Court filing

Amicus brief (IBEW Locals 97 and 1249) — NFIB v. OSHA

Filed December 30, 2021 in National Federation of Independent Business v. OSHA; one of 2 filings from this case.

Record facts

Court	Supreme Court of the United States
Filed	2021-12-30

Full text

Nos. 21A244 and 21A247

IN THE
Supreme Court of the United States

NATIONAL FEDERATION OF INDEPENDENT BUSINESS, et al.,

Applicants,
—v.—
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al.,

Respondents.
———————————————
STATE OF OHIO, et al.,

Applicants,
—v. —
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al.,

Respondents.

On Emergency Applications for Stay Pending Certiorari Review

MOTION OF LOCAL UNIONS 1249 AND 97 OF THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS FOR LEAVE TO FILE
ATTACHED AMICUS BRIEF IN SUPPORT OF EMERGENCY
APPLICATIONS FOR A STAY PENDING CERTIORARI REVIEW AND FOR
LEAVE TO FILE IN PAPER FORMAT WITHOUT 10 DAYS’ NOTICE
________________________________________

Brian J. LaClair*
*Counsel of record
BLITMAN & KING LLP
Franklin Center, Suite 300
443 N. Franklin Street
Syracuse, NY 13204
(315) 422-7111
bjlaclair@bklawyers.com

December 30, 2021
Counsel for Movants/Amici Local
Unions 1249 and 97 of the IBEW

Local Union 1249 of the International Brotherhood of Electrical Workers
(“Local 1249”) and Local Union 97 of the International Brotherhood of Electrical
Workers (“Local 97”) (collectively, “amici”) respectfully move, under Supreme Court
Rule 37.2, for leave to file the attached brief as amici curiae in support of the
emergency applications filed on December 17-21, 2021, seeking a stay of the
Occupational Safety and Health Administration’s Emergency Temporary Standard
on COVID-19 vaccination and testing (“ETS”) pending certiorari review. Amici also
seek leave to file the aforementioned amicus brief in unbound format on 8.5-by-11-
inch paper and without 10 days’ advance notice to the parties of amici’s intent to
file.

By email on December 29, 2021, amici sought consent from the parties to file
an amicus curiae brief in support to the emergency applications. The Business
Association Applicants in No. 21A244 do not oppose the filing of the attached
amicus brief. The State Applicants in No. 21A247 consent to the filing of the brief.
The Federal Respondents take no position on the filing of the brief. No party
expressly opposed the filing of the attached amicus brief.
Unions are democratic and pluralistic organizations and amici are no
exception. By amici’s estimation, most of their members have chosen to receive a
vaccination against COVID-19 and many are supportive of the national vaccination
effort. But a substantial number of amici’s members have chosen not to receive a
COVID-19 vaccine. The reasons for these members’ decision not to receive the
vaccine are myriad and, in many cases, deeply personal. To be sure, amici have a

strong interest in promoting a safe and healthy work environment for their members
and supporting appropriate governmental efforts to that end—and, in that respect,
amici are fully aligned with their fellow unions who oppose the stay (see Response of
The American Federation of Labor and Congress of Industrial Organizations et al.,
filed Dec. 30, 2021). However, amici are concerned that unvaccinated members will
have to choose between receiving a COVID-19 vaccine and no longer being able to
provide for themselves and their families.
It is from this perspective—that of the workers who will bear the primary
burden of compliance with the ETS—that amici offer the attached brief. The
attached brief seeks to demonstrate that the ETS, which is unlike any existing
workplace regulation, improperly seeks to regulate off-duty conduct in response to
largely non-occupational hazards, shift the associated costs to employees, and
compel them to choose between losing their jobs and receiving a vaccination they do
not desire to receive. Moreover, in some respects the ETS usurps the role of
collective bargaining representatives like amici, who are well equipped to negotiate
workplace policies to combat the spread of COVID-19. Finally, the ever-changing
nature of the virus and the conventional wisdom on how best to combat it militates
in favor of a stay.

Given the expedited nature of the present proceeding, the preparation of the
attached amicus brief in printed booklet form will not be practicable. Accordingly,
amici respectfully request leave to file their brief in unbound format on 8½-by-11-
inch paper and without 10 days’ advance notice to the parties of their intent to file.

CONCLUSION

Amici respectfully request that the Court grant this motion for leave to file
the attached amicus brief and accept the same in unbound format on 8½-by-11-inch
paper without 10 days’ advance notice to the parties.

