
eficiaries); see also Sumehda Gupta, et al., Vaccinations Against
COVID-19 May Have Averted Up to 140,000 Deaths in the United
States, 40 Health Affs. 1465 (2021), https://perma.cc/ZA2E-T3C8;
Mark W. Tenforde et al., Association Between mRNA Vaccination
and COVID-19 Hospitalization and Disease Severity, 326 JAMA
2043, 2048 (2021) https://perma.cc/B3R7-X7F6.
22 Heather M. Scobie et al., CDC, Monitoring Incidence of
COVID–19 Cases, Hospitalizations, and Deaths, by Vaccination Sta-
tus—13 U.S. Jurisdictions, April 4–July 17, 2021, 70 Morbidity &
Mortality Weekly Rpt. 1284 (Sept. 10, 2021), https://perma.cc/QD6J-
P24N; see Pmbl.61418.
23 Catherine H. Bozio et al., CDC, Laboratory-Confirmed
COVID-19 Among Adults Hospitalized with COVID-19–Like Illness
with Infection-Induced or mRNA Vaccine-Induced SARS-CoV-2 Im-
munity—Nine States, January–September 2021, 70 Morbidity &
Mortality Weekly Rpt. 1539 (Oct. 29, 2021), https://perma.cc/RS9F-
FPXJ.
-11-
particularly so in the workplace context. Extensive evi-
dence has shown that vaccination “reduce[s] the presence
and severity of COVID-19 cases in the workplace,” and ef-
fectively “ensur[es]” that workers are protected from be-
ing infected and infecting others. Pmbl.61434, 61520,
61528–29 (citing studies). This is true for two straightfor-
ward reasons. First, vaccinated employees are in the ag-
gregate significantly less likely to bring the virus into the
workplace. Pmbl.61418–19; see also, e.g., Pmbl.61403,
61418–19, 61435, 61438, 61528–29. Second, even those vac-
cinated workers who get infected are far less likely to
spread the virus. See id. Although it is true that COVID-
19 vaccines, like other vaccines, do not completely prevent
transmission of COVID-19 to others, growing evidence
shows that they significantly decrease it.24
A recent study of COVID-19 transmission and infec-
tion among law enforcement officers, firefighters, and
other first responders highlights the vital need for vac-
cination of workers. The study found that the incidence of
COVID-19 in unvaccinated firefighters was five times
higher than in vaccinated firefighters—and twenty times
higher for unvaccinated law enforcement officers.25 On
24 See, e.g., Anika Singanayagam et al., Community transmission
and viral load kinetics of SARS-CoV-2 Delta (B.1.617.2) variant in
vaccinated and unvaccinated individuals, Lancet Infectious Dis-
eases (2021), https://perma.cc/A7K9-WUP2 (vaccinated individuals
spread Delta to the unvaccinated at twice the rate as to the vac-
cinated); Po Ying Chia et al., Virological and serological kinetics of
SARS-CoV-2 Delta variant vaccine-breakthrough infections: a
multi-center cohort study, medRxiv (preprint, posted July 31, 2021),
https://perma.cc/JQ3E-YS2V (shorter infectious period for vac-
cinated individuals); Ross J. Harris et al., Effect of Vaccination on
Household Transmission of SARS-CoV-2 in England, New Eng. J.
of Med. (Aug. 19, 2021), https://perma.cc/MP8W-DSPM.
25 Alberto J. Caban-Martinez et al., High Burden of COVID-19
-12-
average, according to the study, first responders were sick
with COVID-19 for over two weeks and missed close to 40
hours of work due to their illness. These findings, the au-
thors wrote, “suggest that state and local governments
with large numbers of unvaccinated first responders may
face major disruptions in their workforce due to COVID-
19 illness” absent meaningful vaccination-and-testing re-
quirements.26
Other research during the COVID-19 pandemic has
confirmed the efficacy of vaccination against workplace
transmission and infection. A study of frontline workers
from December 2020 through August 2021 concluded that
“full vaccination with COVID-19 vaccines was 80% effec-
tive in preventing” COVID-19 infection, “further affirm-
ing the highly protective benefit of full vaccination up to
and through the most recent summer U.S. COVID-19 pan-
demic waves.”27 And studies of vaccination in health-care
workers have shown that vaccinated employees are not
just less likely to be infected—on average, they miss fewer
days of work and experience milder symptoms if they are
infected.28
among Unvaccinated Law Enforcement Officers and Firefighters,
medRxiv
at
6
(preprint,
posted
Nov.
26,
2021),
https://perma.cc/SW9H-864Z.
26 Id. at 4.
27 Ashley Fowlkes et al., CDC, Effectiveness of COVID-19 Vac-
cines in Preventing SARS-CoV-2 Infection Among Frontline Work-
ers Before and During B.1.617.2 (Delta) Variant Predominance, 70
Morbidity & Mortality Weekly Rpt. 1167 (Aug. 27, 2021),
https://perma.cc/Q3EW-4GYM.
