Sixth Circuit opinion dissolving stay (appendix) — Ohio v. OSHA

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Supreme Court of the United States · No. 21-7000 · Doc. 380-2 · 2021-12-15 · Docket on CourtListener

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Appendix A

 
RECOMMENDED FOR PUBLICATION 
Pursuant to Sixth Circuit I.O.P. 32.1(b) 
 
File Name: 21a0287p.06 
 
UNITED STATES COURT OF APPEALS 
 
FOR THE SIXTH CIRCUIT 
 
 
IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, 
INTERIM FINAL RULE: COVID-19 VACCINATION AND TESTING; EMERGENCY 
TEMPORARY STANDARD 86 FED. REG. 61402. 
_________________________________________________________________ 
MASSACHUSETTS BUILDING TRADES COUNCIL, et al. (21-7000); BENTKEY 
SERVICES, LLC (21-4027); PHILLIPS MANUFACTURING & TOWER COMPANY, et 
al. (21-4028); COMMONWEALTH OF KENTUCKY, et al. (21-4031); ANSWERS IN 
GENESIS, INC. (21-4032); SOUTHERN BAPTIST THEOLOGICAL SEMINARY, et al. 
(21-4033); BST HOLDINGS, LLC, et al. (21-4080); REPUBLICAN NATIONAL 
COMMITTEE (21-4082); ASSOCIATED BUILDERS AND CONTRACTORS, INC., et al. 
(21-4083); MASSACHUSETTS BUILDING TRADES COUNCIL (21-4084); UNION OF 
AMERICAN PHYSICIANS AND DENTISTS (21-4085); ASSOCIATED GENERAL 
CONTRACTORS OF AMERICA, INC., et al. (21-4086); NATIONAL ASSOCIATION OF 
BROADCAST EMPLOYEES & TECHNICIANS, THE BROADCASTING AND CABLE 
TELEVISION WORKERS SECTOR OF THE COMMUNICATIONS WORKERS OF 
AMERICA, LOCAL 51, AFL-CIO (21-4087); STATE OF MISSOURI, et al. (21-4088); 
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING 
AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO 
(21-4089); STATE OF INDIANA (21-4090); TANKCRAFT CORPORATION, et al. (21-
4091); NATIONAL ASSOCIATION OF HOME BUILDERS (21-4092); JOB CREATORS 
NETWORK, et al. (21-4093); UNITED FOOD AND COMMERCIAL WORKERS 
INTERNATIONAL UNION, AFL/CIO-CLC, et al. (21-4094); SERVICE EMPLOYEES 
INTERNATIONAL UNION LOCAL 32BJ (21-4095); MFA, INC., et al. (21-4096); 
STATE OF FLORIDA, et al. (21-4097); AFT PENNSYLVANIA (21-4099); DENVER 
NEWSPAPER GUILD, COMMUNICATIONS WORKERS OF AMERICA, LOCAL 37074, 
AFL-CIO (21-4100); DTN STAFFING, INC., et al. (21-4101); FABARC STEEL 
SUPPLY, INC., et al. (21-4102); MEDIA GUILD OF THE WEST, THE NEWS GUILD-
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 39213 (21-4103); 
NATURAL PRODUCTS ASSOCIATION (21-4108); OBERG INDUSTRIES, LLC (21-
4112); BETTEN CHEVROLET, INC. (21-4114); TORE SAYS LLC (21-4115); 
KENTUCKY PETROLEUM MARKETERS ASSOCIATION, et al. (21-4117); AARON 
ABADI (21-4133), 
Petitioners, 
 
v. 
UNITED STATES DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH 
ADMINISTRATION, et al., 
Respondents. 
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Nos. 21-7000 
/4027 /4028 /4031 
/4032 /4033 /4080 
/4082 /4083 /4084 
/4085 /4086 /4087 
/4089 /4088 /4090 
/4091 /4093 /4092 
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/4108 /4112 /4114 
/4115 /4117 /4133 
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App. A-1 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 2 
 
On Emergency Motion to Dissolve Stay. 
Multi-Circuit Petitions for Review from an Order of the U.S. Department of Labor,  
Occupational Safety and Health Administration, No. OSHA-2001-0007. 
 
Decided and Filed:  December 17, 2021 
Before:  GIBBONS, STRANCH, and LARSEN, Circuit Judges. 
_________________ 
COUNSEL 
ON  EMERGENCY MOTION TO DISSOLVE STAY AND REPLY:  Sarah E. Harrington, 
Michael S. Raab, Adam C. Jed, Brian J. Springer, Martin Totaro, UNITED STATES 
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.  IN RESPONSE:  R. Trent 
McCotter, BOYDEN GRAY & ASSOCIATES, Washington, D.C., for Job Creators Network 
Petitioners.  Felicia K. Watson, NATIONAL ASSOCIATION OF HOME BUILDERS OF THE 
UNITED STATES, Washington, D.C., for Petitioner National Association of Home Builders of 
the United States.  Christopher Wiest, CHRIS WIEST, ATTORNEY AT LAW, PLLC, 
Crestview Hills, Kentucky, for Petitioner Betten Chevrolet, Inc.  Harold Craig Becker, 
AMERICAN 
FEDERATION 
OF 
LABOR 
AND 
CONGRESS 
OF 
INDUSTRIAL 
ORGANIZATIONS, Washington, D.C., Peter J. Ford, UNITED FOOD & COMMERCIAL 
WORKERS INTERNATIONAL UNION, Washington, D.C., Randy Rabinowitz, OSH LAW 
PROJECT, LLC, Washington, D.C., Andrew D. Roth, BREDHOFF & KAISER, PLLC, 
Washington, D.C., Nicole Berner, SERVICE EMPLOYEES INTERNATIONAL UNION, 
Washington, D.C., Keith R. Bolek, O’DONOGHUE & O’DONOGHUE LLP, Washington, D.C., 
Victoria L. Bor, SHERMAN DUNN, P.C., Washington, D.C., for Petitioner Union of American 
Physicians and Dentists.  Cathleen A. Martin, John A. Ruth, NEWMAN, COMLEY & RUTH, 
P.C., Jefferson City, Missouri, for MFA Incorporated Petitioners.  Benjamin M. Flowers, May 
Davis, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Christopher L. 
Thacker, Lindsey R. Keiser, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, 
Frankfort, Kentucky, Clark L. Hildabrand, Brandon J. Smith, OFFICE OF THE TENNESSEE 
ATTORNEY GENERAL, Nashville, Tennessee, Brian Kane, Leslie M. Hayes, Megan A. 
Larrondo, OFFICE OF THE IDAHO ATTORNEY GENERAL, Boise, Idaho, Jeffrey A. 
Chanay, OFFICE OF THE KANSAS ATTORNEY GENERAL, Topeka, Kansas, Mithun 
Mansinghani, OFFICE OF THE OKLAHOMA ATTORNEY GENERAL, Oklahoma City, 
Oklahoma, Lindsay S. See, OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL, 
Charleston, West Virginia, Edmund G. LaCour Jr., OFFICE OF THE ALABAMA ATTORNEY 
GENERAL, Montgomery, Alabama, Charles E. Brasington, OFFICE OF THE ALASKA 
ATTORNEY GENERAL, Anchorage, Alaska, Drew C. Ensign, OFFICE OF THE ARIZONA 
ATTORNEY GENERAL, Phoenix, Arizona, D. John Sauer, OFFICE OF THE MISSOURI 
ATTORNEY GENERAL, Jefferson City, Missouri, David M. S. Dewhirst, Christian B. 
Corrigan, OFFICE OF THE MONTANA ATTORNEY GENERAL, Helena, Montana, Nicholas 
J. Bronni, Vincent M. Wagner, OFFICE OF THE ARKANSAS ATTORNEY GENERAL, Little 
App. A-2 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 3 
 
Rock, Arkansas, Henry C. Whitaker, Jason H. Hilborn, OFFICE OF THE FLORIDA 
ATTORNEY GENERAL, Tallahassee, Florida, James A. Campbell, OFFICE OF THE 
NEBRASKA ATTORNEY GENERAL, Lincoln, Nebraska, Anthony J. Galdieri, OFFICE OF 
THE NEW HAMPSHIRE ATTORNEY GENERAL, Concord, New Hampshire, Matthew A. 
Sagsveen, OFFICE OF THE NORTH DAKOTA ATTORNEY GENERAL, Bismarck, North 
Dakota, Ross W. Bergethon, OFFICE OF THE GEORGIA ATTORNEY GENERAL, Atlanta, 
Georgia, Thomas M. Fisher, OFFICE OF THE INDIANA ATTORNEY GENERAL, 
Indianapolis, Indiana, Thomas T. Hydrick, OFFICE OF THE SOUTH CAROLINA 
ATTORNEY GENERAL, Columbia, South Carolina, Samuel P. Langholz, OFFICE OF THE 
IOWA ATTORNEY GENERAL, Des Moines, Iowa, Elizabeth B. Murrill, OFFICE OF THE 
LOUISIANA ATTORNEY GENERAL, Baton Rouge, Louisiana, Judd E. Stone II, William F. 
Cole, Ryan S. Baasch, OFFICE OF THE TEXAS ATTORNEY GENERAL, Austin, Texas, 
Melissa A. Holyoak, OFFICE OF THE UTAH ATTORNEY GENERAL, Salt Lake City, Utah, 
John V. Coghlan, OFFICE OF THE MISSISSIPPI ATTORNEY GENERAL, Jackson, 
Mississippi, Ryan Schelhaas, OFFICE OF THE WYOMING ATTORNEY GENERAL, 
Cheyenne, Wyoming, for State Petitioners.  Michael  E. Toner, Thomas M. Johnson, Jr., Stephen 
J. Obermeier, Jeremy J. Broggi, Krystal B. Swendsboe, WILEY REIN LLP, Washington, D.C., 
for Petitioner Republican National Committee.  Daniel P. Lennington, WISCONSIN 
INSTITUTE FOR LAW & LIBERTY, Milwaukee, Wisconsin, for Tankcraft Petitioners.  
Matthew R. Miller, Robert Henneke, Chance Weldon, Nathan Curtisi, TEXAS PUBLIC 
POLICY FOUNDATION, Austin, Texas, for Burnett Specialists Petitioners.  John Stone 
Campbell III, John P. Murrill, TAYLOR, PORTER, BROOKS, & PHILLIPS L.L.P., Baton 
Rouge, Louisiana, for Cox Operating Petitioners.  Jessica Hart Steinmann, Josh Campbell, 
Rachel Jag, AMERICA FIRST POLICY INSTITUTE, Washington, D.C., Kris W. Kobach, 
ALLIANCE FOR FREE CITIZENS, Lecompton, Kansas, for DTN Staffing Petitioners.  Daniel 
R. Suhr, M. E. Buck Dougherty III, LIBERTY JUSTICE CENTER, Chicago, Illinois, Sarah 
Harbison, PELICAN INSTITUTE FOR PUBLIC POLICY, New Orleans, Louisiana, for BST 
Holdings Petitioners.  Kurtis T. Wilder, Joseph E. Richotte, Steven R. Eatherly, BUTZEL 
LONG, P.C., Detroit, Michigan, for Petitioner Small Business Association of Michigan.  Henry 
M. Perlowski, Ashley S. Kelly, ARNALL GOLDEN GREGORY LLP, Atlanta, Georgia, 
Richard J. Oparil, ARNALL GOLDEN GREGORY LLP, Washington, D.C., for Petitioner 
Natural Products Association.  Robert Alt, THE BUCKEYE INSTITUTE, Columbus, Ohio, 
Patrick Strawbridge, CONSOVOY MCCARTHY PLLC, Boston, Massachusetts, for Petitioner 
Phillips Manufacturing & Tower Company.  David A. Cortman, John J. Bursch, Matthew S. 
Bowman, Frank H. Chang, ALLIANCE DEFENDING FREEDOM, Washington, D.C., Ryan L. 
Bangert, Ryan J. Tucker, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for 
Southern Baptist Theological Seminary Petitioners.  Jordan A. Sekulow, Abigail A. Southerland, 
Miles Terry, Christy Stierhoff, AMERICAN CENTER FOR LAW & JUSTICE, Washington, 
D.C., Edward L. White III, AMERICAN CENTER FOR LAW & JUSTICE, Ann Arbor, 
Michigan, for Petitioner Heritage Foundation.  Steven P. Lehotsky, Scott A. Keller, Michael B. 
Schon, LEHOTSKY KELLER LLP, Washington, D.C., for Business Association Petitioners.  
Matthew J. Clark, ALABAMA CENTER FOR LAW AND LIBERTY, Birmingham, Alabama, 
for FabArc Steel Supply Petitioners.  J. Larry Stine, WIMBERLY, LAWSON, STECKEL, 
App. A-3 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 4 
 
SCHNEIDER & STINE, P.C., Atlanta, Georgia, for Associated Builders and Contractors 
Petitioners.  Jeffrey C. Mateer, Hiram S. Sasser III, David J. Hacker, Jeremiah G. Dys, Lea E. 
Patterson, Keisha T. Russell, FIRST LIBERTY INSTITUTE, Plano, Texas, for Answers in 
Genesis Petitioners.  David A. Cortman, John J. Bursch, Matthew S. Bowman, Frank H. Chang, 
ALLIANCE DEFENDING FREEDOM, Washington, D.C., Ryan L. Bangert, Ryan J. Tucker, 
ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Harmeet K. Dhillon, Ronald D. 
Coleman, Mark P. Meuser, Michael A. Columbo, DHILLON LAW GROUP INC., San 
Francisco, California, for Petitioner Bentkey Services.  Aaron Abadi, New York, New York, pro 
se.  ON AMICUS BRIEF:  Brianne Gorod, CONSTITUTIONAL ACCOUNTABILITY 
CENTER, Washington, D.C., Scott E. Rosenow WMC LITIGATION CENTER, Madison, 
Wisconsin, Catherine L. Strauss, ICE MILLER LLP, Columbus, Ohio, Sheng Li, NEW CIVIL 
LIBERTIES ALLIANCE, Washington, D.C., Emmy L. Levens, COHEN MILSTEIN SELLERS 
& TOLL PLLC, Washington, D.C., Rachel L. Fried, Jessica Anne Morton, Jeffrey B. Dubner, 
JoAnn Kintz, DEMOCRACY FORWARD FOUNDATION, Washington, D.C., Scott L. Nelson, 
Allison M. Zieve, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., Michael T. 
Anderson, Adam C. Breihan, MURPHY ANDERSON PLLC, Washington, D.C., Deepak Gupta, 
GUPTA WESSLER PLLC, Washington, D.C., for Amici Curiae. 
 
STRANCH, J., delivered the opinion of the court in which GIBBONS, J., joined.  
GIBBONS, J. (pg. 38), delivered a separate concurring opinion.  LARSEN, J. (pp. 39–57), 
delivered a separate dissenting opinion. 
_________________ 
OPINION 
_________________ 
JANE B. STRANCH, Circuit Judge.  The COVID-19 pandemic has wreaked havoc 
across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs 
across the country, and threatening our economy.  Throughout, American employees have been 
trying to survive financially and hoping to find a way to return to their jobs.  Despite access to 
vaccines and better testing, however, the virus rages on, mutating into different variants, and 
posing new risks.  Recognizing that the “old normal” is not going to return, employers and 
employees have sought new models for a workplace that will protect the safety and health of 
employees who earn their living there.  In need of guidance on how to protect their employees 
from COVID-19 transmission while reopening business, employers turned to the Occupational 
Safety and Health Administration (OSHA or the Agency), the federal agency tasked with 
assuring a safe and healthful workplace.  On November 5, 2021, OSHA issued an Emergency 
App. A-4 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 5 
 
Temporary Standard (ETS or the standard) to protect the health of employees by mitigating 
spread of this historically unprecedented virus in the workplace.  The ETS requires that 
employees be vaccinated or wear a protective face covering and take weekly tests but allows 
employers to choose the policy implementing those requirements that is best suited to their 
workplace.  The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending 
judicial review, and it renewed that decision in an opinion issued on November 12.  Under 
28 U.S.C. § 2112(a)(3), petitions challenging the ETS—filed in Circuits across the nation—were 
consolidated into this court.  Pursuant to our authority under 28 U.S.C. § 2112(a)(4), we 
DISSOLVE the stay issued by the Fifth Circuit for the following reasons.  
I.  BACKGROUND 
A.  OSHA’s History and Authority 
Congress passed the Occupational Safety and Health Act of 1970 (OSH Act or the Act) 
and established OSHA “to assure safe and healthful working conditions for the nation’s work 
force and to preserve the nation’s human resources.”  Asbestos Info. Ass’n/N. Am. v. 
Occupational Safety & Health Admin., 727 F.2d 415, 417 (5th Cir. 1984).  It expressly found that 
“personal injuries and illnesses arising out of work situations impose a substantial burden upon, 
and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical 
expenses, and disability compensation payments.”  29 U.S.C. § 651(a).  OSHA is charged with 
ensuring worker safety and health “by developing innovative methods, techniques, and 
approaches for dealing with occupational safety and health problems.”  Id. § 651(b)(5).  To fulfill 
that charge, Congress authorized the Secretary of Labor (the Secretary) “to set mandatory 
occupational safety and health standards applicable to businesses affecting interstate commerce.”  
Id. § 651(b)(3).  And it vested the Secretary with “broad authority . . . to promulgate different 
kinds of standards” for health and safety in the workplace.  Indus. Union Dep’t, AFL-CIO v. Am. 
Petroleum Inst., 448 U.S. 607, 611 (1980) (plurality opinion); see, e.g., N. Am.’s Bldg. Trades 
Unions v. Occupational Safety & Health Admin., 878 F.3d 271, 281 (D.C. Cir. 2017); United 
Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1202, 1311 (D.C. Cir. 1980); 
29 C.F.R. §§ 1910.141, 1926.51.   
App. A-5 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 6 
 
An occupational safety and health standard is one that “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.”  
29 U.S.C. § 652(8).  Before going into effect, OSHA’s standards must undergo a notice-and-
comment period for 30 days, during which time anyone who objects to the standard may request 
a public hearing.  Id. § 655(b)(2)–(3).  Within 60 days from the end of the notice-and-comment 
period, the Secretary must either publish the standard or decline to issue the standard.  Id. 
§ 655(b)(4).  The Secretary has set standards that affect workplaces across the country in a wide 
range of categories, including sanitation, air contaminants, hazardous materials, personal 
protective equipment, and fire protection.  See National Consensus Standards and Established 
Federal Standards, 36 Fed. Reg. 10,466 (May 29, 1971).  
In emergency circumstances, OSHA “shall” promulgate an “emergency temporary 
standard” that takes “immediate effect.”  29 U.S.C. § 655(c)(1).  Emergency temporary standards 
do not displace notice-and-comment requirements; rather, the ETS serves as the “proposed rule,” 
and OSHA must proceed over the course of six months with the notice-and-comment procedures 
of a normal OSHA standard.  Id. § 655(c)(2), (3).  At the end of that period, the Secretary must 
promulgate either the same standard or a revised standard in light of the notice-and-comment 
process.  Id. § 655(c)(2).  Before issuing an ETS, OSHA must determine: (1) “that employees are 
exposed to grave danger from exposure to substances or agents determined to be toxic or 
physically harmful or from new hazards,” and (2) that an “emergency standard is necessary to 
protect employees from such danger.” Id. § 655(c)(1). 
With respect to any OSHA standard—emergency or otherwise—employers may seek a 
“variance” from the standard.  Id. § 655(d).  Under that provision, an employer must demonstrate 
“that the conditions, practices, means, methods, operations, or processes used or proposed to be 
used by an employer will provide employment and places of employment to his employees 
which are as safe and healthful as those which would prevail if he complied with the standard.”  
Id.  
App. A-6 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 7 
 
B.  Factual Background 
OSHA monitored the COVID-19 pandemic from the beginning.  As early as April 2020, 
OSHA sought to protect workers through “widespread voluntary compliance” with “safety 
guidelines,” specifying that workplaces should comply with personal protective equipment 
standards, see 29 C.F.R. § 1910, and by reinforcing employers’ “general duty” to furnish each 
worker “employment and a place of employment, which are free from recognized hazards that 
are causing or are likely to cause death or serious physical harm,” see 29 U.S.C. § 654(a)(1).  
Given the pandemic’s trajectory—and the emergence of rapidly-spreading variants causing 
“increases in infectiousness and transmission,” 86 Fed. Reg. at 61,409—OSHA found that its 
“nonregulatory enforcement tools” were “inadequate” to ensure all working individuals “safe 
and healthful working conditions.”  29 U.S.C. § 651(b); see 86 Fed. Reg. at 61,410–45. 
Determining that the continued spread of COVID-19 met the two requirements of 
§ 655(c)(1), on November 5, 2021, OSHA published an ETS to fulfill its statutory directive and 
address the “extraordinary and exigent circumstances” presented by this unprecedented 
pandemic.  86 Fed. Reg. at 61,434.  OSHA published a 153-page preamble to the ETS to explain 
the bases for its decision to issue the ETS under 29 U.S.C. § 655(c).  See COVID-19 Vaccination 
and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be 
codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926, and 1928).   
The ETS does not require anyone to be vaccinated.  Rather, the ETS allows covered 
employers—employers with 100 or more employees—to determine for themselves how best to 
minimize the risk of contracting COVID-19 in their workplaces.  Id. at 61,438 (allowing 
employers to “opt out” of any vaccination policies).  Employers have the option to require 
unvaccinated workers to wear a mask on the job and test for COVID-19 weekly.  Id.  They can 
also require those workers to do their jobs exclusively from home, and workers who work 
exclusively outdoors are exempt.  Id. at 61,419.  The employer—not OSHA—can require that its 
workers get vaccinated, something that countless employers across the country have already 
done.  Id. at 61,436 (“[T]his ETS offers employers a choice in how to comply . . . .”). 
App. A-7 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 8 
 
Employers must also confirm their employees’ vaccination status and keep records of that 
status.  Id. at 61,552.  Consistent with other OSHA standard penalties, employers who fail to 
follow the standard may be fined penalties up to $13,653 for each violation and up to $136,532 
for each willful violation.  29 C.F.R. § 1903.15(d). 
C.  Procedural History  
 
Shortly after OSHA issued the ETS, private employers, labor unions, state governments, 
and individual citizens across the country filed suit in virtually every circuit court, challenging 
OSHA’s authority to issue such an ETS and OSHA’s basis for the ETS.  One day after the ETS 
went into effect, the Fifth Circuit issued a stay barring OSHA from enforcing the ETS until the 
completion of judicial review.  BST Holdings, LLC v. Occupational Safety & Health Admin., 
No. 21-60845, 2021 WL 5166656 (5th Cir. Nov. 6, 2021) (per curiam).  Less than a week later, 
the Fifth Circuit issued a written opinion, reaffirming the initial stay after “having conducted . . . 
[an] expedited review.”  BST Holdings, LLC v. Occupational Safety & Health Admin., 17 F.4th 
604 (5th Cir. 2021).   
 
In reaching its decision to stay the ETS, the Fifth Circuit generally forecasted that the 
ETS faced fatal statutory and constitutional issues, then concluded that the Petitioners had 
demonstrated a strong likelihood of success on the merits.  Id. at 611–18.  On the other stay 
factors, the Fifth Circuit found that individuals, states, and employers would be “substantially 
burdened” due to the compliance costs, loss of constitutional freedom, and intrusion into States’ 
“constitutionally reserved police power.”  Id. at 618.  Without addressing any of OSHA’s factual 
explanations or its supporting scientific evidence concerning harm, the Fifth Circuit summarily 
concluded that “a stay will do OSHA no harm whatsoever” and “a stay is firmly in the public 
interest.”  Id. at 618–19 (emphasis in original). 
 
Under 28 U.S.C. § 2112(a)(3), the Government notified the judicial panel on multidistrict 
litigation of petitions across multiple circuits, invoking the lottery procedure to consolidate all 
petitions in a single circuit.  On November 16, the panel designated the U.S. Court of Appeals 
for the Sixth Circuit to review the petitions.  On November 23, the Government moved to 
App. A-8 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 9 
 
dissolve the stay issued by the Fifth Circuit pursuant to § 2112(a)(4), which provides that the 
court of appeals chosen through the multi-circuit lottery may modify, revoke, or extend a stay 
that a court of appeals issued before the lottery. 
II.  ANALYSIS 
Relying primarily on the evidence and authority set out in its 153-page preamble, OSHA 
moved to dissolve the Fifth Circuit’s stay.  Under 28 U.S.C. § 2112(a)(4), we review de novo the 
challenged aspects of the ETS to determine whether the Fifth Circuit’s stay should be modified, 
revoked, or extended.  
A.  Standard for Stay 
“A stay is an ‘intrusion into the ordinary processes of administration and judicial 
review.’”  Nken v. Holder, 556 U.S. 418, 427 (2009) (quoting Va. Petroleum Jobbers Ass’n. v. 
Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958)).  Therefore, it “is not a matter of right, 
even if irreparable injury might otherwise result to the appellant.”  Id. (quoting Virginian Ry. Co. 
v. United States, 272 U.S. 658, 672 (1926)).  “[T]he heavy burden for making out a case for such 
extraordinary relief” rests on “the moving parties.”  Winston-Salem/Forsyth Cnty. Bd. of Educ. v. 
Scott, 404 U.S. 1221, 1231 (1971); see also Nken, 556 U.S. at 433–34. 
To determine whether a stay pending judicial review is merited, we consider four factors:  
(1) whether the stay applicant has made a strong showing that he is likely to 
succeed on the merits; (2) whether the applicant will be irreparably injured absent 
a stay; (3) whether issuance of the stay will substantially injure the other parties 
interested in the proceeding; and (4) where the public interest lies.   
Nken, 556 U.S. at 426 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). 
B.  Likelihood of Success on the Merits 
1.  Scope of OSHA’s Statutory Authority 
Petitioners’ arguments are primarily grounded in the Fifth Circuit’s blanket conclusion 
that the ETS is beyond the scope of OSHA’s statutory authority.  The ETS was issued under 
App. A-9 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 10 
 
§ 655(c)(1) of the Act, which requires OSHA to issue an emergency standard if necessary to 
protect workers from a “grave danger” presented by “exposure to substances or agents 
determined to be toxic or physically harmful or from new hazards.”  29 U.S.C. § 655(c)(1).  In 
assessing that authority, the Fifth Circuit focused solely on the words in § 655(c)(1):  “substances 
or agents,” “toxic or physically harmful,” and “grave danger,” opining that those words are to be 
interpreted based on the words and phrases in the immediate vicinity of the statutory language at 
issue.  BST Holdings, 17 F.4th at 612–13.  But the Supreme Court has instructed that words and 
phrases must be viewed in the context of the entire statute.  See Gade v. Nat’l Solid Wastes 
Mgmt. Ass’n, 505 U.S. 88, 99 (1992) (instructing that, when evaluating a statute, a court “must 
not be guided by a single sentence or member of a sentence, but look to the provisions of the 
whole law”).  We therefore take a holistic view of the language that Congress chose to include in 
its statutory authorization to OSHA.  
An “agent” is “a chemically, physically, or biologically active principle.”  Agent, 
Merriam-Webster Collegiate Dictionary, https://unabridged.merriam-webster.com/collegiate/ 
agent.  And a virus is defined, in part, as “any large group of submicroscopic infectious agents.”  
Virus, Merriam-Webster Collegiate Dictionary, https://unabridged.merriam-webster.com/ 
collegiate/virus.  The statute requires OSHA to determine whether an agent is “toxic or 
physically harmful or from new hazards,” 29 U.S.C. § 655(c)(1) (emphasis added), speaking in 
the disjunctive, which specifies that words so connected “are to be given separate meanings,” 
Loughrin v. United States, 573 U.S. 351, 357 (2014) (quoting United States v. Woods, 571 U.S. 
31, 45–46 (2013)).  To conflate two descriptors into one meaning would improperly render one 
disjunctive phrase superfluous.  See Bailey v. United States, 516 U.S. 137, 146 (1995); Reiter v. 
Sonotone Corp., 442 U.S. 330, 338–39 (1979).  Under the statutory definition, any agent, 
including a virus, that is either “toxic” (i.e., poisonous, toxicity) or “physically harmful” (i.e., 
causing bodily harm) falls within OSHA’s purview.  An agent that causes bodily harm—a 
virus—falls squarely within the scope of that definition.  
 
