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Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249,
21A250, 21A251, 21A252, 21A258, 21A259, 21A260 and 21A267
In the Supreme Court of the United States
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL.,
Applicants,
v.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
ET AL.,
Respondents.
IN RE: OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, INTERIM FINAL RULE: COVID-19
VACCINATION AND TESTING; EMERGENCY TEMPORARY
STANDARD, 86 FED. REG. 61402, ISSUED ON NOVEMBER 5, 2021
UNION PETITIONERS’ BRIEF IN OPPOSITION TO EMERGENCY
APPLICATION FOR IMMEDIATE STAY
Harold Craig Becker Randy Rabinowitz
AFL-CIO Counsel of Record
815 Black Lives Matter Plaza, N.W. P.O. Box 3769
Washington, D.C. 20006 OSH Law Project, LLC
(202) 637-5310 Washington, D.C. 20027
cbecker@aflcio.org (202) 256-4080
randy@oshlaw.org
Counsel for American Federation of
Labor and Congress of Industrial Counsel for the AFL-CIO and
Organizations (AFL-CIO) United Food and Commercial
Workers International Union,
AFL-CIO
Andrew D. Roth Victoria L. Bor
Bredhoff & Kaiser, PLLC Jonathan D. Newman
805 Fifteenth Street, N.W., Suite 1000 Esmeralda Aguilar
Washington, D.C. 20005 Sherman Dunn, P.C.
(202) 842-2600 900 Seventh Street, NW, Suite 1000
aroth@bredhoff.com Washington, D.C. 20001
(202) 785-9300
Counsel for the AFL-CIO and United
bor@shermandunn.com
Food and Commercial Workers
newman@shermandunn.com
International Union, AFL-CIO
aguilar@shermandunn.com
Peter J. Ford Counsel for North America’s Building
United Food & Commercial Trades Unions and Massachusetts
Workers International Union Building Trades Council
1775 K Street, N.W., Suite 700
Washington, D.C. 20006-1598 Nicole Horberg Decter
(202) 223-3111 Donald J. Siegel
pford@ufcw.org Segal Roitman, LLP
33 Harrison Avenue, 7th Floor
Counsel for United Food and
Boston, MA 02111
Commercial Workers International
(617) 742-0208
Union, AFL-CIO
ndecter@segalroitman.com
Nicole Berner dsiegel@segalroitman.com
Service Employees Counsel for Massachusetts Building
International Union Trades Council
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036 Keith R. Bolek
(202) 730-7383 Ellen Boardman
nicole.berner@seiu.org O’Donoghue & O’Donoghue LLP
5301 Wisconsin Avenue, N.W., Suite 800
Allyson L. Belovin Washington, D.C. 20015
Levy Ratner (202) 362-0041
80 Eighth Ave., Floor 8 kbolek@odonoghuelaw.com
New York, NY 10011 eboardman@odonoghuelaw.com
(212) 627-8100
abelovin@levyratner.com Counsel for United Association of
Journeymen and Apprentices of the
Counsel for Local 32BJ, Service Plumbing and Pipe Fitting Industry of
Employees International Union the United States and Canada, AFL-CIO
David A. Rosenfeld
Weinberg, Roger & Rosenfeld
1375 55th Street
Emeryville, CA 94608
(510) 337-1001
drosenfeld@unioncounsel.net
Counsel for National Association of
Broadcast Employees &
Technicians, the Broadcasting and
Cable Television Workers Sector of
the Communications Workers of
America, Local 51, AFL-CIO;
Media Guild of the West, the News
Guild- Communications Workers of
America, AFL-CIO, Local 39213;
and the Union of American
Physicians and Dentists
Amy L. Rosenberger
Irwin Aronson
Willig, Williams & Davidson
1845 Walnut Street, 24th Floor
Philadelphia, PA 19103
(215) 656-3600
arosenberger@wwdlaw.com
iaronson@wwdlaw.com
Counsel to American Federation of
Teachers Pennsylvania
Corporate Disclosure Statement
Neither the AFL-CIO nor any of the unions filing this Brief are
corporations and thus neither the AFL-CIO nor any of the unions have
a parent corporation or issue any stock.
i
Table of Contents
Corporate Disclosure Statement ........................................................ i
Introduction ............................................................................................ 1
Summary of the Argument................................................................... 4
Argument ................................................................................................. 6
I. Congress Has Expressly Provided OSHA Clear Authority
to Issue an Emergency Temporary Standard to Address
Occupational Exposures to the Coronavirus; the ETS,
Therefore, Does Not Present Any Issue Under The
Major Question or Non-Delegation Doctrine ....................... 6
II. Substantial Evidence Supports OSHA’s Decision
to Issue an ETS ......................................................................... 27
III. The Balance of Equities Favors Allowing the ETS
to Remain in Effect.................................................................. 31
Conclusion ............................................................................................. 33
ii
Table of Authorities
Page(s)
Cases
Alabama Ass’n of Realtors v. Department of Health &
Human Services,
141 S. Ct. 2485 (2021) ............................................................... 7, 21, 22
Am. Dental Ass’n v. Martin,
984 F.2d 823 (7th Cir. 1993) ......................................................... 12, 15
Am. Textile Mfrs. Inst. v. Donovan,
452 U.S. 490 (1981) ....................................................................... 29, 30
Asbestos Info. Ass’n v. OSHA,
727 F.2d 415 (5th Cir. 1984) ................................................... 24, 27, 29
BST Holdings, LLC v. OSHA,
No. 21-60845, 2021 WL 5279381 (5th Cir. Nov. 12, 2021)................... 6
Farm Worker Just. Fund, Inc. v. Brock,
811 F.2d 613 (D.C. Cir. 1987), vacated as moot, 817 F.2d 890
(D.C. Cir.) ...................................................................................... 12, 16
Fla. Peach Growers Ass’n v. U.S. Dep’t of Labor,
489 F.2d 120 (5th Cir. 1974) ............................................................... 28
Forging Indus. Ass’n v. Sec’y of Labor,
773 F.2d 1436 (4th Cir. 1985) ............................................................. 15
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,
561 U.S. 477 (2010) ............................................................................. 19
Gade v. Nat’l Solid Wastes Mgmt. Ass’n,
505 U.S. 88 (1992) ......................................................................... 16, 17
Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,
448 U.S. 607 (1980) ....................................................................... 23, 28
In re AFL-CIO,
No. 20-1158 (D.C. Cir. June 11, 2020).................................................. 2