Respectfully submitted,

Brian J. LaClair*
*Counsel of record
BLITMAN & KING LLP
Franklin Center, Suite 300
443 N. Franklin Street
Syracuse, NY 13204
(315) 422-7111
bjlaclair@bklawyers.com

Counsel for Movants/Amici Local
Unions 1249 and 97 of the IBEW

Nos. 21A244 and 21A247

IN THE
Supreme Court of the United States

NATIONAL FEDERATION OF INDEPENDENT BUSINESS, et al.,

Applicants,
—v.—
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al.,

Respondents.
———————————————
STATE OF OHIO, et al.,

Applicants,
—v. —
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, et al.,

Respondents.

On Emergency Applications for Stay Pending Certiorari Review

[PROPOSED] BRIEF OF AMICI CURIAE LOCAL UNIONS 1249 AND 97 OF
THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS IN
SUPPORT OF EMERGENCY APPLICATIONS FOR A STAY
PENDING CERTIORARI REVIEW
________________________________________

Brian J. LaClair*
*Counsel of record
BLITMAN & KING LLP
Franklin Center, Suite 300
443 N. Franklin Street
Syracuse, NY 13204
(315) 422-7111
bjlaclair@bklawyers.com

December 30, 2021
Counsel for Amici Local Unions
1249 and 97 of the IBEW

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................................................................................... 1
SUMMARY OF THE ARGUMENT .............................................................................. 2
ARGUMENT .................................................................................................................. 4
I.
The ETS is Unlike OSHA’s Existing Regulations and Inconsistent
With its Congressionally Created Purpose ..................................................... 4
A.
The ETS is Overbroad in That it Seeks to Regulate
Off-Duty Conduct and Non-Occupational Hazards ................................ 5
B.
The ETS Improperly Shifts Compliance and Cost Burdens to
Employees ................................................................................................. 7
II.
Labor Organizations are Well Equipped to Negotiate Workable,
Workplace-Specific Policies to Protect Against Covid-19 Transmission ........ 9
III. The Rapidly Changing Nature of the Pandemic Counsels Against an
Inflexible ETS ................................................................................................. 11
CONCLUSION ............................................................................................................. 12

TABLE OF AUTHORITIES
Cases
BST Holdings, LLC v. Occupational Safety & Health Admin., 17 F.4th 604, 2021
U.S. App. LEXIS 33698 (5th Cir. 2021) ..................................................................... 2
Forging Industry Ass’n v. Sec. of Labor, 773 F.2d 1436 (4th Cir. 1985) ...................... 6
In re MCP No. 165 (“MCP I”), 2021 U.S. App. LEXIS 37024
(6th Cir. Dec. 15, 2021) ....................................................................................... 5, 7, 8
In re MCP No. 165 (“MCP II”), 2021 U.S. App. LEXIS 37349
(6th Cir. Dec. 17, 2021) ............................................................................................... 8
Southwest Airlines Co. v. FERC, 926 F.3d 851 (D.C. Cir. 2019).................................. 9
Statutes
29 U.S.C. § 157 ............................................................................................................. 10
29 U.S.C. § 651 ............................................................................................................... 4
29 U.S.C. § 654 ............................................................................................................... 8
29 U.S.C. § 655 ............................................................................................................... 4
29 U.S.C. § 151 ............................................................................................................... 1
29 U.S.C. § 652 ............................................................................................................... 4
Other Authorities
CDC, Media Statement, CDC Endorses ACIP’s Updated COVID-19 Vaccine
Recommendations (Dec. 16, 2021),
https://www.cdc.gov/media/releases/2021/s1216-covid-19-vaccines.html .............. 11
Regulations
29 C.F.R. § 1910.132 ...................................................................................................... 7
29 C.F.R. § 1910.135 ...................................................................................................... 5
29 C.F.R. § 1910.269 ...................................................................................................... 7
29 C.F.R. § 1910.501 .................................................................................................... 10
29 C.F.R. § 1926.201 ...................................................................................................... 6
86 Fed. Reg. 61,402 (Nov. 5, 2021) .................................................................... 8, 10, 12