Other provisions of the Act reinforce OSHA’s authority to regulate infectious diseases 
and viruses.  As explained above, Congress enacted the OSH Act under the Commerce Clause 
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because Congress found that “illnesses arising out of work situations impose a substantial burden 
upon . . . interstate commerce.”  29 U.S.C § 651(a) (emphasis added).  Congress created the 
safety and health administration to protect workers from those illnesses by reducing “health 
hazards at their places of employment.”  Id. § 651(b)(1).  The Act’s objectives include exploring 
“ways to discover latent diseases, establishing causal connections between diseases and work in 
environmental conditions, and conducting other research relating to health problems . . . .”  Id. 
§ 651(b)(6).  And finally, the Act sought to “provid[e] medical criteria which will assure insofar 
as practicable that no employee will suffer diminished health, functional capacity, or life 
expectancy as a result of his work experience.”  Id. § 651(b)(7). 
 
Section 20 of the OSH Act provides for OSHA to work with and through other agencies 
by expressly directing the Secretary of Health and Human Services to conduct research in 
consultation with the Secretary of Labor to develop “information regarding potentially toxic 
substances or harmful physical agents,” including through medical examination and tests.  Id. 
§ 669(a)(5).  That provision also contains the religious exemption for the entire OSH Act: 
“[n]othing in this or any other provision of this chapter shall be deemed to authorize or require 
medical examination, immunization, or treatment, for those who object thereto on religious 
grounds, except where such is necessary for the protection of the health or safety of others.”  Id.  
The provision’s reference to immunization and its creation of a limited exception to the Act’s 
authorization of standards involving immunization would be rendered meaningless if the statute 
did not contemplate both that “harmful agents” include infectious, disease-causing agents, such 
as viruses, and that OSHA would employ the use of immunizations to combat those agents.  
Congress confirmed OSHA’s infectious disease authority in other statutes.  In 1989, 
OSHA proposed a standard governing bloodborne pathogens to curb transmission rates of HIV, 
hepatitis B (HBV), and hepatitis C.  See Occupational Exposure to Bloodborne Pathogens, 
54 Fed. Reg. 23,042 (proposed May 30, 1989).  When the standard had not been finalized by 
1991, Congress ordered OSHA to finalize its rulemaking by a date certain, “warning that if 
[OSHA] did not meet its deadline, the proposed standard would become effective in the interim.”  
Dale and Tracy, Occupational Safety and Health Law 64 (2018).  In 1992, Congress passed the 
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Workers Family Protection Act, codified in 29 U.S.C. § 671a, the same U.S. Code chapter as the 
OSH Act.  The statute resulted from findings that “hazardous chemicals and substances” were 
being transported home on workers and their clothing posing a “threat to the health and welfare 
of workers and their families.”  29 U.S.C. § 671a(b)(1)(A)–(B).  Section 671a requires the 
National Institute for Occupational Safety and Health to work with OSHA to study “issues 
related to the contamination of workers’ homes with hazardous chemicals and substances, 
including infectious agents, transported from the workplaces of such workers.”  Id. 
§ 671a(c)(1)(A) (emphasis added).  OSHA is then specifically required to consider the need for 
additional standards on the studied issues and to promulgate such standards “pursuant to . . . the 
Occupational Safety and Health Act of 1970.”  Id.  § 671a(d)(2). 
In 2000, Congress passed the Needlestick Safety and Prevention Act, directing OSHA to 
strengthen its bloodborne pathogens standard and provide language for the regulatory text.  Pub. 
L. No. 106-430, 114 Stat. 1901 (2000).  Although legal challenges were brought against the 
standard, no party challenged OSHA’s authority to regulate bloodborne pathogens.  See Am. 
Dental Ass’n v. Martin, 984 F.2d 823, 826 (7th Cir. 1993).  Removing any basis for doubt that 
OSHA is authorized to regulate infectious diseases, Congress expressly included funding for 
OSHA in the American Rescue Plan that is to be used “to carry out COVID-19 related worker 
protection activities.”  Pub. L. No. 117-2, § 2101, 135 Stat. 4, 30 (2021).  
 
Based on the OSH Act’s language, structure, and Congressional approval, OSHA has 
long asserted its authority to protect workers against infectious diseases.  In 1991, it promulgated 
a standard regarding exposure to bloodborne pathogens.  Occupational Exposure to Bloodborne 
Pathogens; Final Rule; 56 Fed. Reg. 64,004 (1991) (codified at 29 C.F.R. § 1910.1030).  That 
standard required employers to make the hepatitis B vaccine available to employees at risk of 
exposure to HBV.  29 C.F.R. § 1910.1030(f).  OSHA has also promulgated standards requiring 
employers engaged in hazardous waste cleanup to protect against any “biological agent and other 
disease-causing agent” that “upon exposure, ingestion, inhalation or assimilation into any 
person,. . . will or may reasonably be anticipated to cause death [or] disease,” id. 
§ 1910.120(a)(3); requiring use of respirators to prevent occupational diseases caused by 
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“harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors,” id. § 1910.134(a)(1); and 
requiring employers to provide adequate toilet and handwashing facilities to protect workers 
from pesticides and prevent the spread of harmful bacteria and disease, id. § 1910.141; see also 
Field Sanitation, 52 Fed. Reg. 16,050, 16,087, 16,090–91 (May 1, 1987) (codified at 29 C.F.R. 
§ 1928.110) (requiring construction employers to ban the use of common drinking cups to avoid 
the risk of contracting diseases); 29 C.F.R. § 192.51(a)(4). 
 
Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has 
the authority to regulate infectious diseases that are not unique to the workplace.  Indeed, no 
virus—HIV, HBV, COVID-19—is unique to the workplace and affects only workers.  And 
courts have upheld OSHA’s authority to regulate hazards that co-exist in the workplace and in 
society but are at heightened risk in the workplace.  See, e.g., Forging Indus. Ass’n v. Sec’y of 
Labor, 773 F.2d 1436, 1442–43 (4th Cir. 1985) (en banc) (rejecting the argument that “because 
hearing loss may be sustained as a result of activities which take place outside the workplace . . . 
OSHA acted beyond its statutory authority by regulating non-occupational conditions or 
causes”); Am. Dental Ass’n, 984 F.2d at 826 (recognizing that the “infectious character of HIV 
and HBV warrant[s] even on narrowly economic grounds more regulation than would be 
necessary in the case of a noncommunicable disease”); see also 29 C.F.R. § 1910.1025 (OSHA 
regulates workplace exposure to lead). 
 
Longstanding precedent addressing the plain language of the Act, OSHA’s interpretations 
of the statute, and examples of direct Congressional authorization following the enactment of the 
OSH Act all show that OSHA’s authority includes protection against infectious diseases that 
present a significant risk in the workplace, without regard to exposure to that same hazard in 
some form outside the workplace.   
The responsibility the Act imposes on OSHA to protect the safety and health of 
employees, moreover, is hardly limited to “hard hats and safety goggles.”  OSHA has wide 
discretion to form and implement the best possible solution to ensure the health and safety of all 
workers, and has historically exercised that discretion.  See United Steelworkers of Am., 647 F.2d 
at 1260.  Having been charged by the Act with creating such health-based standards, it makes 
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sense that OSHA’s authority contemplates the use of medical exams and vaccinations as tools in 
its arsenal.  See id. at 1228–40 (concluding that OSHA has the authority to require medical 
surveillance of lead levels).  “To suggest otherwise would mean that Congress had to have 
anticipated both the unprecedented COVID-19 pandemic and the unprecedented politicization of 
the disease to regulate vaccination against it.”  Florida v. Dep’t of Health & Hum. Servs., No. 
21-14098-JJ, 2021 WL 5768796, at *12 (11th Cir. Dec. 6, 2021).  No such prescience is required 
to address the health and safety concerns of American workers as they seek to return to their 
workplaces.  The language of the OSH Act plainly authorizes OSHA to act on its charge “to 
assure safe and healthful working conditions for the nation’s work force and to preserve the 
nation’s human resources.”  Asbestos Info. Ass’n, 727 F.2d at 417.  
2.  Major Questions Doctrine 
Having established OSHA’s statutory authority, we pause to address Petitioners’ and the 
Fifth Circuit’s arguments pertaining to the major questions doctrine.  The Fifth Circuit’s 
complete discussion of the point is contained in a single paragraph: 
[T]he major questions doctrine confirms that the Mandate exceeds the bounds of 
OSHA’s statutory authority.  Congress must “speak clearly if it wishes to assign 
to an agency decisions of vast economic and political significance.”  The Mandate 
derives its authority from an old statute employed in a novel manner, imposes 
nearly $3 billion in compliance costs, involves broad medical considerations that 
lie outside of OSHA’s core competencies, and purports to definitively resolve one 
of today’s most hotly debated political issues.  There is no clear expression of 
congressional intent in § 655(c) to convey OSHA such broad authority, and this 
court will not infer one.  Nor can the Article II executive breathe new power into 
OSHA’s authority—no matter how thin patience wears. 
BST Holdings, 17 F.4th at 617–18 (citations and footnote omitted) (quoting Util. Air Regul. Grp. 
v. EPA, 573 U.S. 302, 324 (2014)). 
The seldom-used major questions doctrine is a canon of statutory interpretation that has 
been described as an exception to Chevron deference.  See, e.g., King v. Burwell, 576 U.S. 473, 
485–86 (2015).  If any agency’s regulatory action “bring[s] about an enormous and 
transformative expansion in [the agency’s] regulatory authority,” then there must be “clear 
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Page 15 
 
congressional authorization.”  Util. Air Regul. Grp., 573 U.S. at 324.  “We expect Congress to 
speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political 
significance.’”  Id. (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 
(2000)).  The doctrine itself is hardly a model of clarity, and its precise contours—specifically, 
what constitutes a question concerning deep economic and political significance—remain 
undefined.   
The major questions doctrine is inapplicable here, however, because OSHA’s issuance of 
the ETS is not an enormous expansion of its regulatory authority.  OSHA has regulated 
workplace health and safety on a national scale since 1970, including controlling the spread of 
disease.  See Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 520 (1981).  As cataloged at 
length above, vaccination and medical examinations are both tools that OSHA historically 
employed to contain illness in the workplace.  The ETS is not a novel expansion of OSHA’s 
power; it is an existing application of authority to a novel and dangerous worldwide pandemic. 
The dissent assumes our conclusion rests on the length of time (since 1970) OSHA has 
regulated workplaces and that we miss the point that the major questions doctrine is also about 
the “scope or degree” of the power an agency wields.  (Dissent Op. at 53)  Our conclusion rests 
on much more, including:  An extensive catalog of OSHA’s regulatory authority, citing the text 
of the Act and precedent, both replete with references that contemplate the authority OSHA uses 
here; the actual components of OSHA’s work—such as its many years of regulating illness in the 
workplace; and other statutes acknowledging OSHA’s authority, including one that expressly 
allocates funding to OSHA for its intervention in the COVID-19 crisis.  This listing shows that 
OSHA was granted the authority that it exercised.  The case cited by the dissent, FDA v. Brown 
& Williamson Tobacco Corporation, is inapposite because there the FDA made the claim that its 
authority to regulate “drugs” extended to cigarettes, but Congress had repeatedly declined to 
grant the FDA that authority.  See 529 U.S. at 125, 137–39.   
Any doubt as to OSHA’s authority is assuaged by the language of the OSH Act.  In 
arguing that OSHA does not have this authority, Petitioners and the Fifth Circuit rely on the 
Supreme Court’s and the Sixth Circuit’s recent cases invoking the major questions doctrine 
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regarding a nationwide moratorium on evictions in counties experiencing high levels of COVID-
19 transmission.  See Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141 S. Ct. 
2485 (2021); Tiger Lily, LLC v. U.S. Dep’t of Hous. & Urb. Dev., 5 F.4th 666 (6th Cir. 2021).  
The Centers for Disease Control and Prevention (CDC) promulgated the moratorium under 
§ 361(a) of the Public Health Service Act (PHSA), referencing its “broad authority to take 
whatever measures it deems necessary to control the spread of COVID-19.” Ala. Ass’n of 
Realtors, 141 S. Ct. at 2488.  The Supreme Court determined that clear language in the PHSA 
expressly limited the scope of the CDC’s authority to specific measures, which scope did not 
include moratoria.  Id.  The Court noted that “[e]ven if the text were ambiguous, the sheer scope 
of the CDC’s claimed authority under § 361(a) would counsel against the Government’s agency 
interpretation.”  Id. at 2489.  Because 80 percent of the United States population fell within the 
moratorium, which would cost nearly $50 billion, and the moratorium intruded into an area 
traditionally left to the States, landlord-tenant law, the Court noted that if Congress wished the 
CDC to have such authority, it needed to “enact exceedingly clear language” to that effect.  Id. 
(quoting U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837, 1850 (2020)). 
As an initial point, Alabama Association of Realtors and Tiger Lily do not control this 
case.  Those cases concerned a different agency, the CDC, and a different regulation, the 
suspension of evictions.  Any authority to issue such regulation came from a different statute:  
the PHSA.  The decisions primarily focused on interpreting the language of that underlying 
statute.  Ala Ass’n of Realtors, 141 S. Ct. at 2488; Tiger Lily, 5 F.4th at 669–71.   
Those cases are inapposite because here the statutory language unambiguously grants 
OSHA authority for the ETS.  As discussed at length, the OSH Act confers authority on OSHA 
to impose standards and regulations on employers to protect workplace health and safety, 
including the transmission of viruses in the workplace.  See 29 U.S.C. §§ 651(b), 655(c).  
OSHA’s ETS authority is circumscribed not only by the requirements of grave danger and 
necessity, but also by the required relationship to the workplace.  Id.; see United Steelworkers of 
Am., 647 F.2d at 1230.  And OSHA honored those parameters, issuing emergency standards only 
eleven times, including the currently challenged ETS.  See SCOTT D. SZYMENDRA, CONG. RSCH. 
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and Testing, 86 Fed. Reg. 61402 
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SERV., R46288, OCCUPATION SAFETY AND HEALTH ADMIN. (OSHA): COVID-19 EMERGENCY 
TEMPORARY STANDARDS (ETS) ON HEALTH CARE EMP. AND VACCINATIONS AND TESTING FOR 
LARGE EMPS. at 35–36 tbl. A-1 (2021), https://crsreports.congress.gov/product/pdf/R/R46288.  
This is, therefore, different from the CDC’s authority under the PHSA, which provided a limited 
scope of tools to effectuate the Act’s purposes, which scope did not include moratoria, and which 
regulated an area not traditionally in the CDC’s wheelhouse.1  Finally, the same federalism 
concerns are not at issue here:  “[a]lthough . . . ‘public health issues’ . . . have ‘traditionally been 
a primary concern of state and local officials,’ Congress, in adopting the OSH Act, decided that 
the federal government would take the lead in regulating the field of occupational health.”  
Farmworker Just. Fund v. Brock, 811 F.2d 613, 625 (D.C. Cir. 1987) (quoting Am. Textile Mfrs. 
Inst., 452 U.S. at 509). 
In sum, the major questions doctrine is inapplicable here.  OSHA’s issuance of the ETS is 
not a transformative expansion of its regulatory power as OSHA has regulated workplace health 
and safety, including diseases, for decades.   
3.  OSHA’s Basis for the Emergency Temporary Standard 
Having found no threshold issue that OSHA exceeded its authority under the statute, we 
turn to the challenges to the ETS itself.   
As noted, OSHA is permitted to issue an emergency temporary standard, which takes 
“immediate effect” and serves as a “proposed rule” for a notice-and-comment rulemaking if it 
determines:  (1) “that employees are exposed to grave danger from exposure to substances or 
agents determined to be toxic or physically harmful or from new hazards,” and (2) that a 
standard “is necessary to protect employees from such danger.”  29 U.S.C. § 655(c).  Those 
determinations are “conclusive if supported by substantial evidence in the record as a whole.”  
 
1In comparing this case with Alabama Association, the Fifth Circuit wrote, “But health agencies do not 
make housing policy, and occupational safety administrators do not make health policy.”  BST Holdings, 17 F.4th at 
619.  The Fifth Circuit fails to acknowledge that OSHA stands for the Occupational Safety and Health 
Administration.  See 29 U.S.C. § 651(b) (“The Congress declares it to be its purpose and policy . . . to assure so far 
as possible every working man and woman in the Nation safe and healthful working conditions . . . .” (emphasis 
added)). 
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Id. § 655(f).  On judicial review, we determine “whether the record contains ‘such relevant 
evidence as a reasonable mind might accept as adequate to support a conclusion.’”  Asbestos 
Info. Ass’n, 727 F.2d at 421 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).   
While the ultimate question hinges on whether the record contains substantial evidence, 
“the nature of the evidence in this case requires that we inquire into whether OSHA ‘carried out 
[its] essentially legislative task in a manner reasonable under the state of the record before [it].’”  
Id. at 421 (quoting Aqua Slide ‘n’ Dive Corp. v. Consumer Prod. Safety Comm’n, 569 F.2d 831, 
838 (5th Cir. 1978)).  To this end, deference is given to OSHA’s fact-finding expertise.  Id. 
(citing Aqua Slide ‘n’ Dive Corp., 569 F.2d at 838).  While “we must take a ‘harder look’ at 
OSHA’s action than we would if we were reviewing the action under the more deferential 
arbitrary and capricious standard,” id. at 421, by the very nature of the administrative 
proceeding, some flexibility is to be exercised in judicial review, id. at 422.   
The court “can review [the] data in the record and determine whether it reflects 
substantial support for the Secretary’s findings.”  Indus. Union Dep’t, AFL-CIO v. Hodgson, 
499 F.2d 467, 475 (D.C. Cir. 1974) (recognizing that substantial evidence standard of review in a 
legislative-type proceeding is only applicable to some dimensions of the agency’s decision).  But 
some “determinations involve policy choices or factual determinations so much ‘on the frontiers 
of scientific knowledge’ that they resemble policy determinations more than factual ones.”  
Asbestos Info. Ass’n, 727 F.2d at 422 (quoting Hodgson, 499 F.2d at 474).  For these 
determinations we respect “‘the boundaries between the legislative and the judicial function,’ 
[and] we ‘approach our reviewing task with a flexibility informed and shaped by sensitivity to 
the diverse origins of the determinations that enter into a legislative judgment’ made by an 
agency.”  Id. (quoting Hodgson, 499 F.2d at 475).  So too here. 
In assessing the likelihood of success of the ETS challenges, we rely on the extensive 
preamble to the ETS and the record before the courts. 
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and Testing, 86 Fed. Reg. 61402 
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i.  Emergency 
We begin with the contention endorsed by the Fifth Circuit that the standard 
automatically fails because OSHA did not issue the ETS at the outset of the pandemic.  The 
claim that COVID-19 does not present “a true emergency” in the workplace has no foundation in 
the record and law and ignores OSHA’s explanations.  OSHA addressed COVID-19 in 
progressive steps tailored to the stage of the pandemic, including consideration of the growing 
and changing virus, the nature of the industries and workplaces involved, and the availability of 
effective tools to address the virus.  This reasoned policy determination does not undermine the 
state of emergency that this unprecedented pandemic currently presents.  
Even if we assume that OSHA should have issued an ETS earlier, moreover, “to hold that 
because OSHA did not act previously it cannot do so now only compounds the consequences of 
the Agency’s failure to act.”  Id. at 423.  In Asbestos Information Association, the petitioners 
challenged the Agency’s motives in promulgating an ETS “when the Agency has known for 
years that asbestos constitutes a serious health risk, and, in fact, has had all the data it uses to 
support its . . . action at hand, but nevertheless failed to act on it.”  Id.  The Fifth Circuit 
concluded that the statutory language itself precludes a requirement that OSHA may only act on 
“new information” because the Act permits regulation of harmful agents or “new hazards,” 
proving that not all regulated dangers must be new.  Id.  “OSHA should, of course, offer some 
explanation for its timing in promulgating an ETS,” id., and OSHA has done so here.  
The record establishes that COVID-19 has continued to spread, mutate, kill, and block 
the safe return of American workers to their jobs.  To protect workers, OSHA can and must be 
able to respond to dangers as they evolve.  As OSHA concluded:  with more employees returning 
to the workplace, the “rapid rise to predominance of the Delta variant” meant “increases in 
infectiousness and transmission” and “potentially more severe health effects.”  86 Fed. Reg. at 
61,409–12.  OSHA also explained that its traditional nonregulatory options had been proven 
“inadequate.”  Id. at 61,444.  OSHA acted within its discretion in making the practical decision 
to wait for Federal Drug Administration (FDA) approval of the vaccines before issuing the ETS; 
“this fact demonstrates appropriate caution and thought on the part of the Secretary.”  
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 20 
 
Florida, 2021 WL 5768796, at *14 n.2.  These findings, therefore, coupled with FDA-approved 
vaccines, more widespread testing capabilities, the recognized Delta variant and the possibility of 
new variants2 support OSHA’s conclusion that the current situation is an emergency, and one 
that can be ameliorated by agency action. 
ii.  Grave Danger 
Health effects may constitute a “grave danger” under the OSH Act if workers face “the 
danger of incurable, permanent, or fatal consequences . . . , as opposed to easily curable and 
fleeting effects on their health.”  Fla. Peach Growers Ass’n, Inc. v. U.S. Dep’t of Labor, 
489 F.2d 120, 132 (5th Cir. 1974).  The “grave danger” required to warrant an ETS is a risk 
greater than the “significant risk” that OSHA must show to promulgate a permanent standard 
under § 655(b) of the Act.  See Indus. Union Dep’t, 448 U.S. at 640 n.45.  But the ultimate 
determination of what precise level of risk constitutes a “grave danger” is a “policy consideration 
that belongs, in the first instance, to the Agency.”  Asbestos Info. Ass’n, 727 F.2d at 425 
(accepting OSHA’s determination that 80 lives at risk over six months was a grave danger). 
The Fifth Circuit’s conclusion, unadorned by precedent, that OSHA is “required to make 
findings of exposure—or at least the presence of COVID-19—in all covered workplaces” is 
simply wrong.  BST Holdings, 17 F.4th at 613 (emphasis in original).  If that were true, no 
hazard could ever rise to the level of “grave danger” because a risk cannot exist equally in every 
workplace and so the entire provision would be meaningless.  Almost fifty years ago, the Third 
Circuit quickly dismantled this argument: 
Industry petitioners argue that there must also be substantial evidence to support 
OSHA’s determination that employees are in fact being exposed to those harmful 
substances.  Although subsection 6(c)(1) readily lends itself to such a reading, that 
interpretation would render ineffective the provision for emergency temporary 
standards.  The purpose of subsection 6(c)(1) is to provide immediate protection 
in cases where there is a grave danger of harm to employees.  This necessarily 
requires rather sweeping regulation.  OSHA cannot be expected to conduct 
on-the-spot investigations of every user to determine if exposure is occurring.  
 
2This possibility has borne out with the Omicron variant. 
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and Testing, 86 Fed. Reg. 61402 
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In cases where OSHA determines that a substance is sufficiently harmful that a 
grave danger would be created by exposure, OSHA must be allowed to issue 
necessary regulations.  In other words exposure can be assumed to be occurring at 
any place where there is a substance that has been determined to be sufficiently 
harmful to pose a grave danger and where the regulations that have been 
determined to be necessary to meet that danger are not in effect.  This 
interpretation of subsection 6(c)(1) is supported by the existence of subsection 
6(d), which provides that any affected employer may obtain a variance from any 
standard if he can show that “the conditions, practices, means, methods, 
operations, or processes used or proposed to be used by an employer will provide 
employment and places of employment to his employees which are as safe and 
healthful as those which would prevail if he complied with the standard.” 
Dry Color Mfrs. Ass’n v. Dep’t of Labor, 486 F.2d 98, 102 n.3 (3d Cir. 1973) (emphasis added).  
Thus, OSHA is not required to investigate every business to show that COVID-19 is present in 
each workplace nor is it required to prove that every worker will experience the same risk of 
harm.3 
On this point, OSHA has demonstrated the pervasive danger that COVID-19 poses to 
workers—unvaccinated workers in particular—in their workplaces.  First, OSHA explains why 
the mechanics of COVID-19 transmission make our traditional workplaces ripe for the spread of 
the disease, putting workers at heightened risk of contracting it.  Transmission can occur “when 
people are in close contact with one another in indoor spaces (within approximately six feet for 
at least fifteen minutes)” or “in indoor spaces without adequate ventilation where small 
respiratory particles are able to remain suspended in the air and accumulate.”  86 Fed. Reg. at 
61,409.  Transmissibility is possible from those who are symptomatic, asymptomatic, or pre-
symptomatic, and variants are likely to be more transmissible.  Id.  American workplaces often 
require employees to work in close proximity—whether in office cubicles or shoulder-to-
shoulder in a meatpacking plant—and employees generally “share common areas like hallways, 
restrooms, lunchrooms[,] and meeting rooms.”  Id. at 61,411.  Evidence cited by OSHA 
 
3Our dissenting colleague argues that OSHA fails to satisfy the “grave danger” in the workplace limitation 
on its authority because it does not establish that “all covered employees have a high risk both of contracting 
COVID-19 and suffering severe consequences.”  (Dissent Op. at 49)  But this section on “Grave Danger” explains 
that OSHA is not required to show the presence of COVID-19 in every workplace industry by industry nor that 
every employee will be harmed in the same serious way by it.  Am. Dental Ass’n, 984 F.2d at 827 (holding that 
OSHA is not required to proceed “workplace by workplace”). 
App. A-21 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 22 
 
corroborates its conclusion:  scientific studies and findings prescribed by the CDC show that the 
nature of the disease itself provides significant cause for concern in the workplace.  Id. (citing 
studies). 
OSHA relied on public health data to support its observations that workplaces have a 
heightened risk of exposure to the dangers of COVID-19 transmission.  Many empirical, peer-
reviewed studies cited by OSHA have found that because of the characteristics of our workplace, 
“most employees who work in the presence of other people (e.g., coworkers, customers, visitors) 
need to be protected.”  86 Fed. Reg. at 61,412.  Reports produced by state public health 
organizations corroborate that finding.  See, e.g., id. at 61,413 (North Carolina Department of 
Health and Human Services reporting that “number of cases associated with workplace clusters 
began increasing in several different types of work settings, including meat processing, 
manufacturing, retail, restaurants, childcare, schools, and higher education.”); id. (Colorado 
Department of Public Health & Environment reporting similar outbreaks across many types of 
industries.); id. (Louisiana Department of Health, reporting that “[m]ore than three quarters of 
outbreaks through [August 24, 2021] were associated with workplaces.”).4 
Having established the risk to covered employees in the workplace, OSHA also set out 
evidence of the severity of the harm from COVID-19.  Apart from death, COVID-19 can lead to 
“serious illness, including long-lasting effects on health,” (now named “long COVID”).  Id. at 
61,410.  It has also “killed over 725,000 people in the United States in less than two years.”  Id. 
at 61,402.  The number of deaths in America has now topped 800,000 and healthcare systems 
across the nation have reached the breaking point.  COVID-19 affects individuals of all age 
groups; but on the whole “working age Americans (18-64 years old) now have a 1 in 14 chance 
of hospitalization when infected with COVID-19.”  Id. at 61,410.  The “severity is also likely 
exacerbated by long-standing healthcare inequities experienced by members of many racial and 
 
4Our dissenting colleague argues that OSHA fails to satisfy the grave danger “in the workplace” limitation 
on its authority because the Secretary did not specify how many employees would contract the virus at work and 
instead “calculated the number of people who happen to work who would, in any event, contract COVID-19.”  
(Dissent Op. at 51)  As shown in this section, however, OSHA presented substantial evidence both that the 
workplaces of virtually every industry across America present a heightened risk of COVID-19 exposure to 
employees and that a clear predominance of COVID-19 outbreaks come from workplaces. 
App. A-22 

