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21A244 030 Dec 30 2021 Main Document 20211230152222881 21A243 Et Al Osha Stay Opp - Scotus
Full text
Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249,
21A250, 21A251, 21A252, 21A258, 21A259, 21A260, and 21A267
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
JOB CREATORS NETWORK, ET AL. (No. 21A243);
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL. (No. 21A244);
PHILLIPS MANUFACTURING & TOWER CO., ET AL. (No. 21A245);
THE SOUTHERN BAPTIST THEOLOGICAL SEMINARY, ET AL. (No. 21A246);
OHIO, ET AL. (No. 21A247);
BST HOLDINGS, LLC, ET AL. (No. 21A248);
THE HERITAGE FOUNDATION (No. 21A249);
WORD OF GOD FELLOWSHIP, INC., ET AL. (No. 21A250);
ASSOCIATED BUILDERS AND CONTRACTORS, INC., ET AL. (No. 21A251);
SCOTT BEDKE, ET AL. (No. 21A252);
REPUBLICAN NATIONAL COMMITTEE (No. 21A258);
BETTEN CHEVROLET, INC. (No. 21A259);
BENTKEY SERVICES, LLC (No. 21A260); and
FABARC STEEL SUPPLY, INC., ET AL. (No. 21A267), APPLICANTS
v.
DEPARTMENT OF LABOR, OSHA, ET AL.
_______________
RESPONSE IN OPPOSITION TO THE APPLICATIONS FOR A STAY
_______________
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249,
21A250, 21A251, 21A252, 21A258, 21A259, 21A260, and 21A267
JOB CREATORS NETWORK, ET AL. (No. 21A243);
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL. (No. 21A244);
PHILLIPS MANUFACTURING & TOWER CO., ET AL. (No. 21A245);
THE SOUTHERN BAPTIST THEOLOGICAL SEMINARY, ET AL. (No. 21A246);
OHIO, ET AL. (No. 21A247);
BST HOLDINGS, LLC, ET AL. (No. 21A248);
THE HERITAGE FOUNDATION (No. 21A249);
WORD OF GOD FELLOWSHIP, INC., ET AL. (No. 21A250);
ASSOCIATED BUILDERS AND CONTRACTORS, INC., ET AL. (No. 21A251);
SCOTT BEDKE, ET AL. (No. 21A252);
REPUBLICAN NATIONAL COMMITTEE (No. 21A258);
BETTEN CHEVROLET, INC. (No. 21A259);
BENTKEY SERVICES, LLC (No. 21A260); and
FABARC STEEL SUPPLY, INC., ET AL. (No. 21A267), APPLICANTS
v.
DEPARTMENT OF LABOR, OSHA, ET AL.
_______________
RESPONSE IN OPPOSITION TO THE APPLICATIONS FOR A STAY
_______________
The Solicitor General, on behalf of the Occupational Safety
and Health Administration (OSHA) and the other federal respond-
ents, respectfully files this response in opposition to the ap-
plications for a stay of agency action.
Congress charged OSHA with setting nationwide standards to
protect the health and safety of American workers. Confronted
with the deadliest pandemic in the Nation’s history, which has
infected more than 50 million and killed more than 800,000 people
in the United States alone, OSHA found that workers are becoming
2
seriously ill and dying because they are exposed to the virus that
causes COVID-19, SARS-CoV-2, on the job -- including in widespread
and well-documented workplace clusters and outbreaks. OSHA fur-
ther determined that effective disease-control measures that have
already been implemented by many employers around the country to
reduce occupational exposure to SARS-CoV-2 would largely prevent
those serious illnesses and deaths, saving thousands of lives and
preventing hundreds of thousands of hospitalizations in the next
six months alone.
Based on those findings, OSHA issued an emergency temporary
standard (ETS or Standard) to address the grave danger posed by
the transmission of SARS-CoV-2 in the workplace. 86 Fed. Reg.
61,402 (Nov. 5, 2021). The Standard generally requires employers
with 100 or more employees to implement a written policy that
requires either (1) all employees to be vaccinated against COVID-
19 or (2) employees who are not fully vaccinated to wear masks and
supply proof of a negative COVID-19 test at least once every seven
days when working with others in indoor settings, with appropriate
exceptions (such as for employees entitled under federal law to
religious accommodations) under both options. See id. at 61,551-
61,553. Either option is permissible under the Standard; covered
employers may choose which one to implement. Id. at 61,552. And
employees who work exclusively at home, alone, or outdoors (with
de minimis use of shared indoor spaces) are exempted from either
3
requirement. Id. at 61,551. OSHA estimates that the Standard
will “save over 6,500 worker lives and prevent over 250,000 hos-
pitalizations” over the course of “six months.” Id. at 61,408.
Applicants and others collectively filed petitions for review
of the Standard in every regional court of appeals, see 29 U.S.C.
655(f), which were transferred to and consolidated in the Sixth
Circuit, see 28 U.S.C. 2112. Before that transfer and consolida-
tion, a Fifth Circuit panel temporarily stayed enforcement of the
Standard pending judicial review. After the Fifth Circuit case
was transferred, the Sixth Circuit dissolved that stay. See 28
U.S.C. 2112(a)(4). Applicants now ask this Court to enjoin the
government from enforcing the Standard pending review, “which de-
mands a significantly higher justification than” a request to stay
a lower-court ruling. Ohio Citizens for Responsible Energy, Inc.
v. NRC, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers). That
request should be denied because applicants have not demonstrated
a likelihood of success on the merits, much less an “indisputably
clear” right to relief. Ibid. (citation omitted).
Applicants are unlikely to succeed on the merits of their
statutory and constitutional challenges to the Standard -- which
they repeatedly mischaracterize as a “vaccine mandate.” The Oc-
cupational Safety and Health Act of 1970 (OSH Act or Act), 29
U.S.C. 651 et seq., provides that OSHA “shall” issue an emergency
temporary standard when the agency “determines” that an ETS is
4
“necessary” to protect employees from a “grave danger” resulting
from, among other things, exposure to “physically harmful”
“agents” or “new hazards.” 29 U.S.C. 655(c)(1). OSHA properly
determined that SARS-CoV-2 is both a physically harmful agent and
a new hazard; that exposure to that potentially deadly virus in
the workplace presents a grave danger to unvaccinated employees
who are at greatest risk of contracting and spreading the virus at
work and suffering serious health consequences as a result; and
that the Standard is necessary to protect those employees from the
danger of contracting COVID-19 at work. Applicants’ contrary ar-
guments rely on strained readings of the statutory text -- for
example, that the serious risk of infection, hospitalization, and
death faced by unvaccinated workers does not qualify as a “grave
danger”; that the generally applicable Standard is not “necessary”
because of the theoretical possibility that some subset of indi-
viduals or workplaces might be sufficiently safe from workplace
SARS-CoV-2 transmission without the Standard; or that OSHA lacks
any authority to issue occupational standards related to SARS-CoV-
2 because risks from exposure also exist outside of the workplace.
Perhaps recognizing that the plain text of the OSH Act au-
thorizes the Standard, applicants instead principally argue that
the Standard raises a “major question” of economic and political
significance, and therefore Congress should be forced to make a
“clear statement” authorizing an ETS addressing widespread work-
5
place exposure to COVID-19 or incorporating vaccination as a method
to reduce the risks of exposure. That argument provides no jus-
tification for departing from the ordinary meaning of the OSH Act’s
text. For one thing, Congress was clear in the OSH Act that it
wished to “assure so far as possible every working man and woman
in the Nation safe and healthful working conditions.” 29 U.S.C.
651(b) (emphasis added). As this Court has explained, in charging
OSHA with protecting the safety and health of workers in all busi-
nesses that affect interstate commerce, Congress already made the
judgment that ensuring safe workplaces might require substantial
regulations that apply nationwide and carry significant compliance
costs. American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S.
490, 519-520 (1981); see 29 U.S.C. 651. No clearer statement is
necessary.
Moreover, in the decisions applicants cite, this Court relied
on the economic and political significance of agency action to
help resolve statutory ambiguities in a way that would avoid con-
flicts with other statutory provisions. Here, in contrast, the
OSH Act unambiguously grants OSHA the authority to promulgate
emergency temporary standards without any exception for standards
that might have large economic or political significance, and the
issuance of the ETS does not conflict with any other statutory
provision. Just the opposite: the OSH Act specifically contem-
plates that “immunization” may be “authorize[d] or require[d]”
6
under the provisions of the Act, in particular “where such is
necessary for the protection of the health or safety of others.”
29 U.S.C. 669(a)(5). Congress, moreover, has specifically di-
rected OSHA to use its existing regulatory authorities “to carry
out COVID-19 related worker protection activities” and has appro-
priated funds designated for OSHA to address workplace exposure to
COVID-19. American Rescue Plan Act of 2021 (Rescue Plan), Pub. L.
No. 117-2, Tit. II, Subtit. B, § 2101(b)(1), 135 Stat. 30.
Applicants are likewise unlikely to succeed on their consti-
tutional challenges. This Court has consistently recognized Con-
gress’s authority under the Commerce Clause to regulate employers
who have chosen to engage in interstate commerce. And by author-
izing the issuance of an ETS only when OSHA finds one “necessary”
to protect employees from a “grave danger” resulting from exposure
to “physically harmful” “agents” or from “new hazards,” 29 U.S.C.
655(c)(1), the Act provides more than sufficient guidance to avoid
any nondelegation problem.
Finally, applicants cannot satisfy the other requirements of
the extraordinary equitable relief they seek. They assert irrep-
arable harms from compliance costs and potential worker shortages.
But those assertions run counter to the detailed economic and
empirical analysis that OSHA cited showing only modest costs and
worker attrition and do not withstand scrutiny in light of the
Standard’s mask-and-test option. On the other side of the balance,
7
the governmental and public interests would be greatly harmed by
a delay in the Standard’s enforcement, which would cost many worker
lives and result in thousands of worker hospitalizations -- all
the more so as the pandemic’s most recent surge drives case counts
to new highs. See Centers for Disease Control and Prevention
(CDC), COVID Data Tracker, go.usa.gov/xeFyx.
STATEMENT
1. The OSH Act seeks “to assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions.” 29 U.S.C. 651(b). The Act vests the Secretary of
Labor, acting through OSHA, with “broad authority” to establish
“standards” for health and safety in the workplace. Industrial
Union Dep’t, AFL-CIO v. American Petroleum Inst., 448 U.S. 607,
611 (1980) (plurality opinion); see 29 U.S.C. 651(b)(3), 654(a)(2)
and (b), and 655.
The OSH Act sets forth the criteria and procedural steps OSHA
must follow to establish workplace health and safety standards.
OSHA may establish, through notice-and-comment rulemaking, perma-
nent standards that are “reasonably necessary or appropriate” to
address a “significant risk” of harm in the workplace. Industrial
Union, 448 U.S. at 642-643 (plurality opinion); see 29 U.S.C.
652(8), 655(b). In addition, whenever OSHA “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
8
hazards,” and (B) that a standard “is necessary to protect employ-
ees from such danger,” Congress has directed that OSHA “shall”
issue an “emergency temporary standard to take immediate effect.”
29 U.S.C. 655(c)(1). Such a standard shall be issued “without
regard to the requirements of” the Administrative Procedure Act
(APA), 5 U.S.C. 551 et seq., and shall “serve as a proposed rule”
for notice-and-comment rulemaking. 29 U.S.C. 655(c)(1) and (3).
Such temporary standards are “effective until superseded” by a
permanent standard, which OSHA “shall promulgate” within “six
months.” 29 U.S.C. 655(c)(2) and (3). The OSH Act provides for
judicial review of permanent and temporary standards, and speci-
fies that “[t]he determinations of the Secretary shall be conclu-
sive if supported by substantial evidence in the record considered
as a whole.” 29 U.S.C. 655(f).
2. The novel virus that causes COVID-19, SARS-CoV-2, is
“highly transmissible” and can cause severe illness and death. 86
Fed. Reg. at 61,409. COVID-19 has already killed more than 800,000
people in this country, see COVID Data Tracker, and has caused
“serious, long-lasting, and potentially permanent health effects”
for millions more, id. at 61,424. Significant exposure and trans-
mission, including many “clusters” and “outbreaks,” have occurred
“in workplaces” nationwide. Id. at 61,411.
OSHA has continuously monitored the pandemic and previously
hoped for “widespread voluntary compliance” with “safety guide-
9
lines” to protect against that workplace threat. 86 Fed. Reg. at
61,444. The agency determined, however, that in recent months
“the risk posed by COVID-19 has changed meaningfully,” id. at
61,408, and “nonregulatory” options have proven to be vastly “in-
adequate,” id. at 61,430, 61,444. The agency further found that,
as more employees returned to workplaces, the “rapid rise to pre-
dominance of the Delta variant” meant “increases in infectiousness
and transmission” among those workers. Id. at 61,409; see id. at
61,411-61,417. As a result, “[u]nvaccinated workers are being
hospitalized with COVID-19 every day, and many are dying.” Id. at
61,549.
3. On November 5, 2021, OSHA published an emergency tempo-
rary standard to address those “extraordinary and exigent circum-
stances.” 86 Fed. Reg. at 61,434. The ETS requires employers
with 100 or more employees to select one of two workplace precau-
tions to mitigate the danger of COVID-19 transmission in places of
employment. Employers may “implement a mandatory vaccination pol-
icy.” Id. at 61,551. Or employers may offer employees the choice
to have “regular COVID-19 testing” and “wear a face covering”
rather than get vaccinated. Ibid. The Standard establishes stag-
gered compliance deadlines, providing 60 days to implement the
testing requirements and 30 days to implement all other require-
ments. Id. at 61,549. Employees who work exclusively at home,
alone, or outdoors (with de minimis use of shared indoor spaces)
10
are exempted. Id. at 61,419-61,420, 61,515-61,516.
OSHA determined that unvaccinated employees face a “grave
danger” from workplace exposure to SARS-CoV-2, which qualifies as
“both a physically harmful agent and a new hazard.” 86 Fed. Reg.
at 61,408. OSHA described myriad studies showing workplace “clus-
ters” and “outbreaks” of COVID-19 and other significant “evidence
of workplace transmission” and “exposure.” Id. at 61,411. As
OSHA explained, “employees can be exposed to the virus in almost
any work setting,” ibid., because of the “common characteristics
of many workplaces,” such as “working indoors” and “working with
others for extended periods of time,” id. at 61,424. And OSHA
found that unvaccinated workers specifically “face grave danger
from exposure to SARS-CoV-2 in the workplace” because they “are
much more likely to contract and transmit COVID-19 in the workplace
than vaccinated workers” and “unvaccinated workers remain at much
higher risk of severe health outcomes from COVID-19.” Id. at
61,403.