iii
Int'l Union, UAW v. Donovan,
590 F. Supp. 747 (D.D.C. 1984), adopted, 756 F.2d 162 (D.C.
Cir. 1985)............................................................................................. 23
J. W. Hampton, Jr., Co. v. United States,
276 U.S. 394 (1928) ............................................................................. 25
Mistretta v. United States,
488 U.S. 361 (1989) ............................................................................. 25
Mutual Film Corp. v. Indus. Comm’n of Ohio,
236 U.S. 230 (1915) ............................................................................. 26
Steel Inst. of N.Y. v. City of New York,
716 F.3d 31 (2d Cir. 2013) .................................................................. 17
Taylor Diving & Salvage Co. v. U.S. Dep’t of Labor,
599 F.2d 622 (5th Cir. 1979) ............................................................... 20
UFCW v. OSHA,
No. 21-1143 (D.C. Cir.) ......................................................................... 2
Union Bridge Co. v. United States,
204 U.S. 364 (1907) ............................................................................. 25
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ............................................................................. 23
Yakus v. United States,
321 U.S. 414 (1944) ............................................................................. 25
Statutes
29 U.S.C. § 651 .................................................................................... 3, 30
29 U.S.C. § 652 .................................................................................. 23, 24
29 U.S.C. § 654 .......................................................................................... 8
29 U.S.C. § 655 ................................................................................ passim
29 U.S.C. § 658 .......................................................................................... 8
iv
29 U.S.C. § 669 ........................................................................ 4, 18, 19, 24
29 U.S.C. § 671a ...................................................................................... 12
Pub. L. No. 102-170, 105 Stat. 1107 (1991) ............................................ 11
Pub. L. No. 106-430, 114 Stat. 1901 (2000) ............................................ 11
Pub. L. No. 117-2, § 2101, 135 Stat. 4 (2021) ....................................... 4, 8
Other Authorities
29 C.F.R. § 1910.34 ................................................................................. 21
29 C.F.R. § 1910.132................................................................................ 21
29 C.F.R. § 1910.155................................................................................ 21
29 C.F.R. § 1910.1025.............................................................................. 21
29 C.F.R. § 1910.1053.............................................................................. 21
29 C.F.R. § 1910.1200.............................................................................. 21
29 C.F.R. § 1926.1153.............................................................................. 21
Commercial Diving Operations, Occupational Safety and Health
Requirements,
42 Fed. Reg. 37650 (July 22, 1977)..................................................... 20
Exec. Order No. 13,999, Protecting Worker Health and Safety,
86 Fed. Reg. 7211 (Jan. 21, 2021)..................................................... 4, 9
Heat Injury & Illness Prevention in Outdoor & Indoor Work Settings,
86 Fed. Reg. 59309 (Oct. 27, 2021) ..................................................... 16
COVID-19 Vaccination & Testing; Emergency Temporary Standard,
86 Fed. Reg. 61402 (Nov. 5, 2021) .............................................. passim
COVID-19 Critical Indicators, Tennessee Department of Health,
https://www.tn.gov/content/dam/tn/health/documents/cedep/n
ovel-coronavirus/CriticalIndicatorReport.pdf .................................... 13
v
Laboratory-Confirmed COVID-19-Associated Hospitalizations,
U.S. Centers for Disease Control,
https://gis.cdc.gov/grasp/COVIDNet/COVID19_5.html ..................... 28
October, November, December COVID-19 Outbreak Data,
California Dep’t of Health & Human Servs. Open Data,
https://data.chhs.ca.gov/dataset/covid-19-outbreak-
data/resource/a266496d-7a23-4426-b521-d7a19c659106 .................. 14
OSHA, Statement on the Status of the OSHA COVID-19
Healthcare ETS (Dec. 27, 2021),
https://www.osha.gov/coronavirus/ets .................................................. 2
Outbreak Reporting, State of Michigan,
https://www.michigan.gov/coronavirus/0,9753,7-406-
98163_98173_102057---,00.html......................................................... 13
Statewide COVID-19 Outbreak Report, Washington State Dep’t
of Health,
https://www.doh.wa.gov/Portals/1/Documents/1600/coronavir
us/data-tables/StatewideCOVID-19OutbreakReport.pdf .................. 14
vi
Introduction
The American Federation of Labor & Congress of Industrial
Organizations (“AFL-CIO”) and the eight national, regional and local
labor organizations that join this Brief,1 all of which were petitioners in
the Court of Appeals and supported the government’s motion to dissolve
the Fifth Circuit’s stay (“the Unions”), represent workers protected by the
Occupational Safety and Health Act (“OSH Act”) in every industry and
in every region of the country – meat packers, grocery store cashiers,
construction workers, teachers, security guards, broadcast technicians,
and myriad others.
