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Nos. 21A243, 21A244, 21A245, 21A246,
21A247, 21A248, 21A249, 21A250, 21A251,
21A252, 21A258, 21A259, and 21A260
IN THE
Supreme Court of the United States
IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION, INTERIM FINAL RULE:
COVID-19 VACCINATION AND TESTING;
EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402,
ISSUED ON NOVEMBER 4, 2021
MOTION OF FORMER OSHA ADMINISTRATORS CHARLES
JEFFRESS, DAVID MICHAELS, AND GERARD SCANNELL
FOR LEAVE TO FILE ATTACHED AMICUS BRIEF
IN OPPOSITION TO EMERGENCY APPLICATIONS FOR A
STAY OR INJUNCTION PENDING CERTIORARI REVIEW;
FOR LEAVE TO FILE WITHOUT 10 DAYS’ NOTICE; AND FOR
LEAVE TO FILE IN PAPER FORMAT
Scott L. Nelson
Allison M. Zieve
*Counsel of record
Public Citizen Litigation Group
1600 20th Street NW
Washington, DC 20009
(202) 588-1000
azieve@citizen.org
December 22, 2021 Attorneys for Movants-Amici
Jeffress, Michaels, and Scannell
Amici Charles Jeffress, David Michaels, and Gerard Scannell
respectfully move for leave (1) to file the attached amicus curiae brief in
opposition to the eleven Emergency Applications, filed on December 17–
20, 2021, seeking a stay or injunction pending certiorari review of the
Sixth Circuit’s decision granting a motion to dissolve a stay of the
Occupational Safety and Health Administration (OSHA) Emergency
Testing Standard on COVID-19 vaccination and testing, which was
issued by the Fifth Circuit before the matter was transferred to the Sixth
Circuit, (2) to file the enclosed brief without 10 days’ advance notice to
the parties of amici’s intent to file, and (3) to file in unbound format on
8½-by-11-inch paper. See Sup. Ct. R. 37.2(a)
By email on December 20, 2021, amici provided notice to all parties
of their intent to file an amicus brief in opposition to the emergency
applications. Counsel for the petitioners-applicants in twelve of the
thirteen applications—Nos. 21A243, 21A244, 21A245, 21A246, 21A247,
21A248, 21A250, 21A251, 21A252, 21A258, 21A259, and 21A260—stated
that they consent to the filing. In addition, several other petitioners in
the other consolidated cases pending in the Sixth Circuit, who are also
respondents here—National Association of Home Builders of the United
i
States, North America’s Building Traders Unions, et al., Gulf Coast
Restaurant Group, SEIU Local 32, the AFL-CIO and UFCW, Natural
Products Association, Burnett Specialists, et al., the United Association,
Scotch Plywood, and Texas Governor Gregg Abbott—have consented to
the filing. Counsel for petitioner-applicant in No. 21A249 and respondent
U.S. Department of Labor did not respond.
Amici curiae are three former Assistant Secretaries of Labor for
Occupational Safety and Health, who administered OSHA under
Presidents George H.W. Bush, Bill Clinton, and Barack Obama: Gerard
Scannell was OSHA Administrator from 1989 to January 1993. Before
becoming OSHA Administrator, he was director of corporate safety,
health and fire protection at Johnson & Johnson. Charles Jeffress was
OSHA Administrator from October 1997 to January 2001. Before joining
the U.S. Department of Labor, he served in the North Carolina Depart-
ment of Labor as the director of its OSHA state plan. He has also served
in senior positions at the U.S. Chemical Safety and Hazard Investigation
Board, at the Legal Services Corporation, and at the American
Association for Justice. And David Michaels was OSHA Administrator
from December 2009 to January 2016—the longest serving administrator
ii
in OSHA’s history. He also served as the Department of Energy's
Assistant Secretary for Environment, Safety and Health from 1998 to
2001. Dr. Michaels is an epidemiologist and a professor at George
Washington University School of Public Health in the Departments of
Environmental and Occupational Health and Epidemiology. The three
filed together a brief as amici curiae in the sixth Circuit.
Amici Scannell, Jeffress, and Michaels seek to file an amicus brief
in opposition to the emergency applications for a stay or injunction
pending certiorari review because they are concerned that a stay or
injunction would delay measures needed to control the spread of Covid-
19 and that the applications present an incorrect, and untenable, view of
OSHA’s statutory authority to protect workers against workplace
exposure to disease-causing agents. They believe that their brief may be
helpful to the Court in considering the applications.