28 See Earl Strum et al., Healthcare workers benefit from second
dose of COVID-19 mRNA vaccine: Effects of partial and full vaccina-
tion on sick leave duration and symptoms (preprint, posted Nov. 21,
2021), https://perma.cc/4ZL6-G6HV; see also, e.g., Tamara Pilishvili
-13-
Given the compelling data, it is not surprising that
many employers with experience dealing with widespread
COVID-19 outbreaks have recognized the need to require
vaccination. To return to the meatpacking industry, as
noted above, meatpacking facilities suffered particularly
extensive and severe COVID-19 outbreaks in the early
days of the pandemic. Several major employers responded
with vaccine requirements covering their entire work-
force, which have proved highly effective at achieving ad-
herence. Less than three months after Tyson Foods man-
dated coronavirus vaccines for all its 120,000 U.S. work-
ers, for example, more than 96 percent are vaccinated.29
This is true across industries. As OSHA explained in its
rule, “[e]vidence shows that mandating vaccination has
proven to be an effective method for increasing vaccina-
tion rates” and that “[s]ignificant numbers of workers
would get vaccinated if their employers required it.”
Pmbl.61435 (citing Kaiser Family Found., Does The Pub-
lic Want To Get A COVID-19 Vaccine (Sept. 2021)). In-
deed, “many workers who were vaccinated over the last
four months were motivated by their employer requiring
vaccination.” Id.; see, e.g., Shawn Hubler, ‘Mandates Are
Working’: Employer Ultimatums Lift Vaccination Rates,
So
Far,
N.Y.
Times
(Sept.
30,
2021),
et al., Effectiveness of mRNA Covid-19 Vaccine among U.S. Health
Care
Personnel,
N.
Eng.
J.
Med.
(Sept.
22,
2021),
https://perma.cc/W7ZS-DE23; Annalee Yassi et al., Infection control,
occupational and public health measures including mRNA-based
vaccination against SARS-CoV-2 infections to protect healthcare
workers from variants of concern: a 14-month observational study
using
surveillance
data,
16
PLOS
ONE
(2021),
https://perma.cc/NJF9-QS3R.
29 Lauren Hirsch, Days away from its deadline, Tyson Foods
reaches a 96 percent vaccination rate, N.Y. Times (Oct. 26, 2021),
https://perma.cc/B2EU-RSU6.
-14-
https://perma.cc/JE86-3T69 (observing that when em-
ployers require workers to get vaccinated, vaccination
rates increase to over 90 percent).
Finally, it should not be overlooked that vaccination
in the workplace reduces the opportunities for the virus to
continue to mutate by reducing transmission and length of
infection—meaning that vaccination could prevent future,
more deadly, variants of COVID-19.30 The escalating
global concerns about the recently discovered Omicron
variant serve as a timely reminder that vaccination is an
indispensable tool that not only protects worker health
and safety, but can prevent widescale social and economic
disruption.
III. OSHA properly determined that its vaccinate-or-
test standard is essential to protect workers.
The Occupational Safety and Health Act of 1970 allows
OSHA to issue emergency temporary standards when the
agency “determines (A) that employees are exposed to
grave danger from exposure to substances or agents de-
termined to be toxic or physically harmful or from new
hazards, and (B) that such emergency standard is neces-
sary to protect employees from such danger.” 29 U.S.C.
§ 655(c)(1). As explained above, the public-health evidence
makes abundantly clear that both criteria are satisfied
here. Because they work in person, employees covered by
the standard are subject to severe and particularized risk
of illness, hospitalization, and death as a result of COVID-
30 See Ting-Yu Yeh & Gregory P. Contreras, Full vaccination
against COVID-19 suppresses SARS-CoV-2 delta variant and spike
gene mutation frequencies and generates purifying selection pres-
sure,
medRxiv
at
2
(preprint,
posted
Aug.
10,
2021),
https://perma.cc/JMB2-VUMF (study of 16 countries finding that
“the vaccination coverage rate is inversely correlated to the mutation
frequency of the . . . SARS-CoV-2 delta variants”).
-15-
19. And the empirical data collected since the release of
COVID-19 vaccines indicates that vaccination is by far the
most effective tool to prevent further transmission and in-
fection.
Given the evidence, OSHA reasonably decided that its
vaccinate-or-test standard was necessary to address the
grave danger that COVID-19 poses to American workers.
This decision is not unprecedented: The agency “has long
recognized the importance of vaccinating workers against
preventable illnesses to which they may be exposed on the
job.” Pmbl.61433–34. In 1991, under President George
H.W. Bush, OSHA adopted what is known as the “blood-
borne pathogens standard” to prevent the transmission of
hepatitis B, hepatitis C, and HIV. See 29 C.F.R.
§ 1910.1030. As part of that standard, the agency required
employers to make the hepatitis B vaccine available to em-
ployees in any workplace with potential exposure to blood-
borne pathogens. See id. § 1910.1030(b); see generally Am.
Dental Ass’n v. Martin, 984 F.2d 823, 824 (7th Cir. 1993).
That standard resulted in a significant increase in the
number of employees accepting hepatitis B vaccination,
and “a dramatic decline in the incidence of HBV infec-
tions” among covered workers.31 The bloodborne patho-
gens standard addressed viruses whose potential trans-
mission “between workers is minimal in comparison to the
SARS-CoV-2 virus; Hepatitis B and HIV are transmitted
through blood and certain body fluids, whereas the SARS-
CoV-2 virus spreads through respiratory droplets that can
travel
through
the
air
from
worker-to-worker.”