OSHA also determined that the Standard was “necessary to pro-
tect unvaccinated workers from the risk of contracting COVID-19,
including its more contagious variants,” in the workplace. 86
Fed. Reg. at 61,429; id. at 61,429-61,447. OSHA described exten-
sive evidence showing that vaccines dramatically reduce the risk
of contracting and transmitting COVID-19, as well as the risk of
developing serious disease. Id. at 61,417-61,419, 61,434, 61,520,
11
61,528-61,529. Because “it is the lack of vaccination that results
in grave danger,” OSHA determined that “vaccination will best allay
the grave danger.” Id. at 61,434. OSHA further explained that,
because unvaccinated workers are far more likely to contract and
transmit COVID-19 in the workplace, requiring employees who remain
unvaccinated to mask and test will “largely prevent” infected em-
ployees “from spreading [COVID-19] to others” by limiting the
spread of their “respiratory droplets” and identifying infected
employees to be removed from the workplace. Id. at 61,438-61,439.
OSHA discussed various alternatives and explained that existing
OSHA standards, statutory requirements, and non-binding guidance
are insufficient to combat the risk to unvaccinated employees.
Id. at 61,440-61,445.
4. In the week following issuance of the Standard, a number
of parties, including applicants here, filed petitions for review
in every regional court of appeals. See 29 U.S.C. 655(f). Con-
gress has directed that all such petitions be transferred and
consolidated in a single court of appeals, to be chosen by lottery.
See 28 U.S.C. 2112. Pursuant to that directive, the petitions
were transferred to the Sixth Circuit.
Shortly before that transfer and consolidation, the Fifth
Circuit entered a stay against enforcement of the Standard pending
judicial review in the case before it. NFIB Appl. App. 161-182. 1
1 This response will henceforth use “App.” to cite the
12
The Fifth Circuit concluded that OSHA lacked authority under the
OSH Act to promulgate the Standard and expressed doubts about the
constitutionality of the Standard and the Act. Ibid.
After the transfer, the government moved the Sixth Circuit to
dissolve the Fifth Circuit’s stay. See C.A. Doc. 69 (Nov. 23,
2021); 28 U.S.C. 2112(a)(4). Several of the petitioners, including
many of the applicants here, also moved for initial hearing en
banc of the petitions for review. The court of appeals denied
initial hearing en banc by an 8-8 vote. App. 186. Judge Moore,
joined by four other judges, concurred in the denial of initial
hearing en banc. App. 187-188. Chief Judge Sutton, joined by
seven other judges, dissented. App. 189-215. Judge Bush also
dissented. App. 216-225.
4. The court of appeals granted the government’s motion to
dissolve the Fifth Circuit’s stay. App. 227-283.
a. The court of appeals held that applicants are unlikely
to succeed on the merits of their challenges to the ETS. App.
235-262. The court explained that SARS-CoV-2 is a physically
harmful agent and poses a grave danger to workers in light of
extensive empirical data showing high rates of workplace trans-
mission and the substantial number of deaths and serious illnesses
caused by COVID-19. App. 243-251. The court also concluded that
appendix to the application in No. 21A244, filed by NFIB, et al.
13
OSHA has authority to address virus transmission in the workplace
based on the statutory text and the agency’s history of regulating
other pathogens. App. 236-240. The court observed, for example,
that after the agency issued a proposal to regulate bloodborne
pathogens in the workplace, including by encouraging vaccination,
Congress subsequently passed a statute directing OSHA to finalize
the standard, and later passed another statute directing the agency
to strengthen it. App. 238. And the court noted that Congress
also recently appropriated funds to OSHA specifically “to carry
out COVID-19 related worker protection activities.” Ibid. (cita-
tion omitted).
The court of appeals further explained that OSHA properly
found that the ETS was necessary to address the grave danger of
COVID-19 workplace transmission. See App. 251-257. The court
rejected applicants’ reliance on the “major questions doctrine,”
App. 240, finding it inapplicable because the OSH Act’s text “un-
ambiguously grants OSHA authority for the ETS,” App. 242, and
because “OSHA’s issuance of the ETS is not a transformative ex-
pansion of its regulatory power,” App. 243.
The court of appeals also rejected applicants’ constitutional
challenges to the ETS and the Act. See App. 257-262. The court
explained that “nearly a century of precedent” from this Court
makes clear that “regulating employers is within Congress’s reach
under the Commerce Clause.” App. 258; see App. 257-260. And the
14
court of appeals rejected applicants’ nondelegation challenge, ex-
plaining that the statutory criteria in 29 U.S.C. 655(c)(1) to
promulgate an ETS provide an “intelligible principle” for regula-
tion that is more specific than other delegations this Court has
upheld against nondelegation challenges. App. 260-262.
The court of appeals also found that applicants did not es-
tablish the other requirements to obtain preliminary equitable
relief. App. 262-263. The court observed that applicants had
asserted “entirely speculative” injuries, such as compliance-cost
estimates that “ignore[d] the economic analysis OSHA conducted.”
App. 262. The court also observed that the other asserted harms
-- such as that applicants “will need to fire employees * * * or
face employees who quit over the [S]tandard” -- ignore “the ac-
commodations, variances, or the option to mask-and-test that the
ETS offers.” App. 263. On the other side of the balance, the
court explained that the costs to the governmental and public
interest “are comparatively high” because “the ETS ‘will save over
6,500 worker lives and prevent over 250,000 hospitalizations’ in
just six months.” Ibid. (citation omitted).
b. Judge Gibbons concurred. App. 264. She wrote “to note
the limited role of the judiciary in this dispute about pandemic
policy,” and explained that “[r]easonable minds may disagree on
OSHA’s approach to the pandemic, but [courts] do not substitute
[their] judgment for that of OSHA, which has been tasked by Con-
15
gress with policymaking responsibilities.” Ibid.
c. Judge Larsen dissented. App. 265-283. In her view, the
Standard is not “necessary” on the theory that it is insufficiently
“tailor[ed]” and thus not “‘essential’” to addressing COVID-19
transmission in the workplace. App. 270-271 (citation omitted).
Judge Larsen also stated that COVID-19 does not present a “grave
danger” to every unvaccinated worker, in part because the risk
varies by age. App. 275 (citation omitted). She also stated that
because SARS-CoV-2 “is not * * * uniquely a workplace condition,”
it is beyond OSHA’s authority to “regulate an employee’s exposure
to it.” Ibid. And she thought the Standard was unauthorized under
what she termed the major questions doctrine because “OSHA has
never issued an emergency standard of this scope.” App. 278.
Finally, Judge Larsen believed that applicants had demonstrated
irreparable harm because employees might “reluctantly submit to
vaccination” to avoid the “hassles” of testing, and employers will
incur “compliance costs and loss of employees.” App. 281. 2
2 After the Sixth Circuit dissolved the stay, OSHA an-
nounced that it is “exercising enforcement discretion with respect
to the compliance dates of the ETS,” such that it “will not issue
citations for noncompliance with any requirements of the ETS before
January 10,” and “will not issue citations for noncompliance with
the standard’s testing requirements before February 9, so long as
an employer is exercising reasonable, good faith efforts to come
into compliance with the standard.” OSHA, COVID-19 Vaccination
and Testing ETS, osha.gov/coronavirus/ets2. That announcement re-
stored the full compliance periods provided in the original Stand-
ard, which had been cut short when the Fifth Circuit stayed all
implementation of the Standard seven days after it had been issued
-- a step that OSHA viewed as preventing it from providing com-
16
ARGUMENT
The applications should be denied. Applicants effectively
seek an injunction against enforcement of the ETS pending review.
To obtain such an injunction, applicants generally must show that
their “claims are likely to prevail, that denying them relief would
lead to irreparable injury, and that granting relief would not
harm the public interest.” Roman Catholic Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 66 (2020) (per curiam). A similar standard
applies to a request for a stay. See Hollingsworth v. Perry, 558
U.S. 183, 190 (2010) (per curiam). But because a request for an
injunction seeks judicial intervention withheld by the lower
courts, it “‘demands a significantly higher justification’ than a
request for a stay.” Respect Maine PAC v. McKee, 562 U.S. 996,
996 (2010) (citation omitted). Such an injunction should be
granted “sparingly and only in the most critical and exigent cir-
cumstances,” Wisconsin Right to Life, Inc. v. FEC, 542 U.S. 1305,
1306 (2004) (Rehnquist, C.J., in chambers) (citation omitted),
such as when “the legal rights at issue are ‘indisputably clear,’”
ibid. (citation omitted); see Roman Catholic Diocese, 141 S. Ct.
at 66 (granting injunction where “applicants ha[d] clearly estab-
lished their entitlement to relief”). 3
pliance assistance to employers.
3Although the applications are styled as requests for a stay,
the relief they seek is more properly viewed as an injunction, as
some applicants recognize (e.g., Phillips Appl. 12). The appli-
cations do not ask this Court to “temporarily suspend[]” an “order
17
Applicants have not satisfied the standard for a stay, much
less the higher standard for an injunction pending review. The
court of appeals correctly held that applicants’ various chal-
lenges to the Standard are not likely to succeed on the merits
because the Standard falls squarely within OSHA’s statutory au-
thority and because their various other arguments lack merit. The
court was likewise correct to recognize that the balance of the
equities and the public interest tip decisively in favor of al-
lowing the ETS to remain in effect: the Nation is facing an
unprecedented pandemic that is sickening and killing thousands of
workers around the country, and any further delay in the imple-
mentation of the Standard will result in unnecessary illness, hos-
pitalizations, and deaths because of workplace exposure to SARS-
CoV-2.
I. APPLICANTS HAVE NOT ESTABLISHED A LIKELIHOOD OF SUCCESS ON
THE MERITS, MUCH LESS A CLEAR ENTITLEMENT TO RELIEF
A. OSHA Has Statutory Authority To Promulgate The ETS
Congress has directed that OSHA “shall” issue an “emergency
temporary standard” if the agency “determines (A) that employees
are exposed to grave danger from exposure to substances or agents
or judgment” of the lower court, as a stay would do. Nken v.
Holder, 556 U.S. 418, 428-429 (2009). Instead, they ask this Court
to issue an order prohibiting the government from enforcing the
ETS -- that is, to “‘grant[] judicial intervention’” in order to
“direct[] an actor’s conduct.” Id. at 429 (citation omitted).
Such an order is in the nature of an injunction.
18
determined to be toxic or physically harmful or from new hazards,
and (B) that such emergency standard is necessary to protect em-
ployees from such danger.” 29 U.S.C. 655(c)(1). The Standard
falls squarely within that grant of authority.
SARS-CoV-2 is both a physically harmful agent and a new haz-
ard; indeed, it has killed more than 800,000 individuals and made
millions more seriously ill in the United States alone. The virus
manifestly poses a grave danger to unvaccinated workers, who face
significant risks from workplace exposure because they are sub-
stantially more likely to become infected with COVID-19 and to
suffer severe health consequences as a result. OSHA found that
many of the virus’s victims have been infected through workplace
clusters and outbreaks, which have arisen throughout the Nation
and in virtually every type of work environment. Vaccination or
masking and testing are commonplace, proven measures that would
greatly reduce the risk of serious illness or death from those
workplace exposures. And substantial evidence supports OSHA’s
determination that those standards are necessary now because other
measures would not be sufficient to protect unvaccinated workers
from that risk, particularly as new and even more transmissible
variants increase the hazard of workplace exposure. Applicants’
various contrary arguments largely reduce to attempts to rewrite
Section 655(c)(1), either by adopting strained and unnatural read-
ings of Congress’s words or by imposing entirely extra-textual
19
limits.
1. SARS-CoV-2 is both a physically harmful agent and
a new hazard
OSHA correctly “determine[d]” that SARS-CoV-2 is both a
“physically harmful” “agent[]” and a “new hazard[].” 29 U.S.C.
655(c)(1). Applicants’ contrary arguments disregard the statutory
text and would upset the settled understanding that OSHA has au-
thority to protect workers from infectious diseases. Those argu-
ments would leave OSHA powerless to respond to the grave workplace
dangers posed by existing viruses and other infectious diseases,
as well as future pandemics.
a. SARS-CoV-2 readily fits the definition of an “agent,”
which is “a chemically, physically, or biologically active prin-
ciple.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed.
2003); see Webster’s New Int’l Dictionary 48 (2d ed. 1958) (Web-
ster’s Second) (“an active principle”). Although some applicants
suggest (e.g., BST Appl. 25) through a chain of definitions that
a virus somehow does not qualify as an “agent,” those arguments
ignore that “virus” itself is defined as “the causative agent of
an infectious disease.” Merriam-Webster 1397 (emphasis added);
see Webster’s Second 2849 (“[t]he infective principle of a dis-
ease”). Moreover, longstanding OSHA regulations -- promulgated
decades before this pandemic -- have understood viruses to be
included within the statute’s reach. See 29 C.F.R.
1910.1020(c)(13) (defining “[t]oxic substance or harmful physical
20
agent” to include a “biological agent (bacteria, virus, fungus,
etc.)”); 29 C.F.R. 1910.1030 (bloodborne-pathogens rule issued
pursuant to authority to regulate “toxic materials or harmful
physical agents”); see also App. 236. Indeed, it would be star-
tling if a statute adopted to ensure “safe and healthful working
conditions” and to prevent “illnesses,” 29 U.S.C. 651(a) and
(b)(1), did not include authority to address infectious diseases
in the workplace.
SARS-CoV-2 is also “physically harmful.” As the court of
appeals observed, “[t]he number of deaths in America [from COVID-
19] has now topped 800,000,” and even “[a]part from death, COVID-
19 can lead to ‘serious illness, including long-lasting effects on
health,’ (now named ‘long COVID’).” App. 248 (quoting 86 Fed.
Reg. at 61,410). Nobody has seriously contended otherwise. E.g.,
Ohio Appl. 12 (explaining that the “States do not and have not
disputed” that SARS-CoV-2 is a “physically harmful” “agent” under
the ordinary meaning of those words).
Instead, applicants mistakenly rely on the word “toxic” in 29
U.S.C. 655(c)(1) to artificially narrow the scope of “physically
harmful” from what its ordinary meaning otherwise would require.
Echoing the Fifth Circuit (App. 169-170), applicants suggest that
an airborne virus like SARS-CoV-2 is not “physically harmful” on
the theory that “toxic” “connot[es] toxicity and poisonousness,”
Phillips Appl. 21 (citation omitted), and so “physically harmful”
21
likewise must describe only things that are “toxic or poisonous,”
Betten Chevrolet Appl. 25. But applicants’ attempt to impose such
a limit overlooks the plain statutory text, which is phrased in
the disjunctive: an OSHA ETS may address exposure to “agents
determined to be toxic or physically harmful.” 29 U.S.C. 655(c)(1)
(emphasis added). “Canons of construction ordinarily suggest that
terms connected by a disjunctive be given separate meanings.”
Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). Applicants’
interpretation thus would improperly “ignore the disjunctive ‘or’
and rob the [phrase ‘physically harmful’] of its independent and
ordinary significance.” Id. at 338-339.