Given the expedited consideration of this matter of significant
national interest, amici respectfully request leave to file the enclosed
brief without 10 days’ advance notice to the parties of intent to file and
to file in unbound format on 8½-by-11-inch paper. The Sixth Circuit
granted the government’s motion to dissolve the stay imposed by the
iii
Fifth Circuit on the evening of December 17, 2021, and the applications
for a stay were filed in this Court on December 17, 18, and 20. The Court
has now set a deadline of December 30 for respondent’s brief. Counsel for
amici provided notice to all parties on December 20, and because of
prescheduled vacation plans is filing today. Because of the rapid schedule
and because no party has opposed the filing, amici request that the Court
grant leave to file the attached amicus brief without 10 days’ advance
notice to the parties and in unbound format.
CONCLUSION
For the foregoing reasons, amici Scannell, Jeffress, and Michaels
respectfully request that the Court grant this motion to file the attached
proposed amicus brief and accept it in the format and at the time
submitted.
December 22, 2021 Respectfully submitted,
Scott L. Nelson
Allison M. Zieve
Counsel of record
Public Citizen Litigation Group
1600 20th Street NW
Washington, DC 20009
(202) 588-1000
azieve@citizen.org
Attorneys for Movants-Amici
Jeffress, Michaels, and Scannell
iv
Nos. 21A243, 21A244, 21A245, 21A246,
21A247, 21A248, 21A249, 21A250, 21A251,
21A252, 21A258, 21A259, and 21A260
IN THE
Supreme Court of the United States
IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION, INTERIM FINAL RULE:
COVID-19 VACCINATION AND TESTING;
EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402,
ISSUED ON NOVEMBER 4, 2021
AMICUS CURIAE BRIEF OF FORMER OSHA
ADMINISTRATORS CHARLES JEFFRESS, DAVID MICHAELS,
AND GERARD SCANNELL
IN OPPOSITION TO EMERGENCY APPLICATIONS FOR STAY
(OR INJUNCTION) PENDING CERTIORARI REVIEW
Scott L. Nelson
Allison M. Zieve
*Counsel of record
Public Citizen Litigation Group
1600 20th Street NW
Washington, DC 20009
(202) 588-1000
azieve@citizen.org
December 22, 2021 Attorneys for Amici Curiae
Jeffress, Michaels, and Scannell
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ........................................................................ ii
INTEREST OF AMICI CURIAE .................................................................1
ARGUMENT ..................................................................................................2
The applications for a stay or injunction rest on a
fundamentally flawed view of OSHA’s statutory authority .............2
CONCLUSION ............................................................................................14
i
TABLE OF AUTHORITIES
Cases Page(s)
Bailey v. United States,
516 U.S. 137 (1995) ..............................................................................6
Chevron, U.S.A., Inc. v. NRDC,
467 U.S. 837 (1984) ............................................................................12
City of Arlington, Texas v. FCC,
589 U.S. 290 (2013) ............................................................................12
Valent v. Commissioner of Social Security,
918 F.3d 516 (6th Cir. 2019) .............................................................12
Your Home Visiting Nurse Services v. Shalala,
525 U.S. 449 (1999) ............................................................................12
Statutes
Clean Water Act
33 U.S.C. § 1251 et seq.........................................................................6
§ 1362(13) ............................................................................................7
Occupational Safety and Health Act,
29 U.S.C. § 651 et seq.................................................................passim
29 U.S.C. § 651 ...................................................................................12
29 U.S.C. § 651(a) ................................................................................3
29 U.S.C. § 651(b)(1) ............................................................................3
29 U.S.C. § 651(b)(6) ............................................................................3
29 U.S.C. § 651(b)(7) ............................................................................4
ii
29 U.S.C. § 651(b)(13) ..........................................................................3
29 U.S.C. § 654(a)(1) ..........................................................................11
29 U.S.C. § 655 .....................................................................................4
29 U.S.C. § 655(b) ..............................................................................10
29 U.S.C. § 655(b)(1) ............................................................................3
29 U.S.C. § 655(b)(5) ............................................................................4
29 U.S.C. § 655(c) .................................................................................2
29 U.S.C. § 655(c)(1) ............................................................................4
29 U.S.C. § 669(a)(5) ............................................................................7
Workers Family Protection Act
29 U.S.C. § 671a ...................................................................................8
29 U.S.C. § 671a(c)(1)(A) .....................................................................8