Since the pandemic began, the Unions have repeatedly urged the
Occupational Safety & Health Administration (“OSHA”) to adopt
mandatory rules to protect workers from the grave danger COVID-19,
1 American Federation of Teachers Pennsylvania; Massachusetts
Building Trades Council; Media Guild of the West, The News Guild-
Communications Workers of America, Local 39213; National Association
of Broadcast Technicians – The Broadcasting & Cable Television
Workers Section of the Communications Workers of America; North
America’s Building Trades Unions; Service Employees International
Union, Local 32BJ; United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States and
Canada; United Food and Commercial Workers International Union; and
Union of American Physicians and Dentists.
1
the disease caused by the novel coronavirus, SARS-CoV-2, poses at the
workplace. In March 2020, the AFL-CIO petitioned OSHA to adopt an
Emergency Temporary Standard (“ETS”) covering COVID-19. See Per
Curiam Order, In re AFL-CIO, No. 20-1158 (D.C. Cir. June 11, 2020).
When OSHA failed to adopt a specific standard, reasoning at that time
that the grave danger could be addressed with guidance coupled with
enforcement of existing standards and the Act’s general duty clause, the
AFL-CIO sought a writ of mandamus to compel the agency to issue an
ETS. Id. Finally, after OSHA issued an ETS covering only healthcare
workers in June of this year, the AFL-CIO and the United Food and
Commercial Workers Union (“UFCW”) filed a petition for review, seeking
to compel the agency to extend the standard’s protections to all workers.
UFCW v. OSHA, No. 21-1143 (D.C. Cir.). 2
2 That action has been held in abeyance pending the resolution of this
matter. However, on December 27, 2021, OSHA announced that the ETS
was no longer in effect. See OSHA, Statement on the Status
of the OSHA COVID-19 Healthcare ETS (Dec. 27, 2021),
https://www.osha.gov/coronavirus/ets. OSHA explained that it “intends
to continue to work expeditiously to issue a final standard that will
protect healthcare workers from COVID-19 hazards.” Id.
2
The Unions petitioned for review of the ETS at issue here in the
court of appeals not because OSHA lacks authority to issue this standard,
but instead because OSHA has not mandated all the steps necessary to
address this grave danger. The Unions oppose the emergency
applications for an immediate stay because the ETS is necessary to
protect the workers they represent, and millions of others, from the grave
danger COVID-19 currently poses in their workplaces. In addition,
accepting the arguments the Petitioners3 advance would undermine
OSHA’s ability to fulfill its statutory duty “to assure so far as possible
every working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources,” 29 U.S.C. § 651(b), not
only with respect to the grave danger of COVID-19, and not only with
respect to other infectious diseases that may pose dangers in the
workplace, but also with respect to many other occupational hazards
American workers now face and will face in the future. The Unions
therefore strongly oppose the applications for an immediate stay.
3 We use the term “Petitioners” to refer to all the parties that have sought
a stay in this Court.
3
Summary of the Argument
We proceed in three parts below. First, we demonstrate that the
Sixth Circuit correctly concluded that Congress has expressly provided
OSHA with clear authority to issue standards governing infectious
diseases that pose a hazard in the workplace, including, specifically,
COVID-19, and to do so in the kind of exigent circumstances workers
currently face by issuing an ETS. Most recently, Congress appropriated
funds to OSHA “for enforcement activities related to COVID-19.”
American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 2101, 135 Stat.
4, 30. Congress thereby plainly recognized that COVID-19 is a workplace
hazard subject to regulation by OSHA. Moreover, Congress made the
appropriation after the President had ordered OSHA to “consider
whether any emergency temporary standards on COVID-19 . . . are
necessary.” Exec. Order No. 13,999, Protecting Worker Health and
Safety, § 2(a), 86 Fed. Reg. 7211 (Jan. 21, 2021). And Congress previously
expressly recognized OSHA’s authority to require both vaccination and
medical examination except of workers with religious objections. See 29
U.S.C. § 669(a)(5). Additional congressional actions and decades of
agency practice provide further support for OSHA’s issuance of the ETS.
4
In light of Congress’ clear delegation of authority to OSHA, the ETS does
not present any issue under either the major question or non-delegation
doctrine.
Second, we demonstrate that the court below correctly concluded
that OSHA satisfied Congress’ directions by reasonably finding, based on
substantial evidence, that COVID-19 is both an “agent[] determined to
be . . . physically harmful” and a “new hazard[]” that is exposing
employees “to grave danger” and that the steps the ETS requires
employers to take are “necessary to protect employees from such danger.”
29 U.S.C. § 655(c)(1).
Finally, we show that the balance of equities and the public interest
strongly favor protecting workers from the ongoing COVID-19 pandemic
and that any stay of the ETS will contribute to a substantial increase in
death and illness among working Americans.
5
Argument
I. Congress Has Expressly Provided OSHA Clear Authority to
Issue an Emergency Temporary Standard to Address
Occupational Exposures to the Coronavirus; the ETS,
Therefore, Does Not Present Any Issue Under The Major
Question or Non-Delegation Doctrine
In Section 6(c) of the OSH Act, Congress directed OSHA to forgo
notice and comment rulemaking and issue a standard, effective
immediately but for a limited period of time, when it determines that
workplace conditions expose employees to a “grave danger” from
exposure to toxic or physically harmful “substances or agents,” or from
“new hazards,” and an ETS is “necessary” to protect employees from that
danger. 29 U.S.C. § 655(c)(1). Congress crafted this Section with
“precision,” BST Holdings, LLC v. OSHA, No. 21-60845, 2021 WL
5279381, at *4 (5th Cir. Nov. 12, 2021), clearly and unequivocally
granting OSHA emergency authority to respond expeditiously when
workers face grave dangers.