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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 23 
 
economic demographics.”  Id.  Compounding matters, mutations of the virus become 
increasingly likely with every transmission, contributing to uncertainty and greater potential for 
serious health effects.  Id. at 61,409.  Based on this record, the symptoms of exposure are 
therefore neither “easily curable and fleeting” nor is the risk of developing serious disease 
speculative.  See Fla. Peach Growers, 489 F.2d at 132; Dry Color Mfrs. Ass’n, 489 F.2d at 106. 
OSHA further estimated that the standard would “save over 6,500 worker lives and 
prevent over 250,000 hospitalizations over the course of the next six months.”  Id. at 61,408.  
This well exceeds what the Fifth Circuit previously found to present a grave danger.  See 
Asbestos Info. Ass’n, 727 F.2d at 424 (assuming that 80 deaths over six months would constitute 
a grave danger).  As the death rate in America has continued to climb throughout 2021, those 
estimates may prove to be understated.  Bill Chappell, 800,000 Americans Have Died of 
COVID. Now 
the 
U.S. 
Braces 
for 
an 
Omicron-Fueled 
Spike, 
NPR 
(Dec. 
14, 
2021), https://www.npr.org/sections/coronavirus-live-updates/2021/12/14/1063802370/america-
us-covid-death-toll.  And where grave danger exists in a workplace, of course OSHA may 
consider the statistical proof on lives saved and hospitalizations prevented when issuing an ETS, 
even if the risk to individual workers varies within workplaces. 
A few Petitioners attack the veracity of some of the studies on which OSHA relies in its 
ETS or point to other studies that they claim contradict the studies on which OSHA relied.  But 
the court’s “expertise does not lie in technical matters.”  Pub. Citizen Health Rsch. Grp. v. Tyson, 
796 F.2d 1479, 1495 (D.C. Cir. 1986).  “[I]t is not infrequent that the available data do not settle 
a regulatory issue, and the agency must then exercise its judgment in moving from facts and 
probabilities on the record to a policy conclusion.”  Id.  (quoting Motor Vehicle Mfrs. Ass’n v. 
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983)).  OSHA pointed to extensive scientific 
evidence, including studies conducted by the CDC, of the dangers posed by COVID-19.  We 
therefore cannot say that OSHA acted improperly in light of its clear reliance on “a body of 
reputable scientific thought.”  Indus. Union Dep’t., 448 U.S. at 656.  
The claim that COVID-19 exists outside the workplace and thus is not a grave danger in 
the workplace is equally unavailing.  As discussed above, OSHA routinely regulates hazards that 
App. A-23 

Nos. 21-7000, et al. 
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 24 
 
exist both inside and outside the workplace.  More to the point, OSHA here demonstrated with 
substantial evidence that the nature of the workplace—commonplace across the country and in 
virtually every industry—presents a heightened risk of exposure.  Union Petitioners illustrate this 
point as well.  Within one week in mid-November, Michigan had reported 162 COVID-19 
outbreaks, 157 of which were in workplaces;5 Tennessee reported 280 COVID-19 outbreaks, 
161 of which were in workplaces;6 Washington state reported 65 outbreaks, of which 58 were in 
workplaces.7  And other states similarly experienced outbreaks predominantly in the workplace.8  
COVID-19 is clearly a danger that exists in the workplace.  
Some Petitioners contend that COVID-19 is no longer a grave danger and claim that 
OSHA’s delay in promulgating the ETS is evidence that no grave danger exists.  As explained, 
however, OSHA provided its reasoning for the delay.  When the pandemic began, “scientific 
evidence about the disease” and “ways to mitigate it were undeveloped.”  86 Fed. Reg. at 61,429.  
At that point, OSHA chose to focus on nonregulatory options, and crafted workplace guidance 
“based on the conditions and information available to the agency at that time,” including that 
“vaccines were not yet available.”  Id. at 61,429–30.  The voluntary guidance, however, proved 
inadequate, and as employees returned to workplaces the “rapid rise to predominance of the 
Delta variant” meant “increases in infectiousness and transmission” and “potentially more severe 
health effects.”  Id. at 61,409–12.  
At the same time, the options available to combat COVID-19 changed significantly: the 
FDA granted approval to one vaccine on August 23, 2021, and testing became more readily 
available.  Id. at 61,431, 61,452.  These changes, coupled with the ongoing risk workers face of 
 
5Mich. Dep’t of Health & Human Servs., https://www.michigan.gov/coronavirus/0,9753,7-406-
98163_98173_ 102057---,00.html. 
6TN 
Dep’t 
of 
Health, 
https://www.tn.gov/content/dam/tn/health/documents/cedep/novel-
coronavirus/Critical IndicatorReport.pdf 
7Wash. 
Dep’t 
of 
Health, 
https://www.doh.wa.gov/Portals/1/Documents/1600/coronavirus/data-
tables/Statewide COVID-19 OutbreakReport.pdf. 
8Union Petitioners point to California, New Mexico, and Oregon as other states that illustrate significant 
outbreaks in a variety of workplaces. 
App. A-24 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 25 
 
contracting COVID-19, support OSHA’s conclusion that the time was ripe for OSHA to address 
the ongoing danger in the workplace through an ETS.  More importantly, we are not to second 
guess what the Agency considers a “risk worthy of Agency action” because that “is a policy 
consideration that belongs, in the first instance to the Agency.”  Asbestos Info. Ass’n, 727 F.2d at 
425.  Relying on the history of the pandemic, OSHA explained that “the agency cannot assume 
based on past experience that nationwide case levels will not increase again.”  96 Fed. Reg. at  
61,431.  That conclusion has proven correct, as we now see the rise of new and more 
transmissible variants and the resulting increases in COVID-19 cases.  See Centers for Disease 
Control and Prevention (CDC), Omicron Variant: What You Need to Know (Dec. 13, 2021), 
https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html.  And we know that 
in our nation, over 800,000 people have died in less than two years and the numbers continue to 
climb, with more of those deaths having occurred in 2021 than in 2020.  See Bill Chappell, 
supra. 
Based on the wealth of information in the 153-page preamble, it is difficult to imagine 
what more OSHA could do or rely on to justify its finding that workers face a grave danger in 
the workplace.  It is not appropriate to second-guess that agency determination considering the 
substantial evidence, including many peer-reviewed scientific studies, on which it relied.  Indeed, 
OSHA need not demonstrate scientific certainty.  As long as it supports it conclusion with 
“a body of reputable scientific thought,” OSHA may “use conservative assumptions in 
interpreting the data . . . , risking error on the side of overprotection rather than underprotection.”  
Indus. Union Dep’t, 448 U.S. at 656.   
iii.  Necessity 
To issue an ETS, OSHA is also required to show that the ETS is “necessary to protect 
employees from” the grave danger.  29 U.S.C. § 655(c)(1).  This standard is more demanding 
than the “reasonably necessary or appropriate” standard applicable to permanent standards.  See 
id. § 652(8); see also Indus. Union Dep’t, 448 U.S. at 615.  To pass muster, OSHA must 
demonstrate, by substantial evidence, that the regulation is essential to reducing the grave danger 
asserted.  See Dry Color, 486 F.2d at 105.  In addition, OSHA must address economic feasibility 
App. A-25 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 26 
 
because the ETS’s “protection afforded to workers should outweigh the economic consequences 
to the regulated industry.”  Asbestos Info. Ass’n, 727 F.2d at 423.  
Some Petitioners argue the word “necessity” mandates that OSHA’s standard may use 
only the means that are absolutely required to quell the grave danger.  Taken seriously, such a 
cramped reading of the statute would require OSHA to prognosticate an emergency and devise 
the most narrowly tailored ETS to entirely remove the grave danger from the workplace.  But in 
virtually every emergency situation that would require an ETS, no precaution proposed by 
OSHA could ever be 100 percent effective at quelling the emergency.  Courts have 
acknowledged this practical reality, explaining that ETS standards “may necessarily be 
somewhat general . . . .  It cannot be expected that every procedure or practice will be strictly 
necessary as to every substance, type of use, or plant operation.”  Dry Color Mfrs. Ass’n, Inc., 
486 F.2d at 105.  OSHA need only demonstrate that the solution it proposes “is necessary to 
alleviate a grave risk of worker deaths during [the ETS’s] six month term.”  Asbestos Info. Ass’n, 
727 F.2d at 427 (emphasis added).   
The dissent disagrees, contending that the Secretary must rule out alternatives to show 
why his proposed means are “indispensable,” pointing us to Asbestos Information Association.  
(Dissent Op. at 44)  But in that case, the Fifth Circuit found that OSHA’s determination of 
necessity for the proposed ETS was undercut by its existing regulation through which “much of 
the claimed benefit could be obtained.” 727 F.2d at 427.  The Fifth Circuit did not require that 
OSHA rule out every plausible alternative in devising its ETS because the critical question was 
whether OSHA’s current regulations were sufficient to address the problem.  See id.  To answer 
that question, the Secretary here cataloged OSHA’s actions involving COVID-19, starting with 
advisory guidance then moving to attempts to enforce its General Duty clause. 86 Fed. Reg. at 
61,444.  These actions were to no avail as COVID-19 transmission rates in the workplace 
continued to climb and COVID-19-related complaints continued to pour in, suggesting “a lack of 
widespread compliance.”  Id. at 61,445.  With nothing left at his disposal to curb the 
transmission in the workplace, the Secretary issued the ETS.  We find that this explanation 
satisfies the Secretary’s obligation. 
App. A-26 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 27 
 
Turning to assess the remaining evidence supporting OSHA’s necessity finding, OSHA 
explained that the pandemic in the United States has significantly changed course since the 
emergence of COVID-19 in early 2020, necessitating an ETS at this point in time.  In particular, 
the emergence of the Delta variant significantly increased transmission when reported cases had 
been dwindling for months.  The realities of the Delta variant significantly changed public health 
policy and underscored a need for issuing an ETS—not only to control the variant itself, but to 
control the spread of the disease to slow further mutations.  86 Fed. Reg. at 61,431–32.  
Recognizing this new reality, the Agency crafted an ETS with options for employers, noting that 
“employers in their unique workplace settings may be best situated to understand their workforce 
and strategies that will maximize worker protection while minimizing workplace disruptions.”  
Id. at 61,436. 
Regarding the vaccine component of the ETS, OSHA explained the importance of 
vaccination to combat the transmission of COVID-19 and relied upon studies demonstrating the 
“power of vaccines to safely protect individuals,” including from the Delta variant.  Id. at 61,432, 
61,450.  Extensive evidence cited by OSHA shows that vaccination “reduce[s] the presence and 
severity of COVID-19 cases in the workplace,” and effectively “ensur[es]” that workers are 
protected from being infected and infecting others.  Id. at 61,434, 61,520, 61,528–29 (citing 
studies).  Likewise, the face-covering-and-test facet of the ETS is similarly designed based on 
the scientific evidence to reduce the risk of transmission and infection of COVID-19.  Regular 
testing “is essential because SARS-CoV-2 infection is often attributable to asymptomatic or 
pre-symptomatic transmission.”  Id. at 61,438 (citing studies).  And wearing a face covering 
provides an additional layer of protection, designed to reduce “exposure to the respiratory 
droplets of co-workers and others[, and] . . . to significantly reduce the wearer’s ability to spread 
the virus.”  Id. at 61,439. 
Vaccinated employees are significantly less likely to bring (or if infected, spread) the 
virus into the workplace.  Id. 61,418–19.  And testing in conjunction with wearing a face 
covering “will further mitigate the potential for unvaccinated workers to spread the virus at the 
workplace.”  Id. at 61,439.  Based on the evidence relied on by OSHA, these measures will 
App. A-27 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 28 
 
“protect workers” from the grave dangers presented by COVID-19 in the workplace.  See 
29 U.S.C. § 655(c)(1).  And OSHA is required to minimize a grave danger, even if it cannot 
eliminate it altogether.  Nat’l Grain & Feed Ass’n v. Occupational Safety & Health Admin., 
866 F.2d 717, 737 (5th Cir. 1988).  
OSHA limited the ETS to coverage of 100 or more employees, based on four reasons.  
First, as a practical matter, those employers have the administrative and managerial capacity to 
be able to promptly implement and meet the standard.  Id. at 61,511.  Second, the coverage 
threshold is sufficiently expansive to ensure protection to meaningfully curb transmission rates to 
offset the impact of the virus.  Id.  Third, the ETS “will reach the largest facilities, where the 
most deadly outbreaks of COVID-19 can occur.”  Id.  And finally, the standard is consistent with 
size thresholds established in analogous congressional and agency decisions, including standards 
promulgated by the Equal Employment Opportunity Commission under Title VII of the Civil 
Rights Act of 1964, requirements under the Affordable Care Act (in allowing greater flexibility 
with its requirements for employers with 100 or fewer employees), and requirements under the 
Family Medical Leave Act (exempting compliance for employers with fewer than 50 employees 
given decreased administrative capacity and inability to easily accommodate such employee 
absences).  Id. at 61,513. 
 
Petitioners contend, relying on the Fifth Circuit’s decision, that the necessity of the ETS 
is undermined by the fact that it is both “overinclusive” and “underinclusive.”  Neither 
observation warrants a stay.  OSHA may lean “on the side of overprotection rather than 
underprotection” when promulgating an ETS.  Indus. Union Dep’t, 448 U.S. at 656.9  And 
OSHA is not required to proceed “workplace by workplace,” Am. Dental Ass’n, 984 F.2d at 827, 
in its ETS nor would it “be expected to conduct on-the-spot investigations,” Dry Color Mfrs. 
Ass’n Inc., 486 F.2d at 102 n.3.  To expect otherwise of OSHA would belie the whole point of an 
 
9The dissent contends that our citation is inapposite because it “did not review an emergency standard” and 
refers to the Secretary’s interpretation of data underlying a risk assessment.  (Dissent Op. at 47)  The language cited, 
however, addresses whether OSHA’s evidence supporting its estimation of a risk, which was the basis for the 
standard, was supported by substantial evidence.  Indus. Union Dep’t, 448 U.S. at 656.  Critically, the substantial 
evidence standard at issue there governs both emergency temporary standards and run-of-the-mill OSHA standards 
and is applicable here.  See 29 U.S.C. § 655(f).   
App. A-28 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 29 
 
emergency temporary standard, which demands that OSHA act quickly “to provide immediate 
protection” to workers facing a grave danger.  Id. at 105.  OSHA explored the dangers in varied 
workplaces and industries and concluded that “employees can be exposed to the virus in almost 
any work setting” and that employees routinely “share common areas like hallways, restrooms, 
lunchrooms[,] and meeting rooms” and are at risk of infection from “contact with coworkers, 
clients, or members of the public.”  86 Fed. Reg. at 61,411–12.  OSHA supported those 
conclusions by relying on peer-reviewed studies and data collected by government health 
departments.  But in any case, OSHA tailored the ETS by excluding workplaces where the risk is 
significantly lower, including those where employees are working exclusively outdoors, 
remotely from home, or where the employee does not work near any other individuals.  Id. at 
61,516.  
 
The argument that the ETS is overinclusive because it imposes requirements on some 
workers that are at lesser risk of death than others overlooks OSHA’s reasoning.  OSHA 
promulgated the ETS to prevent employees from transmitting the virus to other employees—that 
risk is not age-dependent.  See, e.g., id. at 61,403; 61,418–19; 61,435; 61,438.  OSHA found that 
unvaccinated workers in workplaces where they encountered other workers or customers faced a 
grave danger and that vaccination or testing and masking were necessary to protect those 
workers from COVID-19.  Those workers are in “a wide variety of work settings across all 
industries” thus counseling for the broad standard.  Id. at 61,411–12.  
 
That the ETS is underinclusive, as some Petitioners argue, suggests that OSHA has not 
done enough to eliminate the grave danger facing workers, and more workplace safeguards—not 
fewer—are needed to protect the workplace.  And OSHA explained that it chose a tailored 
threshold because those employers would be best positioned to actually effectuate the standard 
and their employees are more at risk.  Id. at 61,513 (“OSHA has set the threshold for coverage 
based primarily on administrative capacity for purposes of protecting workers as quickly as 
possible.”); id. at 61,512 (suggesting that “larger employers are more likely to have many 
employees gathered in the same location” and have “larger” and “longer” outbreaks).  
App. A-29 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 30 
 
OSHA also demonstrates that selecting larger employers means that the ETS reaches enough 
workers to make a meaningful difference in mitigating the risk.  Id. at 61,513. 
 
It has long been the case that an agency “is not required to identify the optimal threshold 
with pinpoint precision.  It is only required to identify the standard and explain its relationship to 
the underlying regulatory concerns.”  Nat’l Shooting Sports Found. v. Jones, 716 F.3d 200, 214 
(D.C. Cir. 2013) (quoting WorldCom, Inc. v. FCC, 238 F.3d 449, 461–62 (D.C. Cir. 2001)); see 
also Providence Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181, 1191 (9th Cir. 2010); Williams-
Yulee v. Fla. Bar, 575 U.S. 433, 449 (2015) (noting that the government “need not address all 
aspects of a problem in one fell swoop”).  Courts are “generally unwilling to review line-drawing 
performed by the [agency] unless a petitioner can demonstrate that lines drawn . . . are patently 
unreasonable, having no relationship to the underlying regulatory problem.” Cassel v. FCC, 
154 F.3d 478, 485 (D.C. Cir. 1998) (alteration in original) (quoting Home Box Off., Inc. v. FCC, 
567 F.2d 9, 60 (D.C. Cir. 1977)).  OSHA’s ETS readily shows a relationship to the underlying 
regulatory problem—larger employers are better able to implement the policies, are at 
heightened risk, and regulating them will be a significant step in protecting the entire workforce 
from COVID-19 transmission.  And of course, agencies can later revise, refine, and broaden (or 
narrow) their regulations, but exigent circumstances allow there to be some reasonable discretion 
at the initial steps of promulgating a regulation.  See Forging Indus. Ass’n, 773 F.2d at 1454; 
United Steelworkers of Am., 647 F.2d at 1309–10 (D.C. Cir. 1980).   
 
Turning to the cost analysis, OSHA is not required to conduct a “formal cost-benefit 
analysis” before issuing an ETS.  Asbestos Info. Ass’n, 727 F.2d at 423 n.18 (reasoning that it is 
“unlikely” that “the agency would have time to conduct such an analysis” in the context of an 
emergency).  Congress recognized that OSHA standards would impose costs, but placed “the 
benefit of worker health above all other considerations save those making attainment of this 
benefit unachievable.”  Am. Textile Mfrs. Inst., 452 U.S. at 509.  The question is whether the 
standard is economically feasible.  United Steelworkers of Am., 647 F.2d at 1264.  An OSHA 
“standard is economically feasible if the costs it imposes do not ‘threaten massive dislocation 
to, or imperil the existence of, the industry.’”  Am. Iron & Steel Inst. v. Occupational Safety 
App. A-30 

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 31 
 
& Health Admin., 939 F.2d 975, 980 (D.C. Cir. 1991) (quoting United Steelworkers of Am., 
647 F.2d at 1265).  OSHA must consider the costs in relation to the financial health of the 
affected industries or their impact on consumer prices.  United Steelworkers of Am., 647 F.2d at 
1265. 
Here, OSHA conducted a detailed economic analysis, concluding that the costs amounted 
to approximately 0.02 percent of the revenue of the average covered employer, or about $11,298 
per affected entity.  86 Fed. Reg. at 61,493–94.  “To put this into perspective, if the average firm 
decided to raise prices to cover the costs of the ETS, the price of a $100 product or service, for 
example, would have to be increased by 2 cents (during the six-month period).”  Id. at 61,499.  
These costs are modest in comparison to other standards OSHA has implemented.  See, e.g., 
United Steelworkers of Am., 647 F.2d at 1281 (estimating capital costs for primary lead smelters 
to comply with OSHA’s lead exposure standard to be between $32 million and $47 million).  
OSHA’s analysis, moreover, does not consider the economic harm a business will undergo if it is 
closed by a COVID-19 outbreak in its workplace—taking this into account would further show 
that the benefits will outweigh the costs of the ETS.  If the costs of implementation become too 
high for a single business, an employer can raise infeasibility or impossibility as a defense to any 
citation that OSHA may issue for violating the ETS.  29 C.F.R. § 2200.34(b)(3). 
 
Based on the substantial evidence referenced and relied upon by OSHA, there is little 
likelihood of success for the challenges against OSHA’s bases for issuing the ETS. 
4.  Constitutional Challenges 
We turn to the likelihood of success on the remaining constitutional arguments raised by 
the Petitioners and were presumed persuasive by the Fifth Circuit.10 
 
10Some Petitioners raise challenges regarding religious liberty.  The ETS states, “if the vaccination, and/or 
testing for COVID-19, and/or wearing a face covering conflicts with a sincerely held religious belief, practice or 
observance, a worker may be entitled to a reasonable accommodation.”  86 Fed. Reg. at 61,522.  Therefore, 
Petitioners are unlikely to succeed on their argument that the ETS infringes on religious liberty.  Regardless, their 
circumstance-specific arguments are premature and do not provide a basis to stay the entire ETS. 
App. A-31 

Nos. 21-7000, et al. 
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 32 
 
i.  Commerce Clause  
First, Petitioners raise challenges to the ETS under the Commerce Clause, directing us to 
the Fifth Circuit’s conclusion that the ETS “likely exceeds the federal government’s authority 
under the Commerce Clause because it regulates noneconomic inactivity that falls squarely 
within the States’ police power.”  BST Holdings, 17 F.4th at 617.  Relying on National 
Federation of Independent Business v. Sebelius, 567 U.S. 519, 522 (2012), the Fifth Circuit 
reasoned that “[a] person’s choice to remain unvaccinated and forego regular testing is 
noneconomic activity,” and falls within the States’ police power.  Id.  On that basis, the stay 
opinion summarily concluded that because the ETS “commandeers” employers to compel 
activity that falls within the States’ police power, it “far exceed[s] current constitutional 
authority.”  Id. 
 
Petitioners and the Fifth Circuit miss the mark.  The ETS regulates employers with more 
than 100 employees, not individuals.  It is indisputable that those employers are engaged in 
commercial activity that Congress has the power to regulate when hiring employees, producing, 
selling and buying goods, etc.  See NFIB, 567 U.S. at 550 (“The power to regulate commerce 
presupposes the existence of commercial activity to be regulated.”).  The ETS regulates 
economic activity by regulating employers. 
It has long been understood that regulating employers is within Congress’s reach under 
the Commerce Clause.  To hold otherwise would upend nearly a century of precedent upholding 
laws that regulate employers to effectuate a myriad of employee workplace policies.  See, e.g., 
United States v. Darby, 312 U.S. 100, 109, 114 (1941) (finding the Fair Labor Standards Act 
imposed a permissible use of government power when it set a minimum wage standard to 
prevent the production of goods “for interstate commerce, under conditions detrimental to the 
maintenance of the minimum standards of living necessary for health and general well-being”); 
United Steelworkers of Am., AFL-CIO v. Weber, 443 U.S. 193, 206 n.6 (1979) (finding proper 
use of the commerce power to bar employers from discriminating against employees on a 
protected ground under Title VII); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937) 
(finding proper use of commerce power to safeguard “the right of employees to self-organization 
App. A-32 

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and Testing, 86 Fed. Reg. 61402 
Page 33 
 
and to select representatives of their own choosing for collective bargaining or other mutual 
protection without restraint or coercion by their employer”).  These cases recognize, for example, 
that, a person’s choice to discriminate against another based on race is “noneconomic activity,” 
but the effect of that choice on the workplace and the flow of commerce in and from that 
workplace is economic—hence, it is subject to regulation under the Commerce Clause.  
Cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 253 (1964) (finding 
“discrimination by hotels and motels impedes interstate travel”). 
 
That principle was at the heart of the Supreme Court’s decision in NLRB v. Jones & 
Laughlin Steel, 201 U.S. 1 (1927).  There, the Court emphasized that to determine the Commerce 
Clause’s applicability, we focus on the “effect upon commerce, not the source of the injury,” 301 
U.S. at 32, and that Congress may legislate under the Commerce Clause to ensure the safety of 
commerce, id. at 37.  When industries occupy a “national scale,” moreover, Congress may 
protect interstate commerce from “paraly[sis].”  Id. at 41.  COVID-19’s paralyzing effect on 
commerce has been repeatedly demonstrated throughout the pandemic.  See, e.g., U.S. Bureau of 
Labor 
Statistics, 
TED: 
The 
Economics 
Daily 
(July 
8, 
2021), 
https://www.bls.gov/opub/ted/2021/6-2-million-unable-to-work-because-employer-closed-or-
lost-business-due-to-the-pandemic-june-20 21.htm.   
 
This also demonstrates why NFIB v. Sebelius is inapposite.  In NFIB, the Supreme Court 
considered challenges to the Affordable Care Act’s individual mandate.  567 U.S. at 539.  
Critically, and fatal to the Fifth Circuit’s point, the Affordable Care Act contains two separate 
types of mandates: the individual mandate to direct individuals to purchase health insurance—at 
issue in NFIB—and the employer mandate—not at issue in NFIB.  See 26 U.S.C. § 4980H.  A 
plurality of five Justices questioned whether the Commerce Clause gave Congress the power to 
mandate that people engage in economic activity to sustain the individual mandate.  See NFIB, 
567 U.S. at 547–58.  But no Justice doubted that Congress could, under the Commerce Clause, 
require employers to provide health insurance to their employees.  So too here.   
 
Citing Zucht v. King, 260 U.S. 174 (1922), and Jacobson v. Massachusetts, 197 U.S. 11 
(1905), Petitioners and the Fifth Circuit contend that the ETS “falls squarely within the States’ 
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police powers.”  BST Holdings, 17 F.4th at 617.  But those cases concerned challenges to state 
vaccine requirements under the Fourteenth Amendment, not federalism questions over whether 
states or the federal government can impose such a requirement.  If the suggestion here is that the 
federal and state regulatory powers over economic activity are mutually exclusive, the Supreme 
Court rejected that argument in Willson v. Black Bird Creek Marsh Co., 27 U.S. 245, 251–52 
(1829) (holding an act empowering the State’s construction of a dam that obstructed an interstate 
walkway is not “repugnant to the power to regulate commerce in its dormant state”).  To be sure, 
there are numerous areas—for example, education—in which States and the federal government 
have overlapping authority.  But that states may regulate COVID-19 safety measures does not 
operate to preclude the federal government from doing so.   
 
Finally, Congress already addressed the issue when it passed the OSH Act, expressing its 
intention to preempt state and local standards that conflict with OSHA standards.  See Gade, 
505 U.S. at 98–99 (holding that “nonapproved state regulation of occupational safety and health 
issues for which a federal standard is in effect is impliedly preempted” by OSHA’s standard).  
Hazards are often regulated by both OSHA and state agencies, such as exposure to lead.  But 
overlap does not limit the authority Congress granted to OSHA to regulate the same risk of 
exposure. 
 
For the foregoing reasons, the Commerce Clause challenges do not have a meaningful 
likelihood of success. 
ii.  Non-Delegation Doctrine 
 
Relying on the Fifth Circuit’s decision, Petitioners cast constitutional doubt on the ETS 
by questioning Congress’s delegation of authority to OSHA when it passed the OSH Act.  The 
Fifth Circuit cursorily concluded that Congress cannot “authorize a workplace safety 
administration in the deep recesses of the federal bureaucracy to make sweeping pronouncement 
on matters of public health affecting every member of society in the profoundest of ways.”  BST 
Holdings, 17 F.4th at 611.  That contention never specifies which provision of the OSH Act is an 
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improper delegation.  We therefore construe its analysis in line with the Petitioners’ arguments 
that 29 U.S.C. § 655(c)(1) constitutes an improper delegation.  
 
The Supreme Court has only twice invoked the non-delegation doctrine to strike down a 
statute.  See Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935); A.L.A. Schechter Poultry 
Corp. v. United States, 295 U.S. 495, 542 (1935).  In Gundy v. United States, the Supreme Court 
stated that, “[t]he nondelegation doctrine bars Congress from transferring its legislative power to 
another branch of Government.”  139 S.Ct. 2116, 2121 (2019) (plurality opinion).  “But the 
Constitution ‘does not deny[] to the Congress the necessary resources of flexibility and 
practicality [that enable it] to perform its function[s].”  Id. at 2123 (alterations in original) 
(quoting Yakus v. United States, 321 U.S. 414, 425 (1944)) (alterations in original).  To the 
contrary, Congress “may confer substantial discretion on executive agencies to implement and 
enforce the laws.”  Id. (citing Mistretta v. United States, 488 U.S. 361, 372 (1989)).  A statutory 
delegation is therefore constitutional as long as “Congress ‘lay[s] down by legislative act an 
intelligible principle to which the person or body authorized to [exercise the delegated authority] 
is directed to conform.’”  Id. (quoting Mistretta, 488 U.S. at 372) (alterations in original).  The 
starting and often ending point for the analysis is “statutory interpretation”:  We must “constru[e] 
the challenged statute to figure out what task it delegates and what instructions it provides” and 
then “decide whether the law sufficiently guides executive discretion to accord with Article I.”  
Id. at 2124. 
 
