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Motion and Amicus Brief of Alsco, Inc. — National Federation of Independent Business v. Department of Labor

Summary

A motion of Alsco, Inc. for leave to file a brief as amicus curiae, with the brief, in Nos. 21A244 & 21A247 in the Supreme Court of the United States, dated January 6, 2022. The motion asks leave to file in opposition to the emergency applications for a stay or injunction pending certiorari review in National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration and Ohio v. the same respondents. It describes Alsco as a textile rental services company headquartered in Salt Lake City, Utah. The brief argues that COVID-19 presents a grave danger in Alsco's workplaces and that the Emergency Temporary Standard (ETS) is necessary to protect employees. It asks the Court to deny the emergency applications.

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“Motion and Amicus Brief of Alsco, Inc. — National Federation of Independent Business v. Department of Labor.” Original at www.supremecourt.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/scotus/2022-01-06-brief-21a244-087-jan-06-2022-main-document-20220106130154976-2022-01-06-alsco-vaccine-mandate-ets-amicus-brief/, SHA-256 264e5b5aaf41f8ff529400840085f858778e9fbf75a590b6aa05278578f6e00c.

Full text

Nos. 21A244 & 21A247

In the Supreme Court of the United States
___________

NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,
Respondents.
___________

OHIO, ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,
Respondents.
________

MOTION OF ALSCO, INC. FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE IN
OPPOSITION TO EMERGENCY APPLICATIONS FOR A STAY OR INJUNCTION
PENDING CERTIORARI REVIEW; FOR LEAVE TO FILE WITHOUT 10 DAYS’
NOTICE; AND FOR LEAVE TO FILE IN PAPER FORMAT

________

ON APPLICATIONS FOR STAY OF ADMINISTRATIVE ACTION AND PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DAVID P. BILLINGS
Counsel of Record
ARTEMIS D. VAMIANAKIS
TANNER J. BEAN
FABIAN VANCOTT
215 So. State Street, Suite 1200
Salt Lake City, UT 84111
(801) 531-8900
dbillings@fabianvancott.com
avamianakis@fabianvancott.com
tbean@fabianvancott.com

Counsel for Movant Alsco, Inc. as Amicus Curiae

1
Alsco, Inc. (“Alsco”) moves for leave to file a brief as amicus curiae in

opposition to the Emergency Applications seeking a stay or injunction pending

review of the Sixth Circuit’s decision dissolving a stay of Respondent Occupational

Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard

(“ETS”). Alsco respectfully moves for leave to file the enclosed brief in 8.5- by 11-

inch format via electronic filing and without ten days’ advance notice to the parties

of Alsco’s intent to file. By email on January 4, 2022, Alsco sought consent from the

parties to file its brief in opposition to the emergency applications. Union

Petitioners consented to the filing. Applicants Ohio, et. al, and Respondents in both

petitions took no position. As of January 6, 2022, the remaining parties had not

responded.

Alsco is an industry-leading, international textile rental services company

headquartered in Salt Lake City, Utah. Alsco maintains 72 branches and employs

roughly 8,000 employees across 43 states in the U.S. and, thus, is subject to the

ETS. Its business model depends on many of its employees regularly visiting health

care facilities, hotels, and restaurants within 150 miles of each branch and others

working shoulder-to-shoulder laundering textiles, uniforms, and floor mats.

In its ongoing pursuit of workplace safety, Alsco has made substantial efforts

to encourage its employees to become vaccinated, including offering financial

incentives and time off, conducting additional lotteries with multiple prizes of

$10,000 and $25,000, and pleading with employees to become vaccinated during a

tour to branches with low vaccination rates. Despite this, Alsco’s national

2
vaccination rate is insufficient, with several branches at dangerously low

vaccination rates. Without more, Alsco cannot meaningfully mitigate the workplace

threat of COVID-19.

Alsco’s proposed brief as amicus curiae illustrates the grave danger of

COVID-19 presents to businesses like Alsco, which Alsco is trying to mitigate

through vaccination. It will demonstrate that voluntary incentives are not enough.

In the face of a pandemic that has claimed the lives of more than 800,000

Americans and infected 56 million others, businesses like Alsco cannot hope to

operate safely or productively without the widespread vaccination the ETS requires.

The ETS’ compliance costs are a small price to pay for safety and success, and far

lower than the economic harms to Alsco that the virus has wrought. The scourge of

the pandemic in the workplace plainly authorizes the ETS.

Respectfully submitted,
/s/ David P. Billings
David P. Billings
Counsel of Record
Artemis D. Vamianakis
Tanner J. Bean
FABIAN VANCOTT
215 S. State Street, Suite 1200
Salt Lake City, Utah 84111
(801) 531-8900
Counsel for Movant – Amicus Curiae
Alsco, Inc.