INTEREST OF AMICI CURIAE1

Amici Curiae Local Union 1249 of the International Brotherhood of Electrical
Workers (“Local 1249”) and Local Union 97 of the International Brotherhood of
Electrical Workers (“Local 97”) (collectively, “amici”) are labor organizations as
defined by the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. Amici
collectively represent over 7,000 electricians and other utility workers throughout the
State of New York and beyond. Amici’s members work tirelessly to ensure the safe
and efficient distribution of electricity and natural gas to residential, commercial,
industrial, and governmental customers. They are essential workers who have
selflessly worked throughout the pandemic.
Unions are democratic and pluralistic organizations and amici are no
exception. By amici’s estimation, most of their members have chosen to receive a
vaccination against COVID-19 and many are supportive of the national vaccination
effort. But a substantial number of amici’s members have chosen not to receive a
COVID-19 vaccine. The reasons for these members’ decision not to receive the
vaccine are myriad and, in many cases, deeply personal.
Because many employers of amici’s members would—absent a stay—be subject
to OSHA’s Emergency Temporary Standard concerning COVID-19 vaccination
(“ETS”), it is a near certainty that a significant number of amici’s members will lose
their jobs or feel compelled to receive a vaccination they do not desire to receive. To

1 Pursuant to Rule 37.6, amici state that no counsel for a party authored this brief in whole or in part,
and no person or entity other than amici, their members, and their counsel made any monetary
contribution to fund the preparation or submission of this brief.

be sure, amici have a strong interest in promoting a safe and healthy work
environment for their members and supporting appropriate governmental efforts to
that end—and, in that respect, amici are fully aligned with their fellow unions who
oppose the stay (see Response of The American Federation of Labor and Congress of
Industrial Organizations et al., filed Dec. 30, 2021). But amici also have an interest
in protecting their members from suffering adverse employment actions arising from
personal decisions related to the COVID-19 vaccinations. In short, amici’s
unvaccinated members should not have to choose between receiving a COVID-19
vaccine and no longer being able to provide for themselves and their families.
SUMMARY OF THE ARGUMENT
Amici believe that the emergency applications for a stay pending certiorari
review should be granted. First, the ETS is wholly unlike existing OSHA regulations
and is inconsistent with its congressionally created purpose. In that regard, the Fifth
Circuit was correct that, in promulgating the ETS, OSHA tried to “derive[] its
authority from an old statute employed in a novel manner.” BST Holdings, LLC v.
Occupational Safety & Health Admin., 17 F.4th 604, 2021 U.S. App. LEXIS 33698,
*23 (5th Cir. 2021). The unfamiliarity and uniqueness of the area OSHA now seeks
to regulate renders its authority to do so dubious, at best. See id. at *23 n.20 (“[I]t is
simply unlikely that Congress assigned authority over such a monumental policy
decision to OSHA—hard hats and safety goggles, this is not.”). The ETS also deviates
from OSHA’s congressionally created purpose by shifting the burden of compliance

and costs (i.e., for weekly testing) from employers to employees and in many respects
improperly seeks to regulate off-duty conduct and non-occupational hazards.
Second, labor organizations like amici are well equipped to work with
management to develop tailored, workplace-specific safety policies that have the
support of workers. Amici’s members work in historically dangerous industries.
Through the organized power of their unions and the statutory process of collective
bargaining, these workers have been able to secure important safety-related rules
and practices for themselves and for their successors. After nearly two years of the
pandemic, unions have acquired significant experience negotiating and implementing
COVID-19-related safety policies that have successfully reduced virus transmission
with worker buy-in.
Third, the rapidly changing nature of COVID-19 counsels against an inflexible
ETS. The recent and dramatic rise of the Omicron variant has reintroduced the
American public to rising transmission, even among those once considered “fully
vaccinated.” Moreover, the CDC recently announced its preference for the Pfizer and
Moderna’s vaccines over Johnson & Johnson’s, amid concerns about safety and
efficacy. Amici respectfully submit that these constantly changing factors and the
ensuing uncertainty surrounding COVID-19 and the vaccines undermine the
legitimacy of the inflexible, one-size-fits-all ETS.
While amici acknowledge the noble workplace-safety goals of the ETS, if the
stay applications are denied and the ETS is allowed to remain in effect, many

workers—including amici’s members—will unnecessarily lose their jobs or feel
compelled to receive a vaccination that they do not desire to receive.
ARGUMENT
I.
The ETS is Unlike OSHA’s Existing Regulations and
Inconsistent With its Congressionally Created Purpose

The statutory purpose of the OSH Act is “to assure so far as possible every man
and woman in the Nation safe and healthful working conditions and to preserve our
human resources . . . .” 29 U.S.C. § 651(b). The Secretary of Labor is authorized to
promulgate “occupational safety or health standard[s]” for this purpose, id. § 655(b),
which “means a standard which requires conditions, or the adoption or use of one or
more practices, means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employment and places of employment,” id.
§ 652(8). In the context of an emergency temporary standard, the Secretary must
determine that “substances or agents determined to be toxic or physically harmful”
or “new hazards” pose a “grave danger” to employees, and that an “emergency
standard is necessary to protect employees from such danger.” Id. § 655(c)(1).