Applicants’ reliance on the associated-words canon is mis-
placed. Cf. Phillips Appl. 21 (invoking the “principle of noscitur
a sociis -- a word is known by the company it keeps”) (citation
omitted); App. 169 (same). That canon applies “[w]hen several
nouns or verbs or adjectives or adverbs -- any words -- are asso-
ciated in a context suggesting that the words have something in
common.” A. Scalia & B.A. Garner, Reading Law 195 (2012) (emphasis
added). But the statute here contains only two disjunctive terms
-- “toxic” or “physically harmful” -- and using the former to
artificially narrow the scope of the latter would be to blue-
pencil “physically harmful” out of the statute. See Graham County
Soil and Water Conservation Dist. v. United States, 559 U.S. 280,
288-289 (2010) (declining to apply the noscitur a sociis canon to
22
a “list of three items,” which was “too short to be particularly
illuminating”).
b. Independently, SARS-CoV-2 constitutes a “new hazard[].”
29 U.S.C. 655(c)(1). A “hazard” is a “source of danger,” Merriam-
Webster 572; see Webster’s Second 1147 (“source of risk”), and
SARS-CoV-2 plainly qualifies under any understanding of that
phrase. Some applicants suggest that SARS-CoV-2 is not a “hazard,”
notwithstanding the ordinary meaning of that term, based on the
same flawed reliance on “toxic” described above. E.g., BST Appl.
25-26. If anything, using “toxic” to artificially limit the scope
of “hazard” is even less justifiable, given both the disjunctive
“or” as well as the placement and repetition of “from” in the
statutory text: OSHA must determine that “employees are exposed
to grave danger from exposure to substances or agents determined
to be toxic or physically harmful or from new hazards.” 29 U.S.C.
655(c)(1) (emphases added). Congress thus contemplated the issu-
ance of an ETS when “employees are exposed to grave danger * * *
from new hazards,” without any requirement of “exposure to * * *
agents determined to be toxic.” Ibid.
The virus also is “new,” given that it was unknown in the
United States until very recently. See 86 Fed. Reg. at 61,408.
Other applicants suggest that the virus is not “new” because the
global pandemic began in 2020. E.g., Betten Chevrolet Appl. 25
(“[COVID-19] has been spreading widely throughout the world for
23
nearly two years.”); cf. App. 170 (“COVID-19 is a recognized haz-
ard.”) (citation omitted). But as OSHA explained, the hazard posed
by SARS-CoV-2 and COVID-19 is “new” in two senses directly relevant
here. First, OSHA observed that “there were no documented cases
of SARS-CoV-2 infections in the United States until January 2020,”
which makes it newer than any hazard OSHA had ever addressed in a
pre-COVID-19 ETS. 86 Fed. Reg. at 61,408. Second, OSHA explained
that since June 2021, “the risk posed by COVID-19 has changed
meaningfully,” given the emergence of the Delta variant “and its
increased transmissibility,” along with the possibility of further
“[v]iral mutations.” Id. at 61,408-61,409; see id. at 61,409-
61,412, 61,431. Both of those determinations amply support OSHA’s
conclusion that SARS-CoV-2 presents a “new hazard.” Applicants’
unduly restrictive view of “new” either would make regulation of
emerging but recognized hazards impossible or would create incen-
tives for the agency to rush to regulation lest a hazard become
too well-recognized.
2. Exposure to SARS-CoV-2 in the workplace poses a
“grave danger”
a. Substantial evidence supports OSHA’s determination that
exposure to the highly contagious and virulent SARS-CoV-2 presents
a “grave danger.” As the court of appeals observed, a “grave
danger” exists “if workers face ‘the danger of incurable, perma-
nent, or fatal consequences, as opposed to easily curable and
fleeting effects on their health.’” App. 246 (citation and el-
24
lipsis omitted). Applicants generally agree. E.g., Ohio Appl. 14
(“very serious; dangerous to life”) (citation omitted).
SARS-CoV-2 readily satisfies that definition. OSHA observed
that COVID-19 had at the time the ETS was promulgated killed more
than 725,000 people in the United States alone, and that COVID-19
can “involve respiratory failure, blood clots, long-term cardio-
vascular and neurological effects, and organ damage.” 86 Fed.
Reg. at 61,408; see id. at 61,410 (explaining that “the disease’s
most common complications” include “pneumonia, respiratory fail-
ure, acute respiratory distress syndrome (ARDS), acute kidney in-
jury, sepsis, myocardial injury, arrhythmias, and blood clots”).
Those findings make clear that COVID-19 can carry very serious
consequences, including the risk of death. The State applicants
recycle (Ohio Appl. 14) the misplaced reliance on “toxic” and the
associated-words canon to argue that “grave danger” does not carry
its ordinary meaning, but for the same reasons given above, that
argument cannot be squared with the statutory text.
The State applicants also suggest that COVID-19 does not pre-
sent a “grave danger” because individuals who contract COVID-19
supposedly face only “a small risk of serious illness” or death.
Ohio Appl. 15. The friends and families of the more than 800,000
people in the United States who have died, and the millions more
who have been seriously ill -- many of them because of workplace
clusters -- might well have a different perspective on the risk.
25
Moreover, the statute requires a grave danger, not a certainty of
harm. As OSHA observed, “working age Americans (18-64 years old)
now have a 1 in 14 chance of hospitalization when infected with
COVID-19” and “a 1 in 202 chance of dying when they contract the
disease.” 86 Fed. Reg. at 61,410. OSHA, the expert agency charged
with protecting worker health, has properly understood the Act to
address risks of that magnitude and immediacy. Cf. Industrial
Union Dep’t, AFL-CIO v. American Petroleum Inst., 448 U.S. 607,
655 (1980) (plurality opinion) (stating that a “one in a thousand”
chance of fatality poses a “significant risk” for purposes of a
permanent OSHA standard). And if there were any doubt, OSHA is
entitled under the Act “to use conservative assumptions,” “risking
error on the side of overprotection rather than underprotection.”
Id. at 656.
b. Abandoning reliance on the ordinary meaning of the stat-
ute’s text, applicants assert that the danger from COVID-19 must
not truly be “grave” because OSHA’s actions are supposedly incon-
sistent with such a determination. Applicants cite as examples
OSHA’s choice to cover only employers with 100 or more employees,
e.g., Ohio Appl. 17, and its having issued an ETS in June 2021
that addressed only healthcare workplaces, not all employers,
e.g., BST Appl. 22. Applicants’ reliance on those actions is
misplaced. 4
4 Applicants also fault OSHA for allegedly having “spent
26
As to the 100-employee threshold, OSHA explained that it was
“proceeding in a stepwise fashion” by applying the Standard to
“companies that OSHA is confident will have sufficient adminis-
trative systems in place to comply quickly,” 86 Fed. Reg. at
61,403, while it continued to compile “additional information to
determine whether to adjust the scope of the ETS to address smaller
employers,” id. at 61,403. Far from suggesting doubt about OSHA’s
finding of a grave danger, that stepwise approach demonstrates
OSHA’s urgency to address that danger in a feasible manner as soon
as it could. Cf. Williams-Yulee v. Florida Bar, 575 U.S. 433, 449
(2015) (explaining that the government “need not address all as-
pects of a problem in one fell swoop”).
As OSHA explained, limited data about smaller employers pre-
vented the agency from quickly satisfying its obligation (cf. 29
U.S.C. 655(b)(5)) to find that the Standard is feasible for those
employers. See 86 Fed. Reg. at 61,403, 61,511-61,513 (analyzing
the issue). But OSHA explained that “[t]he employees of larger
firms should not have to wait for the protections of this standard
while OSHA takes the additional time necessary to assess the fea-
nearly two months” drafting the Standard. E.g., BST Appl. 22
(citation omitted). But applicants provide no basis to conclude
that OSHA unduly delayed issuing the Standard -- including the
153-page preamble containing extensive evidence and analysis sup-
porting the agency’s determination that COVID-19 presents a grave
danger -- much less that any such delay would have been the product
of OSHA’s disbelief that COVID-19 presents a grave danger.
27
sibility of the standard for smaller employers.” Id. at 61,511;
see also id. at 61,512 (citing evidence that “larger employers are
more likely to have many employees gathered in the same location”
and have “larger” and “longer” outbreaks). Therefore, while sim-
ultaneously seeking comment and undertaking further study on
smaller employers, OSHA “act[ed] to protect workers now in adopting
a standard that will reach two-thirds of all private-sector workers
in the nation.” Id. at 61,403.
OSHA’s decision not to extend the Standard to smaller employ-
ers at this time in light of the agency’s feasibility analysis
does not undermine its considered judgment and supporting analysis
concerning the grave danger to employees and the need for the
Standard. Indeed, laws frequently include exemptions for small
employers, and such provisions do not call into question the im-
portant interests being served with respect to larger employers.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.,
for example, which prohibits certain forms of discrimination in
the workplace, originally exempted employers with fewer than 25
employees, see Arbaugh v. Y & H Corp., 546 U.S. 500, 505 n.2
(2006), and currently does not apply to the vast number of employ-
ers with fewer than 15 employees, see 42 U.S.C. 2000e(b). But
that exemption for small employers does not call into question the
extraordinary importance of prohibiting discrimination in the
28
workplace. 5
That OSHA issued an ETS addressing only healthcare workplaces
in June 2021, see 86 Fed. Reg. 32,376 (June 21, 2021), likewise
does not call into doubt the grave danger posed by COVID-19 in all
places of employment. 6 As noted, an agency “need not address all
aspects of a problem in one fell swoop.” Williams-Yulee, 575 U.S.
at 449. Dangers can evolve, as can the need for a standard to
address them, and OSHA can obtain “new information” or respond to
“new awareness.” Asbestos Info. Ass’n v. OSHA, 727 F.2d 415, 423
(5th Cir. 1984). That is what happened here, as OSHA explained at
length. Earlier in the pandemic, “scientific information about
the disease” and “ways to mitigate it were undeveloped.” 86 Fed.
Reg. at 61,429. OSHA crafted workplace guidance but initially
declined to issue an emergency standard “based on the conditions
and information available to the agency at that time,” including
5 Similar examples include the Family and Medical Leave
Act of 1993, 29 U.S.C. 2611(4)(A)(i) (employers with 50 or more
employees); the Age Discrimination in Employment Act of 1967, 29
U.S.C. 630(b) (originally exempting employers with fewer than 50
employees, 81 Stat. 605, and now governing employers with 20 or
more employees); and the Americans With Disabilities Act of 1990,
42 U.S.C. 12111(5)(A) (employers with 15 or more employees).
6 On December 27, 2021, OSHA announced “that it is with-
drawing the non-recordkeeping portions of the healthcare ETS” be-
cause it had not promulgated a permanent standard within the six-
month period contemplated by 29 U.S.C. 655(c). See OSHA, COVID-
19 Healthcare ETS, osha.gov/coronavirus/ets. OSHA explained that
it “intends to continue to work expeditiously to issue a final
standard” specific to healthcare settings. Ibid.
29
that “vaccines were not yet available” and that it was unclear if
“nonregulatory” options would suffice. Id. at 61,430. And when
it issued the Healthcare ETS in June 2021, OSHA observed that “the
impact of [COVID-19] has been borne disproportionately by the
healthcare and healthcare support workers tasked with caring for
those infected by this disease.” 86 Fed. Reg. at 32,377. Ad-
dressing non-healthcare workplaces was somewhat less urgent be-
cause “[i]n June 2021, when the Healthcare ETS was published,
COVID-19 transmission rates in the United States were at a low
point.” 86 Fed. Reg. at 61,431.
That situation changed rapidly in the following months, in-
cluding because of the Delta variant. 86 Fed. Reg. at 61,431. As
more employees returned to workplaces, the “rapid rise to predom-
inance of the Delta variant” meant “increases in infectiousness
and transmission” and “potentially more severe health effects.”
Id. at 61,409-61,412, 61,431. Meanwhile, voluntary safety
measures had proved ineffective, including because of “rising
‘COVID fatigue.’” Id. at 61,444. By November, “workers [we]re
being hospitalized with COVID-19 every day, and many [we]re dying.”
Id. at 61,549.
At the same time, vaccines are now widely available, 86 Fed.
Reg. at 61,450; large-scale studies have further confirmed the
“power of vaccines to safely protect individuals,” including from
the Delta variant, id. at 61,431; the FDA granted approval (rather
30
than the earlier Emergency Use Authorization) to one vaccine in
August 2021, ibid.; and OSHA determined that “the increasing rate
of production” of COVID-19 tests will ensure sufficient supply
before the “testing compliance date,” id. at 61,452. OSHA ade-
quately explained that those material changes in conditions jus-
tified issuance of the ETS now to address the grave danger to
unvaccinated employees of exposure to SARS-CoV-2 in the workplace.
3. The Standard is “necessary” to protect employees
Substantial evidence supports OSHA’s determination that the
ETS “is necessary to protect employees from [the] danger” of COVID-
19. 29 U.S.C. 655(c)(1).
a. Relying on extensive scientific and empirical studies,
OSHA determined that workplaces are prime grounds for COVID-19
transmission. OSHA explained that transmission can occur “when
people are in close contact with one another in indoor spaces
(within approximately six feet for at least fifteen minutes).” 86
Fed. Reg. at 61,409. As the court of appeals observed (App. 247),
“American workplaces often require employees to work in close
proximity -- whether in office cubicles or shoulder-to-shoulder in
a meatpacking plant.” And as OSHA further explained, “[e]ven in
the cases where workers can do most of their work from, for exam-
ple, a private office within a workplace, they share common areas
like hallways, restrooms, lunch rooms and meeting rooms.” 86 Fed.
Reg. at 61,411. Unsurprisingly, OSHA documented “clusters, out-
31
breaks, and other occurrences of workplace COVID-19 cases that
government agencies, researchers, and journalists have described.”
Ibid.; see id. at 61,412-61,415 (citing and describing extensive
empirical studies by state agencies and researchers). 7 Indeed,
one state health department concluded that “[m]ore than three
quarters of outbreaks” in that State as of August 2021 “were as-
sociated with workplaces.” Id. at 61,413. Because “[t]he science
of transmission does not vary by industry or by type of workplace,”
moreover, OSHA determined that transmission would “occur in di-
verse workplaces all across the country.” Id. at 61,411. Sub-
stantial evidence thus supports OSHA’s conclusion that “most em-
ployees who work in the presence of other people (e.g., co-workers,
customers, visitors) need to be protected” by an ETS from the grave
danger of COVID-19 spread. Id. at 61,412.
The Standard protects against that grave danger. It requires
covered employers to adopt a written COVID-19 policy that generally
requires employees who work indoors with others either to be vac-
cinated or to be “regularly tested for COVID-19 and wear a face
covering.” 86 Fed. Reg. at 61,436.
7 Applicants’ challenges to the conclusions of those stud-
ies, e.g., RNC Appl. 25-28, do not undermine the agency’s reliance
on them. “It is not infrequent that the available data do not
settle a regulatory issue, and the agency must then exercise its
judgment in moving from the facts and probabilities on the record
to a policy conclusion.” Motor Vehicles Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983); see FCC v. Prometheus
Radio Project, 141 S. Ct. 1150, 1160 (2021).