Dated: January 6, 2022

3
Nos. 21A244 & 21A247

In the Supreme Court of the United States
___________

NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,
Respondents.
___________

OHIO, ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,
Respondents.
________

BRIEF OF ALSCO, INC. AS AMICUS CURIAE IN OPPOSITION TO EMERGENCY
APPLICATIONS FOR A STAY OR INJUNCTION PENDING CERTIORARI REVIEW

________

ON APPLICATIONS FOR STAY OF ADMINISTRATIVE ACTION AND PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Counsel for Alsco, Inc. as Amicus Curiae

4
TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE....................................................................................................... 8
SUMMARY OF ARGUMENT .............................................................................................................. 10
ARGUMENT ............................................................................................................................................ 11
I. COVID-19 PRESENTS A GRAVE DANGER IN ALSCO’S WORKPLACES. .......... 11
II. THE ETS IS NECESSARY TO PROTECT ALSCO’S EMPLOYEES FROM
GRAVE DANGER.................................................................................................................. 13
III. THE HARM COVID-19 IMPOSES ON ALSCO’S WORKFORCE AND
BUSINESS IS FAR GREATER THAN THE COMPLIANCE COSTS OF THE
ETS. .......................................................................................................................................... 17
CONCLUSION ........................................................................................................................................ 22

5
TABLE OF AUTHORITIES

Cases
In re MCP NO. 165, No. 21-4027, 2021 WL 5989357 (6th Cir. Dec. 17, 2021)........... 11, 12, 18
State of Fla. v. Dep’t of Health & Hum. Servs., 19 F.4th 1271 (11th Cir. 2021) ....................21
Executive Order
Exec. Order GA-40 (Tex. Oct. 11, 2021) ..................................................................................17
Other Authorities
Andrea Hsu, Faced with Losing Their Jobs, Even the Most Hesitant Are Getting
Vaccinated, NPR (Oct. 7, 2021),
https://www.npr.org/2021/10/07/1043332198/employer-vaccine-mandates-success-
workers-get-shots-to-keep-jobs ............................................................................................21
Bryan Schott, Top Utah Republican Has COVID-19, Salt Lake Tribune (Nov. 19, 2021),
https://www.sltrib.com/news/politics/2021/11/19/top-utah-republican-has/ .......................17
Bryan Schott, Utah A.G. Sean Reyes Tests Positive for COVID-19, SALT LAKE TRIBUNE
(Nov. 22, 2021), https://www.sltrib.com/news/politics/2021/11/22/utah-ag-sean-reyes-
tests/ .....................................................................................................................................17
Covid Vaccine Mandate Led to 96 Percent of Tyson Workers Getting the Shot, Company
Says, NBC NEWS (Oct. 27, 2021), https://www.nbcnews.com/news/us-news/covid-
vaccine-mandate-led-96-percent-tyson-workers-getting-shot-compan-rcna3889 ...............21
COVID-19 Data, Vaccines, UTAH DEPARTMENT OF HEALTH (last visited Jan. 3, 2022),
https://coronavirus.utah.gov/case-counts/............................................................................15
Dennis Romboy, Utah Attorney General Sean Reyes Tests Positive for COVID-19,
DESERET NEWS (Nov. 22, 2021),
https://www.deseret.com/utah/2021/11/22/22796354/utah-attorney-general-sean-
reyes-tests-positive-covid19-vaccine-mandate-lawsuit .......................................................17
Dolores Albarracin et al., Amid Challenges to Biden’s Vaccine Mandate, Study Shows
They Work, THE HILL (Nov. 17, 2021), https://thehill.com/opinion/healthcare/581613-
amid-challenges-to-bidens-vaccine-mandate-study-shows-they-work................................20
Escambia County, FL COVID-19 Vaccine Tracker, NAPLES DAILY NEWS (last visited
Jan. 3, 2022), https://data.naplesnews.com/covid-19-vaccine-tracker/florida/escambia-
county/12033/ .......................................................................................................................16
Hannah Miao, Hundreds of Corporations, Business Leaders, Celebs Sign Statement
Against Voting Restrictions, CNBC (Apr. 14, 2021),
https://www.cnbc.com/2021/04/14/corporations-business-leaders-celebrities-sign-
statement-against-voting-restrictions.html ..........................................................................21
Harsha Thirumurthy et al., Association Between Statewide Financial Incentive
Programs and COVID-19 Vaccination Rates (Sept. 3, 2021),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3912786 ..........................................16
Herd Immunity: Will We Ever Get There?, YALE MEDICINE (May 21, 2021),
https://www.yalemedicine.org/news/herd-immunity ...........................................................15