Pmbl.61436. Therefore, OSHA determined that, in the
31 See Francis J. Mahoney et al., Progress Toward the Elimina-
tion of Hepatitis B Virus Transmission Among Health Care Workers
in the United States, 157 Archives of Internal Med. 2601, 2604 (1997),
https://perma.cc/E289-HKD9.
-16-
case of COVID-19, merely offering vaccination to workers
would be insufficient. To protect against workplace spread
of this rapidly transmitted, airborne virus, it was neces-
sary to require vaccination or regular testing and mask-
ing. See id.
That determination warrants deference. As Chief Jus-
tice Roberts has recognized, the “precise question” of
what restrictions should be imposed during “the pandemic
is a dynamic and fact-intensive matter subject to reasona-
ble disagreement.” S. Bay United Pentecostal Church v.
Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., con-
curring in denial of certiorari). Congress has entrusted
OSHA with the responsibility to protect workplace safety
and health, particularly when workers are faced with a
grave danger—which the COVID-19 pandemic indisputa-
bly is. Based on an extensive administrative record replete
with public-health and scientific evidence showing that
vaccination is the most effective tool to prevent COVID-
19 transmission and infection in the workplace, the agency
issued its vaccinate-or-test standard. Given this careful
and deliberative process, OSHA’s rule “should not be sub-
ject to second-guessing by an ‘unelected federal judiciary,’
which lacks the background, competence, and expertise to
assess public health.” Id. at 1614. Even more so when, as
here, the agency adopted its rule to deal with “changing
facts on the ground.” See id.
And the facts on the ground continue to change. In the
last month, countries around the world have once again
closed their borders and instituted lockdowns in response
to the threat of the new, more transmissible Omicron
variant. Cases are once again rising, and increased
hospitalizations and deaths are likely to follow. The public-
health evidence has uniformly concluded that vaccines are
the primary way to prevent the rise and spread of such
-17-
variants, thereby protecting our nation’s workplaces and
workers. Because OSHA’s vaccinate-or-test standard
appropriately reflects this overwhelming scientific
consensus, this Court should uphold it.
CONCLUSION
The decision below should be affirmed.
Respectfully submitted,
DEEPAK GUPTA
Counsel of Record
Gupta Wessler PLLC
2001 K Street, NW
Suite 850 North
Washington, DC 20006
(202) 888-1741
deepak@guptawessler.com
NEIL K. SAWHNEY
Gupta Wessler PLLC
100 Pine Street, Suite 1250
San Francisco, CA 94111
(415) 573-0336
December 30, 2021
Counsel for Amici Curiae
-App.1-
APPENDIX
Institutional Amici Curiae
American Public Health Association. APHA cham-
pions the health of all people and all communities;
strengthens the profession of public health; shares the lat-
est research and information; promotes best practices;
and advocates for public health issues and policies
grounded in scientific research. APHA represents more
than 22,000 individual members and is the only organiza-
tion that combines a nearly 150-year perspective, a broad-
based member community, and the ability to influence
federal policy to improve the public’s health.
Association of Schools and Programs of Public
Health. ASPPH is the voice of accredited academic public
health, representing more than 135 schools and programs
accredited by the Council on Education for Public Health.
The Association seeks improved health for everyone, eve-
rywhere by strengthening the capacity of its members.
Academy of Managed Care Pharmacy. AMCP is the
professional association leading the way to help patients
get the medications they need at a cost they can af-
ford. AMCP’s diverse membership of pharmacists, physi-
cians, nurses, biopharmaceutical professionals, and other
health care specialists leverage their expertise in clinical
evidence and economics to optimize medication benefit de-
sign and population health management. AMCP helps pa-
tients access cost-effective and safe medications, including
vaccines using evidence-based medication use strategies
while promoting affordable health care solutions.
Alliance of Community Health Plans. ACHP is a na-
tional leadership organization of top-performing health
-App.2-
plans and provider organizations. ACHP’s members are
not-for-profit, community-based and regional health plans
that provide high-quality health coverage and care to
more than 24 million Americans, in 36 states and the Dis-
trict of Columbia. We are leading the industry in practical,
proven reforms around primary care delivery, value-
based payment and data-driven systems improvement.
American College of Osteopathic Emergency Phy-
sicians. ACOEP provides invaluable personal and profes-
sional support to the emergency medicine community, em-
powering members to provide outstanding care for them-
selves and their patients while successfully navigating the
evolving practice of medicine.
The American College of Preventive Medicine.
ACPM is a professional, medical society of more than
2,000 physicians dedicated to improving the health and
quality of life of individuals, families, communities and
populations. Preventive medicine physicians bridge the di-
vide between public health and clinical practice applying
their knowledge and skills in medicine, social, economic,
and behavioral sciences to improve health through disease
prevention and health promotion. ACPM advocates for
policy and practice that bolsters disease prevention efforts
and creates healthier communities.