32
As to the vaccination option, OSHA determined that vaccina-
tion is “the most effective and efficient workplace control avail-
able.” 86 Fed. Reg. at 61,429. Citing extensive evidence, OSHA
explained that, for two primary reasons, “vaccination is the single
most effective method for protecting workers from the most serious
consequences of a COVID-19 infection: Hospitalization and death.”
Id. at 61,434; see id. at 61,509. First, vaccines reduce the
likelihood of employees’ becoming infected with the virus and
spreading it to other workers. See id. at 61,403, 61,418-61,419,
61,435, 61,438, 61,528-61,529. Second, studies have confirmed the
“power of vaccines to safely protect individuals from infection”
and “serious disease,” including from the Delta variant, even in
the case of breakthrough infections. Id. at 61,431; see id. at
61,417-61,418. Substantial evidence thus supports OSHA’s conclu-
sion that vaccination “reduce[s] the presence and severity of
COVID-19 cases in the workplace” by significantly reducing the
risk that workers will become infected, infect other workers, or
suffer severe health consequences in the event of an infection.
Id. at 61,520.
As to masking and testing, OSHA relied on several scientific
studies in determining that regular testing of unvaccinated work-
ers “is essential because SARS-CoV-2 infection is often attribut-
able to asymptomatic or pre-symptomatic transmission.” 86 Fed.
Reg. at 61,438. OSHA acknowledged, however, that testing alone
33
“will not prevent an unvaccinated worker from exposing others at
the workplace if the worker becomes infected and reports to the
workplace in between their weekly tests.” Id. at 61,438-61,439.
OSHA thus properly determined that additionally requiring unvac-
cinated employees to “wear face coverings in most situations when
they are working near others” is necessary to address the grave
danger, because it can reduce “exposure to the respiratory droplets
of co-workers and others,” and “significantly reduce the wearer’s
ability to spread the virus.” Id. at 61,439. 8
Contrary to applicants’ repeated assertions (e.g., Ohio Appl.
1-37; Phillips Appl. 1-40), the Standard is not a “vaccine man-
date.” OSHA instead exercised its discretion to allow employers
to choose whether to require employees to be vaccinated or to
require unvaccinated employees to mask and test, because employers
are best positioned to determine which approach will “secure em-
ployee cooperation and protection.” Id. at 61,436. OSHA thus
crafted a regulatory approach that protects workers while leaving
8 OSHA’s conclusion that masking and testing of unvac-
cinated employees is essential to reducing the danger of COVID-19
transmission in workplaces is backed not just by the scientific
studies the agency cited, but by common sense and the widespread
practice of businesses, governmental bodies, and other organiza-
tions across the country. E.g., Scott S. Harris, Clerk of the
Court, Dec. 10, 2021 Announcement (explaining that arguing counsel
must “take a PCR COVID test on the morning before argument” and
generally “wear masks that cover the nose and mouth at all times
within the Court building, * * * except when presenting argu-
ment”).
34
leeway for employers to determine the most appropriate option for
their respective workplaces. And employers also may seek variances
if they can demonstrate that the “conditions, practices, means,
methods, operations, or processes” used to prevent the spread of
COVID-19 in their particular workplaces will provide “places of
employment” that “are as safe and healthful” as would exist if the
employers complied with the ETS. 29 U.S.C. 655(b)(6), (d).
Substantial evidence supports OSHA’s conclusion that these
risk-mitigation methods, taken together, are necessary to “reduce
the overall prevalence” of SARS-CoV-2 “at workplaces” and to pro-
tect workers exposed to the virus at work from the most serious
health consequences of a COVID-19 infection. 86 Fed. Reg. at
61,435. The same is true of OSHA’s conclusion that other regula-
tory tools would not “provide for the types of workplace controls
that are necessary to combat the grave danger addressed by” the
Standard. Id. at 61,441. Indeed, OSHA estimates that the Standard
will save thousands of workers’ lives and prevent hundreds of
thousands of hospitalizations over the course of just six months.
Id. at 61,408.
b. Applicants further contend (e.g., Ohio Appl. 21; BST
Appl. 23-24) that the Standard is not “necessary” to address the
grave danger of COVID-19 infection on the theory that it is in-
sufficiently tailored to variations among individual employees or
employers. That contention is incorrect.
35
As a threshold matter, OSHA tailored the ETS by addressing
the particular class of workers most at risk from exposure to
COVID-19 -- namely, unvaccinated employees, whom OSHA found face
a substantially higher risk of contracting and spreading COVID-19
at work and suffering severe health consequences as a result.
Moreover, the Standard does not apply to employees who work ex-
clusively at home, alone, or outdoors (with de minimis use of
shared indoor spaces). E.g., 86 Fed. Reg. at 61,419-61,420,
61,515-61,516. Such employees, OSHA explained, “face a much lower
risk of exposure to SARS-CoV-2 at work” or “through a work activ-
ity.” Id. at 61,419. OSHA thus took account of the most important
individualized considerations -- vaccination status and indoor
proximity to other employees -- and exempted employees who face
less risk of COVID-19 exposure in the workplace based on those
considerations. See id. at 61,411-61,412.
At the same time, OSHA observed that public-health experts
have opined that “fifteen minutes” of exposure is more than suf-
ficient for transmission. 86 Fed. Reg. at 61,409 (citing CDC
guidance on “close contacts”). And OSHA incorporated by reference
(id. at 61,410 & n.7) its earlier discussion of a study showing
that “[i]nfections have been observed with as little as five
minutes of exposure in an enclosed room,” 86 Fed. Reg. at 32,393.
As OSHA explained, “the characteristics of the various affected
workplaces -- such as indoor work settings; contacts with co-
36
workers, clients, or members of the public; and sharing space with
others for prolonged periods of time -- indicate that exposures to
SARS-CoV-2 are occurring in a wide variety of work settings across
all industries.” 86 Fed. Reg. at 61,412. And “the severity of
COVID-19 does not depend on where an employee is infected; an
employee exposed to SARS-CoV-2 might die whether exposed while
working at a meat packing facility, a retail establishment, or an
office.” Ibid. OSHA thus reasonably determined that unvaccinated
employees who do not work at home, alone, or outdoors face a grave
danger of workplace transmission regardless of the particulars of
the workplace.
Applicants cite no statutory text or other authority for the
proposition that OSHA standards must operate on a more granular
employer-by-employer or employee-by-employee basis. The Act di-
rects OSHA to issue an ETS if OSHA “determines” that “employees
are exposed to grave danger” and the standard “is necessary to
protect employees from such danger.” 29 U.S.C. 655(c)(1). The
Act does not require OSHA to determine that each and every employee
is exposed to grave danger or is exposed to the same degree or
severity of harm. Nor does it require OSHA to determine that the
Standard is finely calibrated to impose the minimum requirements
necessary to protect each and every employee from such danger --
especially given that employees of different susceptibilities are
inevitably intermingled. No rule could operate that way. Work-
37
places can have people of varied ages and other risk factors that
are correlated with severe COVID-19 cases. Moreover, the general
range of consequences of contracting COVID-19 could be experienced
by any employee in the workplace, even if the risk of particular
consequences may vary. That feature of the common threat justifies
an approach that encompasses all unvaccinated employees who work
indoors with others.
Similarly, workplaces can have a nearly infinite number of
layouts, ventilation systems, traffic patterns, and typical em-
ployee habits. OSHA would be paralyzed if it were “required to
proceed workplace by workplace,” American Dental Ass’n v. Martin,
984 F.2d 823, 827 (7th Cir.), cert. denied, 510 U.S. 859 (1993),
with definitive proof that COVID-19 is present in “every workplace”
and “every industry” to the same degree. App. 170. Such a re-
quirement -- which finds no basis in the statutory text -- would
be particularly anomalous in the context of an emergency temporary
standard, the whole point of which is to allow the agency to act
swiftly. See 29 U.S.C. 655(c); cf. 29 U.S.C. 655(d) (authorizing
employer-specific variances based on the particular conditions of
particular workplaces).
Applicants’ arguments to the contrary are unavailing. For
example, some applicants suggest that the Standard is unnecessary
with respect to employees who were previously infected with COVID-
19 on the theory that they are “naturally immune.” E.g., Phillips
38
Appl. 33-34. But OSHA described studies showing that “[a] con-
siderable number of individuals who were previously infected with
SARS-CoV-2 do not appear to have acquired effective immunity to
the virus.” 86 Fed. Reg. at 61,421; see id. at 61,421-61,424.
OSHA acknowledged “some evidence that infection-acquired immunity
has the potential to provide a significant level of protection”
(though less protection than for those who are vaccinated), id. at
61,422, but explained that “it is difficult to tell, on an indi-
vidual level, which individuals” have attained that level of pro-
tection, id. at 61,421; see id. at 61,423 (existing “tools cannot
determine what degree of protection [that] particular individual
has”). OSHA further explained that those studies suffered from
“selection bias” by generally ignoring “people who had mild COVID-
19 infections,” which are known to confer far less immunity. Id.
at 61,422. And the studies had no “established thresholds to
determine full protection from reinfection or even a standardized
methodology to determine infection severity or immune response.”
Id. at 61,422. OSHA was entitled to “exercise its judgment” as to
which set of competing studies to credit, State Farm, 463 U.S. at
52, including by “risking error on the side of overprotection
rather than underprotection,” Industrial Union Dep’t, 448 U.S. at
656 (plurality opinion).
Applicants also incorrectly suggest (e.g., BST Appl. 23) that
the Standard is not necessary for younger employees, who face a
39
lower risk of serious illness or death as compared to older em-
ployees. But OSHA analyzed danger to employees of all ages. See,
e.g., 86 Fed. Reg. at 61,410, 61,424. OSHA cited evidence that
unvaccinated adults under 50 face a much higher risk of death or
hospitalization than vaccinated adults of the same age, particu-
larly in light of the Delta variant. See, id. at 61,418 (“For
unvaccinated 18 to 49 year olds, the risk of hospitalization was
15.2 times greater, and the risk of death was 17.2 times greater,
than the risks for vaccinated people in the same age range.”).
And OSHA incorporated by reference (id. at 61,410 & n.9) its ear-
lier discussion of the hospitalization rate in “people between the
ages of 18 and 49,” 86 Fed. Reg. at 32,384, and the incidence of
COVID-19’s causing strokes, “even in young people,” id. at 32,385.
Employees of all ages also have various comorbidities and other
risk factors for severe COVID-19 infections. See, e.g., 86 Fed.
Reg. at 61,410.
Applicants cherry-pick CDC data to emphasize that the death
rate from COVID-19 for unvaccinated people between 18 and 29 years
old is “roughly equivalent” to the death rate for vaccinated people
between 50 and 64. E.g., Ohio Appl. 16 (citing App. 275 (Larsen,
J., dissenting), in turn citing CDC data). But the same data
establish that (1) the death rate for unvaccinated people in the
next age bracket (30 to 49 years old) is six times that of vac-
cinated people between 50 and 64; and (2) the death rate of un-
40
vaccinated 18-to-29-year-olds is seventeen times that of vac-
cinated 18-to-29-year-olds. CDC, COVID Data Tracker, go.usa.gov/
xt3kf (for the week ending Oct. 30, 2021, death rate per 100,000
by age group was 0.17 for unvaccinated 18-29, 1.20 for unvaccinated
30-49, 0.01 for vaccinated 18-29, and 0.20 for vaccinated 50-64).
CDC data also establish that the COVID-19-associated hospitaliza-
tion rate for younger unvaccinated people is seven times that of
older vaccinated people. See CDC, COVID Data Tracker, go.usa.gov/
xt3km (for the week ending Nov. 27, 2021, hospitalization rate per
100,000 by age group was 23.4 for unvaccinated 18-49, and only 3.5
for vaccinated 50-64). Applicants provide no basis for the Court
to second-guess OSHA’s judgment that the Standard is necessary to
protect against a grave danger to younger unvaccinated employees.
Moreover, even if, holding all other risk factors constant,
a “‘28-year-old’” may be “less vulnerable” to severe illness than
a “‘62-year-old,’” Bentkey Appl. 11 (citation omitted), that over-
looks how the Standard operates. OSHA adopted the Standard in
significant part to prevent employees from transmitting the virus
to other employees -- a risk presented by younger and older trans-
mitters alike. See, e.g., 86 Fed. Reg. at 61,403, 61,418-61,419,
61,435, 61,438; see also, e.g., id. at 61,418 (discussing trans-
mission studies, including one of populations with mean ages of 31
and 44, and another of two populations with median ages of 38);
id. at 61,412-61,414 (discussing outbreaks in schools, colleges,
41
restaurants, nightclubs, fitness centers, and other settings with
younger and mixed-age populations). Because “unvaccinated workers
are much more likely to contract and transmit COVID-19 in the
workplace than vaccinated workers” -- no matter their age -- OSHA
reasonably included younger unvaccinated workers as covered em-
ployees. Id. at 61,403.
Applicants suggest that some industries and workplaces face
lower risks, and the Standard thus should not apply to them. E.g.,
Ohio Appl. 21. But as OSHA explained, other than employees who
work at home, alone, or outdoors, “employees can be exposed to the
virus in almost any work setting.” 86 Fed. Reg. at 61,411. OSHA
analyzed peer-reviewed studies and data collected by health de-
partments and found that “exposures to SARS-CoV-2 happen regularly
in a wide variety of different types of workplaces.” Id. at
61,411. Those “studies and reports” documented COVID-19 outbreaks
in “service industries (e.g., restaurants, grocery and other re-
tail stores, fitness centers, hospitality, casinos, salons), cor-
rections, warehousing, childcare, schools, offices, homeless shel-
ters, transportation, mail/shipping/delivery services, cleaning
services, emergency services/response, waste management, construc-
tion, agriculture, food packaging/processing, and healthcare.”
Id. at 61,412. One state health department reported “5,247 out-
breaks in approximately 40 different types of non-healthcare work
settings.” Ibid.; see id. at 61,413 (similar). And OSHA reviewed
42
studies analyzing “how mortality rates among individuals in vari-
ous types of workplaces had changed during the pandemic,” which
concluded that although some industries showed higher spikes than
others, significant transmission was seen in a great many types of
workplaces. Id. at 61,415. The authors of one study concluded
that, among other occupational groups, those with “jobs that are
not practical to do from home had particularly elevated mortality
rates.” Ibid. Given the extensive empirical data showing that
SARS-CoV-2 does not discriminate among types of workplaces, OSHA
had ample justification for the Standard’s scope.
c. Applicants contend that “necessary” in this context
means “needed for some purpose or reason; essential,” but that the
Standard “nowhere says that it is essential or indispensable to
(rather than useful for) arresting a workplace danger.” Ohio Appl.
20 (citation omitted). That contention is incorrect. OSHA de-
scribed in detail why it had “determined that an ETS is necessary
to protect unvaccinated workers from the risk of contracting COVID-
19 at work,” 86 Fed. Reg. at 61,403; indeed, multiple sections of
the preamble describe at length the “Need for the ETS,” id. at
61,429-61,433; why the “ETS Is Necessary To Protect Unvaccinated
Employees From Grave Danger,” id. at 61,433-61,440, and why “No
Other Agency Action is Adequate to Protect Employees Against Grave
Danger,” id. at 61,440-61,446.