In order to effectuate these standards—whether emergency or permanent—
the OSH Act places duties of compliance both on employers, id. § 654(a), and on
employees, § 654(b). But the primary burden of regulatory compliance has always
been on employers, who have been required to provide a safe and healthful working
environment. Employees have a duty to use the safety equipment provided while
they are working, and to cooperate with recordkeeping procedures. OSHA has never
before imposed a duty on an employee to undergo an irreversible medical procedure

that affects them both on and off duty, nor to obtain weekly testing at significant
personal expense.
A.
The ETS is Overbroad in That it Seeks to Regulate
Off-Duty Conduct and Non-Occupational Hazards

Consider—as suggested by the Fifth Circuit—the now-ubiquitous hard hat.
Hard hats are required “when working in areas where there is a potential for injury
to the head from falling objects.” 29 C.F.R. § 1910.135 (a)(1). Of particular relevance
to amici’s members, workers must also wear “a protective helmet designed to reduce
electrical shock hazard . . . when near exposed electrical conductors which could
contact the head.” Id. subd. (a)(2). Those dangers are omnipresent in some
workplaces and courts have properly held that employees may be required to wear
hard hats (or insulating hats) all day while working.

But the danger abates when employees go home. Subsection (a)(1), which
governs hard hats in general, expressly recognizes this fact by expressly limiting its
scope to time “when working.” Id. subd. (a)(1) (emphasis added). While subsection
(a)(2) does not contain the same textual limitation, common sense and universal
practice show that this limitation should be implied to all OSHA regulations. An
employer simply has no power to control whether an employee wears a “protective
helmet designed to reduce electrical shock hazard . . . when near exposed electrical
conductors” in the employee’s own home, or otherwise outside of working hours.

Vaccines are obviously not like hard hats or insulating helmets. As Chief
Judge Sutton of the Sixth Circuit recognized, “[i]t is one thing to tell a worker to don
a mask [or a hard hat] at the start of a hazard-filled shift and doff it at the end.” In

re MCP No. 165 (“MCP I”), 2021 U.S. App. LEXIS 37024, *8 (6th Cir. Dec. 15, 2021)
(Sutton, C.J., dissenting). Unlike a hard hat, a vaccine cannot be “doff[ed] . . . at the
end” of a shift. Before this ETS, OSHA had never required an employer to force an
employee to take permanent and irreversible action in the name of workplace safety.
To illustrate the point, an employer can require an employee to wear reflective
“warning garments,” see 29 C.F.R. § 1926.201, but no one has ever suggested that an
employer could require an employee to get a reflective tattoo.
It is true that in some cases OSHA may issue regulations to protect employees
from occupational exposure to a hazard that is not solely occupational. But when
OSHA does so, it must focus on the occupational exposure. Some have cited Forging
Industry Association v. Secretary of Labor, 773 F.2d 1436 (4th Cir. 1985), for the
proposition that OSHA may regulate extra-occupational hazards, but that decision
does not vindicate the overbroad ETS in this case. In Forging Industry, the Fourth
Circuit noted that “OSHA’s authority is limited to ameliorating conditions that exist
in the workplace,” and went on to hold that the challenged rule was valid only because
it “does nothing more than ensure that a hearing-endangered worker is provided with
protection in the workplace in order to decrease the risk of a hearing impairment.”
773 F.2d at 1442-43 (emphasis in original). The Fourth Circuit specifically noted that
the particular hazard regulated was “sustained noise of great intensity” that was
“hard to imagine” outside of industrial workplaces. Id. at 1444.
In contrast, here, OSHA effectively seeks to require a vaccination with the
intention of providing around-the-clock, undifferentiated, and semi-permanent

protection both in and outside of the workplace. That goes beyond the “protection in
the workplace” approved in Forging Industry, see id. at 1443, and exceeds the agency’s
power. Cf. MCP I, 2021 U.S. App. LEXIS 37024, at *25-*26 (Sutton, C.J., dissenting)
(noting that a mask mandate at work “would be a workplace requirement at least,”
whereas a vaccination “cannot be undone at the end of the workday”).
B.
The ETS Improperly Shifts Compliance and Cost Burdens
to Employees