Association of American Medical Colleges. AAMC
is a nonprofit association dedicated to transforming health
through medical education, health care, medical research,
and community collaborations. Its members are all 155 ac-
credited U.S. and 17 accredited Canadian medical schools;
more than 400 teaching hospitals and health systems; and
more than 70 academic societies.
College of American Pathologists. As the world’s
largest organization of board-certified pathologists and
-App.3-
leading provider of laboratory accreditation and profi-
ciency testing programs, CAP provides services to pa-
tients, pathologists, and the public by fostering and advo-
cating excellence in the practice of pathology and labora-
tory medicine worldwide. Pathologists are physicians
whose diagnoses drive care decisions made by patients,
primary care and specialist physicians, and surgeons.
Council of State and Territorial Epidemiologists.
CSTE works to advance public health policy and epidemi-
ologic capacity. We support effective public health surveil-
lance and epidemiologic practice through training, capac-
ity development, and peer consultation; develop standards
for practice; promote effective use of epidemiologic data
to guide public health practice and improve health; and ad-
vocate for scientifically based policy. CSTE has 2200+
members working in applied epidemiology across all do-
mains including occupational health, acute and chronic
diseases and conditions.
National Hispanic Medical Association. Estab-
lished in 1994, NHMA is a non-profit association repre-
senting the interests of 50,000 licensed Hispanic physi-
cians in the United States. The mission of the organization
is to empower Hispanic physicians to lead efforts to im-
prove the health of Hispanic and other underserved popu-
lations in collaboration with Hispanic state medical socie-
ties, residents, medical students, and other public and pri-
vate sector partners.
National Medical Association. Established in 1895,
NMA is the nation's oldest and largest professional and
scientific organization representing more than 50,000 Af-
rican American physicians and their patients, and advo-
cating for parity and justice in medicine, the elimination of
health disparities and promotion of health equity.
-App.4-
National Safety Council. NSC has been America’s
leading safety advocate for over 100 years. As a mission-
based nonprofit organization, NSC works to eliminate the
leading causes of preventable death and injury, focusing
our efforts on the workplace, roadways, and impairment.
We create a culture of safety to keep people safer in the
workplace and beyond so they can live their fullest lives.
Our more than 15,500 member companies represent 7 mil-
lion employees at nearly 50,000 U.S. worksites.
The Association of periOperative Registered
Nurses. AORN was founded in 1949 to establish a national
community for operating room nurses who sought to share
best practices for patients undergoing surgery. The or-
ganization represents 43,000 professionals who share a
passion for advancing perioperative nursing and ensuring
patient safety and optimal outcomes.
The National League for Nursing. NLN is the oldest
nursing organization in the United States, representing
more than 1,200 nursing schools, 40,000 members, and 25
regional constituent leagues. The NLN provides teaching
resources and faculty development opportunities to assist
them to educate and clinically prepare our nation’s nurses.
The League promotes excellence in nursing education to
build a strong, diverse nursing workforce to advance the
health of our nation and the global community.
-App.5-
Individual Amici Curiae*
Deans and Associate Deans
1. Amy Lauren Fairchild, PhD, MPH, Dean and Profes-
sor of Health Services Policy and Management, Col-
lege of Public Health, The Ohio State University
2. Ana V. Diez Roux, MD, PhD, MPH, Dana and David
Dornsife Dean, Dornsife School of Public Health,
Drexel University
3. Ashish K. Jha, MD, MPH, Dean, Professor of Health
Services, Policy and Practice, Brown University
School of Public Health
4. Ayman El-Mohandes, MBBCh, MD, MPH, Dean,
CUNY Graduate School of Public Health & Health
Policy
5. Barbara K. Rimer, DrPH, Dean, Alumni Distin-
guished Professor, UNC Gillings School of Global
Public Health
6. Bernadette Boden-Albala, MPH, DrPH, Director and
Founding Dean, Program in Public Health, Profes-
sor, Department of Health, Society and Behavior,
Program in Public Health, Department of Neurology,
School of Medicine, Susan and Henry Samueli Col-
lege of Health Sciences, University of California, Ir-
vine
7. Boris D. Lushniak, MD, MPH, Dean, University of
Maryland School of Public Health
* Amici listed here have joined this brief in their individual capac-
ity only, and do not represent the interests of any institution with
which they may be affiliated.