Section 6(c) represents Congress’ recognition that OSHA would
confront situations that the legislative branch did not and could not
anticipate. That is precisely what OSHA has faced with the COVID-19
pandemic. OSHA has found that workplace exposure to the novel
6
coronavirus – both a physically harmful agent and a new hazard – poses
a grave danger to unvaccinated workers and has mandated that
employers address workplace exposure to the coronavirus by requiring
their employees either to be vaccinated or to be tested weekly and wear
face coverings while at work. 4
Petitioners’ central contention is that the coronavirus is a
ubiquitous public health problem, control of which Congress did not
authorize OSHA, a workplace safety agency, to address through an ETS.
This contention ignores the fact that Congress has not only plainly given
this occupational safety and health agency authority to address viruses
and other contagious diseases that exist both inside and outside the
workplace, but also has specifically confirmed OSHA’s authority to issue
an ETS to protect employees from the coronavirus. Moreover, the ETS’s
purpose is to encourage reliance on the most effective methods of
protecting workers from contracting the virus while in the workplace,
4 As the Sixth Circuit found below, employers also have a third option, to
permit employees to work remotely. Slip op. at 7, Nat’l Fed’n of Indep.
Bus. Emergency Application, App 1 at 233, U.S. No. 21A244 (“App.”).
7
even if the protection afforded by one of the options given to employers –
requiring vaccination – extends outside the workplace.
A. Congress unambiguously and specifically recognized OSHA’s
authority to protect workers from occupational exposure to the
coronavirus, including by issuing an ETS, when in 2021 it appropriated
$100,000,000.00 to OSHA in the American Rescue Plan (“ARA”) to be
used “to carry out COVID-19 related worker protection activities.”
American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 2101, 135 Stat.
4, 30. Congress specifically allocated $10,000,000.00 of the ARA
appropriation “for enforcement activities related to COVID-19.” Id.
Congress’ appropriation of funds “for enforcement activities related to
COVID-19” presupposes that OSHA has authority to regulate
occupational exposure to COVID-19. That is because employers have two
duties under the OSH Act that the agency can enforce: to comply with
OSHA standards and regulations, 29 U.S.C. § 654(a)(2), and to provide
employment and places of employment “free from recognized hazards,”
29 U.S.C. § 654(a)(1). OSHA can only engage in “enforcement activities,”
i.e., issue citations to an employer, when the employer violates one of
these two duties. See 29 U.S.C. § 658(a) (Secretary has authority to cite
8
employers for violating a standard, regulation, or requirement of the Act).
Thus, the appropriation for enforcement recognizes OSHA’s authority to
address COVID-19 as a workplace hazard.
Moreover, when Congress passed the ARA in March of 2021, OSHA
was actively addressing workplace COVID-19 exposure by providing
guidance and enforcing existing standards and the statute’s general duty
clause. 5 In addition, pursuant to an Executive Order President Biden
issued on January 21, 2021, directing OSHA to “consider whether any
emergency temporary standards on COVID-19 . . . are necessary,” the
agency was already evaluating the need for one or more ETSs. Exec.
Order No. 13,999, Protecting Worker Health and Safety, § 2(a), 86 Fed.
Reg. 7211 (Jan. 21, 2021). Congress was undoubtedly aware of this
executive branch activity. The legislation is thus a clear congressional
5 From the onset of the pandemic, including under President Trump and
Secretary of Labor Scalia, OSHA has exercised its authority to address
the workplace hazard posed by COVID-19, initially through guidance,
reporting requirements, and enforcement actions based on existing
standards not specifically aimed at COVID-19 and the Act’s general duty
clause. COVID-19 Vaccination & Testing; Emergency Temporary
Standard, 86 Fed. Reg. 61,402, 61,429-30, 61,440-43 (Nov. 5, 2021)
(“Pmbl-”) (App. 29-30; 40-43). Having determined that those earlier
efforts were ineffective, OSHA determined it was necessary to issue this
ETS. Pmbl-61,430-31 (App. 30-31).
9
finding that COVID-19 is a workplace hazard OSHA may address,
including by issuing an ETS. The Petitioners all ignore this critical piece
of legislation, and for good reason: Their arguments that OSHA lacks
authority over viruses, which pose hazards both inside and outside the
workplace, including COVID-19, cannot stand once Congress’ clear,
express direction to the agency is considered.
B. The ARA’s recognition of OSHA’s authority to address
workplace exposure to this virus is entirely consistent with both the
terms of the OSH Act itself and longstanding congressional and
administrative action. Section 6(c) requires OSHA to issue an ETS if it
“determines . . . that employees are exposed to grave danger from
exposure to . . . agents determined to be . . . physically harmful or from
new hazards.” 29 U.S.C. § 655(c)(1). As the Sixth Circuit explained,
there can be little question that the coronavirus, “[a]n agent that causes
bodily harm, . . . falls squarely within the scope of” this section. Slip op.
at 10 (App. 236) (a virus is an “agent,” i.e., “a chemically, physically, or
biologically active principle,” that is “‘physically harmful,’ (i.e., causing
bodily harm)” (citation omitted)). It is also unquestionably a “new
10
hazard,” as “SARS-CoV-2 was not known to exist [in the U.S.] until
January 2020.” Pmbl-61,406 (App. 6). 6
OSHA has a long history of seeking to prevent the spread of
infectious diseases in the workplace using a variety of regulatory tools,
Slip op. at 12-13 (App. 238-9), without challenge from the regulated
community or any evidence of disapproval by Congress. Indeed, since
1970, Congress has repeatedly affirmed its understanding that OSHA
may address infectious diseases by (1) twice directing the agency to act
more forcefully in protecting against workplace exposures to bloodborne
pathogens, see Departments of Labor, Health & Human Services, &
Education, & Related Agencies Appropriations Act, 1992, Pub. L. No.