6
https://www.washingtonpost.com/religion/2021/11/30/marcus-lamb-daystar-covid-
vaccine-medical-freedom/ (describing the death of Petitioner Word of God Fellowship,
Inc.’s (dba Daystar) founder as a result of COVID-19) .......................................................17
Michelle Boorstein, Marcus Lamb, Head of Daystar, a Large Christian Network that
Discouraged Vaccines, Dies After Getting Covid-19, THE WASHINGTON POST (Nov. 30,
2021) .....................................................................................................................................17
Over 90% of U.S. Employers Surveyed Require or Encourage Covid-19 Vaccinations,
THE ROCKEFELLER FOUNDATION (Sept. 14, 2021),
https://www.rockefellerfoundation.org/news/over-90-percent-us-employers-require-
encourage-covid-19-vaccinations/ ........................................................................................11
Rachel Fehr et al., Individual Insurance Market Performance in 2019, KAISER FAMILY
FOUNDATION (May 13, 2020), https://www.kff.org/private-insurance/issue-
brief/individual-insurance-market-performance-in-2019/ ..................................................22
S.B. 2004, 2nd Spec. Sess. (Utah Nov. 16, 2021),
https://le.utah.gov/~2021S2/bills/static/SB2004.html .........................................................17
United Airlines CEO Says Vaccine Mandate Helped Transform the Company’s Culture,
FORTUNE (Nov. 18, 2021), https://fortune.com/2021/11/18/united-airlines-ceo-scott-
kirby-covid-vaccine-mandate-employee-safety/ ...................................................................21
Vaccine Mandates Stoke Fears of Labor Shortages. But Hospitals Says They’re Working,
THE WASHINGTON POST (Oct. 16, 2021),
https://www.washingtonpost.com/health/2021/10/16/hospital-covid-vaccine-mandate/.....22
What You Need to Know, MAYO CLINIC (Aug. 28, 2021),
https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/herd-immunity-
and-coronavirus/art-20486808 .............................................................................................15
White House: 90% of Federal Workers, Military Have Gotten at Least One COVID Shot,
ABC NEWS (Nov. 22, 2021), https://abcnews.go.com/Health/white-house-90-federal-
workers-military-covid-shot/story?id=81327464 .................................................................22
Workplace Vaccine Mandates Expected to Accelerate, Willis Towers Watson Survey
Finds, WILLIS TOWERS WATSON (Sept. 1, 2021),
https://www.willistowerswatson.com/en-US/News/2021/09/workplace-vaccine-
mandates-expected-to-accelerate-wtw-survey-finds ...........................................................11
Regulations
86 Fed. Reg. at 61402-61549 ........................................................................................... passim
H.B. 1B, Spec. Sess. B (Fla. Nov. 18, 2021) ............................................................................16
H.B. 218, Reg. Sess. (Ohio Nov. 18. 2021)...............................................................................16
H.B. 702, Reg. Sess. (Mont. July 1, 2021) ...............................................................................16
S.B. 9014, 3rd Spec. Sess. (Tenn. Nov. 12, 2021) ....................................................................16

7
INTEREST OF AMICUS CURIAE1
For 132 years, Alsco has strived to promote a healthy and safe workforce. For

Alsco, the Petitions for Review and associated motions for stay concern Alsco’s

ability to continue to provide a safe workplace for its employees. Alsco supports the

Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary

Standard, COVID-19 Vaccination and Testing Emergency Temporary Standard, 86

Fed. Reg. 61402 (Nov. 5, 2021), (the “ETS”) and urges the Court to uphold it and

deny the emergency applications for stay or injunction pending certiorari review.

Founded in 1889, Alsco is a family owned and managed business that has

grown to operate seventy-two branches across thirty-seven states, with

approximately 8,000 U.S. employees and independent contractors. Alsco operates in

seventeen other countries around the world, including those hit hard by COVID-19

such as Brazil. As a U.S. employer with more than 100 employees, Alsco is subject

to the ETS.

Alsco provides its customers clean textiles, including tablecloths and napkins,

uniforms and shop towels, patient gowns and bedding, as well as mops and floor

mats through a pick-up and delivery system. Unlike a laundry, Alsco owns most of

the textiles it washes, leasing those textiles to its customers. Alsco’s customers span

different service industries and include restaurants, bars, hotels, hospitals,

automobile repair shops, and factories.

1 Under Rule 37.6 of this Court, Alsco states that no party or party’s counsel authored this
brief in whole or in part or contributed any money to fund the preparation or submission of this brief.
No person other than Alsco made any monetary contribution to fund the preparation or submission
of this brief.