29 U.S.C. § 671a(d)(2) ..........................................................................9
Regulations
29 C.F.R. § 1910.120 .....................................................................................9
29 C.F.R. § 1910.120(a)(3) ..........................................................................10
29 C.F.R. § 1910.134(a)(1) ..........................................................................10
29 C.F.R. § 1910.502(m) ..............................................................................11
29 C.F.R. § 1910.1020 .................................................................................11
29 C.F.R. § 1910.1020(c)(12) .......................................................................11
29 C.F.R. § 1910.1025 .................................................................................14
iii
29 C.F.R. § 1910.1026 .................................................................................14
29 C.F.R. § 1910.1030 ............................................................................ 9, 13
29 C.F.R. § 1010.1030(f) ................................................................................9
40 C.F.R. § 63.342 .......................................................................................14
Federal Register Notices
56 Fed. Reg. 64004 (1991).............................................................................9
63 Fed. Reg. 1152 (1998) .............................................................................10
68 Fed. Reg. 75768 (2003)...........................................................................11
Other
CDC, COVID Data Tracker,
https://COVID.cdc.gov/COVID-data-tracker/#datatracker-
home (visited Dec. 19, 2021) ...............................................................3
https://www.epa.gov/lead/lead-laws-and-regulations...............................14
https://www.osha.gov/heat-exposure/standards .......................................14
Journal of the Senate,
91st Cong., 1st Sess. (1969) .................................................................5
President’s Statement on Chemical and Biological
Defense Policies and Programs (Nov. 25, 1969),
https://2001-2009.state.gov/r/pa/ho/frus/nixon/e2/83597.htm ..........5
Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts (2012) ...................6
Webster’s Third New International Dictionary 40 (3d ed. 1965) ...............5
iv
INTEREST OF AMICI CURIAE1
Amici curiae are three former Assistant Secretaries of Labor for
Occupational Safety and Health, who administered the Occupational
Safety and Health Administration (OSHA) under Presidents George
H.W. Bush, Bill Clinton, and Barack Obama.
Gerard Scannell was OSHA Administrator from 1989 to January
1993. Before becoming OSHA Administrator, he was director of corporate
safety, health and fire protection at Johnson & Johnson.
Charles Jeffress was OSHA Administrator from October 1997 to
January 2001. Before joining the U.S. Department of Labor, he served in
the North Carolina Department of Labor as the director of its OSHA state
plan. He has also served in senior positions at the U.S. Chemical Safety
and Hazard Investigation Board, at the Legal Services Corporation, and
at the American Association for Justice.
David Michaels was OSHA Administrator from December 2009 to
January 2016—the longest serving administrator in OSHA’s history. He
1 Amici have moved for leave to file this brief. No party’s counsel
authored the brief in whole or in part, and no party or party’s counsel,
nor anyone other than amici or their counsel, contributed money
intended to fund its preparation or submission.
also served as the Department of Energy's Assistant Secretary for
Environment, Safety and Health from 1998 to 2001. Dr. Michaels is an
epidemiologist and a professor at George Washington University School
of Public Health in the Departments of Environmental and Occupational
Health and Epidemiology.
Amici submit this brief in opposition to the emergency applications
because they are concerned that a stay or injunction would delay
measures needed to control the spread of Covid-19 and that the
applications present an incorrect, and untenable, view of OSHA’s
statutory authority to protect workers against workplace exposure to
disease-causing agents. Amici believe that their brief may be helpful to
the Court in considering the applications.
ARGUMENT
The applications for stay or injunction rest on a
fundamentally flawed view of OSHA’s statutory
authority.
This case involves OSHA’s issuance of an Emergency Temporary
Standard under section 6(c) of the Occupational Safety and Health Act
(OSH Act), 29 U.SC. § 655(c), to protect against workplace transmission
of the virus that causes COVID-19—a disease that has infected over 50
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million Americans and killed more than 800,000, including more than
46,000 in the six weeks that have passed since the applicants filed their
petitions challenging OSHA’s determination that workplace exposure to
COVID-19 represents a grave threat.2 The applications before this Court
rest in large part on the view that OSHA lacks authority under OSH Act
to issue standards addressing health threats to workers from workplace
transmission of viruses and other infectious agents. That view of OSHA’s
authority is groundless.