-App.6-
8. Cheryl Healton, DrPH, MPH, Dean and Professor of
Public Health Policy and Management, NYU School
of Global Public Health
9. Edith A Parker, DrPH, MPH, Dean, University of
Iowa College of Public Health
10. Elaine H. Morrato, DrPH, MPH, CPH, Founding
Dean and Professor, Parkinson School of Health Sci-
ences and Public Health, Loyola University Chicago
11. Eyal Oren, PhD, MS, Interim Director, Professor, Di-
vision of Epidemiology & Biostatistics, Core Investi-
gator, Institute for Behavioral and Community
Health, School of Public Health, San Diego State Uni-
versity
12. James W. Curran, MD, MPH, Dean and Professor,
Emory University Rollins School of Public Health
13. John R. Finnegan, PhD, Professor and Dean, School
of Public Health, University of Minnesota-Twin Cities
14. Jonathan M. Samet, MD, MS, Dean and Professor,
Colorado School of Public Health
15. John T. Monahan, JD, Interim Dean, School of Nurs-
ing and Health Studies, Professor, Department of
Medicine, Senior Lecturer, Law Center, Georgetown
University
16. Linda Forst, MD, MPH, Senior Associate Dean,
School of Public Health, Professor, Environmental
and Occupational Health Sciences, Attending Physi-
cian, Occupational Medicine, UlHealth, University of
Illinois at Chicago
17. Lynn R. Goldman, MD, MPH, MS, Michael and Lori
Milken Dean of Public Health, Professor, Environ-
mental and Occupational Health, Milken Institute
-App.7-
School of Public Health, The George Washington
University
18. M. Daniel Givens, DVM, PhD, DACT, DACVM–Vi-
rology, Professor and Dean, Virginia-Maryland Col-
lege of Veterinary Medicine
19. Mark L. Williams, PhD, M. Joycelyn Elders Profes-
sor and Dean, Fay W. Boozman College of Public
Health, University of Arkansas for Medical Sciences
20. Michael G. Perri, PhD, Dean, College of Public
Health and Health Professions, University of Florida
21. Megan L. Ranney, MD, MPH, FACEP, Professor of
Emergency Medicine, Alpert Medical School, Associ-
ate Dean of Strategy and Innovation, School of Public
Health, Brown University
22. Michele Barry, MD, FACP, FASTMH, Drs. Ben and
A. Jess Shenson Professor of Medicine and Tropical
Diseases, Director of the Center for Innovation in
Global Health, Senior Associate Dean for Global
Health, Stanford University
23. Muge Akpinar, MD, MPH, Professor and Dean,
School of Public Health, University of Nevada, Reno
24. Perry N. Halkitis, PhD, MS, MPH, Dean, Professor
of Biostatistics and Urban-Global Public Health, Di-
rector, Center for Health, Identity, Behavior & Pre-
vention, Rutgers School of Public Health
25. Robert M. Weiler PhD, MPH, Senior Associate Dean
for Academic Affairs and Professor, George Mason
University Graduate Programs in Public Health
26. Sherry Glied, PhD, Dean, Robert F. Wagner Gradu-
ate School of Public Service, New York University
-App.8-
27. Sten H. Vermund, MD, PhD, Anna M.R. Lauder Pro-
fessor of Public Health and Dean, Yale School of Pub-
lic Health
28. Susan Klitzman, DrPH, MPH, CPH, Senior Associate
Dean for Administration and Professor, CUNY Grad-
uate School of Public Health and Health Policy
29. Tetine Sentell, PhD, Interim Dean, Professor of Pub-
lic Health, Thompson School of Social Work & Public
Health, University of Hawai‘i at Mānoa
30. Wayne H Giles, MD, MS, Dean and Professor, School
of Public Health, University of Illinois at Chicago
Academic Chairs
1. Alexander J. Travis VMD, PhD, Director, Cornell
University Master of Public Health Program, Chair,
Department of Public & Ecosystem Health
2. Andrea Baccarelli, Chair and Professor of Environ-
mental Health Sciences, Columbia University Mail-
man School of Public Health
3. Anthony L. Schlaff, MD, MPH, Director, Public
Health Program, Professor, Department of Public
Health and Community Medicine, Tufts University
School of Medicine
4. Carrie A. Redlich, MD, MPH, Professor of Medicine,
Occupational and Environmental Medicine and Pul-
monary, Director, Yale Occupational and Environ-
mental Medicine Program, Yale School of Medicine
5. George Friedman-Jimenez, MD, DrPH, Director, Oc-
cupational Physician and Epidemiologist, Belle-
vue/NYU Occupational Environmental Medicine
Clinic, Bellevue Hospital and NYU Grossman School
of Medicine
-App.9-
6. Laura L. Hungerford, DVM, MPH, PhD, CPH,
FNAP, Professor and Head, Department of Popula-
tion Health Sciences and Virginia Tech Public Health
Program, Virginia-Maryland College of Veterinary
Medicine
7. Manya Magnus, PhD, MPH, Professor & Interim
Chair, Department of Epidemiology, The George
Washington Univeristy Milken Institute School of
Public Health
8. Mary-Katherine McNatt, DrPH, MPH, MCHES,
CPH, COI, Chair and Associate Professor, Depart-
ment of Public Health, A.T. Still University College of
Graduate Health Studies
9. Melissa Perry, ScD, MHS, Professor and Chair of
Environmental and Occupational Health, The George
Washington University
10. Michael E. Martell, PhD, Associate Professor and
Chair, Economics, Bard College
11. Nils Hennig, MD, PhD, MPH, Director, Graduate
Program in Public Health, Associate Professor, Pedi-