The Supreme Court has long recognized the power of Congress to delegate broad swaths 
of authority to executive agencies under this standard and has ultimately concluded that 
extremely broad standards will pass review.  See id. at 2129.  How broad?  Delegations to 
regulate in the “public interest,” Nat’l Broad. Co. v. United States, 319 U.S. 190, 216 (1943), to 
set “fair and equitable prices,” Yakus, 321 U.S. at 427, and to issue air quality standards 
“requisite to protect the public health,” Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 472 
(2001).  See Gundy, 139 S. Ct. at 2129 (collecting sources). 
 
Our extensive discussion of the statutory framework of the OSH Act above starts and 
ends the inquiry.  OSHA’s statutory authority to issue standards is found in 29 U.S.C. § 655.  
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Specific authorization is in § 655(c)(1) and requires the Secretary to promulgate “emergency 
temporary standards,” when he determines that employees are in “grave danger” from exposure 
to a workplace hazard and that the standard is “necessary to protect the employees from such 
danger.”  As shown above, it is well-established that the scope of the OSH Act and OSHA’s 
authority include infectious diseases in the workplace, even when those diseases also exist 
outside the workplace.  Therefore, Congress applied an “intelligible principle” when it directly 
authorized OSHA to exercise this delegated authority in particular circumstances.  The Supreme 
Court long ago recognized this authority:  “The [Occupational Safety and Health] Act delegates 
broad authority to the Secretary to promulgate different kinds of standards.”  Indus. Union Dep’t, 
448 U.S. at 611. 
There is little possibility of success under the non-delegation doctrine.  
C.  Irreparable Harm 
The foregoing analysis shows that Petitioners cannot establish a likelihood of success on 
the merits, and this reason alone is sufficient to dissolve the stay.  Nken, 556 U.S. at 433–34.  We 
also conclude, however, that Petitioners have not shown that any injury from lifting the stay 
outweighs the injuries to the Government and the public interest. 
To merit a stay, Petitioners bear the burden to demonstrate an irreparable injury; “simply 
showing some ‘possibility of irreparable injury’ fails to satisfy the second factor.”  Nken, 
556 U.S. at 434–35 (quoting Abbassi v. INS, 143 F.3d 513, 514 (9th Cir. 1998)).  Moreover, 
because this case involves the Government as an opposing party, the third and fourth factors 
“merge.”  Id. at 435.  The Fifth Circuit failed to analyze any harm to OSHA, instead baldly 
concluding that a stay will “do OSHA no harm whatsoever.” BST Holdings, 17 F.4th at 618.  
We engage in our own balancing of the parties’ harm.  
 
The injuries Petitioners assert are entirely speculative.  First, some Petitioners assert that 
compliance costs will be too high.  As detailed in the preceding section, these assertions ignore 
the economic analysis OSHA conducted that demonstrates the feasibility of implementing the 
ETS.  To the extent that a business with over 100 employees impacted at this stage of the ETS 
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faces true impossibility of implementation, it can assert that as an affirmative defense in response 
to a citation.  29 C.F.R. § 2200.34(b)(3).  Relying on employee declarations, other Petitioners 
claim that they will need to fire employees, suspend employees, or face employees who quit over 
the standard.  These concerns fail to address the accommodations, variances, or the option to 
mask-and-test that the ETS offers.  For example, employers that are confident that they can keep 
their employees safe using alternative measures can seek a variance from the standard pursuant 
to 29 U.S.C. § 655(d).  Or employers may choose to comply with the standard by enforcing the 
mask-and-test component, which are entirely temporary in nature and do not create irreparable 
injuries.  These provisions of the ETS undercut any claim of irreparable injury.   
 
By contrast, the costs of delaying implementation of the ETS are comparatively high.  
Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that 
has killed over 800,000 people in the United States, brought our healthcare system to its knees, 
forced businesses to shut down for months on end, and cost hundreds of thousands of workers 
their jobs.  In a conservative estimate, OSHA finds that the ETS will “save over 6,500 worker 
lives and prevent over 250,000 hospitalizations” in just six months.  86 Fed. Reg. 61,402, 
61,408.  A stay would risk compromising these numbers, indisputably a significant injury to the 
public.  The harm to the Government and the public interest outweighs any irreparable injury to 
the individual Petitioners who may be subject to a vaccination policy, particularly here where 
Petitioners have not shown a likelihood of success on the merits.  See Coleman v. Paccar, Inc., 
424 U.S. 1301, 1307–08 (1976). 
 
In light of the foregoing, we find that the factors regarding irreparable injury weigh in 
favor of the Government and the public interest.  
III.  CONCLUSION 
For the foregoing reasons, we GRANT the Government’s motion and DISSOLVE the 
stay issued by the Fifth Circuit. 
 
 
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_________________ 
CONCURRENCE 
_________________ 
GIBBONS, Circuit Judge, concurring.  I agree that the government’s motion to dissolve 
the stay should be granted and concur fully in Judge Stranch’s opinion.  I write separately to note 
the limited role of the judiciary in this dispute about pandemic policy.  Petitioners and various 
opinions discuss at length how OSHA could have handled the pandemic’s impact on places of 
employment differently.  Some of the writings include sweeping pronouncements about 
constitutional law and the scope of OSHA’s statutory authority.  Much of this writing is 
untethered from the specific facts and issues presented here and overlooks the limited nature of 
our role. 
Reasonable minds may disagree on OSHA’s approach to the pandemic, but we do not 
substitute our judgment for that of OSHA, which has been tasked by Congress with policy-
making responsibilities.  See Charles D. Bonnano Linen Serv., Inc. v. NLRB, 454 U.S. 404, 418 
(1982).  This limitation is constitutionally mandated, separating our branch from our political co-
branches.  “[F]ederal judges—who have no constituency—have a duty to respect legitimate 
policy choices made by those who do.”  Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 866 
(1984).  Beyond constitutional limitations, the work of an agency, often scientific and technical 
in nature, is outside our expertise.  See Kisor v. Wilkie, 139 S. Ct. 2400, 2413 (2019). 
Our only responsibility is to determine whether OSHA has likely acted within the bounds 
of its statutory authority and the Constitution.  As it likely has done so, I concur. 
 
 
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_________________ 
DISSENT 
_________________ 
LARSEN, Circuit Judge, dissenting.  As the Supreme Court has very recently reminded 
us, “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”  
Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021).  The 
majority’s theme is that questions of health science and policy lie beyond the judicial ken.  
I agree.  But this case asks a legal question:  whether Congress authorized the action the agency 
took.  That question is the bread and butter of federal courts.  And this case can be resolved using 
ordinary tools of statutory interpretation and bedrock principles of administrative law.  These tell 
us that petitioners are likely to succeed on the merits, so I would stay OSHA’s emergency rule 
pending final review. 
I. 
The majority opinion describes the emergency rule at issue here as permitting employers 
“to determine for themselves how best to minimize the risk of contracting COVID-19 in their 
workplaces.”  Maj. Op. at 7.  With respect, that was the state of federal law before the rule, not 
after. 
Here is what the emergency rule does.  It binds nearly all employers with 100 or more 
employees,1 and requires them to “establish, implement, and enforce a written mandatory 
vaccination policy.”  29 C.F.R. § 1910.501(b)(1), (d)(1).  It covers all employees, part-time, full-
time, and seasonal, except for those who work exclusively from home, outdoors, or alone.  Id. 
 
1The rule exempts employers covered by two different federal rules:  the federal contractors and 
subcontractors already subject to a vaccine mandate and healthcare workers subject to OSHA’s June 2021 
emergency standard.  29 C.F.R. § 1910.501(b)(2).  The latter rule required healthcare employers to adopt a COVID-
19 protection plan and encouraged vaccination but did not impose a vaccinate-or-test mandate.  Id. § 1910.502.  In 
addition, neither “the United States . . . [n]or any State or political subdivision of a State” is a covered “employer.”  
29 U.S.C. § 652(5).  Several states say that they nonetheless will be forced to comply with the standard because they 
have adopted their own OSHA plans pursuant to 29 U.S.C. § 667.  Such plans must be “at least as effective in 
providing safe and healthful employment and places of employment as the standards promulgated under section 
655.”  Id. § 667(c)(2). 
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§ 1910.501(b)(3).  Employees must “be fully vaccinated,” unless they qualify for medical or 
religious exemptions or reasonable accommodations.  Id. § 1910.501(c).  While vaccines are free 
to the public, employers must provide employees with paid time off both to secure the vaccine 
and to recover from any side effects.  Id. § 1910.501(f). 
An employer may instead permit unvaccinated employees to undergo weekly COVID-19 
testing and wear a mask in the workplace.  Id. § 1910.501(d)(2), (g)(1), (i)(1).  But OSHA 
consciously designed this exception to be less palatable to employers and employees.  The 
agency expects that employers who adopt a mandatory-vaccination policy will “enjoy 
advantages,” including fewer “administrative burden[s],” than employers who permit the mask-
and-test exception.  86 Fed. Reg. at 61,437.  And even if an employer elects to take on these 
additional burdens, it need not absorb the cost of masks and tests, nor provide time off (paid or 
otherwise) to secure them.  Id. § 1910.501(d)(2), (g)(1) n.1.  This, despite the fact that OSHA’s 
ordinary regulations require employers to pay for agency-mandated equipment, tests, and exams.  
See Employer Payment for Personal Protective Equipment, 72 Fed. Reg. 64,341, 64,342 (Nov. 
15, 2007); 86 Fed. Reg. at 61,532 (noting OSHA “has commonly required” employers to pay for 
protective equipment); 29 C.F.R. § 1910.1030(d)(3)(i), (f)(1)(ii) (Hepatitis B equipment and 
testing “at no cost”); id. § 1910.1018(j)(1), (n)(1)(ii) (same for arsenic); id. § 1910.1001(h)(1), 
(l)(1)(ii)(A) (same for asbestos); Sec’y of Lab. v. Beverly Healthcare-Hillview, 541 F.3d 193, 
200–01 (3d Cir. 2008) (OSHA’s interpretation of “at no cost” includes compensation for testing 
time and travel expenses).  Indeed, OSHA required employers to provide COVID-19 tests “at no 
cost” to employees under its earlier healthcare ETS.  See 29 C.F.R. § 1910.502(l)(1)(ii).  OSHA 
was candid about why it deviated from its normal rule:  Putting the onus on employees “will 
provide a financial incentive . . . to be fully vaccinated.”  86 Fed. Reg. at 61,437.  The rule, in 
sum, is a mandate to vaccinate or test. 
One more background point:  The purpose of the mandate is to protect unvaccinated 
people.  Id. at 61,419.  The rule’s premise is that vaccines work.  Id.  And so, OSHA has 
explained that the rule is not about protecting the vaccinated; they do not face “grave danger” 
from working with those who are not vaccinated.  Id. at 61,434.   
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The various monitoring and reporting duties required by the mandate were to go into 
effect on December 6, 2021.  29 C.F.R. § 1910.501(m)(2)(i).  And employees were required to 
be fully vaccinated or comply with mask-and-test requirements (if available) by January 4, 2022.  
Id. § 1910.501(m)(2)(ii).  The United States Court of Appeals for the Fifth Circuit stayed the 
enforcement of the vaccinate-or-test mandate.  BST Holdings, LLC v. Occupational Safety 
& Health Admin., 17 F.4th 604 (5th Cir. 2021).  After a multi-circuit lottery held pursuant to 
28 U.S.C. § 2112(a)(3), this court obtained jurisdiction over all petitions challenging the mandate 
filed throughout the country.  OSHA has now moved to dissolve the stay entered by the Fifth 
Circuit.2 
II. 
A.  Likelihood of Success on the Merits 
In this case, a multitude of petitioners—individuals, businesses, labor unions, and state 
governments—have levied serious, and varied, charges against the mandate’s legality.  They say, 
for example, that the mandate violates the nondelegation doctrine, the Commerce Clause, and 
substantive due process; some say that it violates their constitutionally protected religious 
liberties and the Religious Freedom Restoration Act of 1993.  To lift the stay entirely, we would 
have to conclude that not one of these challenges is likely to succeed.  A tall task.  To keep the 
stay, however, there is no need to resolve each of these questions; the stay should remain if we 
conclude that petitioners are likely to succeed on just one ground.  In my view, the petitioners 
have cleared this much lower bar on even the narrowest ground presented here:  The Secretary of 
Labor lacks statutory authority to issue the mandate.  So the most important factor supporting the 
stay is satisfied.  See Tiger Lily, LLC v. U.S. Dep’t of Hous. & Urb. Dev., 992 F.3d 518, 524 (6th 
Cir. 2021). 
 
2Petitioners moved for initial en banc hearing, which this court denied.  In re MCP No. 165, No. 21-7000, 
2021 WL 5914024, at *1 (6th Cir. Dec. 15, 2021).  I would have granted the petitions regardless of the merits of the 
case.  Given the unique nature of these consolidated proceedings, I thought it preferable to enlist the talents of all 
sixteen active judges.  This panel agreed that the work of the en banc court was separate from the work of this panel 
and that the orders and opinions from each should issue as soon as they were ready. 
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1.  Statutory Authority 
OSHA cannot act without a source of authority.  The ordinary way to bring about a rule 
affecting the people’s health and safety is for a state legislature, or sometimes Congress, to pass 
one into law.  Because the legislature “wields the formidable power of ‘prescrib[ing] the rules by 
which the duties and rights of every citizen are to be regulated,’” it is, by design, the branch of 
government “most responsive to the will of the people.”  Tiger Lily, LLC v. U.S. Dep’t of 
Housing & Urb. Dev., 5 F.4th 666, 674 (6th Cir. 2021) (Thapar, J., concurring) (quoting The 
Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961)). 
But there is a workaround.  “In the modern administrative state, many ‘laws’ emanate not 
from Congress but from administrative agencies, inasmuch as Congress has seen fit to vest broad 
rulemaking power in the executive branch.”  Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 951 
(D.C. Cir. 1987) (Starr, J., concurring in part and dissenting in part).  To preserve at least a 
modicum of democratic protections, Congress created the notice-and-comment requirements of 
the Administrative Procedure Act (APA), which provide public notice of a proposed rule and an 
opportunity for the public to express its concerns.  Id.  Whether successful or not, the aim is to 
ensure “that agency ‘rules’ are also carefully crafted (with democratic values served by public 
participation) and developed only after assessment of relevant considerations.”  Id. 
Consistent with this scheme, Congress delegated to OSHA the authority to promulgate 
“occupational safety or health standard[s]” that are “reasonably necessary or appropriate” to 
address a “significant risk” of harm in the workplace.  See Indus. Union Dep’t, AFL-CIO v. Am. 
Petroleum Inst., 448 U.S. 607, 642–43 (1980); 29 U.S.C. §§ 652(8), 655(b).  Those standards 
must go through a notice-and-comment procedure.  29 U.S.C. § 655(b) (prescribing procedures 
similar to those of the APA). 
This case, though, involves yet a more truncated process.  Congress understood that 
emergencies might arise, and so it provided the Secretary with authority to bypass the public and 
the deliberative process, and to issue emergency temporary standards that “take immediate effect 
upon publication” and remain effective for six months.  Id. § 655(c)(1), (c)(3).  Because this is 
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such a departure from the ordinary processes, federal courts have recognized this authority as the 
“most dramatic weapon in [OSHA’s] enforcement arsenal.”  Asbestos Info. Ass’n/N. Am. v. 
Occupational Safety & Health Admin., 727 F.2d 415, 426 (5th Cir. 1984).  It is an 
“[e]xtraordinary power” that “should be delicately exercised, and only in those emergency 
situations which require it.”  Fla. Peach Growers Ass’n, Inc. v. Dep’t of Lab., 489 F.2d 120, 
129–30 (5th Cir. 1974); see also Pub. Citizen Health Rsch. Grp. v. Auchter, 702 F.2d 1150, 1155 
(D.C. Cir. 1983) (“[E]mergency standards are to be used only in limited situations” and “only as 
an unusual response to exceptional circumstances.” (quotation marks omitted)). 
Perhaps wary of misusing such immense authority, OSHA has rarely invoked it.  The 
agency has issued only ten previous emergency standards in the half-century that it has held that 
power.  Six of those were challenged in court; five were struck down.  BST Holdings, 17 F.4th at 
609. 
Congress too was wary of conferring this authority, “repeatedly express[ing] its concern 
about allowing the Secretary to have too much power” in this area.  Indus. Union, 448 U.S. at 
651.  Accordingly, Congress “narrowly circumscribed” the Secretary’s ability to use this 
considerable tool.  Id.  Before the Secretary may issue an emergency standard, he must 
“determine[] (A) that employees are exposed to grave danger from exposure to substances or 
agents determined to be toxic or physically harmful or from new hazards, and (B) that such 
emergency standard is necessary to protect employees from such danger.”3  29 U.S.C § 655(c)(1) 
(emphases added). 
So the Secretary’s emergency authority extends no further than to issue temporary 
standards that are (1) necessary to protect employees from (2) grave danger.  And because the 
Secretary’s authority is to set “occupational safety and health standards,” governing 
“employment and places of employment,” the danger to be regulated must come from 
 
3I assume here that the virus that causes COVID-19 constitutes a “substance[] or agent[] determined to be 
toxic or physically harmful” or a “new hazard,” within the meaning of § 655(c)(1).  Even if so, OSHA lacked 
authority to issue the rule. 
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(3) “exposure” in the workplace.  29 U.S.C. §§ 652(8), 655(c)(1); Indus. Union, 448 U.S. at 612.  
I doubt the Secretary has met this test. 
a.  Necessary 
The Secretary has not made the appropriate finding of necessity.  An emergency standard 
must be “necessary to protect employees from [grave] danger.”  29 U.S.C. § 655(c)(1).  
“Necessary,” in the legal vernacular, is a tailoring word.  It asks how closely, or how loosely, a 
regulatory solution must fit a particular problem.  Sometimes “necessary” means simply 
“useful.”  Necessary, Black’s Law Dictionary (5th ed. 1979).  In those instances, the government 
may impose solutions that it thinks might help the problem, even if it ends up regulating a good 
deal more than it really needs to.  At other times, though, “necessary” means “indispensable.”  
American Heritage Dictionary of the English Language 877 (1976).  Then, the government must 
stitch together its solution with more precision, regulating only as much as is critical to its 
mission.  Every American law student will be familiar with these dueling meanings of 
“necessary,” prominently displayed in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).  
There, as here, the choice between meanings is revealed by context. 
Consider first the textual differences between a permanent OSHA standard and an 
emergency one.  A permanent standard, issued after public notice and comment, need be only 
“reasonably necessary or appropriate” to address the problem at hand.  29 U.S.C. § 652(8); see 
Indus. Union, 448 U.S. at 642–43.  But when conferring emergency authority on the Secretary, 
Congress shaved that down to “necessary.”  An emergency measure must, therefore, be more 
than “reasonably” needful; it must be closer to “indispensable.”  Cf. McCulloch, 17 U.S. (4 
Wheat.) at 413–15.  And then consider context.  The Supreme Court has already said that 
Congress “narrowly circumscribed” the Secretary’s authority to issue emergency standards.  
Indus. Union, 448 U.S. at 651 & n.59.  It follows that, in this context especially, “necessary” 
must be read as a word of limitation, not enlargement.  Cf. McCulloch, 17 U.S. (4 Wheat.) at 
420. 
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The majority opinion initially agrees with this statutory construction point.  It notes that 
an emergency standard must be more than “reasonably necessary”; it must be “essential.”  Maj. 
Op. at 25.  But then that word, and the concept, disappear from the analysis.  What starts as a 
demand for an “essential” solution, quickly turns into acceptance of any “effective” or 
“meaningful[]” remedy, id. at 26–30; and later, acquiescence to a solution with a mere 
“reasonable” “relationship” to the problem, id. at 30.  The majority opinion never explains why 
“necessary” undergoes such a metamorphosis. 
While the majority opinion starts with the right read on the statute, the Secretary seems to 
have missed this point altogether.  He made no finding that the emergency rule is “necessary” in 
any sense even approaching “indispensable.”  We cannot uphold a rule based on a finding the 
agency never made.  S.E.C. v. Chenery Corp., 318 U.S. 80, 87 (1943). 
What the Secretary did say is that the agency’s existing regulatory tools and “non-
mandatory guidance” were insufficient.  86 Fed. Reg. at 61,440, 61,444.  In other words, OSHA 
believed there was a problem to be solved.  But the statute requires OSHA to find that the 
solution it actually picked—the nationwide vaccinate-or-test mandate—was “necessary” to solve 
the problem.4  See 29 U.S.C § 655(c)(1); see also Asbestos Info., 727 F.2d at 426–27 (OSHA 
failed to show that an emergency standard was “necessary” when other means were available “to 
achieve the projected benefits.”).  OSHA never makes that case.  Like the majority opinion, the 
Secretary focused on explaining why his solution will be effective.  86 Fed. Reg. at 61,434–39.  
But that is not enough.  Many over-broad solutions might work; but they would not be a 
“necessary,” or “indispensable,” means of curing the ill. 
 
4The statute requires the Secretary to find that “such” emergency standard is necessary.  29 U.S.C. 
§ 655(c)(1).  In other words, he must find that this solution—the vaccinate-or-test mandate—is indispensable.  The 
majority opinion suggests that the Secretary’s duty would be fulfilled if he found simply that “an” emergency 
standard (whatever its content) is necessary.  Maj. Op. at 6; id. at 26 (citing Asbestos Info., 727 F.2d at 427).  That 
reading is inconsistent with the statutory text.   
To the extent that the majority reads my opinion to say that an emergency standard must remove the grave 
danger from the workplace entirely, that is a misread.  I do not read “necessary” to require total elimination of the 
harm.   
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 46 
 
To illustrate (without intending to trivialize) OSHA’s task, consider the danger from fire 
in a workplace:  a pizzeria.  One way to protect the workers would be to require all employees to 
wear oven mitts all the time—when taking phone orders, making deliveries, or pulling a pizza 
from the flames.  That would be effective—no one would be burned—but no one could think 
such an approach necessary.  What OSHA’s rule says is that vaccines or tests for nearly the 
whole American workforce will solve the problem; it does not explain why that solution is 
necessary. 
Bedrock principles of administrative law also support this point.  It is a “quintessential 
aspect[] of reasoned decisionmaking” that an agency explore “common and known or otherwise 
reasonable options” and “explain any decision to reject” them.  Int’l Ladies’ Garment Workers’ 
Union v. Donovan, 722 F.2d 795, 818 (D.C. Cir. 1983); see also Dist. Hosp. Partners, LP v. 
Burwell, 786 F.3d 46, 58–59 (D.C. Cir. 2015) (holding an agency action arbitrary and capricious 
for failing to explain inconsistencies in the agency’s own data when the data revealed a 
“significant and viable and obvious” alternative that the agency failed to consider (quoting Nat’l 
Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 215, 405 (D.C. Cir. 2013)).  Emergency 
decisionmaking may lessen, but does not relieve, the agency of this basic responsibility.  While a 
temporary measure may require “further refinement in the subsequent permanent standard,” the 
agency should “not overlook those obvious distinctions . . . that make certain regulations that are 
appropriate in one category of cases entirely unnecessary in another.”  Dry Color Mfrs.’ Ass’n v. 
Dep’t of Lab., 486 F.2d 98, 105 (3d Cir. 1973); see also id. at 107 (Emergency standard must 
explain “the alternative kinds of regulations considered by OSHA.”). 
OSHA’s mandate applies, in undifferentiated fashion, to a vast swath of Americans:  84 
million workers, 26 million unvaccinated, with varying levels of exposure and risk.  86 Fed. Reg. 
at 61,424.  The burden is on “the agency to articulate rationally why the rule should apply to a 
large and diverse class.”  United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d 
Cir. 1977).  The agency does not do so. 
And it is easy to envision more tailored solutions OSHA could have explored.  It might, 
for example, have considered a standard aimed at the most vulnerable workers; or an exemption 
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and Testing, 86 Fed. Reg. 61402 
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for the least.  The government’s own data show that unvaccinated workers between the ages of 
18 and 29 bear a risk roughly equivalent to vaccinated persons between 50 and 64.  See Ctr. for 
Disease Control, Rates of COVID-19 Cases and Deaths by Vaccination Status (last visited Dec. 
16, 
2021), 
https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status; 
https://perma.cc/8SU2-SVLZ.  Or it might have considered a standard aimed at specific 
industries or types of workplaces with the greatest risk of COVID-19 exposure.  Congress told 
the Secretary to “give due regard” to the need for standards “for particular industries” and types 
of “workplaces or work environments.”  29 U.S.C. § 655(g).  And OSHA acknowledges that 
death rates are higher in “[c]ertain occupational sectors,” 86 Fed. Reg. at 61,415; yet its rule 
never considers what results would obtain from targeting those sectors alone.  Would these, or 
other alternatives, have achieved similar results?  We do not know because OSHA did not ask. 
OSHA counters that given the COVID-19 emergency, rough-cut mandates are the best it 
can do.  I see two problems with OSHA’s assertion.  First, even an emergency standard must 
consider “obvious distinctions” among those it regulates.  Dry Color, 486 F.2d at 105.  Here, 
there are many, none reflected in the emergency rule.  Second, the agency’s claim of emergency 
rings hollow.  It waited nearly two years since the beginning of the pandemic and nearly one year 
since vaccines became available to the public to issue its vaccinate-or-test mandate.  The agency 
does not explain why, in that time, it could not have explored more finely tuned approaches. 
The majority opinion contends that to require more of OSHA would contradict the point 
of an emergency standard.  But it offers no support for this proposition.  It cannot be found in the 
text of § 655 itself.  Indeed, as discussed, the only distinction apparent from the statutory text is 
that emergency standards should be more tailored to the problem, not less.  The majority cites 
Industrial Union for the proposition that “OSHA may lean ‘on the side of overprotection rather 
than underprotection’ when promulgating an ETS.”  Maj. Op. at 28 (quoting Indus. Union, 
448 U.S. at 656).  But that case did not review an emergency standard, and in any event, the 
quoted language refers to “us[ing] conservative assumptions in interpreting the data” underlying 
a risk assessment.  Indus. Union, 448 U.S. at 656.  It says nothing about excusing OSHA from 
considering alternative means.  Perhaps, instead, the majority relies on a bit of intuition; 
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and Testing, 86 Fed. Reg. 61402 
Page 48 
 
circumstances demanding swift action often produce a less measured response.  That may be 
true, but only so far as it goes.  Surely, when an agency fails to treat a situation as an emergency, 
we should refuse to afford it any extra bit of deference, regardless of what label it attaches.  See 
Fla. Peach Growers, 489 F.2d at 130–31 (addressing exposure to pesticides that had been used 
for years was not an emergency).  Here, OSHA waited well over a year to respond to, in the 
agency’s words, “the biggest threat to employees in OSHA’s more than 50-year history.”  
86 Fed. Reg. at 61,424.  To be sure, the agency may have had reasons for its wait-and-see 
approach—hoping individuals would vaccinate voluntarily, for example.  Id. at 61,431–32.  But 
that is beside the point.  What matters is that the agency had plenty of time to consider and 
develop more tailored responses, belying any notion that its blunt approach is merely the 
expected product of an unexpected emergency. 
Having failed to explore whether other feasible alternatives would have allowed him to 
tackle the problem, the Secretary cannot show that his solution is “necessary”; nor is he able to 
survive the requirements of “hard look” review.  See Asbestos Info., 727 F.2d at 421 (When 
reviewing an emergency standard, we must “take a ‘harder look’ . . . than we would if we were 
reviewing the action under the more deferential arbitrary and capricious standard applicable to 
agencies governed by the [APA].”).  
b.  Grave Danger in the Workplace 
This case can be resolved on the ground that the Secretary is unlikely to be able to show 
that the mandate was necessary.  But there are also significant concerns with OSHA’s 
determination that all unvaccinated employees face grave danger from exposure to the virus in 
the workplace.  29 U.S.C. § 655(c)(1). 
Grave danger.  “Grave danger” comprises two meanings.  First, severity:  A “grave 
danger” is a risk of “incurable, permanent, or fatal consequences to workers.”  Fla. Peach 
Growers, 489 F.2d at 132.  The agency determined that symptomatic cases of COVID-19 can 
cause such consequences, 86 Fed. Reg. at 61,408, and no one seriously questions that finding.  
But the statutory concept of “danger,” or risk, also carries a second connotation—the likelihood 
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and Testing, 86 Fed. Reg. 61402 
Page 49 
 
of its occurrence.  See Asbestos Info., 727 F.2d at 424 (noting “gravity” includes “the number of 
workers likely to suffer [severe] consequences”); Fla. Peach Growers, 489 F.2d at 132 
(measuring danger “relative to the mass of agricultural workers in contact with treated foliage”).  
I question whether the Secretary has made this second showing—that all covered employees 
have a high risk both of contracting COVID-19 and suffering severe consequences from it. 
The agency must provide substantial evidence supporting the risk it has identified and 
give reasons for the conclusions it has drawn.  Asbestos Info., 727 F.2d at 421; see also Dry 
Color, 486 F.2d at 105–06.  Substantial evidence is that which “a reasonable mind might accept 
as adequate to support a conclusion.”  Asbestos Info., 727 F.2d at 421 (quoting Consol. Edison 
Co. v. NLRB, 305 U.S. 197, 229 (1938)).  Here, a quick look at the evidence raises an eyebrow.  
OSHA has determined that no vaccinated worker is in “grave danger,” whereas all unvaccinated 
workers are.  86 Fed. Reg. at 61,434, 61,419.  But the government’s own data reveal that the 
death rate for unvaccinated people between the ages of 18 and 29 is roughly equivalent to that of 
vaccinated persons between 50 and 64.  See Rates of COVID-19 Cases and Deaths by 
Vaccination Status, supra, at 10.5  So an unvaccinated 18-year-old bears the same risk as a 
vaccinated 50-year-old.  And yet, the 18-year-old is in grave danger, while the 50-year-old is not.  
One of these conclusions must be wrong; either way is a problem for OSHA’s rule. 
In the Workplace.  OSHA’s authority extends only so far as Congress provides.  And 
Congress has clearly marked the perimeter of OSHA’s authority:  the workplace walls.  See 
29 U.S.C. § 651(a) (“work situations”); id. § 651(b) (“occupational safety and health standards”) 
(“working conditions”); see also Steel Joint Inst. v. Occupational Safety & Health Admin., 
287 F.3d 1165, 1167 (D.C. Cir. 2002) (“[T]he Act authorizes OSHA to regulate only the 
employer’s conduct at the worksite.”). 
The virus that causes COVID-19 is not, of course, uniquely a workplace condition.  Its 
potency lies in the fact that it exists everywhere an infected person may be—home, school, or 
grocery store, to name a few.  So how can OSHA regulate an employee’s exposure to it? 
 