Returning to the example of hard hats, like most personal protective
equipment, they must ordinarily “be provided by the employer at no cost to
employees.” See 29 C.F.R. § 1910.132 (h)(1); see also Note to 29 C.F.R. § 1910.269
(g)(1).2 The employers of amici’s members are regularly required to pay for other
protective equipment, including fall arrest systems, 29 C.F.R. § 1910.269(g)(2); and
flame- and arc-resistant clothing, 29 C.F.R. § 1910.269(l)(8)(iv). Employers are
required to pay for these sometimes-costly items as part of their duty to “furnish to
each of [their] employees employment and a place of employment which are free from
recognized hazards . . .” 29 U.S.C. § 654(a)(1) (emphasis added). In contrast,
employees are not ordinarily required to “furnish” any material thing to mitigate
hazards in the workplace; rather, they are required to “comply” with “standards . . .
applicable to [their] own actions and conduct.” Id. § 654(b). In enacting Section 654,
Congress made a value judgment about who should be required to bear the material
costs of a safe workplace and put those costs squarely on employers.

2 There are exceptions for certain “everyday” items that can be used during leisure time as well as for
work purposes. See 29 C.F.R § 1910.132 (h)(4). While masks arguably are analogous to such items,
tests are not. As is commonly known, COVID-19 tests are disposable items that cannot be reused.

Here, OSHA has cast that value judgment aside. Employees who choose not
to be vaccinated (and whom the employer allows to remain unvaccinated) must
generally absorb the entire cost of testing. 86 Fed. Reg. 61,402, 61,484 (Nov. 5, 2021)
(“There is no requirement in the rule that the employer pay for this testing”); see MCP
I, 2021 U.S. App. LEXIS 37024 at *28 (Sutton, C.J., dissenting) (“the Secretary’s
decision not to require employers to pay for employees’ weekly COVID-19 tests
depletes his claim that this emergency rule arises from a work-focused, as opposed to
society-focused, imperative”); In re MCP No. 165 (“MCP II”), 2021 U.S. App. LEXIS
37349 at *66-*67 (6th Cir. Dec. 17, 2021) (Larsen, J., dissenting) (noting that “OSHA’s
ordinary regulations,” unlike the challenged ETS, “require employers to pay for
agency-mandated equipment, tests, and exams”). OSHA’s explanation for this
deviation is that it wants more people to be vaccinated. See 86 Fed. Reg. at 61,437
(decision not to require employer payment for testing “provide[s] a financial incentive
for some employees to be fully vaccinated”). But OSHA wants people to wear hard
hats, too, and yet OSHA does not have the authority to second-guess Congress’s
judgment about who should bear the costs of “furnish[ing]” a safe workplace. See 29
U.S.C. § 654(a)(1).

While OSHA estimated the costs of employer compliance with the ETS in great
detail in the Federal Register, it avoided discussion of the costs that would be passed
onto employees who choose the testing option in its main analysis. See 86 Fed. Reg.
at 61,484 (although OSHA “estimates that 6.3 million weekly tests will need to be
given due to this ETS,” “[t]here is no requirement in the rule that the employer pay

for this testing so these testing costs are not included in the main analysis”). The
ETS does, however, cite as a “reference” a separate analysis OSHA performed
regarding those costs, and the numbers are striking: “The average cost for a test off-
site, including travel costs, is $75.73,” including the cost of the test itself as well as
lost productive
work
time.

OSHA,
Costs Associated
with
Reasonable
Accommodation: Testing, Face Coverings, and Determinations, at 6 (Nov. 4, 2021),
https://www.regulations.gov/document/OSHA-2021-0007-0488. That could mean up
to $4,000 per worker per year. While OSHA may have chosen to ignore those costs,
amici’s members do not have that luxury.3

Imposing these costs on employees is inconsistent with OSHA’s usual practice,
which makes an explanation for the change “especially important.” Southwest
Airlines Co. v. FERC, 926 F.3d 851, 856 (D.C. Cir. 2019). But in promulgating the
ETS, OSHA has failed to provide such an explanation. In that respect, OSHA’s
decision to impose substantial costs on employees without an adequate explanation
violated the “fundamental principle[] of administrative law . . . that agencies must
give reasons for their actions.” Id. at 855.
II.
Labor Organizations are Well Equipped to Negotiate Workable,
Workplace-Specific Policies to Protect Against Covid-19
Transmission

In issuing the ETS, OSHA seems to have ignored the fact that in unionized
workplaces, employees’ collective bargaining representatives (including amici) are