8
Alsco’s laundry employees often must stand shoulder-to-shoulder to operate

heavy machinery. Alsco’s sales, marketing, delivery, and management employees

frequently conduct on-site visits to current and prospective customers’ businesses to

ensure quality service and customer satisfaction. Thus, many of Alsco’s employees

are at high risk for contracting COVID-19.

Roughly 17% of Alsco’s U.S. employees have contracted the virus, disrupting

productivity, incurring millions of dollars in medical bills and lost time, and

consuming nearly a hundred and fifty thousand employee work hours. The

pandemic has also negatively impacted Alsco’s customers.

Alsco has made substantial efforts to get its employees voluntarily

vaccinated. Yet despite financial incentives and the exhortations of management

and fellow co-workers, Alsco’s vaccination rates are well below acceptable levels. In

several branches, the rates are dangerously low. Without the ETS, there are no

indications this will change.

Safety in the workplace is a top Alsco priority. Alsco’s safety program—in all

areas, not just those related to COVID-19— depends on guidance from OSHA, and

the pressure of its oversight. Alsco, and the people it employs, rely upon direction

from OSHA to work safely and dependably serve customers. OSHA’s ETS will

mitigate COVID-19 in a way Alsco has not been able to—and in many states

cannot—achieve through its own measures.

9
SUMMARY OF ARGUMENT

The Petitioners’ argument, adopted by the Fifth Circuit—that staying or

invalidating the ETS does no irreparable harm—ignores the staggering reality of

the COVID-19 pandemic. See In re MCP NO. 165, No. 21-4027, 2021 WL 5989357,

at *3 (6th Cir. Dec. 17, 2021) (“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’ . . .”).

But as recognized by the Sixth Circuit, Alsco, like most employers across the U.S.,2

cannot afford to ignore that reality.

The need for OSHA’s ETS is plain from the various harms Alsco and its

employees have suffered at the hand of the pandemic. The grave danger of COVID-

19 to Alsco’s employees is apparent from the infections, hospitalizations, and deaths

within Alsco’s ranks. And the financial loss to Alsco, both in terms of employee

productivity and lost business, is readily quantifiable in the millions of dollars.

Without the ETS, Alsco faces a workplace safety battle it cannot win. Alsco’s

encouragement measures are not sufficient alone and, in many states, Alsco is

prohibited from adopting a vaccine mandate. The devastating reality of the

pandemic both justifies and necessitates the ETS and the Court should therefor

deny the emergency applications for a stay or injunction of the ETS.

2 Over 90% of U.S. Employers Surveyed Require or Encourage Covid-19 Vaccinations, THE
ROCKEFELLER FOUNDATION (Sept. 14, 2021), https://www.rockefellerfoundation.org/news/over-90-
percent-us-employers-require-encourage-covid-19-vaccinations/; Workplace Vaccine Mandates
Expected to Accelerate, Willis Towers Watson Survey Finds, WILLIS TOWERS WATSON (Sept. 1, 2021),
https://www.willistowerswatson.com/en-US/News/2021/09/workplace-vaccine-mandates-expected-to-
accelerate-wtw-survey-finds.

10
ARGUMENT

I. COVID-19 PRESENTS A GRAVE DANGER IN ALSCO’S
WORKPLACES.

Alsco’s workforce faces the grave danger of COVID-19 on a daily basis.

Unlike those Americans that can work from home to avoid the constant threat of

the pandemic, most members of Alsco’s workforce are in close contact with co-

workers or customers as they do their work. For example, Alsco’s laundry workers

are frequently in close quarters because they are required to operate heavy

machinery as a team when laundering items like table linens, sheets, and floor

mats. Without the team effort, the task could not be accomplished. As another

example, Alsco’s delivery personnel visit various customers’ business locations each

day, interacting with them in their workplaces as they stock new linens and collect

soiled linens.

All considered, the risk of COVID-19 exposure to Alsco’s workforce enters

from multiple vectors: from co-workers, from customers, and from the public those

customers serve. As OSHA’s ETS states, Alsco’s employees “have little ability to

limit contact with co-workers, clients, members of the public, patients, and others,

any one of whom could represent a source of exposure” to the virus. See 86 Fed. Reg.

at 61408; see also In re MCP NO. 165, No. 21-4027, 2021 WL 5989357, at *11-12

(summarizing OSHA’s evidence of heightened risk in the workplace).

Unsurprisingly, companies like Alsco with “many employees gathered in the

same location,” have “larger” and “longer” outbreaks of the virus. 86 Fed. Reg.