atric Infectious Diseases, Environmental Medicine
and Public Health, Health System Design and Global
Health, Icahn School of Medicine at Mount Sinai
12. Peter Orris, MD, MPH, Professor and Chief, Occupa-
tional and Environmental Medicine, University of Illi-
nois Hospital and Health Sciences System
13. Robert M. Wachter, MD, Professor and Chair, Dept
of Medicine, University of California, San Francisco
14. Jonathan Levy, ScD, Professor and Chair, Depart-
ment of Environmental Health, Boston University
School of Public Health
-App.10-
15. Jonathan Patz, MD, MPH, Tony J McMichael Profes-
sor and John P Holton Chair of Health and the Envi-
ronment, Director, Global Health Institute, Nelson
Institute, Center for Sustainability and the Global
Environment (SAGE) and Department of Population
Health Sciences, School of Medicine & Public Health,
University of Wisconsin
Scholars
1. Adam M. Finkel, ScD, CIH, Clinical Professor of En-
vironmental Health Sciences, University of Michigan
School of Public Health, Former Director of Health
Standards, OSHA, Former Regional Administrator
(VIII)
2. Andy Slavitt, Former Senior Advisor to the Biden
Administration COVID Response
3. Barry S. Levy, MD, MPH, Adjunct Professor of Pub-
lic Health, Tufts University School of Medicine, Past
President, APHA
4. Beate Ritz, MD, PhD, Professor of Epidemiology,
Environmental Health, and Neurology, Fielding
School of Public Health and Geffen School of Medi-
cine, UCLA
5. Bernard D. Goldstein, MD, Professor Emeritus and
Dean Emeritus, University of Pittsburgh Graduate
School of Public Health
6. Beth Rosenberg, ScD, MPH, Associate Professor,
Department of Public Health and Community Medi-
cine, Tufts University School of Medicine
7. Brian S. Schwartz, MD, MS, Professor of Environ-
mental Health and Engineering, Epidemiology, and
-App.11-
Medicine, Johns Hopkins Bloomberg School of Public
Health
8. C. William Keck, Past President, APHA, Professor
Emeritus, Department of Family and Community
Medicine, Northeast Ohio Medical University
9. Celeste Monforton, DrPH, MPH, Public Health Lec-
turer, Texas State University
10. Craig Slatin, ScD, MPH, Professor Emeritus, Zuck-
erberg College of Health Sciences, University of Mas-
sachusetts Lowell, Editor, New Solutions: A Journal
of Environmental and Occupational Health Policy
11. David M. Cutler, PhD, Otto Eckstein Professor of
Applied Economics, Faculty of Arts and Sciences,
Harvard University
12. David Kriebel, ScD, Professor Emeritus, University
of Massachusetts Lowell
13. David Ozonoff, MD, MPH, Professor Emeritus of En-
vironmental Health, Boston University School of
Public Health
14. David Rosner, PhD, MPH, Lauterstein Professor and
Co-Director, Center for the History and Ethics of
Public Health, Mailman School of Public Health and
Department of History, Columbia University
15. David Vlahov, PhD, RN, Professor of Nursing, Yale
School of Nursing
16. David H. Wegman, MD, MSc, Professor Emeritus,
Department of Work Environment, UMass Lowell,
Adjunct Professor, Harvard School of Public Health
17. Debbie Berkowitz, Former Chief of Staff and Senior
Policy Advisor, OSHA, US Department of Labor
-App.12-
18. Donald K. Milton, MD, DrPH, MPower Professor,
Professor, Environmental and Occupational Health,
School of Public Health, University of Maryland
19. Edward L. Baker MD, MPH, MSc, Former Assistant
Surgeon General, RADM (ret), USPHS, Adjunct Pro-
fessor, Harvard Chan School of Public Health, Ad-
junct Professor, UNC Gillings School of Global Public
Health
20. Emily A. Spieler, JD, Edwin W. Hadley Professor of
Law, Northeastern University
21. Eric A. Feldman, JD., Ph.D., Deputy Dean for Inter-
national Programs, Heimbold Professor of Interna-
tional Law, Professor of Medical Ethics & Health
Policy, University of Pennsylvania Carey Law School
22. Eric Topol, MD, EVP and Professor, Molecular Medi-
cine, Scripps Research, Founder and Director,
Scripps Research Translational Institute
23. Ezekiel J. Emanuel, MD, PhD, Vice Provost for
Global Initiative, Co-Director, Healthcare Transfor-
mation Institute, Levy University Professor, Perel-
man School of Medicine and The Wharton School,
University of Pennsylvania
24. Gerald Markowitz, PhD, MA, Distinguished Profes-
sor of History, John Jay College of Criminal Justice
and The Graduate Center, CUNY
25. Gregory R. Wagner, M.D., Department of Environ-
mental Health, Harvard T.H. Chan School of Public
Health
26. Helene D. Gayle, MD, MPH, President and Chief Ex-
ecutive Officer, The Chicago Community Trust
-App.13-
27. Henry Aaron, PhD, Bruce and Virginia MacLaury
Chair, Senior Fellow, Economic Studies Program,
Brookings Institution
28. Hillary Nelson, PhD, MPH, Director, MPH Program,
University of Pennsylvania
29. Jack Caravanos, DrPH, CIH, Clinical Professor,
Global and Environmental Public Health, New York
University, School of Global Public Health
30. Jack Dennerlein, PhD, MS, Professor, Bouvé College
of Health Sciences, Northeastern University, Adjunct
Professor of Ergonomics and Safety, Harvard T.H.