3 While health insurance may reduce employees’ immediate out-of-pocket costs, OSHA did not
consider that possibility; rather, it simply concluded that the costs to employees were not relevant.
Moreover, it is well known that increased healthcare costs inevitably lead to increased insurance
premiums for employees.

well positioned to negotiate workable, targeted policies to address COVID-19-based
safety concerns. Under the National Labor Relations Act, employers have an
obligation to meet and bargain in good faith with the certified or recognized
representatives of their employees. 29 U.S.C. § 157. Labor organizations regularly
push employers to adopt new safety rules and have done so for the entire history of
their existence. Indeed, protecting workers’ physical safety has always been one of
the primary purposes of labor organizations. Thanks to the collective bargaining
process, unions and employers are able to negotiate policies that reflect the concerns
of their employees and that are well adapted to the unique features of each workplace.
Employee voice in the process of creating collectively bargained safety rules is
a critical ingredient to ensure effective protection. Although amici’s members
support the goal of promoting workplace safety, many of them are troubled by the
difficult choice presented by OSHA’s ETS—vaccinate, pay for weekly testing, or lose
your job. Had the administration provided time for labor organizations and
employers to work together to develop workplace-specific policies, it would likely have
been possible to tailor those policies in a manner that would have ensured more
widespread employee support, thus improving safety outcomes.
For example, many of amici’s members work for utility companies and perform
work mostly outdoors. While the ETS contains an exemption for those who work
“exclusively” outdoors (29 C.F.R. § 1910.501 (b)(3)(iii)), it appears that these members
will not be entitled to the benefit of that exemption because they perform at least
some work indoors. This is so despite OSHA’s recognition that it is “unable to

establish a grave danger in outdoor settings from exposure during normal work
activities.” 86 Fed. Reg. at 61,419.
Given the minimal time that amici’s members spend indoors, it would almost
certainly have been possible for amici and the employers to meet and discuss
possibilities for ensuring worker safety, short of an across-the-board mandate, that
are tailored to the particular working conditions at each employer. The parties at the
bargaining table would have benefitted from the inclusion of those workers’ practical
experience over the last two years. Instead, OSHA has enacted a one-size-fits-all rule
that has effectively preempted unions and employers from developing creative and
effective solutions to diverse problems.
III.
The Rapidly Changing Nature of the Pandemic Counsels
Against an Inflexible ETS

When the ETS was issued in early November, the prevalence of COVID-19
appeared to be abating, ostensibly due to the national vaccination effort. Since then,
infection numbers have skyrocketed, and we are now dealing with the rise of the
Omicron variant. The correlation between vaccination rates and these
fluctuations/variant-induced surges seems to be less clear by the day.

Not only has the virus itself has changed, our understanding of the available
vaccines has changed as well. When the ETS was issued, Americans understood that
all three commercially available vaccines (Pfizer, Moderna, and Johnson & Johnson)
were effective. But by mid-December, the CDC reversed course and “express[ed] a
clinical preference for individuals to receive a [Pfizer or Moderna] COVID-19 vaccine
over Johnson & Johnson’s COVID-19 vaccine.” CDC, Media Statement, CDC

Endorses ACIP’s Updated COVID-19 Vaccine Recommendations (Dec. 16, 2021),
https://www.cdc.gov/media/releases/2021/s1216-covid-19-vaccines.html. Yet OSHA
did not account for any meaningful difference in effectiveness between the vaccines
in issuing the ETS. See 86 Fed. Reg. at 61,417-20.
In sum, the ever-changing nature of COVID-19 weighs against an ETS that
requires an irreversible action to prevent a temporary threat. None of the hazards
that OSHA is familiar with and adept at regulating, are subject to as much change
and uncertainty. To be sure, this counsels against allowing the one-size-fits-all ETS
to remain in effect pending certiorari review.
CONCLUSION
Amici respectfully request that the Court grant the emergency applications for
a stay pending certiorari review. While amici acknowledge the noble workplace-
safety goals of the ETS, if it is allowed to remain in effect, many workers will lose
their jobs or feel compelled to receive a vaccination they do not desire to receive.

Respectfully submitted,

Brian J. LaClair*
*Counsel of record
BLITMAN & KING LLP
Franklin Center, Suite 300
443 N. Franklin Street
Syracuse, NY 13204
(315) 422-7111
bjlaclair@bklawyers.com

Counsel for Amici Local Unions
1249 and 97 of the IBEW

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Amicus brief (IBEW Locals 97 and 1249) — NFIB v. OSHA

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