102-170, 105 Stat. 1107 (1991) (directing OSHA to finalize rulemaking
on bloodborne pathogen standard); Needlestick Safety & Prevention Act,
Pub. L. No. 106-430, 114 Stat. 1901 (2000) (directing OSHA to strengthen
its bloodborne pathogens standard and providing language for the
regulatory text), and (2) adding the Workers Family Protection Act to the
6 Petitioners’ argument that a hazard cannot be both “new” and
“recognized” is misplaced, as even a “new” hazard must be recognized as
such before the agency can take action to ameliorate its effects.
11
OSH Act to protect the health of workers and their families by, inter alia,
studying “issues related to the contamination of workers’ homes with
hazardous chemicals and substances, including infectious agents,
transported from the [workers’] workplaces . . . .” Slip op. at 11-12 (App
237-8), quoting 29 U.S.C. § 671a(c)(1)(A) (emphasis supplied by the
court).7
C. Petitioners’ argument that exposure to the coronavirus is a
public-health problem traditionally regulated by the states, not an
occupational health issue within OSHA’s purview, does not withstand
scrutiny. OSHA found that SARS-CoV-2 “is readily transmissible in
workplaces” and although “COVID-19 is not exclusively an occupational
disease . . . transmission can and does occur in workplaces.” Pmbl-61,411
(App. 11). While the risk of transmission may vary by type of workplace,
7 Courts have also affirmed OSHA’s authority to regulate exposure to
infectious diseases. See, e.g., Farm Worker Just. Fund, Inc. v. Brock, 811
F.2d 613, 615, 633 (D.C. Cir. 1987), vacated as moot, 817 F.2d 890 (D.C.
Cir.) (finding OSHA had unreasonably delayed issuing a field sanitation
standard to protect workers against “transmission of fecal-born bacterial
and viral diseases and other debilitating parasitic infections.”); Am.
Dental Ass’n v. Martin, 984 F.2d 823, 826 (7th Cir. 1993) (Although
contesting the standard’s application to their particular workplaces, the
petitioners did not even “contend that there should be no regulation of
bloodborne pathogens.”).
12
“OSHA . . . expects transmission to occur in diverse workplaces all across
the country.” Id.
OSHA found what even a cursory reading of the newspaper during
the pandemic reveals – that the workplace has been a primary and a
devastating source of exposure to the coronavirus. Slip op. 21-22 (App.
247-8). In addition to the workplace outbreaks detailed in the preamble
to the ETS, Pmbl-61,411-17 (App. 11-17), and the Sixth Circuit’s opinion
below, Slip op. at 24 (App. 250), more recent data illustrate that
workplace clusters of COVID-19 cases continue unabated. In Michigan,
for the week ending December 20, there were 99 new outbreaks in
workplace settings such as long-term care, K-12 education, corrections,
and health care and 638 ongoing outbreaks in those settings. 8 Tennessee
reported 250 active COVID-19 outbreaks on December 20, 144 of which
were in work settings. 9 In Washington State, 80 of 84 new outbreaks
8 Outbreak Reporting, State of Michigan, https://www.michigan.gov/
coronavirus/0,9753,7-406-98163_98173_102057---,00.html (Updated on
Mondays at 3pm - last updated Dec. 20, 2021).
9 COVID-19 Critical Indicators, Tennessee Department of Health,
https://www.tn.gov/content/dam/tn/health/documents/cedep/novel-
coronavirus/CriticalIndicatorReport.pdf (last updated Dec. 20, 2021).
Work settings include all except community settings.
13
reported during the week of December 5-11 were in workplace settings
outside of health care, a 175% increase in two weeks.10 California has
reported 1,474 outbreaks, broken down by industry sector, in the last
three months alone.11 While some of these reports may include infections
among people who are not employees (customers, for example), the point
remains that being in the workplace creates a heightened risk of
exposure to the coronavirus and that workplace outbreaks of COVID-19
infections are widespread.
The Sixth Circuit correctly concluded that even though exposure to
the coronavirus is not unique to the workplace, OSHA may regulate to
protect workers from occupational exposure to the virus. Slip op. at 13
(App. 239); Pmbl-61,407 (App. 7). In fact, OSHA has historically
regulated workplace exposures to a variety of hazards that are present
10 These work settings include education, assisted living, manufacturing
and construction (industrial settings), childcare/youth programs, health
care, jail/prison/detention centers and food industry and retail.
Statewide COVID-19 Outbreak Report, Washington State Dep’t of Health,
https://www.doh.wa.gov/Portals/1/Documents/1600/coronavirus/data-
tables/StatewideCOVID-19OutbreakReport.pdf (Dec. 25, 2021).
11 October, November, December COVID-19 Outbreak Data, California
Dep’t of Health & Human Servs. Open Data,
https://data.chhs.ca.gov/dataset/covid-19-outbreak-data/resource/
a266496d-7a23-4426-b521-d7a19c659106 (last updated Dec. 22, 2021).