Chan School of Public Health
31. James A. Merchant, MD, DrPH, Emeritus Professor
of Medicine and Public Health, Emeritus Founding
Dean, College of Public Health, University of Iowa
32. Jay H. Glasser, PhD, MS, FFPH, Hon FRSPH, Hon
FCPMA, President, Medicine and Public Health Ini-
tiative, Past President, APHA
33. Jay Himmelstein, MD, MPH, Professor Emeritus,
Population and Quantitative Health Sciences, UMass
Chan Medical School
34. Joel Kaufman, MD, MPH, Professor, Environmental
& Occupational Health Sciences, Medicine, and Epi-
demiology, University of Washington
35. John R. Balmes, MD, Professor of Medicine, Univer-
sity of California, San Francisco, Professor of Envi-
ronmental Health Sciences, School of Public Health,
University of California, Berkeley
36. John P. Moore, PhD, Professor of Microbiology and
Immunology, Weill Cornell Medical College, New
York
-App.14-
37. Jordan Barab, Former Deputy Assistant Secretary,
OSHA, US Department of Labor
38. Jose L. Jimenez, PhD, Distinguished Professor of
Chemistry, Fellow of CIRES, University of Colorado-
Boulder
39. Joseph Telfair, DrPH, MSW, MPH, FRSPH, Past
President, APHA
40. Joshua M. Sharfstein, MD, Professor of the Practice
in Health Policy and Management, Johns Hopkins
Bloomberg School of Public Health
41. Julia Raifman, ScD, Assistant Professor, Health Law,
Policy, and Management, Boston University School of
Public Health
42. Katherine Swartz, PhD, Professor of Health Econom-
ics and Policy, Harvard School of Public Health
43. Karen B. Mulloy, DO, MSCH, Associate Professor,
Case Western Reserve University School of Medicine
44. Kari Hartwig, DrPH, MPH Program Director, Asso-
ciate Professor, St. Catherine University
45. Kenneth Olden, PhD, Former Director, National In-
stitute of Environmental Health Sciences and Na-
tional Toxicology Program, Founding Dean, City Uni-
versity of New York School of Public Health
46. Kenneth Rosenman, MD, FACE, FACOEM,
FACPM, Professor of Medicine, Chief of the Division
of Occupational and Environmental Medicine, Michi-
gan State University
47. Kyle Steenland, PhD, PhD, MS, Professor, Depart-
ment of Environmental Health, Rollins School of Pub-
lic Health, Emory University
-App.15-
48. Laura Punnett, ScD, Professor, Department of Bio-
medical Engineering, Co-Director, Center for the
Promotion of Health in the New England Workplace,
Senior Associate, Center for Women and Work, Uni-
versity of Massachusetts Lowell
49. Lee S. Newman, MD, MA, FACOEM, FCCP, F.
Colleg. Ramazzini, Distinguished University Profes-
sor and Center Director, Center for Health, Work
and Environment, Department of Environmental and
Occupational Health, Department of Epidemiology,
Colorado School of Public Health, Department of
Medicine, University of Colorado School of Medicine
50. Leslie I. Boden, PhD, Professor, Boston University
School of Public Health
51. Linda S. Birnbaum, PhD, DABT, ATA, Scientist
Emeritus and Former Director, National Institute of
Environmental Health Sciences and National Toxicol-
ogy Program, Scholar in Residence, Nicholas School
of the Environment, Duke University
52. Linda C. Degutis, DrPH, MSN, Lecturer, Yale
School of Public Health, Past President, APHA, For-
mer Director, National Center for Injury Prevention
and Control, CDC
53. Linda Rae Murray, MD, MPH, Adjunct Assistant
Professor, University of Illinois School of Public
Health, Past President, APHA
54. Linda Rosenstock, MD, MPH, UCLA Professor of
Medicine and Public Health, Former NIOSH Direc-
tor
-App.16-
55. Lisa M. Carlson, MPH, MCHES, Past President,
APHA, Executive Administrator, Research Admin-
istration, Emory School of Medicine
56. Magda Schaler-Haynes, JD, MPH, Adjunct Professor
of Health Policy and Management, Mailman School of
Public Health, Columbia University
57. Mark R. Cullen MD, Professor of Medicine and Bio-
medical Data Science, Stanford University (retired)
58. Melissa A. McDiarmid, MD, MPH, DABT, Professor
of Medicine and Epidemiology and Public Health, Di-
rector, Division of Occupational and Environmental
Health, University of Maryland School of Medicine
59. Melvin D. Shipp, OD, MPH, DrPH, Past President,
APHA, Former Dean and Professor Emeritus, The
Ohio State University College of Optometry
60. Michael E. Bird, MSW, MPH, Past President, APHA,
National Public Health Consultant, Native Public
Health Consultant
61. Michael Felsen, Former Regional Solicitor, US De-
partment of Labor, Boston
62. Michael Silverstein, MD, MPH, Former Director of
Policy, OSHA, US Department of Labor, Former Di-
rector, Washington State OSHA
63. Michael S. Sinha, M.D., J.D., M.P.H., Harvard Medical
School Center for Bioethics