More specifically, OSHA explained the predicate for immediate
43
action: “[A]t the present time, workers are becoming sick and
dying unnecessarily as a result of occupational exposures” to SARS-
CoV-2. 86 Fed. Reg. at 61,432. And OSHA described why the Stand-
ard’s provisions were necessary to protect unvaccinated workers
from that risk. The “ETS focuses on encouraging vaccination,”
OSHA explained, “because it is the most efficient and effective
method for addressing the grave danger.” Id. at 61,434. OSHA
emphasized that “encouraging vaccination is necessary to reduce
the overall prevalence of the SARS-CoV-2 virus at workplaces” and
“necessary to reduce the likelihood that workers who are infected
by SARS-CoV-2 will suffer the worst outcomes of an infection (hos-
pitalization and death).” Id. at 61,435. OSHA also explained why
masking and testing requirements are essential if workers remain
unvaccinated. OSHA expressly found that “[r]egularly testing un-
vaccinated workers is essential because SARS-CoV-2 infection is
often attributable to asymptomatic or pre-symptomatic transmis-
sion.” 86 Fed. Reg. at 61,438. OSHA explained that masking, too,
is “essential” because “[t]he best available experimental and ep-
idemiological data support consistent use of face coverings by
unvaccinated workers in work settings to reduce the spread of
COVID-19.” Id. at 61,539. Contrary to applicants’ assertion (Ohio
Appl. 20), therefore, OSHA explained why it had determined that
requiring employees either to be vaccinated or to mask and test is
necessary to address the grave danger of COVID-19 exposure in the
44
workplace. 9
More generally, as the court of appeals explained (App. 252),
interpreting “necessary” in an overly strict way as applicants
seek to do would be inconsistent with Congress’s grant of emergency
temporary authority, because “in virtually every emergency situa-
tion that would require an ETS, no precaution proposed by OSHA
could ever be 100 percent effective at quelling the emergency.”
App. 252. Accordingly, the “critical question [i]s whether OSHA’s
current regulations [a]re sufficient to address” the immediate
grave danger. Ibid. Here, OSHA determined that they are not, and
that the agency had “nothing left at [its] disposal to curb” that
danger. Ibid. As the court observed, those findings amply support
OSHA’s determination that the Standard is thus “necessary.” Ibid.
4. Applicants’ non-textual arguments lack merit
Applicants assert that OSHA cannot address workplace dangers
posed by an airborne virus that exists both inside and outside the
workplace, and, relatedly, that an ETS may not encompass vaccina-
tion at all. Those assertions lack any basis in the statutory
text, which does not contain such exceptions to OSHA’s authority.
9 For that reason, any suggestion (e.g., Ohio Appl. 20)
that the Standard cannot be upheld under SEC v. Chenery Corp., 318
U.S. 80 (1943), lacks merit. Chenery requires only that an
agency’s exercise of discretion not be upheld on a ground on which
the agency did not rely; it does not require the agency to recite
particular dictionary definitions of statutory terms or write a
legal brief that anticipatorily rebuts every argument a potential
plaintiff might make.
45
a. Applicants assert (e.g., Ohio Appl. 8-14; BST Appl. 15-
21) that regardless of whether COVID-19 poses a grave danger to
employees, OSHA is powerless to address it in an ETS because COVID-
19 is not uniquely a workplace danger or, at a minimum, is not
“more likely to occur [in the workplace] than in other places.”
BST Appl. 19. That asserted limitation on OSHA’s authority lacks
merit. Everybody agrees that any standard issued by OSHA -- in-
cluding an ETS -- must address “work-related dangers.” Ohio Appl.
9; see 29 U.S.C. 652(8) (authorizing OSHA to establish standards
governing “employment and places of employment”). But the Act’s
text does not carve out exceptions to OSHA’s responsibility to
protect employees from workplace dangers just because the employ-
ees also might face similar dangers elsewhere.
To the contrary, the text requires that employees face a grave
danger from (among other things) exposure to a physically harmful
agent or from a new hazard in the workplace, 29 U.S.C. 655(c)(1)
-- without any exception for cases in which the physically harmful
agent or new hazard also exists outside the workplace. As exem-
plified by famous outbreaks of tuberculosis and smallpox in fac-
tories, workplace dangers have long been understood to include the
dangers of contracting communicable diseases as a result of being
in close proximity to other employees -- even if individuals can
also be exposed to those diseases outside of work. See, e.g.,
Danovaro-Holliday et al., A Large Rubella Outbreak With Spread
46
From the Workplace to the Community, 284 JAMA 2733, 2739 (Dec. 6,
2000) (documenting rubella spread in meatpacking plants). And
Congress itself specifically understood COVID-19 to present the
kind of workplace danger that OSHA may address under its existing
regulatory authorities when it directed OSHA in the Rescue Plan to
use appropriated funds “to carry out COVID-19 related worker pro-
tection activities.” § 2101(a), 135 Stat. 30.
Other OSH Act provisions further demonstrate that OSHA may
permissibly regulate workplace hazards even if those hazards also
exist in non-work settings. OSHA may promulgate standards for
both “employment and places of employment.” 29 U.S.C. 652(8)
(emphasis added). When drafting the OSH Act, Congress was focused
on ensuring that employees can work in a safe and healthy “envi-
ronment.” H.R. Rep. No. 1291, 91st Cong., 2d Sess. 14 (1970).
And Congress recognized that environment includes “the air we
breath[e] at work,” where “over 80 million workers spend one-third
of their day.” Ibid.
In line with the plain text of the OSH Act, OSHA has regularly
issued standards that address workplace hazards that can also pose
a threat outside of work. OSHA has required precautions for
bloodborne pathogens, which can be contracted outside the work-
place. And OSHA has long imposed workplace rules regarding things
like fire and electrical safety, even though such concerns are not
unique to the workplace. 86 Fed. Reg. at 61,407-61,408; see, e.g.,
47
29 C.F.R. 1910.141, 1926.51 (general sanitation rules); 29 C.F.R.
1910.155-1910.165 (general fire prevention); 29 C.F.R. 1910.33-
1910.37 (exit routes); 29 C.F.R. 1910.302-1910.305 (electrical
safety). Applicants’ position would arbitrarily prohibit OSHA
from issuing an ETS to address physically harmful agents or new
hazards simply because they also exist in larger society, even
where, as here, the agents or hazards spread -- and create grave
danger -- inside the workplace and can be distinctly addressed
there.
In any event, COVID-19 is a particularly acute workplace dan-
ger. As OSHA explained at length, extensive empirical data show
that COVID-19 is transmitted in the workplace, making it a danger
to which employees are exposed at work. See 86 Fed. Reg. at 61,511
(noting “the unique occupational safety and health dangers pre-
sented by COVID-19”). The nature of workplaces is that employees
come together in one place for extended periods and interact, thus
risking workplace transmission of a highly contagious virus that
easily spreads through that kind of exposure. Id. at 61,411-
61,417. While at work, “workers may have little ability to limit
contact with,” and possible exposure to SARS-CoV-2 from, “cowork-
ers, clients, members of the public, patients, and others.” Id.
at 61,408. And OSHA in fact identified many workplace “clusters”
and “outbreaks” of COVID-19, and analyzed significant “evidence of
workplace transmission” of the virus. Id. at 61,411. The Stand-
48
ard, in turn, addresses that danger solely insofar as it arises in
the workplace: it applies only to employers, and exempts employees
who work at home, alone, or outdoors. Applicants thus attack a
strawman in suggesting that the court of appeals’ decision would
permit OSHA to regulate “vandalism” or “obesity.” Ohio Appl. 9,
12 (citations omitted).
The State applicants likewise err in seeking to limit OSHA’s
authority by suggesting (Ohio Appl. 11) that the statute covers
only dangers that are “occupational in nature.” In the first
place, “occupational” simply means related to a person’s occupa-
tion -- his or her employment or work -- and a danger to an
employee’s health or safety at the workplace is an occupational
risk. OSHA has long regulated things like toilets and water, 29
C.F.R. 1910.141, precisely because a lack of functioning toilets
or potable water in the workplace poses an “occupational” health
or safety danger, even though toilets and water are not “occupa-
tional” in other contexts.
To the extent the State applicants rely on the word “occupa-
tional” to argue that the OSH Act implicitly excludes some unde-
fined category of health and safety hazards that arise at the
workplace, the Act’s text does not include any qualifier of the
sort that the States posit. Applicants purport to derive it from
“[c]ontext,” Ohio Appl. 10, or “structure,” Phillips Appl. 22, but
this Court has long found it improper to “rewrite [a] statute so
49
that it covers only what [courts] think is necessary to achieve
what [they] think Congress really intended,” Lewis v. City of
Chicago, 560 U.S. 205, 215 (2010). And even if “the principal
evil Congress was concerned with,” Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 79 (1998), involved grave dangers in
the workplace that are “occupational” in some undefined sense that
does not turn on exposure to the danger at work, this Court has
recognized that statutes “often go beyond the principal evil to
cover reasonably comparable evils, and it is ultimately the pro-
visions of our laws” that govern, ibid. Those principles are
particularly applicable here, where OSHA’s ETS authority exists to
address new or evolving dangers, and “the presumed point of using
general words is to produce general coverage -- not to leave room
for courts to recognize ad hoc exceptions,” Reading Law 101. 10
b. Relatedly, applicants contend (e.g., Associated Builders
Appl. 10-13, 16-17) that “the OSH Act does not grant authority to
OSHA to require vaccination.” Id. at 10 (capitalization and for-
matting altered). That contention is incorrect for several rea-
sons. First, it appears to rely on the mistaken characterization
of the Standard as a “vaccine mandate”; as explained above, the
10 Applicants cite several OSHA regulations that are sup-
posedly “work-anchored,” Ohio Appl. 11 (citation omitted); see
Phillips Appl. 23, but none of those regulations is inconsistent
with OSHA’s authority to regulate grave dangers in the workplace
that arise from viruses transmitted in the workplace.
50
Standard gives employers the choice to either (1) require that all
employees vaccinate (except those entitled to an exemption or ac-
commodation under federal law); or (2) require that unvaccinated
employees mask and test. Applicants identify no textual limitation
in the OSH Act that would prevent OSHA from “encourag[ing] vac-
cination,” which “is the most efficient and effective control for
protecting unvaccinated workers from the grave danger posed by
COVID-19.” 86 Fed. Reg. at 61,532
Second, applicants’ argument overlooks a separate provision
of the OSH Act that specifically contemplates that vaccination may
be required under the Act. Section 669(a)(5), which authorizes
the Secretary of Health and Human Services to develop information
regarding physically harmful agents to support OSHA’s regulatory
responsibilities, includes a religious exemption that states
“[n]othing in this or any other provision of [the OSH Act] shall
be deemed to authorize or require medical examination, immuniza-
tion, 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.” 29 U.S.C. 669(a)(5) (emphasis added).
By establishing a religious exemption from immunization require-
ments imposed under the OSH Act, Congress expressly recognized
that enforcement of the OSH Act might require vaccination under
certain circumstances. Applicants’ observation (Associated Build-
ers Appl. 11) that the immunization clause is phrased as “a limi-
51
tation on [OSHA’s] authority” misses the point: there would have
been no need for Congress to have specified that immunization is
not authorized “for those who object thereto on religious grounds,”
29 U.S.C. 669(a)(5), if (as applicants claim) immunization is not
authorized at all. And even worse than that superfluity, if ap-
plicants were correct, the statutory exception to the exemption --
authorizing immunization “where such is necessary for the protec-
tion of the health or safety of others,” ibid. -- would be rendered
a nullity.
Third, applicants’ contention overlooks that Congress previ-
ously endorsed OSHA’s measures to encourage vaccination in the
standard governing exposure to bloodborne pathogens. OSHA sought
comment on a proposed standard to reduce employee exposure to,
among other things, the Hepatitis B virus, including a requirement
that vaccination be made available to exposed workers. See 54
Fed. Reg. 23,042, 23,134-23,135 (May 30, 1989). Congress subse-
quently directed that, if the agency did not promulgate a final
standard by a date certain, “the proposed standard on occupational
exposure to bloodborne pathogens as published in the Federal Reg-
ister on May 30, 1989 (54 FR 23042) [would] become effective as if
such proposed standard had been promulgated as a final standard by
the Secretary of Labor.” Department of Labor Appropriations Act,
1992, Pub. L. No. 102-170, Tit. I, § 100(b), 105 Stat. 1113. And
Congress stated in the text of that statutory directive that OSHA
52
would be “acting under the Occupational Safety and Health Act of
1970.” § 100(a), 105 Stat. 1113. That legislative action illus-
trates Congress’s understanding that OSHA has authority to issue
standards addressing workplace exposure to viruses and potential
mitigation by vaccination. See 86 Fed. Reg. at 61,407; see also
App. 238 (describing subsequent congressional action related to
OSHA’s regulation of bloodborne pathogens); Branch v. Smith, 538
U.S. 254, 281 (2003) (opinion of Scalia, J.) (statutes must be
understood “in the context of the corpus juris of which they are
a part”).
Against all that, applicants suggest that vaccination is ma-
terially different from other types of mitigation measures OSHA
can employ to address workplace hazards. But vaccination cannot
be distinguished from other workplace controls on the theory that
OSHA lacks authority to “protect the unvaccinated from their own
choices.” App. 282 (Larsen, J., dissenting). OSHA standards
routinely require the use of protective controls even if employees
would prefer not to be subject to particular health or safety
measures. Nor is vaccination an unusual means of protecting
against virus transmission. “[V]accination requirements, like
other public-health measures, have been common in this nation” to
address the hazards of infectious disease -- including in the
workplace. Klaassen v. Trustees of Indiana Univ., 7 F.4th 592,
593 (7th Cir. 2021) (Easterbrook, J.) (holding that a state uni-
53
versity vaccination requirement was among the “normal and proper”
conditions of enrollment), stay denied, No. 21A15 (Aug. 12, 2021).
This Court upheld the constitutional validity of such requirements
and traced their historical roots more than a century ago. See
Jacobson v. Massachusetts, 197 U.S. 11, 25-35 (1905) (identifying
vaccine requirements in the United States and other Western coun-
tries in the early 1800s). Consistent with that history, many
States have established requirements for certain categories of
workers to be vaccinated against COVID-19. See 86 Fed. Reg. at
61,435, 61,438. And many private employers have instituted vaccine
mandates for their workforces to protect against workplace trans-
mission of COVID-19 before OSHA issued the ETS. See Determination
of the Acting OMB Director, 86 Fed. Reg. 63,418, 63,422 (Nov. 16,
2021) (observing that 99.7% of United Airlines’ workforce complied
with a vaccination requirement). No sound basis exists to conclude
that the OSH Act disables OSHA from encouraging vaccination -- a
traditional, common, and highly effective mechanism -- to address
the grave risk of exposure to SARS-CoV-2 in the workplace. Cf. 29
U.S.C. 652(8) (authorizing an OSHA standard to include the “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).
c. The State applicants contend (e.g., Ohio Appl. 23-25)
that the ETS should be enjoined on the theory that it “is not a
54
‘temporary’ response to an ‘emergency.’” Id. at 23. That con-
tention is unsound. Congress described an ETS as an “emergency”
standard to enable OSHA to determine that the need for a particular
standard is sufficiently pressing that it should “take immediate
effect upon publication in the Federal Register,” 29 U.S.C.