5Hospitalization rates corresponding to these age groups is not readily available from the CDC.  
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and Testing, 86 Fed. Reg. 61402 
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OSHA answers that it has authority to protect employees from general types of hazards 
that may occur both inside and outside of the workplace.  It may, for example, protect employees 
from the danger of workplace fire, even though every person in America has some risk of injury 
by fire outside the workplace.  See, e.g., 29 C.F.R. § 1910.157 (requiring fire extinguishers in the 
workplace).  Sure.  But one’s exposure to fire may be easily differentiated by location, and 
OSHA has heretofore respected that its regulatory authority extends no further than the 
workplace walls.  In Industrial Union, for example, the Court noted that although “[t]he entire 
population of the United States is exposed to small quantities of benzene” in the air, OSHA 
sought to regulate the increased risk of exposure to benzene only in the workplace.  448 U.S. at 
615, 622–23.  And the Fourth Circuit upheld OSHA’s Occupational Noise Exposure standard 
because workers faced “sustained noise of great intensity” at work, which did not exist at those 
levels outside the workplace.  Forging Indus. Ass’n v. Sec’y of Lab., 773 F.2d 1436, 1442–44 
(4th Cir. 1985) (en banc) (“The hazard is identified as sustained noise of great intensity-85 db 
and above.  Non-occupational noise of that intensity sustained over a period of eight hours each 
day is hard to imagine.”). 
Yet OSHA admits that it “cannot state with precision the total number of workers in our 
nation who have contracted COVID-19 at work.”  86 Fed. Reg. at 61,424.  And it has not 
identified any particular rate or risk of workplace exposure to COVID-19.  So instead OSHA 
determined that each of the 26 million unvaccinated workers are “in grave danger” based on 
“current mortality data show[ing] that unvaccinated people of working age have a 1 in 202 
chance of dying when they contract COVID-19.”  Id.  I can find no example of a court accepting 
generalized statistics like these, totally untied to the workplace.  Cf. Asbestos Info., 727 F.2d at 
425–26.  “The ‘grave danger’ and ‘necessity’ findings must be based on evidence of actual, 
prevailing [workplace] conditions, i.e., current levels of employee exposure.”  UAW v. Donovan, 
590 F. Supp. 747, 751 (D.D.C. 1984). 
The risk the Secretary calculated to support his “grave danger” finding was in no way 
tied to any workplace.  Instead, he calculated the risk of being a person “of working age” in 
America.  86 Fed. Reg. at 61,424.  Indeed, in OSHA’s eyes, the risk to an employee who starts a 
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job today is no more “grave” than it was yesterday, before she entered the workforce; and, 
should she quit tomorrow, it will remain the same.  In other words, the Secretary did not 
calculate the number of people who will contract COVID-19 at work; he calculated the number 
of people who happen to work who would, in any event, contract COVID-19.  That kind of risk 
assessment is hard to justify as an “occupational safety and health standard[].”  29 U.S.C. 
§ 651(b)(3).  And it is hard to square with Congress’s codified mission statement for the 
Agency:  to prevent “personal injuries and illnesses arising out of work situations.”  Id. § 651(a). 
And what of the solution?  Here, OSHA has ventured into entirely new territory.  An 
authority to protect “employees” from a “grave danger” encountered in the workplace, id. at 
§ 655(c)(1), is most naturally read to place a workplace boundary on the solution.  Flame-
retardant clothing may be mandated at work, but not also at home.  And that is true even if taking 
such precautions at home would save many “employee” lives. 
OSHA has never before acted otherwise.  It has consistently regulated workplace hazards 
with workplace solutions.  See, e.g., 29 C.F.R § 1926.96 (steel-toe boots); id. § 1926.97 
(electrical protective equipment); id. § 1926.100 (hard hats); id. § 1926.101 (ear protective 
devices); id. § 1926.102 (eye and face protection); id. § 1926.103 (respirators).  Even its one 
foray into vaccines was offered to, but not required of, employees who had been exposed to 
Hepatitis B in the workplace.  See, e.g., id. § 1910.1030(f)(2)(i).  Here, employers, not 
employees, control any non-vaccine option in the first instance; and OSHA has been candid that 
it has stacked the deck in favor of vaccination.  86 Fed. Reg. at 61,437.  OSHA has alerted us to 
no prior attempt on its part to mandate a solution that extends beyond the workplace walls—
much less a permanent and physically intrusive one, promulgated on an emergency basis, 
without any chance for public participation.  But that it is what OSHA has done here.  A vaccine 
may not be taken off when the workday ends; and its effects, unlike this rule, will not expire in 
six months.   
Accordingly, I question whether the Secretary can show that OSHA’s risk assessment 
and solution are tied to its authority—to protect employees against grave danger in the 
workplace. 
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 52 
 
2.  Major Questions Doctrine 
If there were doubt, the major questions doctrine tells us how to respond.  Congress must 
“speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political 
significance.’”  Util. Air Reg. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quoting FDA v. Brown & 
Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).  And we should be skeptical when an 
agency suddenly discovers “in a long-extant statute an unheralded power to regulate a significant 
portion of the American economy.”  Id. (quotation marks omitted). 
OSHA has never issued an emergency standard of this scope.  Each of this rule’s few 
predecessors addressed discrete problems in particular industries.  See 48 Fed. Reg. 51,086, 
51,087–93 (Nov. 4, 1983) (targeting workplaces where “asbestos is handled,” specifically 
375,000 employees in manufacturing, construction, fabrication, brake repair, and shipbuilding); 
43 Fed. Reg. 2,586, 2,593 (Jan. 17, 1978) (targeting acrylonitrile manufacturing, acrylic fiber 
production, and similar activities with the “highest exposure” to acrylonitrile); 42 Fed. Reg. 
45,536, 45,536 (Sept. 9, 1977) (targeting DBCP manufacturers, specifically 2,000 to 3,000 
employees in a handful of companies); 42 Fed. Reg. 22,516, 22,517–22 (May 3, 1977) (targeting 
150,000 employees in the chemical, printing, lithograph, rubber, paint, varnish, stain remover, 
adhesive, and petroleum industries with high exposure to Benzene, but exempting retail gas 
stations); 41 Fed. Reg. 24,272, 24,275 (June 15, 1976) (targeting 2,305 commercial divers); 
39 Fed. Reg. 12,342, 12,343 (Apr. 5, 1974) (targeting vinyl chloride manufacturers, processers, 
and storers); 38 Fed. Reg. 10,929, 10,929 (May 3, 1973) (targeting 14 carcinogens when 
manufactured, processed, used, repackaged, released, or otherwise handled, as requested by oil, 
chemical, and atomic workers); 38 Fed. Reg. 17,214, 17,216 (June 29, 1973) (targeting field 
workers exposed to 12 pesticides, but limited to crops of apples, citrus, grapes, peaches, and 
tobacco); 36 Fed. Reg. 23,207, 23,207 (Dec. 7, 1971) (targeting workplaces with extremely high 
levels of asbestos).  Most of those were challenged in court and only one of those survived.  Now 
the Secretary claims authority to impose a vaccinate-or-test mandate across “all industries” on 
84 million Americans (26 million unvaccinated) in response to a global pandemic that has been 
raging for nearly two years.  86 Fed. Reg. at 61,424.  But no congressional grant of authority 
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Page 53 
 
does what the Supreme Court requires in such circumstances:  speak with “exceedingly clear 
language.”  Ala. Ass’n of Realtors, 141 S. Ct. at 2489. 
The majority deems the major questions doctrine inapplicable, first because, in its eyes, 
OSHA’s authority to undertake a nationwide vaccine-or-test mandate is “unambiguous.”  Maj. 
Op. at 16.  It rests that conclusion primarily on the fact that OSHA has been regulating 
workplace health and safety since 1970.  But the major questions doctrine is not about the age of 
the agency; and it is not only about the kind of power but also the scope or degree.  Claiming that 
it made no such error, the majority doubles down with examples of OSHA exercising power 
similar in kind and calls that “scope.”  But no matter how many times OSHA has regulated 
discrete illnesses in particular workspaces, this emergency rule remains a massive expansion of 
the scope of its authority.  In Brown & Williamson, the FDA had been regulating “drugs” and 
“devices” for 58 years.  529 U.S. at 125.  And regulating nicotine seemed to fit in the FDA’s 
wheelhouse.  See id. at 127.  Nonetheless, the Court denied the FDA’s authority to make “a 
policy decision of such economic and political magnitude”—even one in the agency’s ken, and 
even though tobacco was “perhaps the single most significant threat to public health in the 
United States” at the time.6  Id. at 133, 161. 
Just months ago, the Supreme Court rejected a similar attempt by a different agency to 
take the pandemic into its own hands.  See Ala. Ass’n of Realtors, 141 S. Ct. at 2486.  The CDC 
had imposed an eviction moratorium for any counties with high levels of COVID-19 
transmission, citing its authority in the Public Health Act to make “such regulations as . . . are 
necessary to prevent the introduction, transmission, or spread of communicable diseases from 
foreign countries.”  Id. at 2487.  Deciding that a challenge to the moratorium was “virtually 
certain to succeed on the merits,” the Court found that even if the provision could be read that 
 
6The majority thinks Brown & Williamson is distinguishable because there Congress had directly spoken 
on the issue of tobacco, which was further evidence that the FDA had no such authority.  See 529 U.S. at 137–39.  
However, in Utility Air Regulatory Group, the Supreme Court reaffirmed the language in Brown & Williamson and 
applied it even where Congress had been silent.  See 573 U.S. at 307, 324 (finding that an EPA determination “that 
its motor-vehicle greenhouse-gas regulations automatically triggered permitting requirements” was an “enormous 
and transformative expansion” in authority that triggered Brown & Williamson).  Utility Air Regulatory Group is yet 
another example of the Supreme Court applying the major questions doctrine to a regulation similar in kind but with 
an increased scope. 
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and Testing, 86 Fed. Reg. 61402 
Page 54 
 
way, “the sheer scope of the CDC’s claimed authority” belied the government’s interpretation.  
Id. at 2489. 
The majority gives short shrift to this very recent precedent, calling the major questions 
doctrine a “seldom-used . . . exception to Chevron deference.”  Maj. Op. at 14.  It is hard to see 
how that can be right when Alabama Association of Realtors just applied the doctrine and 
Chevron made no appearance in the case.  The majority protests that the doctrine is “hardly a 
model of clarity” and that “economic and political significance” is undefined.  Id.  Maybe so.  
Yet it is hard to think of a more apt comparison than the one the Supreme Court just gave us to 
follow.  Finding it to be a power of “vast economic and political significance,” the Court 
emphasized that the CDC’s moratorium covered “80% of the country, including between 6 and 
17 million tenants,” all to “combat[] the spread of COVID-19.”  Ala. Ass’n of Realtors, 141 S. 
Ct. at 2489–90.  OSHA’s rule covers two-thirds of the private sector, including 84 million 
workers (26 million unvaccinated), also to combat COVID-19.  86 Fed. Reg. at 61,424–41.  If it 
is not clear on its face that OSHA’s vaccinate-or-test mandate covering most of the country is 
significant, then Alabama Association of Realtors tells us it is. 
Finally, the majority tries to escape the doctrine by claiming that the Secretary’s authority 
is carefully circumscribed by the requirements in § 655 that the rule be “necessary” to combat a 
“grave danger,” and that OSHA has “honored those parameters” by using its power infrequently.  
Maj. Op. at 16.  Two short responses are in order.  One, the provision in Alabama Association of 
Realtors was similarly circumscribed; the CDC could act only when it was “necessary” to 
prevent the “spread of communicable disease,” and it had “rarely . . . invoked” its power.  
141 S. Ct. at 2487.  Two, the fact that § 655 “narrowly circumscribe[s]” OSHA’s authority, 
Indus. Union, 448 U.S. at 651, and that its assertions of power in the past have been limited, 
supports a restrictive reading, not an expansive one. 
A last point bears mention.  Congress may enlist the help of administrative agencies to 
implement and enforce the laws, as it has done here.  See Gundy v. United States, 139 S. Ct. 
2116, 2123 (2019).  But there are limits to how much Congress may delegate.  See id.  And the 
greater the putative delegation of power, the less discretion an agency has when exercising it.  
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 55 
 
See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001) (“[T]he degree of agency 
discretion that is acceptable varies according to the scope of the power congressionally 
conferred.”).  
Here, the Secretary asks for maximum authority and maximum discretion; he wants to 
issue a rule of national import, covering two-thirds of American workers, and he wants to do it 
without clear congressional authorization, without even public notice and comment, and with a 
capacious understanding of necessity.  Such a combination of authority and discretion is 
unprecedented, and the Secretary is unlikely to show that he has been granted it. 
B.  Other Stay Factors 
Petitioners have shown a likelihood of success on the merits of their challenge to the 
emergency rule.  That factor is the most important; but the other factors favor the stay as well.   
Will petitioners be irreparably harmed absent a stay?  Yes.  Nken v. Holder, 556 U.S. 
418, 434 (2009).  Consider just two classes of petitioners.  First, individuals.  Without a stay, 
they will be forced to decide whether to get vaccinated.  In some cases, employers may permit 
employees to undergo weekly testing and wear a mask.  But some will fire those who are not 
vaccinated, rather than deal with the recordkeeping hassles of the testing requirement.  In those 
instances, the individuals will be irreparably harmed, either by loss of livelihood or an 
unwelcome vaccination.  And even if given the choice by her employer, an individual petitioner 
might reluctantly submit to vaccination, rather than incur a weekly hit to her finances and to her 
time.  And if it turns out she did so due to an invalid regulation, she will have been irreparably 
harmed.  
Second, businesses.  The business petitioners say they will be harmed in various ways, 
including unrecoverable compliance costs and loss of employees amidst a labor shortage.  For 
example, one petitioner, Oberg Industries, says that it will incur more than “$22 million in lost 
revenue per year,” and that the vaccinate-or-test mandate “will imperil Petitioner’s business 
going forward given significant labor market shortages.”  Docket Nos. 21-7000, 21-4112, 
Motion for Emergency Stay at 2.  Currently, the company has 21 open positions and, according 
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and Testing, 86 Fed. Reg. 61402 
Page 56 
 
to Oberg, “studies show that at least seven million affected workers report that they definitely 
will not get the vaccine.”  Id.  The vaccinate-or-test mandate will exacerbate these shortages, 
with Oberg estimating that it will lose “200 employees—approximately 30% of its existing 
workforce.”  Id. at 2–3.  The papers before this court are filled with similar stories.  There is no 
question that if these harms occur, they will be irreparable. 
OSHA responds that the administrative record it compiled does not support the alleged 
severity of petitioners’ harms.  Of course the record is silent as to petitioners’ concerns, given 
that the emergency standard circumvents any public input.  And while OSHA says its projected 
costs are much lower than petitioners’, the projected costs are not de minimis, ranging from as 
little as $2,000 to almost $900,000 per entity, with a combined projected cost of almost 
$3 billion.  86 Fed. Reg. at 61,493.   
Would the stay substantially injure OSHA and where does the public interest lie?  Nken, 
556 U.S. at 434.  These two factors merge when the government is a party.  Id. at 435.  It is hard 
to find harm to OSHA from delay, as it waited almost two years since the pandemic began, and 
nearly a year after vaccines became publicly available, to issue the mandate.  That is not to 
mention the almost two-month delay between the President’s mandate announcement and the 
issuance of the emergency standard.   
As for the societal costs of the pandemic, few could dispute their size and scope.  
To focus on just one, in many states, the healthcare system is being overrun and many healthcare 
workers report both a physical and emotional toll from the relentless effort of caring for the sick 
and dying.  See Michigan’s Hospitals Near Breaking Point:  ‘We Can’t Take Care of Our 
Patients as We 
Need’, 
The 
Detroit 
News 
(last 
visited 
Dec. 
15, 
2021), 
https://www.detroitnews.com/in-depth/news/nation/coronavirus/2021/12/15/michigan-hospitals-
crisis-health-care-workers-exhausted-covid-19-pandemic/6462036001/.  The agency record in 
this case contains substantial evidence that we could give them some rest if more of us rolled up 
our sleeves.  But the Secretary himself claims no authority to regulate for these ends.  He cannot 
even regulate for the sake of the vaccinated; they are not in “grave danger.”  Instead, the mandate 
is aimed directly at protecting the unvaccinated from their own choices.  Vaccines are freely 
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available, and unvaccinated people may choose to protect themselves at any time.  And because 
the Secretary likely lacks congressional authority to force them to protect themselves, the 
remaining stay factors cannot tip the balance.  See Tiger Lily, 992 F.3d at 524. 
* * * 
I would deny OSHA’s motion to dissolve the stay. 
App. A-57 

Appendix B

RECOMMENDED FOR PUBLICATION 
Pursuant to Sixth Circuit I.O.P. 32.1(b) 
File Name: 21a0283p.06 
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 
IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, 
INTERIM FINAL RULE: COVID-19 VACCINATION AND TESTING; EMERGENCY 
TEMPORARY STANDARD 86 FED. REG. 61402. 
_________________________________________________________________ 
MASSACHUSETTS BUILDING TRADES COUNCIL, et al. (21-7000); BENTKEY 
SERVICES, LLC (21-4027); PHILLIPS MANUFACTURING & TOWER COMPANY, et 
al. (21-4028); COMMONWEALTH OF KENTUCKY, et al. (21-4031); ANSWERS IN 
GENESIS, INC. (21-4032); SOUTHERN BAPTIST THEOLOGICAL SEMINARY, et al. 
(21-4033); BST HOLDINGS, LLC, et al. (21-4080); REPUBLICAN NATIONAL 
COMMITTEE (21-4082); ASSOCIATED BUILDERS AND CONTRACTORS, INC., et al. 
(21-4083); MASSACHUSETTS BUILDING TRADES COUNCIL (21-4084); UNION OF 
AMERICAN PHYSICIANS AND DENTISTS (21-4085); ASSOCIATED GENERAL 
CONTRACTORS OF AMERICA, INC., et al. (21-4086); NATIONAL ASSOCIATION OF 
BROADCAST EMPLOYEES & TECHNICIANS, THE BROADCASTING AND CABLE 
TELEVISION WORKERS SECTOR OF THE COMMUNICATIONS WORKERS OF 
AMERICA, LOCAL 51, AFL-CIO (21-4087); STATE OF MISSOURI, et al. (21-4088); 
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING 
AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO 
(21-4089); STATE OF INDIANA (21-4090); TANKCRAFT CORPORATION, et al. (21-
4091); NATIONAL ASSOCIATION OF HOME BUILDERS (21-4092); JOB CREATORS 
NETWORK, et al. (21-4093); UNITED FOOD AND COMMERCIAL WORKERS 
INTERNATIONAL UNION, AFL/CIO-CLC, et al. (21-4094); SERVICE EMPLOYEES 
INTERNATIONAL UNION LOCAL 32BJ (21-4095); MFA, INC., et al. (21-4096); 
STATE OF FLORIDA, et al. (21-4097); AFT PENNSYLVANIA (21-4099); DENVER 
NEWSPAPER GUILD, COMMUNICATIONS WORKERS OF AMERICA, LOCAL 37074, 
AFL-CIO (21-4100); DTN STAFFING, INC., et al. (21-4101); FABARC STEEL 
SUPPLY, INC., et al. (21-4102); MEDIA GUILD OF THE WEST, THE NEWS GUILD-
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 39213 (21-4103); 
NATURAL PRODUCTS ASSOCIATION (21-4108); OBERG INDUSTRIES, LLC (21-
4112); BETTEN CHEVROLET, INC. (21-4114); TORE SAYS LLC (21-4115); 
KENTUCKY PETROLEUM MARKETERS ASSOCIATION, et al. (21-4117); AARON 
ABADI (21-4133), 
Petitioners, 
v. 
UNITED STATES DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH 
ADMINISTRATION, et al., 
Respondents. 
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Nos. 21-7000 
/4027 /4028 /4031 
/4032 /4033 /4080 
/4082 /4083 /4084 
/4085 /4086 /4087 
/4089 /4088 /4090 
/4091 /4093 /4092 
/4095 /4094 /4096 
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/4101 /4102 /4103 
/4108 /4112 /4114 
/4115 /4117 /4133 
>
Case: 21-7000     Document: 380-2     Filed: 12/15/2021     Page: 1
(21 of 62)
App. B-1

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 2 
On Petitions for Initial Hearing En Banc. 
Multi-Circuit Petitions for Review from an Order of the U.S. Department of Labor, 
Occupational Safety and Health Administration, No. OSHA-2001-0007. 
Decided and Filed:  December 15, 2021 
Before:  SUTTON, Chief Judge; MOORE, COLE, CLAY, GIBBONS, GRIFFIN, 
KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, 
NALBANDIAN, READLER and MURPHY, Circuit Judges. 
_________________ 
COUNSEL 
ON PETITIONS FOR INITIAL HEARING EN BANC: Benjamin M. Flowers, May Davis, 
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Christopher L. Thacker, 
Lindsey R. Keiser, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, 
Kentucky, Clark L. Hildabrand, Brandon J. Smith, OFFICE OF THE TENNESSEE 
ATTORNEY GENERAL, Nashville, Tennessee, Brian Kane, Leslie M. Hayes, Megan A. 
Larrondo, OFFICE OF THE IDAHO ATTORNEY GENERAL, Boise, Idaho, Jeffrey A. 
Chanay, OFFICE OF THE KANSAS ATTORNEY GENERAL, Topeka, Kansas, Mithun 
Mansinghani, OFFICE OF THE OKLAHOMA ATTORNEY GENERAL, Oklahoma City, 
Oklahoma, Lindsay S. See, OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL, 
Charleston, West Virginia, Edmund G. LaCour Jr., OFFICE OF THE ALABAMA ATTORNEY 
GENERAL, Montgomery, Alabama, Charles E. Brasington, OFFICE OF THE ALASKA 
ATTORNEY GENERAL, Anchorage, Alaska, Drew Ensign, OFFICE OF THE ARIZONA 
ATTORNEY GENERAL, Phoenix, Arizona, John V. Coghlan, OFFICE OF THE MISSISSIPPI 
ATTORNEY GENERAL, Jackson, Mississippi, David M. S. Dewhirst, Christian B. Corrigan, 
OFFICE OF THE MONTANA ATTORNEY GENERAL, Helena, Montana, Nicholas J. Bronni, 
Vincent M. Wagner, OFFICE OF THE ARKANSAS ATTORNEY GENERAL, Little Rock, 
Arkansas, Henry C. Whitaker, Jason H. Hilborn, OFFICE OF THE FLORIDA ATTORNEY 
GENERAL, Tallahassee, Florida, James A. Campbell, OFFICE OF THE NEBRASKA 
ATTORNEY GENERAL, Lincoln, Nebraska, Anthony J. Galdieri, OFFICE OF THE NEW 
HAMPSHIRE ATTORNEY GENERAL, Concord, New Hampshire, Matthew A. Sagsveen, 
OFFICE OF THE NORTH DAKOTA ATTORNEY GENERAL, Bismarck, North Dakota, Ross 
W. Bergethon, OFFICE OF THE GEORGIA ATTORNEY GENERAL, Atlanta, Georgia,
Thomas M. Fisher, OFFICE OF THE INDIANA ATTORNEY GENERAL, Indianapolis,
Indiana, Thomas T. Hydrick, OFFICE OF THE SOUTH CAROLINA ATTORNEY GENERAL,
Columbia, South Carolina, Samuel P. Langholz, OFFICE OF THE IOWA ATTORNEY
GENERAL, Des Moines, Iowa, Elizabeth B. Murrill, OFFICE OF THE LOUISIANA
ATTORNEY GENERAL, Baton Rouge, Louisiana, Judd E. Stone II, William F. Cole, Ryan S.
Baasch, OFFICE OF THE TEXAS ATTORNEY GENERAL, Austin, Texas, Melissa A.
Holyoak, OFFICE OF THE UTAH ATTORNEY GENERAL, Salt Lake City, Utah, Ryan
Schelhaas, OFFICE OF THE WYOMING ATTORNEY GENERAL, Cheyenne, Wyoming,
Case: 21-7000     Document: 380-2     Filed: 12/15/2021     Page: 2
(22 of 62)
App. B-2

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 3 
 
Michael E. Toner, Thomas M. Johnson, Jr., Stephen J. Obermeier, Jeremy J. Broggi, Krystal B. 
Swendsboe, WILEY REIN LLP, Washington, D.C., Jeffrey C. Mateer, Hiram S. Sasser III, 
David J. Hacker, Jeremiah G. Dys, Lea E. Patterson, Keisha T. Russell, FIRST LIBERTY 
INSTITUTE, Plano, Texas, Cathleen A. Martin, John A. Ruth, NEWMAN, COMLEY & RUTH, 
P.C., Jefferson City, Missouri, Robert Henneke, Chance Weldon, TEXAS PUBLIC POLICY 
FOUNDATION, Austin, Texas, Matthew J. Clark, ALABAMA CENTER FOR LAW AND 
LIBERTY, Birmingham, Alabama, David A. Cortman, John J. Bursch, Matthew S. Bowman, 
Frank H. Chang, ALLIANCE DEFENDING FREEDOM, Washington, D.C., Ryan L. Bangert, 
Ryan J. Tucker, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Richard J. Oparil, 
ARNALL GOLDEN GREGORY LLP, Washington, D.C., Grant J. Guillot, GRANT GUILLOT, 
LLC, Baton Rouge, Louisiana, Russell A. Newman, THE NEWMAN LAW FIRM, Brentwood, 
Tennessee, Christopher Wiest, CHRIS WIEST, ATTORNEY AT LAW, PLLC, Crestview Hills, 
Kentucky, James P. Sullivan, OFFICE OF THE GOVERNOR, Austin, Texas, Harmeet K. 
Dhillon, Ronald D. Coleman, Mark P. Meuser, Michael A. Columbo, DHILLON LAW GROUP 
INC., San Francisco, California, Robert Alt, THE BUCKEYE INSTITUTE, Columbus, Ohio, 
Patrick Strawbridge, CONSOVOY MCCARTHY PLLC, Boston, Massachusetts, for Petitioners.  
ON RESPONSE:  Sarah E. Harrington, Michael S. Raab, Adam C. Jed, Brian J. Springer, 
Martin Totaro, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 
Respondents. 
 