14
both in the workplace and in society more generally, and courts have
upheld its authority to do so. See Forging Indus. Ass’n v. Sec’y of Labor,
773 F.2d 1436, 1442 (4th Cir. 1985) (en banc) (upholding OSHA
regulation of workplace noise to prevent hearing loss); Am. Dental Ass’n
v. Martin, 984 F.2d at 826 (“infectious character of HIV and HBV
[hepatitis B] warrants even on narrowly economic grounds more
regulation than would be necessary in the case of a noncommunicable
disease”). So long as its standard is aimed at protecting workers against
a risk of exposure from employment or at a place of employment, OSHA
acts within its statutory authority. The fact that non-occupational risks
exist alongside occupational risks does not limit OSHA’s obligation to
protect workers. Any holding to the contrary would call into question the
validity of dozens of long-established workplace protections, such as fire
protection and electrical safety protocols; requirements for ladders and
motor vehicles; limits on exposure to silica, asbestos, and lead; and
requirements for labeling of hazardous chemicals, to name a few.12
12 OSHA has issued an advance notice of proposed rulemaking on heat
stress, Heat Injury & Illness Prevention in Outdoor & Indoor Work
Settings, 86 Fed. Reg. 59309 (Oct. 27, 2021), another hazard that exists
15
D. Nor does the fact that states have traditionally regulated
public health mean that OSHA is precluded from regulating the
occupational risk of contracting COVID-19. To the contrary, in enacting
the OSH Act, Congress recognized that it was bringing “the Federal
Government into a field that traditionally had been occupied by the
States,” but did so to “establish[] a system of uniform federal occupational
health and safety standards.” Gade v. Nat’l Solid Wastes Mgmt. Ass’n,
505 U.S. 88, 96, 102 (1992). See also Farmworker Just. Fund, 811 F.2d
at 625 (“Congress, in adopting the OSH Act, decided that the federal
government would take the lead in regulating the field of occupational
health.”).
Congress adopted the OSH Act to level the playing field,
“subject[ing] employers and employees to only one set of regulations.”
Gade, 505 U.S. at 99. The need for uniform, minimum federal standards
is particularly acute in the case of COVID-19 because employers are
facing inconsistent requirements, with some states mandating vaccine or
both within and outside of work. That effort, too, would be undermined
if Petitioners’ arguments prevail.
16
masking policies and other states prohibiting them. Pmbl-61,445; 61508-
10 (App. 45; 108-10).
Moreover, the ETS does not completely displace state public health
regulation. OSH Act standards apply only “to employers and employees
in workplaces,” Steel Inst. of N.Y. v. City of New York, 716 F.3d 31, 33 (2d
Cir. 2013); they do not preempt non-conflicting state laws “of general
applicability” that address “public safety as well as occupational safety
concerns,” Gade, 505 U.S. at 104, 107. Thus, state COVID-19-related
laws protecting the public can co-exist with the ETS under the
preemption principles this Court outlined in Gade. Pmbl-61,509 (App.
109). In short, the fact that the states have authority to regulate public
health generally has no bearing on OSHA’s authority to protect workers
from grave dangers that make their employment or places of employment
unsafe.
E. Not only is OSHA specifically authorized to regulate
occupational exposure to viruses, including the coronavirus, Congress
also specifically recognized that OSHA has authority to mandate both
vaccination and medical examination when necessary to protect workers.
17
And OSHA’s authority to require protective clothing, such as face
coverings, has never been questioned.
Section 20(a)(5) of the OSH Act provides “[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.” 29 U.S.C. § 669(a)(5). 13 As
the Sixth Circuit correctly concluded, in Section 20, Congress clearly
authorized OSHA to require vaccination and medical examination when
necessary to protect workers, as the limited religious exemption would be
meaningless had Congress not otherwise recognized OSHA’s authority to
use these tools. Slip op. at 11 (App. 237).14
13 The suggestion that Section 20 applies only to the Secretary of Health
and Human Services is incorrect. The section applies to all “provision[s]
of this chapter,” with the reference to “this chapter” being to 29 U.S.C.
Chapter 15, the OSH Act. The provision is designed to facilitate research
by HHS that will “enabl[e OSHA] to meet [its] responsibility for the
formulation of safety and health standards.” Id. § 669(a)(2). Thus, the
narrow prohibition on vaccination and medical examination and the
implicit authorization outside the prohibition clearly applies to OSHA.
14 In fact, the Sixth Circuit observed that this provision demonstrates not
only Congress’ authorization of immunization requirements when they
are appropriate, but also its understanding that OSHA could regulate
exposures to infectious disease. Id. (“The provision’s reference to
18
Petitioners ignore this section of the Act and argue that the ETS
exceeds OSHA’s statutory authority because “a ‘lack of historical’
precedent is often ‘the most telling indication’ that . . . an agency lacked
the power to promulgate a regulation.” States’ Pet. at 1, Ohio v. Dep’t of
Labor, U.S. No. 21A247 (Dec. 18, 2021) (citing Free Enter. Fund v. Pub.
Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010) (internal citations
omitted)). Surely historical practice is less “telling” than express
congressional authorization. Moreover, while no prior OSHA standard
has mandated immunization, neither has OSHA done so here. Instead,
the ETS requires employers to ensure either immunization or weekly
testing and masking at work. Section 20(a)(5) also recognizes OSHA’s
authority to mandate medical examinations and OSHA has previously
done so, including a variety of medical tests in its standard for
commercial divers, because “the safety of the diver and other dive team
members can depend on the health of the individual diver.” Commercial
immunization and its creation of a limited exception to the Act’s
authorization of standards involving immunization would be rendered
meaningless if the statute did not contemplate both that ‘harmful agents’
include infectious, disease-causing agents, such as viruses, and that
OSHA would employ the use of immunizations to combat those agents.”)
19
Diving Operations, Occupational Safety and Health Requirements, 42
Fed. Reg. 37,650, 37,657 (July 22, 1977) (requiring several specific tests,
including blood test). See Taylor Diving & Salvage Co. v. U.S. Dep’t of
Labor, 599 F.2d 622, 625 (5th Cir. 1979) (striking down a different
portion of the commercial diving standard and observing “OSHA may
arguably provide for a threshold determination of medical fitness.”) That
the agency has not previously seen the need to require vaccination –
another of the tools Congress recognized in Section 20(a)(5) that OSHA
possesses – does not negate the congressional authorization.
F. The Sixth Circuit properly rejected Petitioners’ claims both
that the “major question doctrine” requires some form of additional,
express congressional authorization, and that Section 6(c) of the OSH Act
violates the non-delegation doctrine.
Starting with the “major question doctrine,” the Sixth Circuit
correctly found that the factual premise for its application is absent here.
The court found that “OSHA’s issuance of the ETS is not an enormous
expansion of its regulatory authority.” Slip. op. at 15 (App. 241). As we
explained above, OSHA has adopted many standards addressing hazards
that exist both inside and outside the workplace, has repeatedly
20
addressed infectious diseases when they pose a particular hazard in the
workplace, and has employed requirements of both medical testing and
protective clothing as tools to abate hazards. Moreover, OSHA standards
regularly apply nationwide to all employers with employees exposed to
the regulated hazard.15
Even if a “major question” was raised here, the Sixth Circuit also
correctly concluded that this Court’s prior cases applying the doctrine to
strike down executive branch action “are inapposite because here the
statutory language unambiguously grants OSHA authority for the ETS.”
Slip op. at 16 (App. 242). The contrast with this Court’s recent decision
in Alabama Ass’n of Realtors v. Department of Health & Human Services,
141 S. Ct. 2485 (2021), vividly illustrates why the Sixth Circuit was
correct. There, Congress had imposed a temporary eviction moratorium,
but when that eviction moratorium expired, Congress did not renew
it. In the absence of any specific congressional authorization, indeed in
15 See, e.g., Hazard Communication, 29 C.F.R. § 1910.1200; Lead, id. §
1910.1025; Silica, id. §§ 1910.1053 (general industry and maritime) and
1926.1153 (construction); Exit Routes and Emergency Planning, id. §
1910.34; Personal Protective Equipment, id. § 1910.132; and Fire
Protection, id. § 1910.155 (requiring fire extinguishers).
21
the face of this evidence that Congress did not wish to extend the
moratorium, “the CDC decided to do what Congress had not.” Id. at 2486.
The CDC did so, moreover, under a statute authorizing it to “implement
measures like fumigation and pest extermination,” completely unlike an
eviction moratorium. Id. In striking down the regulatory moratorium,
this Court noted that “[i]t would be one thing if Congress had specifically
authorized the action that the CDC has taken. But that has not
happened.” Id. Here, such specific congressional authorization has
happened, as we fully explain above, in Congress’ original grant of
authority to issue emergency temporary standards, in the 2021 ARA’s
specific recognition of OSHA’s authority to enforce the Act to protect
workers against COVID-19, and in OSH Act Section 20’s specific
recognition of OSHA’s authority to require both vaccination and medical
examination except of workers who object on religious grounds.
The Sixth Circuit also correctly held that the OSH Act does not
delegate legislative power to OSHA in derogation of the constitutional
separation of powers. This Court has already sustained another
provision of the OSH Act in the face of such a challenge, finding that
Congress acted constitutionally in granting OSHA authority to issue
22
permanent health standards under Section 6(b)(5), 29 U.S.C. § 655(b)(5).
Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646
(1980) (“IUD v. API”). See also Whitman v. Am. Trucking Ass’ns, 531 U.S.
457, 473 (2001) (noting that EPA’s authority under the Clean Air Act to
promulgate rules “requisite to protect public health” was “strikingly
similar” to delegations the Court had previously upheld, including the
OSH Act’s provisions regarding permanent health standards).
OSHA’s authority to issue permanent standards under Section 6(b)
is broader than its authority to issue an ETS under Section 6(c). To issue
a permanent standard, OSHA must demonstrate that it will address a
significant risk of material impairment of workers’ health. See IUD v.
API, 448 U.S. at 614-15. And the standard must be “reasonably
necessary or appropriate to provide safe or healthful employment and
places of employment.” 29 U.S.C. § 652(8). The authority Congress gave
OSHA to issue an ETS is far more circumscribed: OSHA must issue an
ETS when it determines workers face a “grave danger” from occupational
exposure to harmful physical agents or “new hazards,” id. § 655(c)(1), a
level of risk that is greater than the “significant risk” OSHA must find
before adopting a standard under Section 6(b), Int’l Union, UAW v.
23
Donovan, 590 F. Supp. 747, 755-56 (D.D.C. 1984), adopted, 756 F.2d 162
(D.C. Cir. 1985). An ETS must not only be “reasonably necessary,” 29
U.S.C. § 652(8) (emphasis added); it must be “necessary to protect
employees from [the grave] danger” OSHA has identified, and to be so
during the limited time the ETS remains in effect. Asbestos Info. Ass’n
v. OSHA, 727 F.2d 415, 417 n.1, 422 (5th Cir. 1984) (emphasis added).