A. The OSH Act authorizes OSHA to issue health and safety
standards “to serve the objectives of” the Act. 29 U.S.C. § 655(b)(1). Those
objectives include protecting workers from “illnesses arising out of work
situations,” id. § 651(a), and assuring “healthful working conditions” by
reducing “health hazards” at “places of employment,” id. § 651(b)(1). The
Act’s protections are explicitly aimed at “diseases” connected to work
environments, id. § 651(b)(6) & (13), and the development of “medical
criteria which will assure insofar as practicable that no employee will
2 CDC, COVID Data Tracker, https://covid.cdc.gov/covid-data-
tracker/#trends_totaldeaths (visited Dec. 19, 2021).
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suffer diminished health, functional capacity, or life expectancy as a
result of his work experience,” id. § 651(b)(7).
Section 6 of the OSH Act, 29 U.S.C. § 655, grants OSHA ample
authority to carry out the Act’s purposes by issuing standards aimed at
preventing workplace outbreaks of communicable diseases caused by
viruses and other infectious agents. OSHA’s authority expressly extends
to setting standards addressing “toxic materials or harmful physical
agents,” id. § 655(b)(5) (emphasis added), so as to “adequately assure[],
to the extent feasible, on the basis of the best available evidence, that no
employee will suffer material impairment of health or functional
capacity” resulting from “exposure to the hazard,” id. Section 6(c)
authorizes OSHA to issue emergency temporary standards to protect
employees from “grave danger” resulting “from exposure to substances or
agents determined to be toxic or physically harmful,” and from “new
hazards,” id. § 655(c)(1) (emphasis added).
These provisions unambiguously grant OSHA authority to protect
workers from workplace exposure to a virus that causes severe and often
fatal illness. Such a virus falls squarely within the plain meaning of
“harmful physical agent” and “agent determined to be … physically
-4-
harmful.” The relevant common meaning of “agent,” both when the OSH
Act was enacted in 1970 and now, is “something that produces or is
capable of producing a certain effect”—more specifically, “a substance
capable of producing a chemical reaction or a physical or biological effect.”
Webster’s Third New International Dictionary 40 (3d ed. 1965). That
definition plainly covers a virus that causes a disease. Indeed, when
Congress enacted the OSH Act, references to disease-causing viruses and
microbes as “agents” were commonplace, including in the Nixon
Administration’s renunciation of biological warfare and in extensive
congressional deliberations on related subjects.3 To the extent such
agents produce disease, organ failure, and death, they undoubtedly cause
“physical[] harm[]”—that is, “bodily” “damage” or “injury”—within the
common meaning of those words. Id. 1706, 1034 (defining “physical” and
“harm”).
3 See President’s Statement on Chemical and Biological Defense
Policies and Programs (Nov. 25, 1969), https://2001-2009.state.gov/r/pa/
ho/frus/nixon/e2/83597.htm; see also Journal of the Senate 432, 91st
Cong., 1st Sess. (Aug. 11, 1969) (recording vote on defense appropriations
language concerning “lethal and nonlethal chemical and biological
agents”).
-5-
Citing the Fifth Circuit’s stay decision, applicant Southern Baptist
Theological Seminary (at 19–20) ascribes a much narrower meaning to
the statute because, in their view, the proximity of the statutory term
“physically harmful” to the word “toxic” suggests that the statute is
aimed only at substances with characteristics of “toxicity” and
“poisonousness,” not at agents that are harmful because they cause
infectious disease. That reading wrongly renders the disjunctive phrase
“or physically harmful” superfluous, see Bailey v. United States, 516 U.S.
137, 146 (1995), in violation of the interpretive principle that “or creates
alternatives,” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 116 (2012). Moreover, the view that the
enacting Congress would have considered an infectious agent’s
propensity to cause disease to be a characteristic so distinct from
“toxicity” that it never would have included that propensity in a reference
to “physical[] harmful[ness]” occurring in the same phrase as “toxic” is
belied by the many statutes in which Congress has treated toxicity and
infectiousness as related concepts for regulatory purposes. For example,
in the Clean Water Act, enacted in 1972, shortly after the OSH Act,
Congress defined “toxic pollutant” to mean pollutants “including disease-
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causing agents” that “cause death, disease” and other harms to
organisms exposed to them. 33 U.S.C. § 1362(13). Thus, the supposition
that a Congress that authorized regulation of toxic substances must not
have intended also to reach harmful infectious agents—despite its use of
language whose plain meaning covers them—is baseless.