61403, 61412-15 (detailing “studies and reports” of outbreaks in Alsco and it’s

11
customers’ industries, including restaurants, hospitality, warehousing, offices,

delivery services, cleaning services, and healthcare). See also In re MCP NO. 165,

No. 21-4027, 2021 WL 5989357, at *12 (exemplifying that majorities of states’

outbreaks occur within workplaces). Yet, without the vital efforts of Alsco’s

employees, Alsco’s business would cease to exist. Moreover, without vaccinations,

several branches would have had to shut down. Thus, mitigating the spread of

COVID-19 is of critical importance to the wellbeing and success of Alsco’s workforce.

Yet, despite safety measures undertaken by Alsco, COVID-19 has taken a

dramatic toll on Alsco’s workforce. In the U.S. alone, at least 1,340 Alsco employees

have contracted the virus. Masking and social distancing where possible is not

enough. And just as the ETS described, Alsco’s “workers are being hospitalized with

COVID-19.” 86 Fed. Reg. 61549. Alsco employees and their dependents have

incurred at least $1,416,343 in medical expenses (excluding testing costs) on Alsco’s

self-insured plan from at least 4,976 separate medical claims related to COVID-19.

Elsewhere in the world where Alsco operates, outbreaks of the virus have all

but stalled operations as the virus has taken its toll on workers, just as the ETS

describes. See 86 Fed. Reg. 61446. Devastatingly, two Alsco employees in Brazil

have died, 15 were hospitalized, and 1,048 had to be quarantined due to COVID.

Without additional safety measures like the ETS, Alsco fears similar outcomes in

the U.S.

These fears are strong, especially for Alsco branches with low vaccination

rates. Although nationally Alsco’s vaccination rate fluctuates around 79.5%, certain

12
individual branches maintain rates of only 11% (Durham, NC) 39% (St. George,

UT), 40% (Naples, FL), 47% (Pensacola, FL & Billings, MT), 52% (Wichita Falls,

TX), 55% (San Antonio, TX), and 60% (Milwaukee, WI) to name a few.

II. THE ETS IS NECESSARY TO PROTECT ALSCO’S EMPLOYEES
FROM GRAVE DANGER.

Despite Alsco’s best efforts, it appears that absent a vaccine mandate like the

ETS, Alsco will be unable to bring its vaccination rates to acceptable levels. As soon

as vaccines were available, Alsco offered $100 or an extra day of vacation to

vaccinated employees. Three Alsco executives embarked on a vaccination

encouragement tour in August to the company’s branches with low vaccination

rates. In each location, management pleaded with all employees to become

vaccinated and listened to their concerns. The interactions were heart wrenching.

One production worker in Pensacola explained her brother was on a ventilator. In

tears she asked her colleagues to be vaccinated.

Alsco also launched a “Vax to the Future” lottery effort to encourage

vaccination. In September, Alsco held a drawing for newly vaccinated employees,

with four winners receiving $10,000 each. In October, Alsco held a drawing for all

employees vaccinated since December 2020, with four winners receiving $25,000

each.

Unfortunately, these incentives have not been enough. For example, a

receptionist at Alsco’s headquarters lost her thirty-two-year-old pregnant daughter

to the virus. Subsequently, the receptionist got vaccinated and now tries to convince

13
other employees to become vaccinated, too. But it took the death of her daughter,

not just Alsco’s incentives, for her to get the shot.

While Alsco’s incentives did encourage some employees to become vaccinated,

the encouragement was not sufficient for Alsco to reach an 80% national vaccination

rate, let alone to reach the 94% vaccination rate which could be the secure measure

of safety. See Herd Immunity and COVID-19 (Coronavirus): What You Need to

Know, MAYO CLINIC (Aug. 28, 2021), https://www.mayoclinic.org/diseases-

conditions/coronavirus/in-depth/herd-immunity-and-coronavirus/art-20486808

(stating highly contagious diseases, like measles, require a 94% herd immunity

level to “interrupt the chain of transmission”); Carrie Macmillan, Herd Immunity:

Will We Ever Get There?, YALE MEDICINE (May 21, 2021),

https://www.yalemedicine.org/news/herd-immunity (adding that polio required a

80% immunity threshold and stating the more infectious COVID-19 variants

require a higher immunity threshold percentage).

Rather, despite Alsco’s measures, the vaccination rates in many branches

continue to mirror the general population’s vaccination rate in surrounding

communities. For example, Alsco’s St. George, Utah branch has a rate of 39%. But

that is not markedly different than the rate of its surrounding community of 45.4%.