655(c)(1) -- not to impose a freestanding statutory requirement
that the agency find the existence of an “emergency” in some fur-
ther or broader sense. In any event, OSHA explained at length (86
Fed. Reg. at 61,409-61,412, 61,431, 61,444) that the recent con-
fluence of several factors -- including the widespread return to
workplaces, the rapid spread of the Delta variant, and rising COVID
fatigue -- demanded an urgent response now. See id. at 61,434
(referring to the “extraordinary and exigent circumstances” ne-
cessitating the ETS at this moment).
As for the State applicants’ suggestion that the Standard is
not “temporary” because “[t]hose who vaccinate will be vaccinated
for good,” Ohio Appl. 24, that mistakes the temporal duration of
the Standard -- which “shall be effective until superseded by a
standard promulgated” after notice-and-comment rulemaking within
six months, 29 U.S.C. 655(c)(2) -- with that of a vaccination.
Moreover, nothing in the OSH Act disables the agency from employing
the most effective control measure to protect workers from a grave
danger in the workplace simply because it also happens to provide
protection when the worker leaves. And in any event, the Standard
55
does not require vaccination, but instead permits employers to opt
for a policy under which employees could choose to mask-and-test,
which is unquestionably temporary even under applicants’ misguided
view. Cf. App. 189 (Sutton, J., dissenting from denial of initial
hearing en banc) (acknowledging that masking is temporary).
B. The Assertion That This Case Involves A “Major Question”
Does Not Justify Departing From The Ordinary Meaning Of
The Statutory Text
Applicants contend (e.g., NFIB Appl. 16-25; Ohio Appl. 25-
27) that even if the Standard is a lawful exercise of OSHA’s
statutory authority under the ordinary and straightforward meaning
of the Act’s text, its enforcement should be enjoined because
Congress did not include a “clear statement” that OSHA could prom-
ulgate a Standard addressing a matter “of vast economic and po-
litical significance,” Ohio Appl. 26 (citation omitted), that ap-
plies to “84 million Americans,” “in every industry, representing
almost 2/3 of all workers,” Job Creators Appl. 13. That contention
lacks merit.
1. As an initial matter, Congress did speak clearly by au-
thorizing OSHA to issue an emergency temporary standard whenever
it makes the requisite determinations -- here, that SARS-CoV-2 is
a physically harmful agent, exposure to it in the workplace pre-
sents a grave danger to employees, and the Standard is necessary
to protect employees from that danger. See 29 U.S.C. 655(c)(1).
“Congress could have limited [OSHA’s] discretion in any number of
56
ways, but it chose not to do so.” Little Sisters of the Poor
Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2380
(2020). To the contrary, as specifically relevant here, Congress
expressly contemplated that OSHA’s exercise of that broad author-
ity could include requiring “immunization.” 29 U.S.C. 669(a)(5).
Courts may not “impos[e] limits on an agency’s discretion that are
not supported by the text,” Little Sisters, 140 S. Ct. at 2381 --
much less a limit that affirmatively contradicts the statute Con-
gress enacted.
Congress has also specifically confirmed through subsequent
legislation that OSHA has both the authority and the duty to prom-
ulgate standards addressing COVID-19. Earlier this year, Congress
appropriated $100 million to OSHA “to carry out COVID-19 related
worker protection activities,” including “not less than” $5 mil-
lion “for enforcement activities related to COVID-19 at high risk
workplaces.” Rescue Plan, § 2101(b)(1), 135 Stat. 30. OSHA may
undertake “enforcement activities” only if an employer violates
either a standard, 29 U.S.C. 655, or the Act’s general-duty clause,
which requires employers to ensure that their workplaces are “free
from recognized hazards that are causing or are likely to cause
death or serious physical harm,” 29 U.S.C. 654(a)(1). That ap-
propriation thus makes clear Congress’s understanding that ad-
dressing the spread of COVID-19 in workplaces is within OSHA’s
pre-existing statutory authority, even if mitigation measures --
57
whether vaccination, testing, or masking -- carry economic and
political significance.
Nor did Congress limit OSHA’s authority to issue standards
based on the number of workplaces or employees covered, or the
cost of compliance. To the contrary, OSHA is authorized “to set
mandatory occupational safety and health standards applicable to
all businesses affecting interstate commerce.” Gade v. National
Solid Wastes Management Ass’n, 505 U.S. 88, 96 (1992) (plurality
opinion) (emphasis added). Congress specified that the authority
granted to OSHA was intended to “assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions.” 29 U.S.C. 651(b) (emphasis added). In line with
that authority, OSHA standards routinely apply throughout the Na-
tion in all workplaces subject to the Act, such as standards for
toilets and potable water. 29 C.F.R. 1910.141. In short, Congress
gave OSHA the tools to address workplace risks to safety and health
wherever they may arise in such workplaces -- with no indication
that OSHA is specially precluded from addressing the most wide-
spread work hazards because of their prevalence.
In addition, “Congress understood that the Act would create
substantial costs for employers, yet intended to impose such costs
when necessary to create a safe and healthful working environment.”
American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 519-
520 (1981). That a federal regulation would have nationwide effect
58
and require compliance costs is unremarkable; it certainly would
not justify departing from the ordinary meaning of a statute oth-
erwise authorizing such a regulation. Congress expressly passed
the OSH Act based on its finding “that personal injuries and ill-
nesses arising out of work situations impose a substantial burden
upon, and are a hindrance to, interstate commerce.” 29 U.S.C.
651(a). If accepted, applicants’ position would lead to the per-
verse result that the greater the incidence of injuries and ill-
nesses from a hazard -- and the greater the resulting burden upon
interstate commerce -- the less authority OSHA has to address it.
2. Applicants’ reliance on Alabama Association of Realtors
v. Department of Health & Human Services, 141 S. Ct. 2485 (2021)
(per curiam), is misplaced. There, the Court stated that an evic-
tion moratorium imposed by the CDC likely exceeded the agency’s
authority to “prevent the [interstate] introduction, transmission,
or spread of communicable diseases,” 42 U.S.C. 264(a). Reading
that language in context, the Court held that its scope was in-
formed by the next sentence “illustrating the kinds of measures
that could be necessary,” such as “fumigation” or “pest extermi-
nation.” Alabama Ass’n, 141 S. Ct. at 2488. Those measures
“directly relate to preventing the interstate spread of disease,”
whereas the eviction moratorium “relate[d] to interstate infec-
tion” only “indirectly,” through the “downstream connection be-
tween eviction” and possible spread of COVID-19 by evicted indi-
59
viduals who choose to move “from one State to another.” Ibid.
Here, in contrast, no analogous statutory language suggests that
the Standard is incompatible with the nature of the regulatory
authority that Congress granted the agency. And even more to the
point, the connection between the Standard and employee health and
safety is clear and direct: employers must adopt a policy that
will substantially reduce the risk of SARS-CoV-2 transmission in
their workplaces, thereby minimizing the risk that employees will
contract a potentially deadly disease at work.
More broadly, applicants have fundamentally misunderstood
what they call the “major questions doctrine,” which they attempt
to ground in Utility Air Regulatory Group v. EPA, 573 U.S. 302
(2014), and FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120
(2000). In those cases, as in Alabama Association, the Court
declined to interpret ambiguous statutes to grant agencies the
sweeping powers that they had asserted, observing that the Court
expects Congress to “speak clearly if it wishes to assign to an
agency decisions of vast ‘economic and political significance.’”
Utility Air, 573 U.S. at 324 (quoting Brown & Williamson, 529 U.S.
at 160).
Critically, in each case, the Court began with the statutory
text and made clear that considerations of “‘economic and political
significance’” are relevant only “if the text [is] ambiguous.”
Alabama Ass’n, 141 S. Ct. at 2489. In both Utility Air and Brown
60
& Williamson, for example, this Court reasoned that adopting the
agency’s position would have conflicted with other provisions of
the very statute that the agency was interpreting. See Utility
Air, 573 U.S. at 321 (explaining that the agency’s position was
“inconsistent with -- in fact, would overthrow -- the Act’s struc-
ture and design”); Brown & Williamson, 529 U.S. at 141, 156 (ex-
plaining that the agency’s interpretation was “incompatible with”
other aspects of the statute). In no case, however, has the Court
suggested that courts should disregard the statute’s plain text
simply because it authorizes agency actions that might have vast
economic or political significance. As explained above, the Stand-
ard here fits comfortably within the OSH Act’s plain text setting
forth the requirements for emergency temporary standards. See 29
U.S.C. 655(c)(1). That is all that is required.
Nor has OSHA “claim[ed] to discover in a long-extant statute
an unheralded power to regulate ‘a significant portion of the
American economy.’” Utility Air, 573 U.S. at 324 (citation omit-
ted). This Court has long recognized that Congress granted OSHA
the power to regulate workplaces on a nationwide basis, as hazards
emerge and evolve over time, including in ways that impose sub-
stantial costs. American Textile, 452 U.S. at 519-520; see Gade,
505 U.S. at 96 (plurality opinion). OSHA’s power to issue a
Standard that covers a substantial fraction of the American work-
force is thus neither recently “discover[ed]” nor “unheralded.”
61
Utility Air, 573 U.S. at 324. And even if the ETS were “a novel
use of [OSHA’s] emergency authority,” NFIB Appl. 18; see, e.g.,
Ohio Appl. 26, that would not foreclose OSHA from acting. As this
Court has long recognized, that a federal “power ha[s] ‘not here-
tofore been exercised’” is irrelevant “because ‘the non-use[] of
a power does not disprove its existence.’” PennEast Pipeline Co.
v. New Jersey, 141 S. Ct. 2244, 2261 (2021) (quoting Kohl v. United
States, 91 U.S. (1 Otto) 367, 373 (1876)). That principle carries
particular force here, where OSHA was confronted with the deadliest
pandemic in the Nation’s (and the agency’s) history and had to
take action to address a grave danger to worker health and safety
of unprecedented scope. See App. 241 (“The ETS is not a novel
expansion of OSHA’s power; it is an existing application of au-
thority to a novel and dangerous worldwide pandemic.”).
Finally, applicants seriously err in attempting to cabin
OSHA’s statutory authority based on the current political salience
of COVID-19 and debates about how best to respond to the pandemic.
E.g., NFIB Appl. 22; RNC Appl. 33-34. This Court has never sug-
gested that the emergence of political controversy about a par-
ticular agency action triggers a clear-statement requirement. Cf.
Little Sisters, 140 S. Ct. at 2380 (analyzing whether HHS’s con-
traceptive-mandate rule -- which generated considerable political
controversy -- complied with the statutory text without any height-
ened-clarity requirement). The meaning of a statute does not
62
change with the shifting winds of politics or public opinion, and
opponents of an agency’s policy cannot succeed in limiting the
agency’s authority merely by vocally opposing it. See App. 240
(“To suggest otherwise would mean that Congress had to have an-
ticipated both the unprecedented COVID-19 pandemic and the unprec-
edented politicization of the disease to regulate vaccination
against it.”) (citation omitted).
C. Applicants’ Arguments Under The APA Lack Merit
Applicants advance an assortment of arguments under the APA.
None is likely to succeed.
1. Some applicants contend (e.g., Bentkey Appl. 14) that
the court of appeals applied an “[u]nduly [d]eferential” standard
of review. But the court expressly invoked and applied the “sub-
stantial evidence” standard set forth in 29 U.S.C. 655(f), see
App. 244; determined that the ETS here satisfied the “harder look”
that applicants endorse, App. 244 (citation omitted); and upheld
the Standard because of OSHA’s “clear reliance on ‘a body of rep-
utable scientific thought,’” Bentkey Appl. 16 (citation omitted).
That more than suffices under the APA. 11
11 Some applicants suggest (e.g., NFIB Appl. 13-15) that
the Standard violates the APA’s notice-and-comment provisions.
But the OSH Act expressly requires an ETS “to take immediate ef-
fect” “without regard to the requirements of [the APA].” 29 U.S.C.
655(c)(1). Accordingly, as long as the statutory criteria have
been satisfied -- as they have here, see pp. 17-55, supra -- an
ETS does not violate any notice-and-comment rulemaking require-
ment.
63
Other applicants assert that the Standard is “arbitrary and
capricious” on the theory that OSHA changed its position regarding
the need for an ETS -- as supposedly evidenced by the lack of an
ETS during the early stages of the pandemic and the June 2021
healthcare ETS -- without offering a reasoned explanation for the
change. E.g., RNC Appl. 30; Associated Builders Appl. 20-22. But
as explained above, OSHA acknowledged its change in approach and
offered a detailed explanation of how circumstances have evolved
over the course of the pandemic, prompting OSHA’s evolving regu-
latory response. 86 Fed. Reg. at 61,429-61,433. Applicants also
err in contending that the Standard is arbitrary and capricious
because it extends only to employers with more than 100 employees.
E.g., RNC Appl. 31-32. For the same reasons that OSHA’s “stepwise”
approach does not undermine a finding of grave danger, see pp. 25-
27, supra, it does not render the Standard arbitrary and capri-
cious.
2. Several applicants suggest that OSHA’s rationale for the
Standard was pretextual. See, e.g., Ohio Appl. 17; RNC Appl. 1.
But judicial review is based on an agency’s contemporaneous ex-
planation in light of the existing administrative record, Vermont
Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435
U.S. 519, 549 (1978), not on cherry-picked public statements out-
side that record such as a White House official’s “retweet” of a
reporter’s tweet, Ohio Appl. 17.
64
Moreover, the President’s discussion of the broader response
to COVID-19 and expression of significant concern about the ongoing
pandemic, including low vaccination rates, see, e.g., Heritage
Appl. 4, Phillips Appl. 7-8, do not in any way undermine the
agency’s action based on the record before it and the statutory
framework. Just the opposite: they reinforce the agency’s con-
clusion that COVID-19 poses a grave danger to unvaccinated employ-
ees who gather with others in workplaces. Being concerned about
COVID-19 generally and urging vaccination to address that danger
is entirely consistent with concluding that COVID-19 poses a grave
danger in the workplace and that vaccines are the most effective
way to address that danger in the workplace. And there is nothing
pretextual about an agency whose mission is to protect the health
and safety of workers taking critical steps to establish a work-
place health standard that requires either vaccination or masking
and testing just because those steps are also consistent with a
broader effort to combat a pandemic that affects individuals out-
side the workplace.
D. Applicants’ Constitutional Challenges Lack Merit
The court of appeals correctly determined that applicants’
constitutional arguments are unlikely to succeed. App. 257-262.