Other clear language in the OSH Act and related statutes confirms
that the Act applies to workplace exposure to harmful infectious agents
and authorizes OSHA standards to include vaccinations as part of the
protection afforded workers against such exposure. For example, 29
U.S.C. § 669(a)(5) requires the Secretary of Health and Human Services
to assist OSHA by developing information regarding “potentially toxic
substances or harmful physical agents,” including through medical
examinations and tests. That provision goes on to provide that “[n]othing
in this or any other provision of this chapter shall be deemed to authorize
or require medical examination, immunization, or treatment, for those
who object thereto on religious grounds, except where such is necessary
for the protection of the health or safety of others.” Id. (emphasis added)
The provision’s reference to “immunization,” and its creation of a limited
religious exception to the statute’s authorization of standards involving
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immunization, would be meaningless if the statute did not contemplate
that “harmful physical agents” include infectious disease-causing agents
and that standards addressing such agents may include provisions
involving immunization.
The Workers Family Protection Act, enacted in 1992 and codified
at 29 U.S.C. § 671a, in the same U.S. Code chapter as the OSH Act,
likewise confirms OSHA’s authority to issue standards under the OSH
Act addressing workplace exposures to infectious-disease agents such as
viruses. Based on congressional findings that “hazardous chemicals and
substances that can threaten the health and safety of workers are being
transported out of industries on workers’ clothing and persons,” and that
these substances “have the potential to pose an additional threat to the
health and welfare of workers and their families,” section 671a requires
the National Institute for Occupational Safety and Health, in cooperation
with OSHA, to study “the potential for, the prevalence of, and the issues
related to the contamination of workers’ homes with hazardous chemicals
and substances, including infectious agents, transported from the
workplaces of such workers.” Id. § 671a(c)(1)(A). The statute tasks OSHA
with ongoing responsibility to consider whether additional standards are
-8-
needed to address such issues, and, if so, to promulgate such standards
“pursuant to … the Occupational Safety and Health Act of 1970.” Id.
§ 671a(d)(2) (emphasis added). The statute reflects express congressional
recognition that the harmful agents that OSHA is authorized to address
through standards under the OSH Act include “infectious agents”—and
that, in issuing such standards, OSHA can consider health threats to
family members of workers exposed to infectious agents in the workplace.
B. Given the OSH Act’s language and structure, OSHA has long
asserted authority to protect workers against infectious agents, including
viruses. Most notably, OSHA promulgated the Occupational Exposure to
Bloodborne Pathogens standard in 1991 “to eliminate or minimize
occupational exposure to Hepatitis B Virus (HBV), Human
Immunodeficiency Virus (HIV) and other bloodborne pathogens.” 56 Fed.
Reg. 64004 (1991), codified at 29 C.F.R. § 1910.1030. The standard,
among other provisions, requires employers to make the hepatitis B
vaccine available to employees at risk of exposure to HBV. 29 C.F.R.
§ 1010.1030(f). Even earlier, OSHA had provided, in its Hazardous Waste
Operations and Emergency Response standard, id. § 1910.120, that
employers must protect workers engaged in hazardous waste cleanup
-9-
against “[a]ny biological agent and other disease-causing agent which
after release into the environment and upon exposure, ingestion,
inhalation, or assimilation into any person, either directly from the
environment or indirectly by ingestion through food chains, will or may
reasonably be anticipated to cause death [or] disease.” Id.
§ 1910.120(a)(3).
In addition, OSHA’s Respiratory Protection standard, 29 C.F.R.
§ 1910.134(a)(1), requires use of respirators to prevent occupational
diseases caused by “harmful dusts, fogs, fumes, mists, gases, smokes,
sprays, or vapors” when engineering controls are infeasible. In
promulgating the current standard, OSHA emphasized that it “does
apply to biological hazards,” 63 Fed. Reg. 1152, 1180 (1998), including
“bioaerosols” that may lead to “epidemics of infections including colds,
viruses, tuberculosis, and Legionnaires Disease,” id. at 1159. More
specifically, OSHA has recognized that occupational exposure to the
microbe that causes tuberculosis is a health risk that falls within the
scope of the OSH Act, although it concluded in 2003 that because of
advances in efforts by hospitals and other workplaces to prevent such
exposure a standard under 29 U.S.C. § 655(b) was unnecessary to address
- 10 -
the risk. See 68 Fed. Reg. 75768 (2003). At the same time, the agency
recognized that the statute’s “general duty” clause, 29 U.S.C. § 654(a)(1),
which requires employers to provide a workplace “free from recognized
hazards,” continues to authorize enforcement actions against employers
who fail to protect workers against the risk of tuberculosis infection.