See COVID-19 Data, Vaccines, UTAH DEPARTMENT OF HEALTH (last visited Jan. 3,

2022), https://coronavirus.utah.gov/case-counts/ (reporting data for Southwestern

Utah). As another example, Alsco’s Pensacola, Florida branch has a rate of 47%,

while the surrounding community has a rate of 53%. See Escambia County, FL

14
COVID-19 Vaccine Tracker, NAPLES DAILY NEWS (last visited Jan. 3, 2022),

https://data.naplesnews.com/covid-19-vaccine-tracker/florida/escambia-

county/12033/.

While disheartening, this data is consistent with research tracking the

effectiveness of voluntary incentive measures on vaccination. Research shows that

overall, voluntary incentives do not have a significant enough impact for rates to

depart from public vaccination trends. See Harsha Thirumurthy et al., Association

Between Statewide Financial Incentive Programs and COVID-19 Vaccination Rates

(Sept. 3, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3912786 (“there

was no significant difference in vaccination trends between states with and without

incentives”). Further, “rising ‘COVID fatigue” has made voluntary incentives less

common. 86 Fed. Reg. 61444. The stubborn reality is that neither carrots nor sticks

are sufficient to meaningfully affect vaccination rates in the workplace. For this

reason, it is unsurprising the ETS deems nonregulatory options “inadequate.” 86

Fed. Reg. 61444.

Further, without the ETS, in some states, Alsco’s hands are tied as to what

measures it can take to adopt a voluntary vaccine mandate of its own.3 For example,

in Utah, where Alsco is headquartered, the state legislature, at least partly in

response to OSHA’s ETS, passed a bill that grants a “personal belief” exemption to

all employees subject to a private vaccine mandate. See S.B. 2004, 2nd Spec. Sess.

3 Starting January 10, 2022, Alsco will attempt to require employees to either test and mask
or vaccinate as the ETS contemplates. However, numerous state laws may result in challenges to
Alsco’s health and safety policy.

15
(Utah Nov. 16, 2021), https://le.utah.gov/~2021S2/bills/static/SB2004.html. The

scope of that exemption is not defined and, practically, operates to reduce any

vaccine mandate to a matter of mere employee preference. Other states have made

similar moves,4 often in tandem with their Attorney Generals challenging the ETS

and other federal vaccination measures.5

4 See, e.g., H.B. 218, Reg. Sess. (Ohio Nov. 18. 2021), https://search-
prod.lis.state.oh.us/solarapi/v1/general_assembly_134/bills/hb218/RH/01/hb218_01_RH?format=pdf
(passing Ohio House of Representatives and including “personal conscience” exemption);

H.B. 1B, Spec. Sess. B (Fla. Nov. 18, 2021),
https://www.flsenate.gov/Session/Bill/2021B/1B/BillText/er/PDF (allowing employees to “opt
out” of mandates for a variety of reasons);

S.B. 9014, 3rd Spec. Sess. (Tenn. Nov. 12, 2021),
https://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB9014&GA=112
(prohibiting requirements for proof of vaccination for “any reason”);

Exec. Order GA-40 (Tex. Oct. 11, 2021), https://gov.texas.gov/uploads/files/press/EO-GA-
40_prohibiting_vaccine_mandates_legislative_action_IMAGE_10-11-2021.pdf (including
“personal conscience” exemption);

H.B. 702, Reg. Sess. (Mont. July 1, 2021), (making vaccination status a protected class for
purposes of employment nondiscrimination), https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf.

5 These state actions are dangerous to the health and safety of workers. Further, these actions
and lawsuits challenging pandemic safety measures endanger the lives of their very proponents. See,
e.g.:

Michelle Boorstein, Marcus Lamb, Head of Daystar, a Large Christian Network that
Discouraged Vaccines, Dies After Getting Covid-19, THE WASHINGTON POST (Nov. 30, 2021),
https://www.washingtonpost.com/religion/2021/11/30/marcus-lamb-daystar-covid-vaccine-
medical-freedom/ (describing the death of Petitioner Word of God Fellowship, Inc.’s (dba
Daystar) founder as a result of COVID-19);

Bryan Schott, Utah A.G. Sean Reyes Tests Positive for COVID-19, SALT LAKE TRIBUNE (Nov.
22, 2021), https://www.sltrib.com/news/politics/2021/11/22/utah-ag-sean-reyes-tests/;

Dennis Romboy, Utah Attorney General Sean Reyes Tests Positive for COVID-19, DESERET
NEWS (Nov. 22, 2021), https://www.deseret.com/utah/2021/11/22/22796354/utah-attorney-
general-sean-reyes-tests-positive-covid19-vaccine-mandate-lawsuit;

Bryan Schott, Top Utah Republican Has COVID-19, Salt Lake Tribune (Nov. 19, 2021),
https://www.sltrib.com/news/politics/2021/11/19/top-utah-republican-has/.