Among other things, applicants’ claims of unconstitutionality are
almost uniformly based on the erroneous premise that OSHA has
imposed a “vaccine mandate.” See, e.g., Ohio Appl. 1-37; Phillips
65
Appl. 1-40. The Standard imposes only a temporary regulation on
employers that may be fully satisfied by the adoption of a mask-
and-test option. Applicants cannot demonstrate that the Standard
violates the Commerce Clause, the Tenth Amendment (or principles
of federalism), or the nondelegation doctrine, and their meritless
constitutional arguments provide no basis “to rewrite” the Act’s
unambiguous grant of authority to address dangers to employees in
the workplace. Salinas v. United States, 522 U.S. 52, 59-60 (1997)
(citation omitted).
1. The Standard does not exceed the federal govern-
ment’s power under the Commerce Clause
The Standard represents a lawful exercise of the federal gov-
ernment’s authority to regulate interstate commerce because it
imposes requirements on employers regarding the maintenance of
safe and healthful working conditions. It is well established
that laws that impose requirements on employers are “within Con-
gress’s reach under the Commerce Clause” because employers are
indisputably “engaged in commercial activity that Congress has the
power to regulate when hiring employees, producing, selling and
buying goods,” and engaging in other similar economic activities.
App. 258. Accordingly, Congress has long regulated employment
conditions, including to ensure the safety of workplaces, and this
Court has long upheld such regulations as within Congress’s com-
merce power. Ibid.
For example, in United States v. Darby, 312 U.S. 100, 123-
66
125 (1941), this Court upheld the Fair Labor Standards Act of 1938,
29 U.S.C. 201, et seq., as a valid exercise of Congress’s commerce
power, Darby, 312 U.S. at 123-125, repudiating earlier precedent
rejecting reliance on the commerce power to regulate child labor,
id. at 115-116. Other cases have likewise upheld Congress’s Com-
merce Clause authority to impose a bar on employment discrimination
under Title VII, 42 U.S.C. 2000e, et seq., see United Steelworkers
of America, AFL-CIO v. Weber, 443 U.S. 193, 206 n.6 (1979), and to
regulate collective bargaining under the National Labor Relations
Act, 29 U.S.C. 151, et seq., see NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 33 (1937). Those precedents reflect the basic
principle that “Congress may legislate under the Commerce Clause
to ensure the safety of commerce” and to prevent the economic
“‘paralysis’” that may arise from disruptions in the labor force.
App. 259 (quoting Jones & Laughlin, 301 U.S. at 41) (brackets
omitted).
The OSH Act and the Standard are fully consistent with that
principle. The Act permits OSHA to issue “standards applicable to
businesses affecting interstate commerce,” 29 U.S.C. 651(b)(3),
652(3) and (5), in order “to assure * * * safe and healthful
working conditions” for the Nation’s workers, 29 U.S.C. 651(b).
The Standard satisfies those statutory criteria and rests on con-
gressional findings that “illnesses arising out of work situations
impose a substantial burden upon, and are a hindrance to, inter-
67
state commerce.” 29 U.S.C. 651(a); see also 86 Fed. Reg. at
61,473-61,474 (discussing cost of absenteeism to employers).
There can be no dispute that COVID-19 has had precisely the “par-
alyzing effect on commerce” that Congress anticipated when it en-
acted the statute. App. 259.
Applicants contend (e.g., Ohio Appl. 27-30) that the Standard
is nonetheless unconstitutional under this Court’s most recent
Commerce Clause precedents in NFIB v. Sebelius, 567 U.S. 519
(2012); United States v. Morrison, 529 U.S. 598 (2000); and United
States v. Lopez, 514 U.S. 549 (1995), and they fault (e.g., BST
Appl. 29) the court of appeals for relying on Darby and similar
“pre-1980 case law” upholding Congress’s authority to regulate
employment conditions. Applicants overlook, however, that all of
those recent precedents have cited Darby with approval. See NFIB,
567 U.S. at 549; Morrison, 529 U.S. at 609; Lopez, 514 U.S. at
555. Moreover, those precedents consistently reiterate Congress’s
authority to “regulate” activities that have “a substantial rela-
tion to interstate commerce.” Morrison, 529 U.S. at 609 (citation
omitted); see Lopez, 514 U.S. at 558. The Standard fits comfort-
ably within those recognized powers because it regulates the em-
ployment relationship and activities of employers and employees
having a substantial effect on interstate commerce and because it
protects the employees engaged in economic activity from contract-
ing the potentially deadly virus at work.
68
Applicants contend that the Standard is nevertheless uncon-
stitutional under NFIB because –- in their view –- NFIB stands for
the proposition that Congress lacks authority to regulate “private
inactivity,” and the Standard regulates “private inactivity” with
respect to vaccination. Ohio Appl. 29; see, e.g., Heritage Appl.
15; Phillips Appl. 36. Setting aside that the Standard permits
employers to choose a mask-and-test policy rather than vaccina-
tion, NFIB concluded that the Affordable Care Act’s imposition of
an individual mandate to buy health insurance was incompatible
with the Commerce Clause because it represented an attempt to
regulate individuals who were not engaged in the commercial ac-
tivity at issue by “compel[ling] [them] to become active in com-
merce” by purchasing insurance. 567 U.S. at 552; see id. at 550-
551. Here, in contrast, the OSH Act and the Standard expressly
regulate existing commercial activity by requiring employers (who
are already engaged in activity in or substantially related to
commerce) to protect the health and safety in the workplace of the
individuals who have chosen to work for those employers -- a form
of regulation the Court has long held constitutional. See Darby,
312 U.S. at 123-125. Indeed, as the court of appeals recognized,
NFIB itself reflects the important distinction between regulating
individuals and employers because, while five Members of the Court
determined that the Affordable Care Act’s individual mandate was
incompatible with the Commerce Clause, “no Justice doubted” that
69
Congress could constitutionally require “employers to provide
health insurance to their employees.” App. 259.
Applicants suggest that the Standard has only a tenuous link
to the workplace, such that upholding the constitutionality of the
Standard will leave the commerce power without any “limiting prin-
ciple.” BST Appl. 31; see, e.g., Ohio Appl. 29-30. But, as
explained above, the Standard directly regulates the working con-
ditions of employees who produce goods or furnish services to
entities whose activities unquestionably affect interstate com-
merce. See 29 U.S.C. 651(a).
2. The Standard does not infringe federalism or
States’ authority under the Tenth Amendment
Relatedly, some applicants contend that the federal govern-
ment lacks the authority to implement the Standard because “regu-
lating public health and safety is part of the police power” that
belongs exclusively to the States under principles of federalism
and the Tenth Amendment. Ohio Appl. 29, see id. at 27-28; see
also, e.g., BST Appl. 30; Southern Baptist Appl. 23. That asser-
tion, however, is directly contrary to Gade, supra, which recog-
nized that in passing the OSH Act, Congress deliberately “brought
the Federal Government into a field that traditionally had been
occupied by the States,” 505 U.S. at 96 (plurality op.), and that
the Act necessarily “pre-empts all state ‘occupational safety and
health standards relating to any occupational safety or health
issue with respect to which a Federal standard has been promul-
70
gated,’” id. at 105 (majority op.) (citation omitted). More
broadly, the contention that the Tenth Amendment reserved the power
to regulate public health exclusively to the States –- even where
health and safety concerns affect matters within the authority of
the federal government -- cannot be squared with the long history
of federal statutes and regulations addressing pharmaceuticals,
healthcare, and countless other health- and safety-related topics.
Applicants fare no better with their contention (e.g., Ohio
Appl. 29; Heritage Appl. 16-17; Phillips Appl. 36) that, under
Jacobson v. Massachusetts, supra, the power to mandate vaccination
is exclusively within the “police power of a State.” 197 U.S. at
38. As even some who find fault with the Standard in other respects
acknowledge, Congress has long played a role in regulating vac-
cines. E.g., App. 222-223 (Bush, J., dissenting from denial of en
banc) (describing examples of federal vaccine laws dating from
1813). The Standard’s encouragement of vaccination to address
workplace exposure to SARS-CoV-2 therefore fits within a tradition
of federal involvement in vaccinations in instances where public
health crises implicate federal interests. In any event, as the
court of appeals explained (App. 260), Jacobson upheld the States’
power to mandate vaccination; the Court did not suggest that the
federal government lacks a similar authority when acting within
the scope of its enumerated powers. And this Court long ago
rejected the proposition that “federal and state regulatory powers
71
over economic activity are mutually exclusive.” Ibid. (citing
Willson v. Black Bird Creek Marsh Co., 27 U.S. 245, 251-252
(1829)).
3. Section 655(c) is not an unconstitutional delega-
tion of legislative power
Applicants’ nondelegation challenges lack merit. “Only twice
in this country’s history” has this Court “found a delegation
excessive -- in each case because ‘Congress had failed to articu-
late any policy or standard’ to confine discretion.” Gundy v.
United States, 139 S. Ct. 2116, 2129 (2019) (plurality opinion)
(citation omitted). Statutory grants of authority are valid so
long as they provide an “intelligible principle,” id. at 2123, and
Section 655(c)(1) easily exceeds that threshold.
Section 655(c) provides several clear guidelines that cabin
OSHA’s authority. It permits only time-limited standards “neces-
sary” to protect employees from the “grave danger” of new hazards
or toxic or physically harmful substances or agents. 29 U.S.C.
655(c)(1). Contrary to applicants’ contentions (e.g., Ohio Appl.
30-31; BST Appl. 34-36), those terms have a readily discernible
meaning that courts have had no trouble applying in evaluating the
lawfulness of prior emergency standards. See, e.g., Dry Color
Mfrs. Ass’n v. Department of Labor, 486 F.2d 98, 107 (3d Cir. 1973)
(vacating standard with respect to two of fourteen carcinogens).
Moreover, this Court has previously upheld much broader delega-
tions against constitutional challenges, including authorities “to
72
regulate in the ‘public interest,’” “to set ‘fair and equitable’
prices,” and “to issue whatever air quality standards are ‘requi-
site to protect the public health.’” Gundy, 139 S. Ct. at 2129.
In arguing to the contrary, applicants cite (e.g., Phillips
Appl. 37-38) then-Justice Rehnquist’s concurring opinion in In-
dustrial Union, supra, in which he stated that he would have in-
validated a different provision of the OSH Act under nondelegation
principles, 448 U.S. at 671-688. But Justice Rehnquist specifi-
cally observed that his “ruling would not have any effect upon
* * * the Secretary’s authority to promulgate emergency temporary
standards under [Section 655(c)],” id. at 688 n.8, likely because
the terms of Section 655(c) are more definite than those of the
provision he found problematic, and because emergency provisions
like Section 655(c) more obviously implicate the principle that
Congress may paint with a broader brush “where it would be ‘un-
reasonable and impracticable to compel Congress to prescribe de-
tailed rules’ regarding a particular policy or situation,” id. at
684-685 (internal citation omitted). In any event, the plurality
opinion rejected Justice Rehnquist’s nondelegation concerns by
finding that the OSH Act provision in question permitted OSHA to
regulate only in the face of “significant risks,” id. at 642, a
standard that provides a sufficiently clear guideline for regula-
tion just as the “grave danger” standard in Section 655(c) does.
73
4. The constitutional-avoidance canon is inapplicable
In addition to their constitutional challenges, applicants
suggest that, at a minimum, the Court should adopt a construction
of the statute that invalidates the Standard in order to avoid
constitutional concerns. E.g., Ohio Appl. 27-28; Southern Baptist
Appl. 17-18. This Court, however, has made clear that the canon
of constitutional avoidance applies only in the face of “statutory
ambiguity,” and only where there are at least “grave doubts” re-
garding the statute’s constitutionality. United States v. Palo-
mar-Santiago, 141 S. Ct. 1615, 1622 (2021) (citation omitted). As
explained, neither circumstance is present here.
E. Applicants’ As-Applied Religious Objections Lack Merit
Some applicants raise as-applied religious objections to the
Standard under the Religious Freedom Restoration Act of 1993
(RFRA), 42 U.S.C. 2000bb, et seq., and the First Amendment. Those
claims lack merit and certainly do not bear on the facial validity
of the Standard, which recognizes the availability of individual-
ized exemptions, including for religious reasons. 12
12 Some applicants also suggest that the OSH Act itself
categorically excludes religious nonprofit employers from its
scope, because the Act “defines an ‘employer’ as ‘a person engaged
in a business affecting commerce who has employees,’” and “[t]he
term ‘business’ -- when used in a commercial context -- refers to
for-profit businesses.” Southern Baptist Appl. 15 (citation omit-
ted). But a “nonprofit business” is a familiar concept, and OSHA
has long regulated nonprofit entities. See 29 C.F.R. 1975.3(d),
1975.4(b)(4). Applicants provide no sound basis for artificially
narrowing the scope of “business” from its ordinary meaning.
74
1. Three sets of applicants assert that the Standard vio-
lates RFRA or the First Amendment’s Free Exercise Clause. See
Word of God Appl. 9; Southern Baptist Appl. 29-31; FabArc Appl.
14-20. “Under RFRA, a law that substantially burdens the exercise
of religion must serve ‘a compelling governmental interest’ and be
‘the least restrictive means of furthering that compelling gov-
ernmental interest.’” Little Sisters, 140 S. Ct. at 2376. But
applicants have not identified any religious exercise that the
Standard substantially burdens. All three claim a religious ob-
jection to requiring employees to be vaccinated (Word of God Appl.
4-5; Southern Baptist Appl. 29; FabArc Appl. 2, 5, 8), but the
Standard permits those employers to choose the mask-and-test op-
tion instead, thereby obviating that potential burden; any re-
quirement to vaccinate rather than mask and test is attributable
to the choice of the employer, not a dictate from OSHA.
Word of God applicants do not raise any religious objection
to testing, but assert that “the mask requirement for unvaccinated
employees” would “forcibly identify those who are unvaccinated and
cause division within their organizations,” contrary to their
“Biblical duty to promote unity within their organizations.” Word
of God Appl. 10. But nothing in the Standard prohibits employers
from adopting a COVID-19 policy that requires all employees (in-
cluding vaccinated ones) to wear face coverings at work, which
would fully address that concern. Cf. 86 Fed. Reg. at 61,553.
75
Southern Baptist and FabArc applicants express no religious ob-
jection to either masking or testing, but instead claim only that
the costs of weekly testing will be a burden. Southern Baptist
Appl. 30-31; FabArc Appl. 8-9. But that is not a burden on reli-
gion. Applicants mistakenly rely (Southern Baptist Appl. 30;
FabArc Appl. 14-16) on this Court’s decision in Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682 (2014), which held that a re-
quirement for employer health plans to provide contraceptive cov-
erage -- on pain of large fines -- substantially burdened the
religious beliefs of closely held companies that refused to provide
such coverage. Id. at 726. But the religious objection there was
to providing the contraceptive coverage; that is why the large
fine for acting on that belief created a substantial burden on the
religious exercise itself. Ibid. Here, applicants pointedly do
not assert any religious objection to testing; they object only to
the cost of it. 13
In any event, even if a particular applicant could establish
a substantial burden on its religious exercise, the Standard sat-
isfies RFRA’s narrow-tailoring requirement. Little Sisters, 140
13 That vaccination happens to be less costly is irrele-
vant. If the mask-and-test option, standing alone, would not
violate RFRA, the fact that the agency has offered employers an
additional, cheaper alternative cannot change that conclusion.