64. Michael T. Osterholm, PhD, MPH, Director, Center
for Infectious Disease, Research and Policy, Univer-
sity of Minnesota
65. Myron Allukian Jr., DDS, MPH, Past President,
APHA
-App.17-
66. Nancy Krieger, PhD, Professor of Social Epidemiol-
ogy, Harvard T.H. Chan School of Public Health
67. Nicholas A. Ashford, PhD, JD, Professor of Technol-
ogy and Policy, Massachusetts Institute of Technol-
ogy
68. Noah S. Seixas, PhD, MS, Professor Emeritus, De-
partment of Environmental and Occupational Health
Sciences, University of Washington, School of Public
Health
69. Oliver Fein, MD, Professor of Clinical Medicine
Emeritus, Weill Cornell Medical College
70. Oni Blackstock, MD, MHS, Founder and Executive
Director, Health Justice
71. Pamela M. Aaltonen, PhD, RN, Professor Emerita,
Purdue University, Past President, APHA
72. Patricia D. Mail, PhD, MPH, MS, Past President
APHA, Secretary, Board of Directors for Franke To-
bey Jones
73. Phillip J. Landrigan, MD, MSc, FAAP, Director, Pro-
gram for Global Public Health and the Common
Good, Director, Global Observatory on Pollution and
Health, Professor of Biology, Schiller Institute for In-
tegrated Science and Society
74. Richard Fairfax, Former Deputy Assistant Secre-
tary, OSHA, US Department of Labor
75. Richard J. Jackson, MD, MPH, FAAP, HonAIA, Ho-
nASLA, Professor Emeritus, UCLA Fielding School
of Public Health
76. Rob McConnell, MD, Professor of Population and
Public Health Science, Director, Southern California
-App.18-
Environmental Health Science Center, University of
Southern California
77. Robyn R.M. Gershon, MHS, DrPH, Clinical Profes-
sor, Department of Epidemiology, Program Director,
Early Career Research Development, New York Uni-
versity School of Global Public Health
78. Rosemary K. Sokas, MD, MOH, Professor of Human
Science and of Family Medicine, Georgetown Univer-
sity School of Nursing and Health Studies
79. Saad B. Omer, MBBS, MPH, PhD, FIDSA, Director,
Yale Institute for Global Health, Professor of Medi-
cine (Infectious Diseases), Yale School of Medicine,
Susan Dwight Bliss Professor of Epidemiology of Mi-
crobial Diseases, Yale School of Public Health
80. Sara Rosenbaum, JD, Harold and Jane Hirsh Profes-
sor, Health Law and Policy, Department of Health
Policy and Management, Milken Institute School of
Public Health, The George Washington University
81. Scott L. Zeger, PhD, John C. Malone Professor of Bi-
ostatistics, Epidemiology and Medicine, Bloomberg
School of Public Health, Johns Hopkins University
82. Seth Trueger, MD, MPH, FACEP, Associate Profes-
sor of Emergency Medicine, Northwestern Univer-
sity, Feinberg School of Medicine, Emergency Physi-
cian, Northwestern Memorial Hospital, Digital Media
Editor, JAMA Network Open
83. Sheldon Krimsky, PhD, MS, Lenore Stern Professor
of Humanities and Social Sciences, Adjunct Profes-
sor, Public Health and Community Medicine, Tufts
University
-App.19-
84. Sherry Baron, MD, MPH, Professor, Barry Com-
moner Center for Health and the Environment,
Queens College, Affiliate Professor, Graduate School
of Public Health and Health Policy, City University of
New York
85. Sonia M. Suter, JD, MS, The Kahan Family Research
Professor of Law, Founding Director, Health Law In-
itiative, The George Washington University Law
School
86. Stephen Zoloth, PhD, MPH, Professor, Department
of Health Sciences, Northeastern University
87. Steven Markowitz, MD, DrPH, Director and Profes-
sor, Barry Commoner Center for Health and the En-
vironment, Queens College, City University of New
York
88. Susan S. Addiss, MPH, MUrS, Past President,
APHA, Vice-Chair, Board of the East Shore Health
District, Branford, CT
89. Timothy Stoltzfus Jost, JD, Emeritus Professor,
Washington and Lee University
90. Tom Frieden, President and CEO of Resolve to Save
Lives, NAM Member, Former Director, Centers for
Disease Control
91. W. Ian Lipkin, MD, John Snow Professor of Epidemi-
ology and Director, Center for Infection and Immun-
ity, Mailman School of Public Health, and Professor
of Neurology, Cell Biology and Pathology, Vagelos
College of Physicians and Surgeons, Columbia Uni-
versity
92. William Foege, MD, MPH, retired, Professor Emeri-
tus, Emory University, Past President, APHA
-App.20-
93. William M. Sage, MD, JD, James R. Dougherty Chair
for Faculty Excellence, School of Law, Professor of
Surgery and Perioperative Care, Dell Medical School,
The University of Texas at Austin
94. William N. Rom M.D., MPH, Sol and Judith Berg-
stein Professor of Medicine, Emeritus Research Pro-
fessor, NYU School of Medicine, Research Scientist,
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