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These actions, regardless of their ultimate legality, undermine the efforts of

businesses like Alsco who are seeking to protect their workforce through

vaccination. The likelihood that employees will become vaccinated as a voluntary

measure if these measures prevail is slim. Further, these actions signal to

employees that Alsco’s safety measures, including those OSHA required in this and

other contexts, are up for debate according to the whims of every individual. For

this reason, if Alsco ignores one threat to workplace safety, it surrenders its entire

commitment to workplace safety.6

III. THE HARM COVID-19 IMPOSES ON ALSCO’S WORKFORCE AND
BUSINESS IS FAR GREATER THAN THE COMPLIANCE COSTS
OF THE ETS.

Much has been made of the compliance cost the ETS will impose on

employers. Indeed, both the challengers of the ETS and the Fifth Circuit place great

weight on the administrative and recordkeeping costs the ETS requires. They also

rely heavily on the speculative observation that employees will flee from employers

subject to the ETS rather than be vaccinated. See In re MCP NO. 165, No. 21-4027,

2021 WL 5989357, at *19 (6th Cir. 2021) (“The injuries Petitioners assert are

entirely speculative.”); Br. of Standard Process Inc. as Amicus Curiae in Supp. of

Emergency Appl. for Administrative Stay and Alternative Pet. for Writ of Cert.

Before J., at 4 (Dec. 29, 2020) (relying upon employer’s own estimation that

6 If this Court is inclined to grant Petitioners’ applications for a stay of the Sixth Circuit’s
decision, the Court should limit that stay so it does not extend to the ETS’ mask and testing
requirements or to the ETS’ preemptive effect on state and local law which might otherwise prohibit
a private employer from voluntarily adopting a vaccine, mask, or testing policy of its own.

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“employees will likely resign”). In doing so, the human cost of the pandemic is

disregarded (see 86 Fed. Reg. at 61408 (the ETS will “save over 6,500 worker lives

and prevent over 250,000 hospitalizations”)), as well as the devastating financial

costs of operating a business during the pandemic. See In re MCP NO. 165, No. 21-

4027, 2021 WL 5989357, at *19 (“these assertions ignore the economic analysis

OSHA conducted”) (“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.”).

Alsco will gladly trade the ongoing costs COVID-19 exacts on its business for

the cost of compliance with the ETS. Besides what Alsco has covered as a self-

insurer for its employees’ and their dependents’ COVID-19 medical costs

($1,416,343 plus $385,375 for testing), it has also faced losses because of disrupted

employee productivity. Since January 1, 2020, COVID-19 has cost Alsco 148,199 lost

employee hours in North America, which translates to $2,415,025 in unproductive

wages from COVID-19 screening, sick time, quarantining, and family care. See also

86 Fed. Reg. 61474 (“reduced absenteeism due to fewer COVID-19 illnesses and

quarantines” means savings for employers). The ETS’ compliance cost of $35 per

employee or $94 per unvaccinated employee,7 see 86 Fed. Reg. 61460-88, 61493,

7 To date, Alsco, Inc. has spent $385,375 on testing in the U.S., or $48.26 per employee. Given
that a quarter of Alsco’s U.S. employees are unvaccinated, this indicates OSHA’s estimates are far
more accurate that Petitioners are willing to admit.

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pales in comparison to the COVID-19 harms Alsco is already facing. This is true

even when factoring in the cost of testing in rural and urban areas—both where

Alsco has widespread service. See Br. of Standard Process Inc. as Amicus Curiae, at

9-10 (contrarily asserting testing costs would be prohibitive in rural areas).

And, of course, the unprecedented economic fallout of the pandemic has hit

Alsco’s customer base particularly hard. The need for linens in restaurants, bars,

clubs, hotels, etc., even after most commercial restrictions have been lifted, has

simply not returned to pre-pandemic levels because the public continues to fear

frequenting high-contact establishments. Regardless of where and how Alsco

operates, Alsco wants to deliver high quality services and products to its customers.

Under the current conditions, Alsco cannot do that.