Finally, OSHA’s standard on Access to Employee Exposure and
Medical Records, 29 C.F.R. § 1910.1020, grants both OSHA and affected
employees a right of access to any records regarding employee exposure
to harmful physical agents subject to regulation under the OSHA Act.
The standard specifically defines “[t]oxic substance or harmful physical
agent” to include “any biological agent (bacteria, virus, fungus, etc.)” that
poses a health hazard. Id. § 1910.1020(c)(12).
C. The implication of the applicants’ view that the statute does
not authorize protection of workers against health impacts of disease-
causing infectious agents such as viruses is that OSHA’s longstanding
construction of the OSH Act—and, thus, the standards described above,
the COVID-19 Emergency Temporary Standard, and the earlier COVID-
19 Healthcare Emergency Temporary Standard, 29 C.F.R.
§ 1910.502(m)—are invalid. Even if the statute’s clear language did not
- 11 -
unambiguously cover agents such as viruses that cause physically
harmful diseases (which, as explained above, it does), OSHA’s reading
should nonetheless be upheld because it represents a “permissible
construction of the statute.” Valent v. Comm’r of Soc. Sec., 918 F.3d 516,
520 (6th Cir. 2019) (quoting Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837,
843 (1984)); see also City of Arlington, Tex. v. FCC, 589 U.S. 290 (2013)
(requiring deference to an agency’s determination of the scope of its
regulatory authority). Yet the applicants do not consider whether the
longstanding, consistent construction of the statute by the agency
responsible for administering it is entitled to Chevron deference. The
agency’s reading easily passes muster under Chevron, as the reading is
firmly grounded in the statute’s language and its expressly manifested
purpose of fostering healthful workplaces and protecting workers against
exposure to illness and disease in their working environments. See 29
U.S.C. § 651. OSHA’s “natural” reading falls “well within the bounds of
reasonable interpretation,” and is “entitled to deference under Chevron.”
Your Home Visiting Nurse Servs. v. Shalala, 525 U.S. 449, 454 (1999).
The applicants’ view that the statute applies only to harmful
substances and agents that occur uniquely in workplaces (e.g.,
- 12 -
Application of Phillips Manufacturing, No. 21A245, at 22; Application of
26 Business Ass’ns, No. 21A244, at 19) is equally untenable. Although
the statute authorizes OSHA to issue standards for workplace health and
safety, nothing in the statutory language suggests that OSHA cannot
regulate to prevent harm from workplace exposures to physically
harmful agents if those agents are also present elsewhere. Toxic
substances and physically harmful agents are rarely confined to
workplaces, and OSHA, throughout its history, has acted to protect
workers against workplace exposures to hazards that they may also
encounter outside the worksite.
For example, OSHA’s bloodborne pathogens standard, 29 C.F.R.
§ 1010.1030, provides workplace protections against infectious agents
that can be encountered anywhere. Moreover, that standard’s
requirement that employers provide workers with the HVB vaccine
protects workers once they leave the workplace just as much as it does in
the workplace—as will the COVID-19 vaccinations that the Standard at
issue here encourages. Other examples of workplace protections against
hazards existing elsewhere abound. OSHA requires employers to protect
workers against the recognized hazard of heat exposure on the job, see
- 13 -
https://www.osha.gov/heat-exposure/standards, although workers are
also exposed to heat at home and elsewhere in their communities. And
OSHA regulates lead in workplaces, see 29 C.F.R. § 1910.1025, while
many other agencies regulate it in other settings, including the home,
see, e.g., https://www.epa.gov/lead/lead-laws-and-regulations. Similarly,
OSHA protects workers against airborne exposure to hexavalent
chromium within workplaces, id. § 1910.1026, while EPA regulates air
emissions of the same hazardous substance, from the same facilities, 40
C.F.R. § 63.342.
The applicants’ non-textual view of the statute would gut these and
many other longstanding OSHA standards aimed at fostering safe and
healthy workplaces and would threaten virtually the entire body of the
agency’s work over its 50-year history. This Court should not grant a stay
premised on such a flawed foundation.
CONCLUSION
This Court should deny the emergency applications for a stay or
injunction in connection with OSHA’s COVID-19 Vaccination and
Testing Emergency Temporary Standard.
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Respectfully submitted,
Scott L. Nelson
Allison M. Zieve
Counsel of record
Public Citizen Litigation Group
1600 20th Street NW
Washington, DC 20009
(202) 588-1000
azieve@citizen.org
Attorneys for Amici Jeffress,
Michaels, and Scannell
December 22, 2021
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