The En Banc Court of the Sixth Circuit Court of Appeals delivered an order.  MOORE, J. 
(pp. 4ؘ–5), delivered a separate opinion concurring in the denial of the petitions for initial hearing 
en banc in which COLE, CLAY, WHITE, and DONALD, JJ., joined.  SUTTON, C.J. (pp. 6–32), 
in which KETHLEDGE, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, and 
MURPHY, JJ., joined, and BUSH, J. (pp. 33–42), delivered separate opinions dissenting from 
the denial of the petitions for initial hearing en banc. 
_________________ 
ORDER 
_________________ 
The court having received petitions for initial hearing en banc, and the petitions having 
been circulated to all active judges of this court, and less than a majority of the active judges of 
this court having voted in favor of initial hearing en banc, 
IT IS ORDERED that the petitions be, and hereby are, DENIED. 
 
 
Case: 21-7000     Document: 380-2     Filed: 12/15/2021     Page: 3
(23 of 62)
App. B-3

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 4 
 
________________________________________________________________ 
CONCURRING IN THE DENIAL OF INITIAL HEARING EN BANC 
________________________________________________________________ 
KAREN NELSON MOORE, Circuit Judge, concurring in the denial of initial hearing en 
banc.  This is an important case on an accelerated timeframe.  And yet, many challengers 
proposed initial hearing en banc, an “often unproductive, always inefficient process.”  See Mitts 
v. Bagley, 626 F.3d 366, 370 (6th Cir. 2010) (Sutton, J., concurring in denial of en banc review).  
Because a three-judge panel of our court has already devoted significant time to this case, and 
because initial hearing en banc would subvert our normal process and require the full court to 
grapple with a sprawling record, I concur in the denial of initial hearing en banc. 
 
Courts have repeatedly recognized that en banc hearing is an inefficient process.  See 
Mitts, supra; Hart v. Massanari, 266 F.3d 1155, 1172 & n.29 (9th Cir. 2001) (calling en banc 
proceedings “unwieldy and time-consuming”) (internal quotation omitted); Bartlett ex rel. 
Neumann v. Bowen, 824 F.2d 1240, 1243 (D.C. Cir. 1987) (Edwards, J., concurring in the denial 
of rehearing en banc) (noting that en banc rehearing “substantially delays the case being 
reheard”).  This potential for delay “is magnified when there has been no prior panel 
consideration of a case.”  Belk v. Charlotte-Mecklenburg Bd. of Educ., 211 F.3d 853, 854 (4th 
Cir. 2000) (Wilkinson, C.J., concurring in denial of initial hearing en banc). 
 
This case shows the folly of initial hearing en banc.  The massive docket and profusion of 
briefs, as in an especially complex matter before a district court, require focused consideration by 
a devoted panel.  En banc hearing does indeed put “all hands on deck.”  C.J. Sutton Dissent at 
11.  In a case as important, accelerated, and briefing-filled as this one, however, gathering all 
hands on deck would have strained the resources of the sixteen active judges, requiring each of 
us to review the voluminous record and the relevant underlying legal doctrines.  What’s more, it 
would have done so for no discernable purpose:  the case already sits before three thoughtful, 
independent judges on the panel who have spent the past weeks steeped in this matter.  
We properly leave the matter in their hands. 
Case: 21-7000     Document: 380-2     Filed: 12/15/2021     Page: 4
(24 of 62)
App. B-4

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 5 
 
 
Our decisions “warrant the utmost respect when they are perceived by the public to have 
been reached in the most regular and careful manner.”  Belk, 211 F.3d at 856 (Wilkinson, C.J., 
concurring in denial of initial hearing en banc).  I am relieved that this court adheres to those 
standards of regularity and care today. 
 
 
Case: 21-7000     Document: 380-2     Filed: 12/15/2021     Page: 5
(25 of 62)
App. B-5

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 6 
 
________________________________________________________________ 
DISSENTING FROM THE DENIAL OF INITIAL HEARING EN BANC  
________________________________________________________________ 
SUTTON, Chief Judge, dissenting from the denial of initial hearing en banc.  When 
much is sought from a statute, much must be shown.  The Secretary of Labor asks a lot of the 
Occupational Safety and Health Act.  He claims authority to issue an emergency rule, scheduled 
to go into effect on January 4, 2022, that will require roughly 80 million workers to become 
vaccinated or face a weekly self-financed testing requirement and a daily masking requirement.  
At the same time, he assumes authority to regulate an area—public health and safety—
traditionally regulated by the States.  If valid, the rule would nullify all contrary state and local 
regulations, as the power to regulate nationally is the power to preempt locally.  Such broad 
assertions of administrative power demand unmistakable legislative support.  The federal courts 
“expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast 
economic and political significance’” and to use “exceedingly clear language if it wishes to 
significantly alter the balance between federal and state power.”  Ala. Ass’n of Realtors v. Dep’t 
of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (quotation omitted). 
Congress did not “clearly” grant the Secretary of Labor authority to impose this 
vaccinate-or-test mandate.  First, as a threshold matter, the Occupational Safety and Health Act 
gives the Secretary power to address only occupational health and safety risks.  But it is by no 
means clear that this authority extends to all hazards that might affect employees at some point 
during the 16 hours of each weekday and the 48 hours of each weekend when they are not at 
work, whether the hazard arises from a coronavirus of one sort or another, a virulent flu, traffic 
safety, air pollution, vandalism, or some other risk to which people are equally exposed at work 
and outside of work.  It is one thing to tell a worker to don a mask at the start of a hazard-filled 
shift and doff it at the end.  It is quite another to tell a worker to vaccinate on the basis of a risk 
that exists whether he is on the clock or off and that amounts to a medical procedure that cannot 
be removed at the end of the shift.  Confirming the point, the Secretary of Labor has never 
imposed a vaccine mandate or for that matter a vaccinate-or-test mandate on American workers.  
Case: 21-7000     Document: 380-2     Filed: 12/15/2021     Page: 6
(26 of 62)
App. B-6

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 7 
 
The Act does not clearly give the Secretary power to regulate all health risks and all new health 
hazards, largely through off-site medical procedures, so long as the individual goes to work and 
may face the hazard in the course of the workday. 
Second, even apart from the workplace-anchored scope of the Act, the Secretary of 
Labor’s power to issue “emergency temporary standards” does not justify the first vaccinate-or-
test mandate in federal labor law history.  This emergency power extends only to “necessary” 
measures, namely measures indispensable or essential to address a “grave” danger in the 
workplace.  But this set of preconditions does not apply (1) when the key population group at 
risk from COVID-19—the elderly—in the main no longer works, (2) when members of the 
working-age population at risk—the unvaccinated—have chosen for themselves to accept the 
risk and any risk is not grave for most individuals in the group, and (3) when the remaining 
group—the vaccinated—does not face a grave risk by the Secretary’s own admission, even if 
they work with unvaccinated individuals.  Countless lesser and more focused measures were 
available to the Secretary:  targeting certain industries susceptible to high risk, focusing on 
protections for workers most vulnerable to the virus, and varying any requirements to account for 
the wide range of settings in which people work.  A blunt national vaccine mandate for 
80 million workers with little regard to the relevant employment circumstances—well-spaced or 
not, together or apart, high risk individuals or not, indoors or mainly outdoors—was not 
necessary under the Act, and Congress did not clearly say otherwise. 
Third, the setting of these requirements—authority to set “emergency temporary 
standards” without complying with the notice-and-comment process—confirms the narrowness 
of this authority and its inapplicability here.  Start with “emergency.”  The Secretary does not 
invoke this power based on a sudden revelation that the virus presents a serious health risk.  How 
could he?  He relies on something else—the increased availability of vaccines.  That 
development, however, does not heighten health risks; it alleviates them—and it’s hardly a new 
development anyway.  What, moreover, is “temporary” about a vaccination?  A reluctant or 
coerced vaccination cannot be undone if the Secretary changes course during the notice-and-
comment process or if the proposed rule exceeds the Secretary’s authority.  All of the Secretary’s 
Case: 21-7000     Document: 380-2     Filed: 12/15/2021     Page: 7
(27 of 62)
App. B-7

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 8 
 
emergency decrees to date, even the ones invalidated by the courts, have involved truly 
temporary measures to protect workers from certain hazards at work until the notice-and-
comment process ends.  Ready access to free vaccinations may not have quelled the pandemic as 
quickly as the Secretary, or any of us, would like.  But that reality does not justify, much less 
justify clearly, a sudden invocation of an emergency medical power at roughly the two-year 
anniversary of the pandemic merely because the Secretary determines that not enough Americans 
are vaccinated. 
For my part, the resolution of this conflict between existing law and the Secretary’s 
proposed policy is not particularly hard.  What makes the case difficult are the ongoing 
challenges of the pandemic and the health-and-safety benefits of obtaining vaccinations.  The 
challenges presented by the pandemic are serious, no one can deny.  The record confirms what 
common experience shows—“that the public has a strong interest in combating the spread” of a 
virus that has prematurely ended over three-quarters of a million American lives.  Ala. Ass’n of 
Realtors, 141 S. Ct. at 2490.  The record also shows the utility of vaccinations.  The medical 
studies to date show that vaccinated individuals face fewer risks of getting the virus and, for 
those who still suffer breakthrough infections, fewer risks of serious symptoms or death.  It is the 
rare federal judge, indeed the rare employee in the third branch, I suspect, who has not gotten the 
message. 
But the issue here is not that simple.  No matter the policy benefits of a well-intended 
regulation, a court may not enforce it if the agency’s reach exceeds a statute’s grasp.  Once 
before, in the throes of another threat to the country, the executive branch claimed it needed to 
seize control of the country’s steel mills as a “necessary” measure “to avert a national 
catastrophe.”  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952).  But that 
threat, like this one, did not permit the second branch to act without authorization from the first 
branch.  Id. at 588–89.  As the Supreme Court recently explained in invalidating an eviction 
moratorium promulgated by the Center for Disease Control, “our system does not permit 
agencies to act unlawfully even in pursuit of desirable ends.”  Ala. Ass’n of Realtors, 141 S. Ct. 
at 2490.  Shortcuts in furthering preferred policies, even urgent policies, rarely end well, and 
Case: 21-7000     Document: 380-2     Filed: 12/15/2021     Page: 8
(28 of 62)
App. B-8

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 9 
 
they always undermine, sometimes permanently, American vertical and horizontal separation of 
powers, the true mettle of the U.S. Constitution, the true long-term guardian of liberty. 
For these reasons and those elaborated below, the challengers are likely to prevail on the 
merits when it comes to their petitions targeting the emergency rule.  That reality together with 
the other stay factors show that the emergency rule should remain stayed.  Nken v. Holder, 
556 U.S. 418, 434 (2009); Ala. Ass’n of Realtors, 141 S. Ct. at 2490. 
I. 
Congress passed the Occupational Safety and Health Act in 1970.  Pub. L. No. 91-596, 
84 Stat. 1590.  With the Act, Congress created an agency to administer the statute—the 
Occupational Safety and Health Administration, called OSHA for short—which sits within the 
Department of Labor.  From the outset, the Act was designed to ensure “safe and healthful 
working conditions” for employees.  29 U.S.C. § 651(b).  The Act empowers the Secretary of 
Labor, through OSHA, to create health and safety regulations for workplaces across the country.  
Id. § 655(b).  Before such regulations go into effect, they must withstand a rigorous process.  The 
Secretary must provide notice of any proposed regulation and give 30 days for any affected 
entity to submit data or offer comment about the costs, benefits, feasibility, legality, or any other 
reason for rejecting, adopting, or modifying the proposed rule.  Id. § 655(b)(2).  Those who 
object to the rule may request a public hearing.  Id. § 655(b)(3).  Within 60 days of the end of the 
period for submitting comments or the completion of a requested hearing, the Secretary must 
publish a rule or decide not to issue one.  Id. § 655(b)(4).  Still more process is called for if the 
proposed rule involves, as this one allegedly does, “toxic materials or harmful physical agents,” 
in which case its development must be “based upon research, demonstrations, experiments, and 
such other information as may be appropriate.”  Id. § 655(b)(5). 
An exception exists.  The Act allows the Secretary to create an “emergency temporary 
standard” without undergoing all of these notice-and-comment requirements.  Id. § 655(c).  To 
allow an “emergency” regulation to go into immediate effect, the Secretary must show (1) that 
“employees are exposed to grave danger from exposure to substances or agents determined to be 
Case: 21-7000     Document: 380-2     Filed: 12/15/2021     Page: 9
(29 of 62)
App. B-9

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 10 
 
toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is 
necessary to protect employees from such danger.”  Id. § 655(c)(1). 
Since 1970, the Secretary of Labor has used these emergency powers infrequently—and 
never to require a medical procedure.  Over more than a half-century, the agency has used this 
power just nine times before this year.  BST Holdings, L.L.C. v. Occupational Safety & Health 
Admin., 17 F.4th 604, 609 (5th Cir. 2021).  Six of these standards were challenged in court.  Id.  
Just one was allowed to go into effect.  Id.; see also 79 Fed. Reg. 61,384, 61,419 (Oct. 10, 2014) 
(noting that “OSHA has not successfully adopted an emergency temporary standard for over 
thirty years”).  In a more recent exercise of this power, which a court has not yet addressed, the 
Secretary issued an emergency regulation in June 2021, which imposed requirements on the 
healthcare industry to reduce transmission of COVID-19, mainly protective clothing and 
physical distancing.  86 Fed. Reg. 32,376 (June 21, 2021).  The emergency rule did not require 
workers to get vaccinated or subject themselves to uncompensated weekly tests. 
At issue is OSHA’s November 5 emergency standard, entitled “COVID-19 Vaccination 
and Testing; Emergency Temporary Standard.”  86 Fed. Reg. 61,402 (Nov. 5, 2021).  It applies 
to employers with 100 or more employees, what comes to roughly 80 million employees 
nationwide.  Id. at 61,467.  And it contains a narrow exemption for employees who “work[] 
remotely 100 percent of the time” or who “perform their work exclusively outdoors.”  Id. at 
61,419, 61,467.  
The emergency rule also applies to the 26 States in the country that administer their own 
state OSHA Plans, which means that those States must enforce the vaccinate-or-test mandate 
against any covered public employees and private businesses in their jurisdiction.  Id. at 61,462.  
Although Congress did not require state and local governments to adhere to the Act, see 
29 U.S.C. §§ 652(5), 654(a)(2), it used its spending power to encourage States to accept federal 
funding—up to 50% of the total cost of each state plan—in return for adopting an 
OSHA-approved state plan, id. § 672(g).  Under the Act, state plans must be at least as effective 
as the federal standards required by the Secretary.  Id. § 667(b), (c)(2). 
Case: 21-7000     Document: 380-2     Filed: 12/15/2021     Page: 10
(30 of 62)
App. B-10

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 11 
 
Under the emergency rule, the employer must verify “the vaccination status of each 
employee,” “maintain a record of each employee’s vaccination status,” and “preserve acceptable 
proof of vaccination.”  86 Fed. Reg. at 61,552.  For employees who opt not to get vaccinated, the 
employer must require a test every seven days, one that neither the Federal Government nor the 
employers must pay for and one that the employees may not take without the supervision of an 
authorized person.  Id. at 61,530, 61,532, 61,551, 61,553.  Unvaccinated employees who do not 
comply must be “removed from the workplace.”  Id. at 61,532.  Unvaccinated employees must 
wear masks at work with few exceptions.  Id. at 61,553.  The testing and masking requirements 
do not apply to vaccinated employees.  Id.  Employers who violate the Act face penalties 
imposed by OSHA:  up to $13,653 for each violation and up to $136,532 for each willful 
violation.  29 C.F.R. § 1903.15(d). 
Several companies, organizations, individuals, and 27 States filed challenges to the 
emergency rule, raising a variety of claims in the various courts of appeals.  On November 12, in 
one of those cases, the U.S. Court of Appeals for the Fifth Circuit stayed the vaccinate-or-test 
mandate.  BST Holdings, 17 F.4th at 619.  After our circuit was selected to handle the petitions 
for review on a consolidated basis, we received two sets of pertinent motions:  a motion by the 
Secretary of Labor to vacate the Fifth Circuit’s stay order, see 28 U.S.C. § 2112(a)(4), and 
requests by various parties to grant initial hearing en banc. 
II. 
A few words are in order about the en banc motions in front of us—requests by roughly 
59 parties that the full Court hear this case at the outset.  At one level, granting the motion makes 
considerable sense.  This is an extraordinary case, suitable for an extraordinary procedure.  
Given the unusual setting of these consolidated cases—a statutory delegation of authority over 
countless appeals to one regional court of appeals, 28 U.S.C. § 2112(a)—there is something to be 
said for putting all hands on deck, particularly when it comes to handling the stay motion, which 
could turn out to be the key decision point in all of these petitions for review.  If the stay motion 
is the main event in a case about the legitimacy of a six-month emergency rule that ends on May 
5, 2022, little opportunity for traditional en banc review will exist at the back end of the case.  
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Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 12 
 
All of this explains why we favor granting the motion.  But at another level, it makes little 
difference that our Court has divided 8-8 on whether to grant the en banc motion.  We likely will 
not be the final decisionmakers in this case, given the prospect of review by the U.S. Supreme 
Court.  And the existence of the en banc motion gives the judges of our Court the option to offer 
their perspectives on the stay motion, in opinions concurring in the denial of initial hearing en 
banc or dissenting from it. 
III. 
In evaluating a stay motion, we ask four questions:  Which side is likely to prevail on the 
merits?  What are the costs to the challengers of allowing the emergency rule to go into effect?  
What are the costs to the Secretary of Labor and others of barring the emergency rule from going 
into effect?  What does the public interest favor?  Nken, 556 U.S. at 434.  In this instance, as in 
many others, we focus primarily on the likelihood-of-success inquiry.  See Ala. Ass’n of 
Realtors, 141 S. Ct. at 2490. 
IV. 
The challengers should prevail for two main reasons.  A clear-statement rule applies to 
this wide-ranging and unprecedented assertion of administrative power, and the Secretary of 
Labor has failed to show that Congress clearly delegated this authority to him. 
A. 
Today’s emergency rule is not an everyday exercise of federal power.  The Secretary 
claims authority to require 80 million Americans—in virtually every type of American business 
there is—to obtain a COVID-19 vaccine or, in the alternative, to undertake a weekly COVID-19 
test and wear a mask throughout each workday.  Because the Federal Government pays for the 
vaccine but not the weekly test, it is fair to say that the Secretary is prioritizing the vaccine 
mandate over the test-and-mask mandate, if not coercing vaccinations.  See 86 Fed. Reg. at 
61,434 (acknowledging that the emergency rule “is designed to strongly encourage 
vaccination”).  Further pressure on employees comes from other features of the rule:  
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 13 
 
(1) Employers must provide time off for employees to get vaccinated and to recover from any 
side effects, id. at 61,457, while the rule does not require them to do so for employees who must 
undergo weekly tests, even if that requires considerable travel in rural areas, see id. at 61,484; 
(2) the agency normally requires employers to compensate employees for occupational safety 
gear and required testing but not in this instance, compare 29 C.F.R. § 1910.132(h), with 86 Fed. 
Reg. at 61,407 & n.2; and (3) employers can escape many of the administrative burdens of 
administering the rule if they require their employees to get vaccinated, 86 Fed. Reg. at 61,437.  
Either way, whether treated as a vaccine mandate or a vaccinate-or-test mandate, the Secretary 
must answer mandates of his own if he wishes to regulate large swaths of Americans with 
respect to substantial public policy, medical, and economic matters customarily regulated by the 
States. 
In the first place, the federal courts “expect Congress to speak clearly when authorizing 
an agency to exercise powers” over large numbers of Americans with respect to contested public 
policy choices of vast significance.  Ala. Ass’n of Realtors, 141 S. Ct. at 2489.  Skeptical of 
mismatches between invocations of power by agencies and the statutes that purport to delegate 
that power, the federal courts require broad assertions of policymaking authority to be premised 
on direct and specific congressional delegations of that power.  Congress must “speak clearly if it 
wishes to assign to an agency decisions of vast economic and political significance.”  Util. Air 
Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quotation omitted); see Whitman v. Am. Trucking 
Ass’ns, 531 U.S. 457, 468 (2001).  What Justice Stevens said in 1980 in rejecting the “Benzene 
rule,” designed by OSHA to protect American workers from cancer, applies with equal force to 
today’s rule:  “In the absence of a clear mandate in the Act, it is unreasonable to assume that 
Congress intended to give the Secretary the unprecedented power over American industry that 
would result from the Government’s view” of the statute.  Indus. Union Dep’t, AFL-CIO v. Am. 
Petroleum Inst., 448 U.S. 607, 645 (1980) (plurality opinion).  Notably, OSHA initially 
attempted to issue the Benzene Rule as an emergency rule, but it abandoned that approach in 
favor of notice-and-comment rulemaking after the Fifth Circuit stayed the rule.  Id. at 623. 
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Nos. 21-7000, et al. 
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 14 
 
A national vaccinate-or-test mandate likewise is unprecedented, whether with respect to 
OSHA or any other federal agency, presumably because the intrusion on individual liberty is 
serious and because, in OSHA’s case, the required medical procedures do not comfortably map 
onto workplace-specific protective remedies.  See Cong. Rsch. Serv., Mandatory Vaccinations:  
Precedent and Current Laws 9 (May 21, 2014); see also 86 Fed. Reg. at 61,436.  If OSHA 
“claims to discover in a long-extant statute an unheralded power to regulate a significant portion 
of the American economy,” it should not be surprised if courts “greet its announcement with a 
measure of skepticism.”  Util. Air Regul. Grp., 573 U.S. at 324 (quotation omitted).  As with the 
eviction moratorium created by the federal Center for Disease Control and invalidated by the 
Supreme Court, today’s “claim of expansive authority” under this provision “is unprecedented.”  
Ala. Ass’n of Realtors, 141 S. Ct. at 2489; see Tiger Lily, LLC v. U.S. Dep’t of Hous. & Urb. 
Dev., 5 F.4th 666, 668 (6th Cir. 2021).  If federal courts have been skeptical when a medically 
based agency (the CDC) issues broad mandates with respect to housing, they should be equally 
skeptical when a workplace agency (OSHA) issues broad mandates with respect to medical 
procedures. 
In the second place, the States, not the Federal Government, are the traditional source of 
authority over safety, health, and public welfare.  In the context of a vast attempt to assume these 
police powers by the Federal Government, Congress must speak unequivocally.  Whether it is 
seizing authority to regulate “the landlord-tenant relationship,” Ala. Ass’n of Realtors, 141 S. Ct. 
at 2489, to regulate private property, U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 
140 S. Ct. 1837, 1849–50 (2020), to enact run-of-the-mine criminal laws, Jones v. United States, 
529 U.S. 848, 858 (2000), to enact out-of-the-ordinary criminal laws, Bond v. United States, 
572 U.S. 844, 848 (2014), or to regulate the retirement age of state court judges, Gregory v. 
Ashcroft, 501 U.S. 452, 460–61 (1991), Congress must “enact exceedingly clear language if it 
wishes to significantly alter the balance between federal and state power,” Ala. Ass’n of Realtors, 
141 S. Ct. at 2489 (quotation omitted). 
In applying this federalism clear-statement canon, it’s worth remembering that the only 
Supreme Court cases that permitted a government to impose a vaccination mandate on 
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Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 15 
 
individuals arose from the States, not the National Government.  Jacobson v. Massachusetts, 
197 U.S. 11 (1905); Zucht v. King, 260 U.S. 174 (1922).  In upholding a vaccination requirement 
against a substantive due process challenge, the U.S. Supreme Court reasoned that “[t]he safety 
and the health of the people of [a state] are, in the first instance, for that [state] to guard and 
protect” and “are matters that do not ordinarily concern the national government.”  Jacobson, 
197 U.S. at 38.  It’s worth remembering that the power of a federal agency to regulate is the 
power to preempt—to nullify the sovereign power of the States in the area—which explains why 
27 States oppose the emergency rule.  And it’s worth remembering that, if one casually accepts 
congressional authority to regulate in this area, that recalibration of power comes with easy-to-
overlook risks.  It would mean that another administration could destroy the trial-and-error 
benefits of federalism in a different direction, say by adopting a federal law that banned state and 
local governments from issuing all kinds of health-protective orders:  stay-at-home orders, mask 
mandates, vaccine mandates, and many other measures besides.  The power to give with 
preemptive national regulation includes the power to take away. 
B. 
In passing the Occupational Safety and Health Act, Congress did not clearly give the 
Secretary authority to require workers to undertake a medical procedure like a vaccine or a 
medical test, whether under his general authority to regulate “employees” in the workplace or 
under his specific authority to issue “emergency temporary standards.” 
1. 
The Occupational Safety and Health Act covers only workplace-specific hazards and 
permits only workplace-specific safety measures.  As a threshold matter, the Act is designed to 
protect “employees” from dangers that arise directly out of the workplace and addresses only 
workplace conditions, as the title of the Act suggests (the “Occupational Safety and Health Act”) 
and as the rest of the Act confirms.  The language of the Act covers dangers arising out of work, 
say a chemical used to make a plastic product or the heat generated at a steel foundry, not any 
risk facing the country and every citizen in it.  Any other approach would facilitate a 
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 16 
 
breathtaking expansion of the Secretary of Labor’s power.  Whatever the health and safety 
challenges of today (air pollution, violent crime, obesity, a virulent flu, all manner of 
communicable diseases) or tomorrow (the impact of using the internet on mental health), the 
Secretary does not have emergency authority to regulate them all simply because most 
Americans who face such endemic risks also have jobs and simply because they face those same 
risks on the clock.  By going to work each day, American workers do not transform these other 
risks into “hazards” or “grave dangers” to which “employees are exposed.”  The Secretary’s 
authority to regulate workplace safety is simply too “indirect[]” to cover this nearly horizonless 
assertion of power.  Ala. Ass’n of Realtors, 141 S. Ct. at 2488. 
A comparison between the Secretary’s emergency proposal (a vaccinate-or-test mandate) 
and the kinds of requirements he has previously imposed on various industries during the 
pandemic (a mask mandate) illustrates the problem.  Accept for now that, under some 
circumstances and in some places, the Secretary could impose a mask mandate.  That would be a 
workplace requirement at least.  It is one thing for the Secretary to require masks to minimize 
dangers to which “employees are exposed” during the workday and at the workplace.  It is quite 
another to make an across-the-board judgment that the employee is “strongly encouraged”—
emphasis on strongly—to undertake a medical procedure (a vaccination) that cannot be undone 
at the end of the workday. 
Whether it’s the Act as a whole or the narrow exception for emergency rulemaking, they 
both apply, in the words of the D.C. Circuit, only to dangers arising out of “work or work-related 
activities,” Oil, Chem. & Atomic Workers Int’l Union v. Am. Cyanamid Co., 741 F.2d 444, 449 
(D.C. Cir. 1984), not all hazards working people may face in their daily lives.  That explains why 
the D.C. Circuit found another medical procedure—the sterilization of women who otherwise 
would encounter chemicals at work dangerous to the unborn—to be beyond the Act’s scope.  Id.; 
see also Steel Joist Inst. v. Occupational Safety & Health Admin., 287 F.3d 1165, 1167 (D.C. 
Cir. 2002) (noting that “the Act authorizes OSHA to regulate only the employer’s conduct at the 
worksite”).  “[F]or coverage under the Act to be properly extended to a particular area,” seconds 
the Eleventh Circuit, “the conditions to be regulated must fairly be considered working 
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Nos. 21-7000, et al. 
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 17 
 