Cf. Regan v. Taxation With Representation, 461 U.S. 540, 549 (1983)
(“[A] legislature’s decision not to subsidize the exercise of a
fundamental right does not infringe the right.”).
76
S. Ct. at 2376. Protecting employees from the risk of contracting
COVID-19 in the workplace surely is a compelling governmental in-
terest. And applicants err in asserting (e.g., Word of God Appl.
12) that the government cannot have a compelling interest in the
application of a rule merely because it exempts small employers.
Title VII contains such an exemption, see p. 27, supra, but nobody
disputes that “[t]he Government has a compelling interest in
providing an equal opportunity to participate in the workforce
without regard to race.” Hobby Lobby, 573 U.S. at 733.
As for the least-restrictive-means element, as noted above,
OSHA cited extensive scientific studies and empirical data showing
that regular testing and masking of unvaccinated workers was es-
sential to address the grave danger of COVID-19 transmission across
a broad spectrum of American workplaces. Applicants’ arguments
(Southern Baptist Appl. 32-33; Word of God Appl. 14) that OSHA
could have employed less restrictive means echo the arguments that
the Standard is overinclusive and thus unnecessary to address a
grave danger, see pp. 24-29, supra, and fail for the same reasons.
And to the extent applicants suggest overinclusivity with respect
to their particular circumstances, the OSH Act expressly provides
procedures by which employers may seek variances from the ETS if
they have adequate alternative means to protect workers. 29 U.S.C.
655(d). To the extent applicants believe that their respective
workplaces would merit a variance, they should present those claims
77
to the agency before seeking judicial intervention, especially the
extraordinary injunctive relief they seek here.
2. Applicants briefly suggest (Southern Baptist Appl. 26-
28; Word of God Appl. 15) that the Standard violates the First
Amendment’s “ministerial exception.” See Our Lady of Guadalupe
Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Hosanna-Tabor
Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).
Under that exception, courts may not “intervene in employment dis-
putes” regarding “the selection and supervision” of ministerial
employees. Our Lady of Guadalupe, 140 S. Ct. at 2055. But nothing
in the Standard addresses the “selection and supervision” of min-
isterial employees, and in any event this is not an “employment
dispute[].” Ibid. And nothing in this Court’s precedents suggests
that the ministerial exception applies to all regulations of any
sort -- including health and safety laws -- that might apply to
ministerial employees. Cf. Hosanna-Tabor, 565 U.S. at 196. The
ministerial exception is thus inapposite.
II. THE REMAINING EQUITABLE FACTORS WEIGH HEAVILY AGAINST INJUNC-
TIVE RELIEF
A. Applicants’ request to enjoin the Standard should be
rejected for the additional reason that they have not demonstrated
irreparable harm. To satisfy that requirement, applicants must do
more than “simply show[] some ‘possibility of irreparable in-
jury.’” Nken v. Holder, 556 U.S. 418, 434 (2009) (citation omit-
ted); see Winter v. NRDC, Inc., 555 U.S. 7, 22 (2008). They have
78
not done so here.
For example, the trade group and business applicants assert
that they will be irreparably harmed by a labor shortage if the
Standard goes into effect because many employees “will quit if
they are required to be vaccinated.” Associated Builders Appl.
28; see, e.g., NFIB Appl. 30-34; Job Creators Appl. 22; BST Appl.
10. Even if that speculation could be credited here, applicants’
hypothesized outcome is avoidable because the Standard permits
employers to adopt a mask-and-test policy instead of requiring
vaccination. Moreover, OSHA addressed the potential for employee
attrition and cited empirical data showing that “the number of
employees” who ultimately refuse to comply with these kinds of
required COVID-19 precautions has been “much lower than the number
who claimed they might,” 86 Fed. Reg. at 61,475; see id. at 63,422
(observing that workers have complied with private-company vaccine
mandates, including 99.7% of employees at United Airlines and 96%
at Tyson Foods). In any event, employers’ speculative concerns
about potential employee attrition are offset by the benefits they
are likely to experience from the reduction in workplace COVID-19
outbreaks, which can force shutdowns and cause significant losses.
See id. at 61,466. Even individual cases can be costly and dis-
ruptive, and the Standard will result in “reduced absenteeism due
to fewer COVID-19 illnesses and quarantines.” Id. at 61,475.
Many applicants also object to the costs of complying with
79
the Standard. E.g., NFIB Appl. 25; Bentkey Appl. 32; Job Creators
22; BST Appl. 12; Phillips Appl. 14-15. Those assertions disregard
the detailed “economic analysis OSHA conducted that demonstrates
the feasibility of implementing” the Standard, which the court of
appeals appropriately credited. App. 262. Based on several con-
servative assumptions, see 86 Fed. Reg. at 61,460, OSHA estimated
a modest total cost to employers of about $35 per covered employee,
or $94 per covered unvaccinated employee, id. at 61,472, 61,493.
Although this Court has sometimes suggested that “significant”
compliance costs may establish irreparable harm, Alabama Ass’n,
141 S. Ct. at 2489, treating routine costs as irreparable injury
would be “inconsistent with [the] characterization of [equitable]
relief as an extraordinary remedy.” Winter, 555 U.S. at 22.
NFIB hypothesizes that despite OSHA’s detailed economic anal-
ysis, the agency might have “drastically underestimated compliance
costs.” NFIB Appl. 27 (citation omitted). But NFIB offers no
data to substantiate that claim, instead relying only on unsup-
ported, boilerplate allegations in member declarations. Ibid.
(citing App. 310, 328, 369). Regardless, as the court of appeals
observed, if an employer does somehow face “true impossibility of
implementation, it can assert that as an affirmative defense to a
citation,” or seek a variance setting forth alternative measures
to keep its employees safe. App. 262 (citing 29 C.F.R.
2200.34(b)(3) and 29 U.S.C. 655(d)).
80
For similar reasons, the employee applicants cannot establish
irreparable harm by alleging that they will be forced “to receive
the COVID-19 vaccine.” BST Appl. 8. Their employers may adopt a
mask-and-test policy rather than a mandatory vaccination require-
ment, making their asserted harm wholly speculative. Further,
regardless of the compliance option an employer chooses, employees
may seek individual accommodations where available under federal
law. See 86 Fed. Reg. 61,459, 61,552.
Many applicants also allege that the Standard infringes their
constitutional rights, an injury that they assert is always suf-
ficient to establish irreparable harm. E.g., BST Appl. 12; South-
ern Baptist Appl. 34; Word of God Appl. 16; FabArc Appl. 8-9. That
assertion relies on lower-court holdings suggesting only that the
violation of certain types of First Amendment freedoms may be
sufficient to establish irreparable harm. E.g., Siegel v. LePore,
234 F.3d 1163, 1177-1178 (11th Cir. 2000) (en banc). But as
explained, applicants have not plausibly established the violation
of any First Amendment rights. See pp. 73-77, supra. And appli-
cants cite no authority for the proposition that alleged violations
of the Commerce Clause, Tenth Amendment, or nondelegation doc-
trine, standing alone, could constitute irreparable harm and
thereby entitle them to “an extraordinary remedy.” Winter, 555
U.S. at 22.
Relatedly, the State applicants assert that the Standard will
81
“intrud[e] on their sovereign authority to enact and enforce” con-
trary policies. Ohio Appl. 31. 14 Even assuming that abstract
interest could give rise to a cognizable Article III injury, the
federal government has a weighty countervailing sovereign interest
in enforcing the Standard -- and “[t]he Federal Government holds
a decided advantage in this delicate balance: the Supremacy
Clause.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991); cf. United
States v. California, 921 F.3d 865, 893 (9th Cir. 2019) (describing
the manifest interest in “preventing a violation of the Supremacy
Clause”), cert. denied, 141 S. Ct. 124 (2020). The State appli-
cants therefore must identify concrete, non-speculative harms, not
abstract notions of sovereignty, to justify the extraordinary re-
lief they seek. They have not done so.
Finally, some of the applicants improperly attempt to assert
harms to third parties. E.g., Ohio Appl. 32; Heritage Appl. 19-
20. To obtain equitable relief, a party must establish “that he
14 There is a significant question whether the State ap-
plicants can invoke the court of appeals’ jurisdiction under 29
U.S.C. 655(f). That provision authorizes “[a]ny person” to seek
judicial review of an ETS, ibid., but the Act defines “person” as
“one or more individuals, partnerships, associations, corpora-
tions, business trusts, legal representatives, or any organized
group of persons,” 29 U.S.C. 652(4) -- not a State. That signif-
icant “question as to jurisdiction” makes these applicants’ like-
lihood of success on the merits “more unlikely.” Munaf v. Geren,
553 U.S. 674, 690 (2008). Some private applicants have raised the
same merits arguments as the States, but the serious question of
jurisdiction suggests that any irreparable harms alleged only by
the States should be discounted.
82
is likely to suffer irreparable harm,” Winter, 555 U.S. at 374
(emphasis added), and a party generally cannot establish even the
injury necessary for Article III standing unless he can demonstrate
“actual harm” to his own rights and interests, rather than those
of some third party, Lewis v. Casey, 518 U.S. 343, 349 (1996).
For example, the Heritage Foundation cannot meet its burden by
alleging general harms to “employers and employees.” Heritage
Appl. 19. Nor may the States rely on injuries to “employees and
private employers,” because “[a] State does not have standing as
parens patriae to bring an action against the Federal Government.”
Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 610 n.
16 (1982).
B. Applicants also have not demonstrated any injury that
outweighs the injuries to the government and the public interest
-- which merge here, see Nken, 556 U.S. at 435. Most fundamen-
tally, the harms to the government and the public that would result
from enjoining enforcement of the Standard would be enormous. As
the court of appeals observed (App. 263), “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.” COVID-19 also has caused “serious, long-lasting, and po-
tentially permanent health effects” for millions more. 86 Fed.
83
Reg. at 61,424. And there is extensive evidence of “workplace
transmission.” Id. at 61,411. With the reopening of workplaces,
the emergence of highly transmissible variants (both Delta and
Omicron), and the rise of COVID fatigue, the danger to workers is
not just grave, but worsening. See id. at 61,411-61,415.
The Standard responds to those “extraordinary and exigent
circumstances,” 86 Fed. Reg. at 61,434, and staying its enforcement
thus would likely cause significant harm. OSHA estimated that the
Standard will “save over 6,500 worker lives and prevent over
250,000 hospitalizations” over a six-month duration. Id. at
61,408. Those estimates, moreover, do not include the long-lasting
and serious health effects avoided. Delaying enforcement of the
Standard thus would likely cost many lives per day, in addition to
large numbers of hospitalizations and other serious health ef-
fects. That is a confluence of harms of the highest order, as
lower courts have recognized in other contexts. Cf. Swain v.
Junior, 961 F.3d 1276, 1293 (11th Cir. 2020); Does 1-6 v. Mills,
16 F.4th 20, 32 (1st Cir. 2021).
C. Even if this Court were inclined to grant some interim
relief, it should limit that relief to temporarily staying or
enjoining only the portion of the ETS concerning a vaccination
requirement. That limited relief would leave in place during the
pendency of litigation the ETS’s requirement that employers im-
plement a policy that requires unvaccinated employees to mask and
84
test. Although vaccination is the most effective means of miti-
gating the grave danger of COVID-19 in the workplace, OSHA spe-
cifically found that masking and testing is “essential” for em-
ployees who remain unvaccinated to “reduce the risk” of employees’
“transmit[ting]” the virus to other employees at work. 86 Fed.
Reg. at 61,438-61,439.
In this preliminary posture, “[t]he purpose” of “interim eq-
uitable relief is not to conclusively determine the rights of the
parties, but to balance the equities as the litigation moves for-
ward” and to “‘mold [any] decree to meet the exigencies of the
particular case.’” Trump v. IRAP, 137 S. Ct. 2080, 2087 (2017)
(per curiam) (citation omitted); see Weinberger v. Romero-Barcelo,
456 U.S. 305, 312 (1982) (“[T]he traditional function of equity
has been to arrive at a ‘nice adjustment and reconciliation’ be-
tween the competing claims.”) (citation omitted). If the Court
were inclined to grant some relief, those principles should guide
the Court’s “discretion and judgment.” IRAP, 137 S. Ct. at 2087.
As discussed above, applicants’ arguments focus heavily --
some almost exclusively -- on vaccination, to the point where many
of them inaccurately refer to the ETS as a “vaccine mandate.” And
many of the merits arguments are applicable only to vaccination,
not to masking and testing. In light of applicants’ near-exclusive
focus on vaccination, the extraordinary and ongoing threat to em-
ployee safety and health in the workplace, and the proven ability
85
of masking and testing to mitigate that threat, even if the Court
were inclined to grant some relief, it should limit relief in the
manner described above.
III. CERTIORARI BEFORE JUDGMENT IS UNWARRANTED
In the alternative, most of the applicants (e.g., NFIB Appl.
36; Ohio Appl. 35-36) ask the Court to treat their applications as
petitions for writs of certiorari before judgment to address the
petitions for review of the Standard in the first instance. But
there is a serious question whether this Court would have juris-
diction to proceed in that manner. Except for a few narrow cate-
gories of cases in this Court’s original jurisdiction, the Court
may exercise only appellate jurisdiction. See U.S. Const. Art.
III, § 2, Cl. 2. Although Congress has wide latitude to define
this Court’s appellate jurisdiction, see Ex parte McCardle, 74
U.S. (7 Wall.) 506, 513 (1868), the jurisdiction exercised must be
appellate in nature, see Marbury v. Madison, 5 U.S. (1 Cranch)
137, 175-176 (1803). In the ordinary civil or criminal case,
certiorari before judgment under 28 U.S.C. 1254(1) is an exercise
of this Court’s appellate jurisdiction because the district court
has entered an order amenable to appeal. Here, however, no court
has rendered a ruling on the petitions for review of the ETS;
instead, the court of appeals is exercising original jurisdiction
to address those petitions in the first instance. See 28 U.S.C.
2112; 29 U.S.C. 655(f).
86
Accordingly, there is a serious question whether “certiorari
before judgment” to review those petitions could properly be viewed
as an exercise of this Court’s appellate jurisdiction, given the
absence of any judicial order or judgment disposing of the peti-
tions for review of the Standard that could in turn be reviewed by
this Court. Cf. Ortiz v. United States, 138 S. Ct. 2165, 2180
(2018). At a minimum, the Court would have to address that ques-
tion about its jurisdiction at the threshold, see Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94 (1998), which would
complicate this Court’s review.
CONCLUSION
The applications should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
DECEMBER 2021
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