Further, the specter of a mass employee exodus is simply overblown. For

those who object to a vaccine mandate and are not eligible for the multiple

exemptions the ETS provides employees—masking & testing, disability, religious,

outdoor worker, isolated worker, work from home—research and experience

demonstrate the vast majority of employees will not sacrifice their employment to

avoid vaccination. See 86 Fed. Reg. 61474-75 (comparing 48-50% of survey

respondents who planned to quit if vaccination were required with 1-3% of

employees who actually quit); Dolores Albarracin et al., Amid Challenges to Biden’s

Vaccine Mandate, Study Shows They Work, THE HILL (Nov. 17, 2021),

https://thehill.com/opinion/healthcare/581613-amid-challenges-to-bidens-vaccine-

mandate-study-shows-they-work (“few employees are actually leaving their jobs

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because of mandates . . . Fears of a backlash against vaccine mandates appear to be

largely unfounded.”); Andrea Hsu, Faced with Losing Their Jobs, Even the Most

Hesitant Are Getting Vaccinated, NPR (Oct. 7, 2021),

https://www.npr.org/2021/10/07/1043332198/employer-vaccine-mandates-success-

workers-get-shots-to-keep-jobs; State of Fla. v. Dep’t of Health & Hum. Servs., 19

F.4th 1271 (11th Cir. 2021) (rejecting “speculative” declarations that “resignations

would occur” because of a vaccine mandate).

For example, although much media attention and even litigation has been

devoted to United Airlines’ vaccine mandate, its efforts have produced a workplace

with a 99.7% vaccination rate. United Airlines CEO Says Vaccine Mandate Helped

Transform the Company’s Culture, FORTUNE (Nov. 18, 2021),

https://fortune.com/2021/11/18/united-airlines-ceo-scott-kirby-covid-vaccine-

mandate-employee-safety/. Other entities boast similar results.8 See, e.g., Covid

Vaccine Mandate Led to 96 Percent of Tyson Workers Getting the Shot, Company

Says, NBC NEWS (Oct. 27, 2021), https://www.nbcnews.com/news/us-news/covid-

vaccine-mandate-led-96-percent-tyson-workers-getting-shot-compan-rcna3889;

8 Alsco desires to adopt a national vaccine mandate that covers all its U.S. employees, much
like the entities above have. Alsco has a number of employees that work at a branch in one
jurisdiction, but who reside in another, meaning that employees working side-by-side in the same
branch may be subject to different state or local vaccine requirements or prohibitions like those
detailed supra n.3. Companies like United Airlines had the benefit of implementing their vaccine
mandates before most of the state and local restrictions on vaccination mandates were implemented.
Unlike companies the size of United Airlines that have such economic influence they can go toe-to-
toe with state legislatures, see e.g., Hannah Miao, Hundreds of Corporations, Business Leaders,
Celebs Sign Statement Against Voting Restrictions, CNBC (Apr. 14, 2021),
https://www.cnbc.com/2021/04/14/corporations-business-leaders-celebrities-sign-statement-
against-voting-restrictions.html, Alsco cannot ignore these state and local measures.

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Meryl Kornfield & Annabelle Timsit, Vaccine Mandates Stoke Fears of Labor

Shortages. But Hospitals Says They’re Working, THE WASHINGTON POST (Oct. 16,

2021), https://www.washingtonpost.com/health/2021/10/16/hospital-covid-vaccine-

mandate/; Anne Flaherty, White House: 90% of Federal Workers, Military Have

Gotten at Least One COVID Shot, ABC NEWS (Nov. 22, 2021),

https://abcnews.go.com/Health/white-house-90-federal-workers-military-covid-

shot/story?id=81327464.

Indeed, mandates themselves, even in other contexts, are powerful, even

when politically fraught. For example, the Affordable Care Act’s individual mandate

was widely successful at insuring Americans. Even after Congress eliminated the

individual mandate’s penalty in 2017, the normative effect of the mandate

continued—it “did not drive healthy enrollees to drop their insurance.” Eliminating

the Individual Mandate Penalty Didn’t Cause an Insurance Market ‘Death Spiral,’

Researchers Find, ADVISORY BOARD (Jan. 8, 2020),

https://www.advisory.com/en/daily-briefing/2020/01/08/individual-mandate

(summarizing Rachel Fehr et al., Individual Insurance Market Performance in 2019,

KAISER FAMILY FOUNDATION (May 13, 2020), https://www.kff.org/private-

insurance/issue-brief/individual-insurance-market-performance-in-2019/).

Alsco expects its workforce will be no exception to the trends of mandated

vaccination. Although some of its employees may qualify for an exemption from the

ETS or choose to leave Alsco’s employment, Alsco expects most of its employees to

become vaccinated rather than leave their roles. Having a workforce inoculated

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against the grave danger of COVID-19 through the ETS will serve Alsco and its

employees far better by every indicator of success.

CONCLUSION

Alsco is but one data point in a sea of employers navigating the grave danger

of the pandemic. But Alsco’s experience is emblematic and demonstrates the

justification and necessity for the ETS. The Court should deny the emergency

applications for a stay or injunction pending certiorari review and ultimately uphold

the validity of the ETS.

Dated: January 6, 2022

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