conditions, the safety and health hazards to be remedied occupational, and the injuries to be 
avoided work-related.”  Frank Diehl Farms v. Sec’y of Lab., 696 F.2d 1325, 1332 (11th Cir. 
1983). 
Other provisions of the Occupational Safety and Health Act reinforce the message.  The 
Act, it is true, refers to “hazards,” “substances,” and “agents,” terms that read in isolation might 
suggest that the Secretary could regulate any hazardous substance or agent.  But context 
illuminates meaning.  Throughout the Act, it speaks to hazards facing employees in work-
specific contexts and to occupational risks faced due to work: 
• The Act’s preamble says it is designed “to assure . . . safe and healthful 
working conditions,” 29 U.S.C. § 651(b), and to avoid “personal injuries and 
illnesses arising out of work situations,” id. § 651(a). 
• A provision says that the Act applies “to employment performed in a 
workplace” and “to working conditions of employees.”  Id.  § 653(a), (b). 
• A provision tells the Secretary to make rules “for developing information 
regarding the causes and prevention of occupational accidents and illnesses,” 
id. § 657(c)(1), or “work-related deaths, injuries and illnesses,” id. 
§ 657(c)(2). 
The agency’s regulations reflect this understanding too.  In general, OSHA requires 
employers to compensate employees for protective gear and tests needed for work safety.  
29 C.F.R. § 1910.132(h).  An exception exists for costs that are not specific to the workplace, say 
sunscreen or steel-reinforced boots.  Id. § 1910.132(h)(2), (4)(iii).  In this instance, 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.  See 86 Fed. Reg. at 61,437.  The Secretary conceded that, while OSHA 
usually requires employers to bear such costs “in order to remove barriers to employee 
participation,” the agency has not done so here in order to “strongly encourage” vaccination.  Id. 
at 61,407. 
OSHA also requires employers to give their employees and the agency access to 
“relevant exposure and medical records” to identify, handle, and prevent “occupational disease.”  
29 C.F.R. § 1910.1020(a).  The agency requires employers to keep records that “monitor[] the 
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Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 18 
 
amount of a toxic substance or harmful physical agent to which the employee is or has been 
exposed.”  Id. § 1910.1020(e)(2)(i)(A)(1).  But these exposure risks do not cover “situations 
where the employer can demonstrate that the toxic substance or harmful physical agent is not 
used, handled, stored, generated, or present in the workplace in any manner different from 
typical non-occupational situations.”  Id. § 1910.1020(c)(8).  As still another example, the 
agency has rules about occupational noise exposure, which require employers with affected 
employees to administer a testing program that determines the employee’s hearing loss.  Id. 
§ 1910.95(g).  If the hearing loss is determined not to be “work related,” however, the employer 
does not have to provide assistance.  Id. § 1910.95(g)(8).  With respect to the recordkeeping 
requirements, moreover, an employer “must consider an injury or illness to be work-related if an 
event or exposure in the work environment either caused or contributed to the resulting condition 
or significantly aggravated a pre-existing injury or illness.” Id. § 1904.5(a).  In OSHA’s rules 
concerning air contaminants, the rules center on the amount of an employee’s exposure to a 
substance “during an 8-hour shift.”  Id. § 1910.1000(a)–(c). 
The agency in the past has understood its authority in this work-anchored way.  An 
examination of the nine “emergency temporary standards” promulgated before 2021, even the 
five of six that were successfully challenged, reveals only regulations addressing exposures 
solely because of, not in spite of or in addition to, the workplace.  See 36 Fed. Reg. 23,207 (Dec. 
7, 1971) (workplace protection from asbestos); 38 Fed. Reg. 17,214 (June 29, 1973) (workplace 
protection from pesticides); 38 Fed. Reg. 10,929 (May 3, 1973) (workplace protection from 
carcinogenic substances in “area[s] to which access is restricted and controlled by the 
employer”); 39 Fed. Reg. 12,342 (Apr. 5, 1974) (workplace protection from vinyl chloride); 
41 Fed. Reg. 24,272 (June 15, 1976) (workplace protections for diving operations, while noting 
that “diving by persons engaged in recreational or sport diving or other diving not in an 
employment context are beyond the jurisdiction of the Act”); 42 Fed. Reg. 22,516 (May 3, 1977) 
(workplace protections from benzene); 42 Fed. Reg. 45,536 (Sept. 9, 1977) (workplace 
protection from manufacturing pesticides); 43 Fed. Reg. 2586 (Jan. 17, 1978) (workplace 
protection from acrylonitrile); 48 Fed. Reg. 51,086 (Nov. 4, 1983) (workplace protection from 
asbestos). 
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Page 19 
 
All in all, the Secretary might have authority to impose mandates of some sort on doctors 
and nurses who treat COVID-19 patients or researchers who work with the underlying virus 
given the workplace “exposure” risks caused by that work.  And it might give the Secretary 
authority to impose workday masking requirements in other settings vulnerable to COVID-19 
exposures.  But the emergency rule extends well beyond such workplace-specific hazards and 
workplace-specific remedies. 
2. 
Not only is it doubtful that Congress gave the Secretary of Labor clear authority to 
impose this vaccinate-or-test mandate through the general provisions of the Act, but Congress 
also failed to do so clearly under the provision for “emergency temporary standards.”  In relevant 
part, the provision for emergency rules says: 
The Secretary shall provide, without regard to the requirements of chapter 5 of 
Title 5, for an emergency temporary standard to take immediate effect upon 
publication in the Federal Register if he determines (A) that employees are 
exposed to grave danger from exposure to substances or agents determined to be 
toxic or physically harmful or from new hazards, and (B) that such emergency 
standard is necessary to protect employees from such danger. 
29 U.S.C. § 655(c)(1). 
The statute applies only to “necessary” provisions that address “grave” workplace 
dangers.  The term “necessary” has one of two meanings, either “useful” or 
“indispensable”/“essential.”  Black’s Law Dictionary 928 (5th ed. 1979); American Heritage 
Dictionary of the English Language 877 (1975).  Picking between the options might be difficult 
if the word appeared alone.  But it does not.  It appears in the context of a provision dealing with 
an “emergency” and “grave” danger.  Understanding words, like filling in crossword puzzles, 
works best by attending to context—what is nearby, what is known.  Gutierrez v. Ada, 528 U.S. 
250, 255 (2000).  Once connected, the reference to “necessary” powers to address “grave” 
dangers in an “emergency” clarifies that “necessary” has the narrower meaning.  It refers only to 
indispensable or essential measures, not to whatever the Secretary determines is useful or 
beneficial. 
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Page 20 
 
A comparison to the Secretary’s authority to impose permanent standards confirms this 
reading.  When he puts a rule through notice and comment, the standard need not be “necessary 
to protect employees,” 29 U.S.C. § 655(c)(1), only “reasonably necessary or appropriate to 
provide safe or healthful employment,” id. § 652(8); see id. § 655(b).  An emergency measure 
thus must be more than just appropriate; it must be indispensable or essential. 
Turn to “grave” dangers, which refer to “serious” workplace dangers.  Webster’s Ninth 
New Collegiate Dictionary 534 (1984).  Taken by itself, there is room for debate about the 
meaning of a serious workplace danger, particularly one that the statute allows the Secretary to 
“determine[]” himself.  But the record in this case and the Secretary’s position in describing his 
rulemaking narrow the range of debate.  Whatever a grave or serious workplace danger might 
mean in the abstract, the Secretary concedes that vaccinated individuals who get the virus do not 
face that risk, even though they can contract it while going to work with unvaccinated 
individuals.  86 Fed. Reg. at 61,434.  Else, the Secretary would require vaccinated Americans to 
work at home or stay home altogether. 
This interpretation of the statute and the Secretary’s concession make it exceedingly 
difficult to maintain under any standard of review that the emergency mandate is necessary or 
indispensable to address a grave danger.  One problem arises from a core tenet of administrative 
law.  The Secretary never considered this meaning of the statute—that it requires indispensable 
or essential measures, not simply useful or beneficial ones—in proposing the emergency rule.  It 
is a staple of administrative law that federal courts may not uphold a rule on a ground never 
addressed by the agency.  SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).  The Secretary to date 
has explained only why he thinks the vaccinate-or-test mandate is beneficial to protect workers 
and society as a whole.  He has not explained why it is the indispensable or essential way to 
protect workers.  We have no authority to uphold a rule as “necessary” when the Secretary has 
not made that finding himself under the correct interpretation of the law.  See 5 U.S.C. § 706(2). 
The other problem is that the Secretary cannot satisfy this interpretation of the statute.  
Consider the many less intrusive, more tailored protective measures that address grave dangers 
on the Secretary’s own terms.  Just as the Secretary targeted the healthcare industry in June 2021 
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and Testing, 86 Fed. Reg. 61402 
Page 21 
 
with mask and other protective-gear requirements, he could do the same for industries that face 
high spreading risks.  The record does not show that full vaccination or weekly testing is 
necessary on top of a tailored mask mandate.  The Secretary could focus any requirements on the 
workers most at risk—those over 65, those with pre-existing conditions most vulnerable to the 
virus, those who have not already gotten the virus.  The Secretary could create exemptions for 
those least at risk, say cohorts from age 18 to 49, a population range that faces healthcare risks 
from COVID-19 at roughly the same level as the Secretary’s own assessment of what is not a 
grave risk, with some slightly above and some slightly below.  See 86 Fed. Reg. at 61,434; Ctr. 
for Disease Control, Rates of COVID-19 Cases and Deaths by Vaccination Status, 
https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status.  Or the Secretary could impose 
requirements that account for the many environments in which Americans work.  Consider the 
range of possibilities—from the two-person janitorial staff working the night shift, to the 
consultant who comes into the office a few times a week, to the company that already requires 
masks (but not weekly tests) and requires significant separation of workers protected by up-to-
date ventilation systems, to the firm that rotates workers between telework and in-person to 
minimize contact.  But that is not what the rule does.  “Applying to 2 out of 3 private-sector 
employees in America, in workplaces as diverse as the country itself, the Mandate fails to 
consider what is perhaps the most salient fact of all:  the ongoing threat of COVID-19 is more 
dangerous to some employees than to other employees.”  BST Holdings, 17 F.4th at 615. 
In the face of the many less intrusive options available to the Secretary, the idea that a 
national vaccinate-or-test mandate for 80 million workers is necessary is hard to maintain.  And 
that is true under any standard of review:  fresh review of the language of the statute, substantial 
evidence review, arbitrary or capricious review, or the “harder look” review due emergency 
rules.  Asbestos Info. Ass’n v. Occupational Safety & Health Admin., 727 F.2d 415, 421 (5th Cir. 
1984). 
The statute covers only an “emergency” and only “temporary” requirements.  In 
construing statutes, courts frequently look to the context in which they arise—here authority to 
set “emergency temporary standards” that sidestep the notice-and-comment process.  See, e.g., 
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and Testing, 86 Fed. Reg. 61402 
Page 22 
 
Bond, 572 U.S. at 861–63; Johnson v. United States, 559 U.S. 133, 139–40 (2010).  Whether one 
looks to the Secretary’s strongly encouraged preference (vaccinate) or discouraged alternative 
(test and wear a mask), it is difficult to understand how on November 5, 2021, an “emergency” 
suddenly took hold requiring the imposition of a vaccinate-or-test mandate by January 4, 2022.  
Start with the mask requirement.  As the Secretary well knows, masks are not a new idea.  They 
have been a protective tool from the outset.  Given the wide availability of this option since the 
beginning, the view that this requirement counts as an “emergency” measure, all at a time when 
fewer people face lethal risks from COVID-19, sucks the concept dry of meaning. 
Vaccines are newer, to be sure.  But they hardly are a revelation.  They have been readily 
available since last spring, and they alleviate the health risks from the pandemic rather than make 
them worse.  Why now?  Why above all immediately impose such a controversial mandate on 80 
million workers without undergoing the give and take that comes with the notice-and-comment 
process—and that usually leads to better rulemaking and always leads to more transparency 
about the costs and benefits of any new rule for workers and companies.  See Azar v. Allina 
Health Servs., 139 S. Ct. 1804, 1816 (2019).  The “more expansive” a rule’s reach, “the greater 
the necessity for public comment.”  Am. Fed’n of Gov’t Emps. v. Block, 655 F.2d 1153, 1156 
(D.C. Cir. 1981). 
How, moreover, is a vaccine “temporary”?  That approach conveys considerable 
insensitivity to those who, for reasons of their own, are reluctant to roll up their sleeves.  By any 
measure, a vaccine injection is not temporary. 
Making the invocation of this emergency temporary power odder still is the nature of the 
risks presented by COVID-19 today.  It is not working men and women in the main who face the 
most serious risks.  It is older men and women, most of whom are retired and who no longer are 
subject to the Secretary’s oversight.  The key risks to individuals who do work and who remain 
unvaccinated are to them, not to their vaccinated colleagues.  Sure, there have been, and likely 
will continue to be, breakthrough cases that infect vaccinated individuals, some no doubt 
facilitated by unvaccinated individuals.  But the Secretary agrees that this risk is not serious.  
During the rulemaking process, he acknowledged that the risk to vaccinated employees of 
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and Testing, 86 Fed. Reg. 61402 
Page 23 
 
continuing to work with unvaccinated employees is “not” a “grave danger.”  86 Fed. Reg. at 
61,434. 
That leaves the Secretary with the burden of answering this question:  Is it really an 
emergency to protect retired individuals from a workplace they no longer visit, to protect 
vaccinated working people from a risk the Secretary does not consider grave, and to protect 
unvaccinated working people from themselves based on highly personal medical decisions?  
That is a heavy lift, one that is highly unlikely to withstand any standard of review. 
Equally unavailing is the Secretary’s other explanation for the emergency rule.  
Education, public-health advocacy, and easy-to-obtain free vaccinations, he points out, have not 
worked as well as or as quickly as the Federal Government hoped—because just 70% or so of 
Americans have received one shot and just 60% or so of Americans are fully vaccinated.  Ctr. for 
Disease Control, COVID-19 Vaccinations in the United States, https://covid.cdc.gov/covid-data-
tracker/#vaccinations_vacc-total-admin-rate-total; see 86 Fed. Reg. at 61,431–32.  The Secretary 
projects that the “strongly encourage[d]” vaccination option would lead an additional 
22.7 million workers to get vaccinated, increasing the vaccination rate in the covered workforce 
from 62% to 89%.  86 Fed. Reg. at 61,433, 61,472.  These estimates as an initial matter lift the 
veil on the Secretary’s understanding of the rule, revealing that he thinks it will operate much 
more like a vaccine mandate than a vaccine option.  Another problem lurks as well.  In the 
context of new viruses, new variants, and other challenges presented by communicable diseases, 
there will always be a spectrum of medical developments and innovations, whether it is new 
types of vaccinations, booster shots, medical treatments, or something else.  That ongoing reality 
does not give one national agency the option of labeling something an “emergency” in 
perpetuity, immediately imposing a one-size-fits-all-companies solution on the country, 
preempting all contrary approaches to the matter in our States and cities, and circumventing the 
notice-and-comment process.  “In case of emergency break glass” this is not—unless we wish to 
sideline the notice-and-comment process and the trial-and-error benefits of American federalism 
with respect to every future medical innovation concerning COVID-19 for this federal agency 
and other ones too. 
Case: 21-7000     Document: 380-2     Filed: 12/15/2021     Page: 23
(43 of 62)
App. B-23

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 24 
 
One last point on this score.  The statute gives the Secretary authority to issue an 
emergency rule only for six months.  29 U.S.C. § 655(c)(2)–(3).  It does not mention any 
authority to extend the rule for another six months.  To our knowledge, the Secretary has never 
used this narrow authority to extend an emergency rule for another six months.  All of this 
prompts a question:  Does the Secretary expect to finish the notice-and-comment process with 
respect to this uniquely important and uniquely wide-ranging rule by May 5, 2022, when the 
emergency rule dissolves?  That seems improbable.  As our circuit has come to appreciate, this 
rule affects a lot of industries and a lot of people.  Consistent with that reality, the Secretary has 
already granted one 45-day extension of time, extending the end of the public comment period 
from December 6, 2021, to mid-January 2022.  The six-month nature of the Secretary’s 
emergency-rule authority highlights the unusual nature of its exercise today. 
In view of this conclusion, we need not address several serious constitutional claims 
raised by the challengers.  Among others, there are at least these three that would need to be 
addressed before the emergency rule could be enforced.  One, does this regulation of non-
commercial inactivity—a requirement that the unvaccinated get shots or weekly tests—exceed 
Congress’s Commerce Clause power?  See Nat’l Fed. of Ind. Bus. v. Sebelius, 567 U.S. 519, 
550–52 (2012); infra at 33 (Bush, J., dissenting); BST Holdings, 17 F.4th at 619 (Duncan, J., 
concurring).  Two, if we accepted the Secretary’s sweeping reading of the Act—permitting him 
to regulate any substance, whether unique to work or not, so long as the Secretary finds it 
dangerous—would that amount to an unconstitutional delegation of power?  See Gundy v. United 
States, 139 S. Ct. 2116, 2123 (2019); id. at 2135–37 (Gorsuch, J., dissenting).  Compare Indus. 
Union Dep’t, 448 U.S. at 645 (plurality opinion) (avoiding this constitutional question by 
construing the statute to narrow OSHA’s authority), with id. at 687 (Rehnquist, J., concurring in 
the judgment) (finding an unconstitutional delegation because “[i]t is difficult to imagine a more 
obvious example of Congress simply avoiding a choice which was both fundamental for 
purposes of the statute and yet politically so divisive that the necessary decision or compromise 
was difficult, if not impossible”).  Three, does compelling faith-sensitive employers to 
administer these mandates violate the Free Exercise Clause or the Religious Freedom Restoration 
Act by interfering with their employment decisions or religious mission?  See Burwell v. Hobby 
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(44 of 62)
App. B-24

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 25 
 
Lobby Stores, Inc., 573 U.S. 682, 719–20 (2014); Our Lady of Guadalupe Sch. v. Morrissey-
Berru, 140 S. Ct. 2049, 2060–61 (2020).  Because our interpretation of the relevant statutes 
avoids these constitutional claims and any others, we need not address them.  See United States 
v. Erpenbeck, 682 F.3d 472, 476 (6th Cir. 2012).  By contrast, anyone who takes the view that 
the Fifth Circuit’s stay should be lifted must come to grips with each of the statutory imperatives, 
each of the clear statement requirements, and all of the constitutional claims. 
C. 
The Secretary insists that any ambiguity in the statute favors him, not the challengers.  He 
claims that uncertainty about the meaning of the statute allows him to construe the statute to 
exercise more power, not less.  Resp. Mot. to Dissolve Stay at 17; Chevron, U.S.A., Inc. v. Nat. 
Res. Def. Council, 467 U.S. 837, 843–44 (1984).  But ambiguity for Chevron purposes comes at 
the end of the interpretation process, not at the beginning.  Id. at 843 n.9.  The clear-statement 
canons eliminate any power-enhancing uncertainty in the meaning of the statute.  With 
“significant constitutional and federalism questions raised” and a federalism-protecting 
interpretation of the statute not clearly ruled out, we must accept that interpretation and “reject 
the request for administrative deference.”  Solid Waste Agency of N. Cook Cnty. v. U.S. Army 
Corps of Eng’rs, 531 U.S. 159, 174 (2001). 
A contrary approach leads to a characterization of administrative law under which 
significant decisions of the U.S. Supreme Court were one emergency regulation, no notice, no 
comment, away from oblivion, indeed from effectively being overruled.  If the Secretary is right, 
the federal office of civil rights suddenly could have construed the ambiguity in the ADEA to 
cover state court judges.  Cf. Gregory, 501 U.S. at 460–61.  If true, the Department of the 
Interior suddenly could have construed the ambiguity in the Mineral Leasing Act and National 
Trails System Act to regulate all manner of private property.  Cf. Cowpasture River Pres. Ass’n, 
140 S. Ct. at 1848–50.  If true, the SEC suddenly could have construed the Securities and 
Exchange Act to apply outside the United States.  Cf. Morrison v. Nat’l Austl. Bank Ltd., 561 
U.S. 247, 272–73 (2010).  And so on.  Chevron has no role to play in this case. 
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(45 of 62)
App. B-25

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 26 
 
The Secretary counters that he is entitled to issue an emergency rule given new 
knowledge about the dangers of COVID-19 and the increased risk of infection and transmission 
due to the Delta variant.  But the Delta variant has dominated our country’s COVID-19 statistics 
since June.  See 86 Fed. Reg. at 61,408–09.  Even then, the Secretary found that vaccinated 
workers do not face a “grave danger” from COVID-19, with or without the existence of Delta.  
Id. at 61,434. 
The Secretary emphasizes that he is regulating the workplace because the virus creates 
risks for working men and women.  But authority to regulate the workplace with protective gear 
designed to handle on-the-job exposures to substances and tailored to the circumstances of that 
job is one thing; authority to require medical procedures or tests for two-thirds of American 
workers, no matter their work circumstances or individual risks, is quite another.  This is 
precisely the kind of broad assertion of administrative power that should be accompanied by 
clear, direct, and channeled delegations by Congress.  It is hard to think of a better example of 
the need for a clear statement of congressional authority than this one. 
The Secretary and some of his supporters claim that regulating infectious diseases 
through vaccines is not as unusual as the challengers maintain, pointing to a bloodborne 
pathogen regulation from 1991.  See 29 C.F.R. § 1910.1030.  But that regulation shows what 
works and what does not.  The 1991 regulation required employers to make the hepatitis B 
vaccine “available” to employees “who have occupational exposure” to bloodborne pathogens at 
no cost to the employee and at a reasonable time and place.  Id. § 1910.1030(f)(1)(i)–(ii).  
Consider all of the differences between that regulation and this one.  It narrowly targeted “health 
care workers” for protection “from viruses, particularly those causing Hepatitis B and AIDS, that 
can be transmitted in the blood of patients.”  Am. Dental Ass’n v. Martin, 984 F.2d 823, 824 (7th 
Cir. 1993).  It did not regulate all American businesses, no matter the nature of the industry, 
product, or service, so long as 100 employees or more work there.  It was “[p]romulgated after a 
protracted notice-and-comment rulemaking proceeding.”  Id.  It did not sidestep that process.  
And it appreciated the personal nature of the decision whether to get a vaccine—that a truly 
voluntary program, in OSHA’s words, would “foster greater employee cooperation and trust in 
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(46 of 62)
App. B-26

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 27 
 
the system.”  56 Fed. Reg. 64,004, 64,155 (Dec. 6, 1991).  It did not pressure or coerce 
unvaccinated employees by imposing significant costs and burdens on them alone.  Instead of 
helping the Secretary’s cause, a comparison between the 1991 rule and the 2021 rule undermines 
it. 
The Secretary relatedly points to a different part of the statute to suggest that Congress 
contemplated immunization when delegating its authority.  In a section on “Research and 
Related Activities,” Congress gives the Secretary of Health and Human Services authority to 
establish programs to examine and test the workplace to “determin[e] the incidence of 
occupational illnesses.”  29 U.S.C. § 669(a)(5).  The authorization comes with this caveat:  
“Nothing in this or any other provision of this chapter shall be deemed to authorize or require 
medical examination, immunization, or treatment for those who object thereto on religious 
grounds, except where such is necessary for the protection of the health or safety of others.”  Id.  
This argument tries to squeeze a lot of power out of a very small statutory tube.  It involves a 
single reference to immunizations, a reference that explains when they are prohibited.  It comes 
from a different part of the statute and concerns the Secretary of Health and Human Services, not 
OSHA and not the Secretary of Labor.  If this is a “clear statement” of congressional authority 
that OSHA may impose a vaccinate-or-test mandate on the American workforce, we should call 
it a “nearly silent” rule, not a “clear statement” rule. 
What of the Secretary’s claim that he should not be second-guessed for applying the 
emergency rule just to companies with 100 employees or more?  The problem is not second-
guessing; it is matching the Secretary’s explanations for this emergency rule with its scope.  
If the explanation for announcing an emergency rule is the “grave dangers” that American 
workers face on the job from getting the virus, that risk applies to all companies in which 
employees work together inside.  Nor does it answer the point to say, as the Secretary does, that 
he was concerned about imposing administrative burdens on smaller companies.  Think of how 
that argument would fare in another context.  If the Secretary suddenly realized that exposure to 
a new chemical created a “grave” danger of cancer, it is difficult to imagine that anyone would 
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(47 of 62)
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Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 28 
 
permit an emergency rule targeting the problem to apply only to companies with over 100 
employees in order to save the other companies money. 
What of a related reality—that federal agencies historically have been able to impose 
drug tests on workers?  But, again, those regulations illustrate the permitted and forbidden sides 
of the line.  The Department of Transportation, to be sure, may require employees in a few 
industries—airlines, railroads, motor carriers, public transit—to take periodic drug tests given the 
flat-line risks to the public of having impaired pilots, conductors, truckers, or bus drivers.  See, 
e.g., 49 U.S.C. §§ 45102(a)(1), 20140(b)(1)(A), 31306(b)(1)(A), 5331(b)(1)(A).  But that 
authority, specific to a few industries and clearly delegated by Congress, would not give the 
Department of Transportation power to require American workers to take a drug test to end the 
opioid crisis—even if such tests could save up to 100,000 lives a year. 
This last question and answer largely take care of the next objection—that the emergency 
rule is needed to deal with certain types of private employers that have been devastated by virus 
break-outs.  A good example, as the Secretary and many others point out, is the meatpacking 
industry, where many of the largest spreading events initially occurred.  Two responses.  As with 
the special risks facing the transportation industry, Congress and OSHA may wish to focus on 
special risks facing healthcare workers and the workers in other high-risk industries.  But that is 
not what this rule does.  The other response is to note that the industries most at risk happen to be 
the ones most proactive in addressing the risks of the pandemic.  How could an emergency rule 
be necessary to protect meatpacking workers when, so far as the record shows, that industry has 
obtained high vaccination rates on its own?  See, e.g., Am. Pub. Health Ass’n et al. Amicus Br. at 
16 (noting that more than 96% of Tyson Food’s 120,000 U.S. workers are vaccinated); 86 Fed. 
Reg. at 61,435.  Just as the Secretary must match his assertion of power with the statute, he must 
match his exercise of power with explanations in the record that fit the bill. 
What of the collective-action problem at the root of this assertion of power?  Doesn’t the 
agency have authority to deal with the external costs created by vaccination decisions—the cost 
to others created by individuals who choose not to get vaccinated and the cost to society of 
slowing down efforts to bring the virus to heel?  See 86 Fed. Reg. at 61,539 (explaining that 
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Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 29 
 
vaccination reduces the risks that workers “present to others given the reduced likelihood of 
transmission”); id. at 61,520 (noting that “[c]urrent efforts to increase the proportion of the U.S. 
population that is fully vaccinated against COVID-19 are critical to ending the COVID-19 
pandemic”).  But, as shown, the risk to vaccinated workers from unvaccinated workers is one 
that the Secretary agrees is not a grave danger.  No less significantly, it’s doubtful this federal 
power sweeps this broadly given the vertical separation of powers embedded in our Constitution.  
There is a Commerce Clause, yes.  It gives Congress broad powers, to be sure.  And it helps the 
Federal Government to resolve some collective-action problems affecting interstate commerce, 
no doubt.  But through it all, it remains a Commerce Clause, not a collective-action clause—and 
not a clause that grants the national government all of the police powers customarily associated 
with state governments in order to fix any new societal challenge. 
That the Constitution permits the Federal Government to resolve some collective-action 
problems facing society but not all of them simply confirms that “there are two sides to today’s 
story.”  Tiger Lily, 5 F.4th at 675 (Thapar, J., concurring).  On one side, yes, the Federal 
Government has considerable authority to regulate and sometimes mandate what individuals may 
do.  But the other side reveals many libertarian guarantees of the U.S. Constitution, each 
empowering individuals to resist national solutions to pedestrian and urgent policy problems 
alike.  Before we rush to lament the reality that American individualism may present obstacles to 
quelling the pandemic as quickly as we would like, it’s worth keeping in mind that it is a national 
trait that has done the country some good from time to time.  Perhaps indeed Americans’ 
non-conformist ways have had something to do with American businesses bringing vaccines to 
market more quickly than any vaccine in history and doing so more quickly than any other 
country, collectivist or not, has been able to do.  See Drew Armstrong, The World’s 
Most Loathed Industry Gave Us a Vaccine in Record Time, Bloomberg Businessweek (Dec. 23, 
2020), https://www.bloomberg.com/news/features/2020-12-23/covid-vaccine-how-big-pharma-
saved-the-world-in-2020; Jared S. Hopkins, How Pfizer Delivered a Covid Vaccine in 
Record Time: 
Crazy 
Deadlines, 
a 
Pushy 
CEO, 
Wall 
St. 
J. 
(Dec. 
11, 
2020), https://www.wsj.com/articles/how-pfizer-delivered-a-covid-vaccine-in-record-time-crazy-
deadlines-a-pushy-ceo-11607740483. 
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(49 of 62)
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Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 30 
 
What of the concern that the federal courts should take a low-impact approach to the 
public policy exigencies created by a crisis like the pandemic?  It is a fair question.  But it 
submits to fair answers.  One is that, in the absence of a notice-and-comment process, the federal 
courts are all that’s left.  Who else, what else, is there to assess unfounded assertions of 
emergency powers by a federal agency that will have irreversible consequences for American 
workers and companies?  The other answer is that overlooking rule-of-law limitations on federal 
power usually increases—it does not ameliorate—the footprint of the federal courts.  It is the rare 
accretion of power to the President, Congress, or a federal agency that does not eventually take 
the federal courts along for the ride. 
V. 
The other stay factors largely favor the challengers as well.  Because OSHA’s authority 
extends only to regulating the workplace, the equities embedded in the stay factors do not extend 
to the costs to society of having unvaccinated Americans.  They extend only to the risks to 
workers and companies. 
From the perspective of the challengers, there are serious irreversible costs if the 
emergency rule is immediately allowed to go into effect.  Start with employees.  The vaccinate-
or-test mandate has costs for them that cannot be undone.  Whether it is an irreversible 
vaccination, uncompensated testing costs, or a lost job, the affected employees face considerable 
jeopardy if the federal courts mistakenly allow this rule to go into effect.  The same is true of 
employers, whether one focuses on the estimated $3 billion in compliance costs or the 
difficulties small companies (with just over 100 workers) will face in competing with smaller 
companies who can attract workers disinterested in complying with the mandate.  From the 
perspective of the Secretary of Labor and other parties that support the emergency rule, the main 
risk of staying the rule is to unvaccinated American workers.  But as we near the two-year 
anniversary of the pandemic, it is hard to see why American workers are not allowed to assess 
the risk-benefit choice of this personal medical decision for themselves.  Even if the mandate 
would have ancillary benefits for Americans who come into contact with unvaccinated workers 
outside the workday, that consideration is not OSHA’s to regulate.  From the perspective of the 
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Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 31 
 
public interest, it is both wise and beneficial to stick with historical norms—that the default rule 
in agency rulemaking should be the notice-and-comment process, particularly when a rule 
imposes highly consequential new regulations on American workers and companies and when 
the agency has never invoked such a power before.  A “lack of historical precedent” tends to be 
the most “telling indication” that no authority exists.  Free Enter. Fund v. Pub. Co. Acct. 
Oversight Bd., 561 U.S. 477, 505 (2010) (quotation omitted). 
All of this undermines the Secretary’s view that we should lift the stay issued by the Fifth 
Circuit.  But it leaves unmentioned one other part of the stay calculation—that the Secretary 
estimated during the rulemaking process that the emergency rule would save 6,500 lives—a 
point unmentioned until now because it is never easy for judges to deal with.  In one sense, it is 
far better to have the President, Congress, an authorized federal agency, or the States making 
cost-benefit decisions when American lives are at stake.  Who are we to say when an emergency 
rule should go into effect if the rule would save lives?  The only thing that prevents such a job 
from being unbearable is to appreciate that not every such decision is for us to make. 
In this instance, the first answer is that the Secretary has assumed a power he does not 
have.  Even though the CDC’s eviction moratorium was defended on the same ground—that it 
would save thousands of lives—the Supreme Court refused to allow the agency to enforce it.  
Ala. Ass’n of Realtors, 141 S. Ct. at 2490.  So also when States defended stay-at-home orders 
that restricted religious services on the ground that they would save lives.  These orders, too, 
were stayed.  Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 69 (2020) (per curiam).  
The second answer is that, once judges go beyond the modest task of determining whether 
statutes permit agency action, these broader considerations become exceedingly complicated—
and well beyond our ken.  Even the Secretary’s own actions illustrate this complexity, especially 
if saving lives is the only consideration.  Look back on the many times when a vaccinate-or-test 
mandate was not pressed by the Secretary:  not in June 2021, when he issued the protective-gear 
orders with respect to the healthcare industry; not in September 2021, when he initiated this 
rulemaking procedure; and not on November 5, 2021, when he announced this six-month rule 
and said it would not go into effect until January 4, 2022.  Consider too the many Americans still 
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App. B-31

Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 32 
 
unprotected by this emergency rule:  workers in companies with fewer than 100 employees and 
all customers who visit any American retail store or business.  But it would be no more fair to 
criticize the Secretary of Labor on this ground than it would be to register a similar criticism 
against the Fifth Circuit for staying the emergency rule.  That takes us back to where we started:  
The Secretary’s emergency rule likely exceeds his authority. 
The Court should grant the petition for initial hearing en banc and leave the Fifth 
Circuit’s stay of the emergency rule in place. 
 
 
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Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 33 
 
________________________________________________________________ 
DISSENTING FROM THE DENIAL OF INITIAL HEARING EN BANC  
________________________________________________________________ 
BUSH, Circuit Judge, dissenting from the denial of initial hearing en banc.  This is a case 
about the Occupational Safety and Health Administration, but it is really a case about power. 
Specifically, it concerns the attempted exercise of a purported power—to impose a de facto 
national vaccine mandate1 upon some eighty-million Americans—that OSHA was never given 
and that Congress likely could never have given to it.  Chief Judge Sutton’s dissent ably explains 
the former defect, and so I join it in full.  I write separately to address the latter.  
Whether it uses a clear statement or not, Congress likely has no authority under the 
Commerce Clause to impose, much less to delegate the imposition of, a de facto national vaccine 
mandate upon the American public.  Such claimed authority runs contrary to the text and 
structure of the Constitution and historical practice.  The regulation of health and safety through 
compulsory vaccination is a traditional prerogative of the states—not the domain of Congress 
and certainly not fodder for the diktat of a federal administrative agency.  Because we should 
have granted initial hearing en banc to vindicate the correct understanding of the Constitution 
and to cabin OSHA to its legitimate role, I respectfully dissent.  
I. 
This case has a veneer of complexity, so it is useful to start with some first principles of 
constitutional adjudication.  It may seem paradoxical that some of the most effusive guarantees 
of liberty can be found in the bills of rights of some of the world’s most savage dictatorships.  
See Antonin Scalia, Foreword: The Importance of Structure in Constitutional Interpretation, 
83 N.D. L. Rev. 1417, 1418 (2008).  Why do we seem to respect our bill of rights, at least in the 
main, while other attempts have faltered the world over?  The answer is structure.  Id.  Our 
Framers understood that the true bulwark of liberty is not a “parchment guarantee[ ],” but the 
diffusion of power both horizontally and vertically.  Id. (quoting The Federalist No. 51, at 323 
 
1For a discussion of why I apply this label to OSHA’s standard, see infra pages 35–36. 
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 34 
 
(James Madison) (Clinton Rossiter ed., 1961)); see also United States v. Morrison, 529 U.S. 598, 
616 n.7 (2000) (“[T]he Framers crafted the federal system of Government so that the people’s 
rights would be secured by the division of power.”).  
James Madison called our constitutional structure a “double security” for “the rights of 
the people.”  The Federalist No. 51, supra, at 320 (James Madison).  Power was first divided by 
the Constitution “between two distinct governments”—federal and state.  Id.  And that power 
was then “subdivided among distinct and separate departments”—legislative, executive, and 
judicial.  Id.  Thus, just as each government was “controlled by itself,” the federal and state 
governments “would control each other.”  Id.  The “extensive portion of active sovereignty” the 
Constitution left to the states would prevent our institutions from degenerating “into one 
consolidated government” and would thereby check the resulting infringement on the people’s 
liberty.  The Federalist No. 45, supra, at 286–87 (James Madison); see also New York v. United 
States, 505 U.S. 144, 181 (1992) (“State sovereignty is not just an end in itself:  Rather, 
federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”  
(cleaned up)). 
The constitutional text bears out that original design.  Congress inherited from the 
Constitutional Convention no roving warrant to legislate on whatever matter it sees fit. Indeed, 
the Framers directly rejected such sweeping authority.  See 2 The Records of the Federal 
Convention of 1787, at 21–27 (Max Farrand, ed. 1911).  That was not because the idea lacked a 
proponent—Gouverneur Morris took “the controversial position that the federal government 
should possess the police power.” William Michael Treanor, The Case of the Dishonest 
Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, 120 Mich. L. 
Rev. 1, 28 (2021).  But he was alone in that view.  “No one else at the . . . Convention argued 
that the national government should have the ‘police’ power.”  Id. at 29.  Rather, Morris’s fellow 
delegates spoke of it only “as a power of the states.”  Id.  And so our limited Constitution 
emerged, carefully enumerating and thus carefully cabining each federal branch’s respective 
powers. See Nat’l Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519, 534 (2012) (“The enumeration 
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Nos. 21-7000, et al. 
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 35 
 
of powers is also a limitation of powers[.]”).  As a result, when Congress wishes to legislate, it 
must show “that a constitutional grant of power authorizes each of its actions.”  Id. at 535. 
But “[t]he same does not apply to the States, because the Constitution is not the source of 
their power.”  Id.  States instead enjoy a residual authority to regulate within their borders—a 
power that pre-dates the Constitution and does not derive from it.  Id. at 535–36.  The Tenth 
Amendment memorializes that point, clarifying that those “powers not delegated to the United 
States by the Constitution” are “reserved to the States respectively, or to the people.”  U.S. 
Const. amend. X (emphasis added); see also Joseph Story, Commentaries on the Constitution of 
the United States 711–12 (Ronald D. Rotunda & John E. Nowak, eds. 1987).  The states under 
our federated system thus enjoy a “general power of governing”—what the Supreme Court has 
repeatedly termed their “police power.”  Nat’l Fed. of Indep. Bus., 567 U.S. at 536.  
Part and parcel of that traditional police power—and thus an authority “reserved to the 
States”—is the power to regulate public health.  U.S. Const. amend. X; Jacobson v. 
Massachusetts, 197 U.S. 11, 25 (1905).  Indeed, the Court has called it a “settled principle[ ]” 
that states enjoy a police power to promulgate “legislative enactment[s to] protect the public 
health and the public safety.” Jacobson, 197 U.S. at 25; see also Chicago, B. & Q. Ry. Co. v. 
Illinois, 200 U.S. 561, 592 (1906) (holding that “the police power of a State 
embraces . . . regulations designed to promote the public health”); Berman v. Parker, 348 U.S. 
26, 32 (1954) (describing regulation of “public health” as a “traditional application of the police 
power”).  And in the specific context of compulsory vaccination, the Court has twice confirmed 
that the propriety of such mandates is a matter vested to the police power of the states.  See 
Jacobson, 197 U.S. at 24–25; Zucht v. King, 260 U.S. 174, 176 (1922) (describing it as “within 
the police power of a State to provide for compulsory vaccination”).  
Those holdings notwithstanding, OSHA invokes the Commerce Clause to suggest that it 
is really the federal government, not the states, that enjoys the authority to mandate vaccination 
for employees nationwide.  Before I explore the constitutional validity of that position, let me 
first explain why I label the standard a de facto national vaccine mandate for eighty-million 
Americans.  OSHA has not minced words about the purpose and effect of its standard; according 
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 36 
 
to OSHA itself, “[c]overed employers must develop, implement, and enforce a mandatory 
COVID-19 vaccination policy” for their employees.  86 Fed. Reg. 61,402 (Nov. 5, 2021) 
(emphases added).  Thus, some half of our workforce must either become vaccinated or both 
(1) “wear a face covering at work in lieu of vaccination” and (2) submit to weekly testing for 
COVID-19.  Id.  Neither OSHA nor the employer is required to bear the expense. Id. at 61,532. 
Rather, it falls on the unvaccinated employee to shoulder the costs of compliance.  Id.  And if 
states do not adopt OSHA’s standard or some other plan that is “at least as effective,” they face 
penalties like the revocation of approval of their State Plans and the associated loss of millions in 
federal funding.  See “Emergency Temporary Standard,” Occupational Safety and Health 
Administration, https://www.osha.gov/coronavirus/ets2/faqs (last visited Dec. 14, 2021) 
(explaining that if a State Plan is not “at least as effective” as OSHA’s emergency rule, 
consequences include “OSHA’s reconsideration and possible revocation of the State Plan’s final 
approval 
status”); 
see 
also 
“What 
is 
an 
OSHA-Approved 
State 
Plan?”, 
id., 
https://www.osha.gov/stateplans/faqs (last visited Dec. 14, 2021) (“OSHA approves and 
monitors all State Plans and provides as much as 50 percent of the funding for each program.”). 
So again, what constitutional warrant does OSHA possess for this scheme?  The agency 
appeals to commerce.  But the Commerce Clause likely cannot be read to grant such an 
authority, because it cannot be read to confer a general police power upon the national 
government.  True, the Court has at times read the Clause broadly, stretching its meaning to the 
edge of plausibility.  See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942).  Yet the Court has never 
crossed the Rubicon of declaring a federal police power.  Time after time, it has rejected the 
notion that such a power exists.  See United States v. Lopez, 514 U.S. 549, 566 (1995) 
(explaining that the Constitution “withhold[s] from Congress a plenary police power”); id. at 584 
(Thomas, J., concurring) (“[W]e always have rejected readings of the Commerce Clause and the 
scope of federal power that would permit Congress to exercise a police power[.]”); Nat’l Fed. of 
Indep. Bus., 567 U.S. at 536 (“Our cases refer to this general power of governing, possessed by 
the States but not by the Federal Government, as the ‘police power.’”).  So the Commerce 
Clause, which generated “no apprehensions” upon its addition to the Constitution, cannot be read 
to effect a late-breaking revolution in state-federal affairs by granting a federal agency the right 
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 37 
 
to regulate a core area of traditional state concern.  The Federalist No. 45, supra, at 290 (James 
Madison).  
What first principles dictate, fresh precedent confirms.  The Supreme Court in recent 
years has squarely rejected a view of the commerce power under which “individuals may be 
regulated . . . whenever enough of them are not doing something the Government would have 
them do.”  Nat’l Fed. of Indep. Bus., 567 U.S. at 553 (opinion of Roberts, C.J.); accord id. at 
649–60 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting).  The case I mention involved an 
individual mandate to coerce those without health insurance to purchase it.  Id.  Congress 
claimed the power to regulate the failure to engage in a commercial activity—the buying of 
insurance—because uninsured persons’ failure to do so had a substantial aggregate effect on 
interstate commerce.  Id. at 554.  Here, by contrast, OSHA claims the power to regulate the 
failure to engage in a non-commercial activity—the taking of a vaccine—because unvaccinated 
persons’ failure to do so may affect interstate commerce.  OSHA’s theory of the commerce 
power is thus even more extravagant than what the Supreme Court has already rejected.  
If Congress cannot solve a perceived commercial problem with a “mandatory purchase,” then 
how can it possess the authority, much less delegate it, to solve a perceived commercial problem 
by mandating that Americans engage in a non-commercial activity?2  Id. at 553.  The answer, of 
course, is that it likely cannot. 
Before I turn to history, let me close with a final word on precedent, lest I be 
misunderstood.  Here, I do not question the constitutionality of OSHA itself, or of federal 
workplace-safety regulations more broadly.  But see Cass R. Sunstein, Is OSHA 
Unconstitutional?, 94 Va. L. Rev. 1407 (2008) (questioning OSHA’s constitutionality on non-
delegation grounds).  For even accepting that Congress (and thus, perhaps, OSHA) has the power 
to regulate a workplace hazard that affects interstate commerce, that is not what OSHA has done.  
OSHA has instead pretextually redefined what is at this point a hazard of life in the United States 
 
2 The states arguing in support of the stay put it this way:  If Congress does not have the power under the 
Commerce Clause to force individuals to buy health insurance, could it make an end-run around that rule by telling 
employers that they cannot retain uninsured employees?  And if Congress cannot do so, then why can it tell 
employers that they cannot retain unvaccinated employees?  
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In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 38 
 
and throughout the world—COVID-19—as a hazard of the workplace.  See, e.g., 86 Fed. Reg. at 
61,545 (misleadingly characterizing COVID-19 as a “workplace hazard”).  It engages in this 
pretext in its attempt to bring a traditional matter of state concern—compulsory vaccination—
within the ambit of federal jurisdiction.  But caselaw is clear.  Neither Congress nor OSHA may 
pretextually relabel such an area as “commerce” to gain what is, in effect, a novel police power 
of the national government.  See Morrison, 529 U.S. at 616–18 (rejecting the notion that 
Congress may regulate domestic violence merely because of a purported “effect on interstate 
commerce”); see also id. at 617–18 (“The Constitution requires a distinction between what is 
truly national and what is truly local.”); Lopez, 514 U.S. at 567–68 (rejecting Congress’s attempt 
to relabel firearms near schools a problem of interstate commerce). 
II. 
Given that OSHA is so disarmed of precedent, one might reasonably have expected it to 
come into court bearing historical examples of the power it seeks to exercise—the federal 
imposition of a de facto nationwide vaccine mandate.  Yet it has none.  To the contrary, the 
relevant history actually undercuts OSHA’s position.  For while Congress has long sought to 
facilitate safe and effective vaccines, it has never invoked the commerce power to mandate their 
administration upon the public at large.3   
In the early years of the Republic, Congress did little to respond to epidemics.4  In the 
summer of 1793, for example, yellow fever descended on Philadelphia, then the nation’s capital.  
See Letter from Thomas Jefferson to Martha Jefferson Randolph (Sept. 8, 1793), Founders 
 
3To be sure, the federal government has, at one time or another, mandated vaccination for discrete 
segments of the population, such as for soldiers or members of the foreign service working abroad.  George 
Washington himself ordered that his soldiers in the Continental Army receive variolation against smallpox in the 
winter of 1777.  See Ann M. Becker, Smallpox in Washington’s Army: Strategic Implications of the Disease During 
the American Revolutionary War, 68 J. of Mil. Hist. 381, 427–28 (2004).  But the relevant question is not whether 
the federal government has the authority to order the vaccination of certain populations in a special relationship with 
it.  What is at stake here is whether Congress has a general police power to mandate vaccination for tens of millions 
of private citizens with no special relationship to the federal government.  History suggests that it has no such 
power. 
4And when it did intervene, it did not impose unilateral mandates upon the states, but instead assisted in a 
cooperative fashion.  See Act of May 27, 1796, 4 Cong. Ch. 31, 1 Stat. 474 (authorizing the President to “aid in the 
execution of quarantine, and also in the execution of the health-laws of the states” during a yellow-fever epidemic). 
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 39 
 
Online, https://founders.archives.gov/documents/Jefferson/01-27-02-0060 (last visited Dec. 12, 
2021); see also Letter from George Washington to Edmund Randolph (Sept. 30, 1793), Founders 
Online, https://founders.archives.gov/documents/Washington/05-14-02-0105 (last visited Dec. 
12, 2021); James Higgins, “Public Health,” Encyclopedia of Greater Philadelphia, 
https://philadelphiaencyclopedia.org/archive/public-health/ (last visited Dec. 12, 2021); Mathew 
Carey, A Short Account of the Malignant Fever, Lately Prevalent in Philadelphia 11 (1794), 
available at Harv. Univ. Lib. Viewer, https://iiif.lib.harvard.edu/manifests/view/drs:7374219$11i 
(last visited Dec. 14, 2021) (describing the “destroying scourge, the malignant fever,” that had 
“crept in among us”).  The federal government’s response was primarily to leave town for the 
countryside.  See Letter from Thomas Jefferson to Martha Jefferson Randolph, supra. President 
Washington chose to work remotely at Mount Vernon; the Secretary of State, Thomas Jefferson, 
fled to Monticello.  Id. 
There was no vaccine available in the 1790s for yellow fever but, in 1796, Sir Edward 
Jenner discovered a vastly improved vaccination for smallpox—rather than use live virus as had 
the earlier “variolation” process, Jenner used cowpox instead.  See Stefan Riedel, Edward Jenner 
and the History of Smallpox and Vaccination, 18 Baylor U. Med. Ctr. Proceedings 21, 23–24 
(2005).  That discovery led Congress less than two decades later, in 1813, to enter the vaccine 
arena.  See Tess Lanzarotta & Marco A. Ramos, Mistrust in Medicine: The Rise and Fall of 
America’s First Vaccine Institute, 108 Am. J. of Pub. Health 741 (2018). In response to an 
outbreak of smallpox, Congress passed “An Act to Encourage Vaccination,” sometimes called 
the Vaccine Act of 1813. Id. at 742; see also James Colgrove, Immunity for the People: The 
Challenge of Achieving High Vaccination Coverage in American History, 122 Pub. Health Rep. 
248, 249 (2007).  
The Act had three salient features: it created the position of a federal vaccine agent, gave 
him the authority to curate an unadulterated supply of smallpox vaccine, and gave him a franking 
privilege to distribute vaccines to those who requested them, free of charge, through the U.S. 
mail.  Id.  Noted Maryland physician James Smith served as the nation’s first (and only) vaccine 
agent for nine years, overseeing “twenty agents nationwide who inoculated around 100,000 
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Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 40 
 
people” during his tenure.  See Letter from James Smith (of Baltimore) to Thomas Jefferson 
(Mar. 28, 1818), Founders Online, https://founders.archives.gov/documents/Jefferson/03-12-02-
0472 (last visited Dec. 12, 2021).  Yet Smith’s role as vaccine agent—and the Vaccine Act 
itself—came to a tragic end in 1822.  See Lanzarotta & Ramos, supra, at 742.  Smith 
accidentally shipped packages of live smallpox (rather than cowpox vaccine) to the town of 
Tarboro, North Carolina, resulting in ten fatalities.  Id. Two months later, President Monroe 
dismissed Smith from his position and Congress repealed the Act, relinquishing further 
vaccination efforts to the states.  Id. 
Public response to the vaccine was strikingly similar to modern attitudes about the 
COVID vaccine.  Many voluntarily took the smallpox vaccine and gave it to their children.  See, 
e.g., The Diaries of Gouverneur Morris: New York 1799–1816, 777 (Melanie Randolph Miller, 
ed. 2018); see also Letter from Abigail Adams to John Adams (July 13, 1776), Mass. Hist. 
Society, https://www.masshist.org/digitaladams/archive/doc?id=L17760713aa (last visited Dec. 
14, 2021).  But others, like some today, were suspicious of a vaccine.  See Cynthia M.A. Geppert 
& Reid A. Paul, The Shot That Won the Revolutionary War and Is Still Reverberating, Fed. 
Practitioner 298, 298 (2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6654165/pdf/fp-
36-07-298.pdf (last visited Dec. 14, 2021).  And smallpox was as devastating and transmissible, 
if not more so, than COVID-19.  See “History of Smallpox,” Centers for Disease Control and 
Prevention, https://www.cdc.gov/smallpox/history/history.html (last visited Dec. 12, 2021).  Yet 
there is no indication that anyone in the 1813 Congress thought the federal government had a 
general police power to nationally mandate vaccination. 
Congressional involvement in vaccination ever since has followed the basic contours of 
the 1813 regime.  Congress has passed many laws to regulate the purity of vaccines, facilitate 
their distribution with information and funding, and compensate those injured by their 
administration, but it has apparently never invoked the commerce power5 to mandate their 
 
5I pause to note a seeming counterexample that is, upon further inspection, no counterexample at all.  In 
1832, Congress passed the Indian Vaccination Act—a functional vaccine mandate for those tribes selected for 
smallpox vaccination by federal Indian agents.  See J. Diane Pearson, Lewis Cass and the Politics of Disease: The 
Indian Vaccination Act of 1832, 18 Wicazso Sa Rev. 9, 12 (2003) (noting that “it was left to the secretary of war to 
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Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 41 
 
imposition upon the general public.  See, e.g., Biologics Control Act, Pub. L. No. 57-244, 32 
Stat. 728 (1902) (current version at 42 U.S.C. § 262 (2006)); see also Pure Food and Drug Act of 
1906, Pub. L. No. 59-384, 34 Stat. 768; Virus-Serum-Toxin Act, ch. 145, § 1, 37 Stat. 832 
(1913) (current version at 21 U.S.C. §§ 151–159); Federal Food, Drug, and Cosmetic Act, Pub. 
L. No. 75-717, 52 Stat. 1040 (1938); Public Health Service Act, Pub. L. No. 78-410, 58 Stat. 682 
(1944); Poliomyelitis Vaccination Assistance Act of 1955, Pub. L. No. 277, 69 Stat. 704; 
National Childhood Vaccine Injury Act, Pub. L. No. 99-660, 100 Stat. 3755 (1986); Food and 
Drug Modernization Act of 1997, Pub. L. No. 105-115, 111 Stat. 2296.  
The Poliomyelitis Vaccine Assistance Act of 1955 provides a good example.  Soon after 
Dr. Jonas Salk developed the first effective polio vaccine in 1955, Congress responded with 
millions of dollars in “grants to assist states in vaccinating children under 20 and expectant 
mothers,” with funds “allotted to the states” according to their respective needs.  See Otis L. 
Anderson, The Polio Vaccine Assistance Act of 1955, 45 Am. J. Pub. Health 1349, 1349 (1955). 
Yet it was “the states [that had] responsibility for the intrastate distribution of the vaccine 
through both public agency and normal commercial channels.”  Id. (emphasis added); see also 
42 U.S.C. § 243(a) (directing the Secretary of Health and Human Services to “assist States . . . in 
the prevention and suppression of communicable diseases” and to “cooperate with and aid State 
and Local authorities.” (emphases added)).   
OSHA would turn this history on its head.  It proposes not a partnership in which the 
federal government simply encourages vaccination, but an unfunded mandate in which half our 
workforce must either become vaccinated or subject itself to regular out-of-pocket testing.  See 
86 Fed. Reg. at 61,532.  If Congress purported to delegate such a sensitive “money or lives” 
 
determine which American Indians were vaccinated and when and where they would be vaccinated.  American 
Indians had no input into any of the political or decision-making processes involved with the bill or into 
implementation of the act.”).  The Act’s marketing was beneficent, id. at 10, but its administration was sinister. 
Indian agents selected for vaccination (1) those tribes scheduled for removal, so that smallpox would not derail the 
journey, id. at 25, and (2) tribes that were considered valuable trading partners of the United States.  Id. at 19–23.  
By contrast, tribes considered “beyond the pale of civilization” were deliberately excluded from vaccination.  Id. at 
20.  Even if a modern agency were inclined to rely on this poisoned precedent, see Ramos v. Louisiana, 140 S. Ct. 
1390, 1401 & n.44 (2020), it would do nothing to advance an interpretation of the Commerce Clause.  Congress 
regulates Indian tribes’ internal affairs under a supposed “plenary power”—much as a state would regulate its own 
citizens—rather than under its commerce authority.  See Puerto Rico v. Sanchez Valle, 579 U.S. 59, 70 (2016). 
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Nos. 21-7000, et al. 
In re: MCP No. 165, Occupational Safety & 
Health Admin. Rule on COVID-19 Vaccination 
and Testing, 86 Fed. Reg. 61402 
Page 42 
 
determination to an unaccountable agency, we would have to think hard about the propriety of 
that delegation.  See Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 687 
(1980) (Rehnquist, J., concurring in the judgment).  Yet here there likely existed no authority to 
delegate. 
III. 
I have no doubt that the pandemic imperils our society, and I recognize that there is 
sometimes a “judicial impulse to stay out of the way in times of crisis.”  Roman Catholic 
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 71 (2020) (Gorsuch, J., concurring).  But while an 
“emergency may afford a reason for the exertion of a living power already enjoyed,” it cannot 
“call into life a power which has never lived.”  Wilson v. New, 243 U.S. 332, 348 (1917).  OSHA 
claims just such a power—history and precedent notwithstanding.  It is surely incumbent on the 
third branch in these circumstances to check the actions of the “fourth.”  And because the full 
court should have had the opportunity to do so, I respectfully dissent. 
 
 
 
 
ENTERED BY ORDER OF THE COURT 
 
 
 
 
 
___________________________________ 
 
 
 
 
Deborah S. Hunt, Clerk 
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App. B-42

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