Thus, in Section 6(c), Congress established a clear policy favoring worker
protection from new hazards and specified when OSHA must act – when
it finds a grave danger exists – and the action it must take – issuing a
standard necessary to protect employees from that danger during the
brief period the ETS is in effect.
The statute also prescribes the range of tools OSHA can employ in
standards adopted under both Section 6(b)(5) and Section 6(c) –
“requir[ing] conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employment and places of
employment.” 29 U.S.C. § 652(8). Combined with Section 20(a)(5), id. §
669(a)(5), Congress has thus authorized OSHA to require both
traditional practices, like the use of face coverings, and practices the
24
agency has either rarely or not previously determined to be necessary,
such as the requirement of medical examination or vaccination.
Accordingly, Congress has done far more than articulate “an intelligible
principle to which the person or body authorized to [exercise the
delegated authority] is directed to conform,” Mistretta v. United
States, 488 U.S. 361, 372 (1989) (quoting J. W. Hampton, Jr., Co.
v. United States, 276 U.S. 394, 409 (1928)) (alteration in original), and
there has thus been no unconstitutional delegation here.
As this Court’s non-delegation doctrine precedents recognize, “[t]he
Constitution as a continuously operative charter of government” is not a
straitjacket that disables Congress from expressly authorizing expert
administrative agencies to implement legislative policies where it would
be either “impossible” or “impracticable” for Congress to perform the
legislative function without such assistance. Yakus v. United States, 321
U.S. 414, 424 (1944). See generally Mistretta, 488 U.S. at 371-74. Indeed,
to impose such a constitutional straightjacket on Congress, this Court
has warned, “might well result in serious hardship,” Yakus, 321 U.S. at
426, and even “paralysis,” Union Bridge Co. v. United States, 204 U.S.
364, 387 (1907), in the face of “some of [the] most important” challenges
25
confronting this country, Mutual Film Corp. v. Indus. Comm’n of Ohio,
236 U.S. 230, 246 (1915)—one of which, undeniably, is the protection of
millions of workers against the ongoing scourge of COVID-19.
The concerns expressed by the Court about an overbroad
application of the non-delegation doctrine loom especially large here as
the nation faces the new and grave hazard of COVID-19. Although the
1970 Congress that enacted the OSH Act obviously could not have
foreseen the occurrence a half century later of a workplace emergency of
the gravity and specific type that we now face, the 1970 Congress did—
in an act of prudent contingency planning of sorts—vest in OSHA a
highly constrained emergency power to respond quickly to a new hazard
in the workplace, based on its expert assessment of what steps are
immediately necessary to save lives and protect workers’ health. Under
this Court’s non-delegation cases, that prudent congressional action
authorizing OSHA to take emergency, temporary action to combat
unforeseeable workplace hazards combined with Congress’ more recent
specific recognition of OSHA’s authority to protect workers against the
hazard posed by COVID-19 should be respected rather than rendered
26
nugatory at a moment in our country’s history that cries out for OSHA’s
use of that authority.
Indeed, the assertion of a judicial power to negate Congress’
decision to authorize OSHA to deal quickly and effectively with new and
unforeseeable workplace hazards through the issuance of an ETS would
raise separation of powers concerns that are far more profound and
potentially injurious to the country than the separation of powers
concerns raised by the Petitioners.
II. Substantial Evidence Supports OSHA’s Decision to Issue an
ETS
The Sixth Circuit correctly concluded that OSHA acted within its
authority in finding that the ETS addresses an “emergency” posing a
“grave danger” to unvaccinated workers and was “necessary” to protect
them from that danger. The test is whether OSHA has amassed
substantial evidence to support each of its findings. 29 U.S.C. § 655(f).16
16 The substantial evidence test required the court of appeals to engage
in more rigorous review of OSHA’s factual findings than would be the
case under the “arbitrary and capricious” test. See Asbestos Info. Ass’n,
727 F.2d at 421. Nothing in Section 6(f) of the OSH Act—which governs
judicial review of permanent and temporary OSHA standards alike —
suggests that the court should take a harder look at factual findings
supporting an ETS than would be required when reviewing findings
27
This Court has made clear that OSHA is not required to support its
scientific findings “with anything approaching scientific certainty.” IUD
v. API, 448 U.S. at 656. OSHA acts properly when it relies on a “body of
reputable scientific thought.” Id. This Court should defer to OSHA’s
expert decision about the proper scope of the ETS and the need for the
preventive measures it requires.
OSHA detailed its analysis in 153 Federal Register pages,
explaining why occupational exposure to COVID-19 poses a grave danger
to all unvaccinated workers, not just to older or infirm workers, Pmbl-
61,410 (App. 10); 17 why all indoor workplaces where employees
congregate create a heightened risk of exposure, Pmbl-61,414 (App. 14);
why the emergence of the Delta variant of the coronavirus and the wide
availability of vaccines prompted it to adopt a specific standard in
November 2021 when it had not done so earlier, Pmbl-61,431-32 (App.
supporting a permanent standard. Fla. Peach Growers Ass’n v. U.S. Dep’t
of Labor, 489 F.2d 120, 127-28 (5th Cir. 1974).
17 In fact, the latest CDC data show that working age adults now make
up the majority of COVID-related hospitalizations. Laboratory-
Confirmed COVID-19-Associated Hospitalizations, U.S. Centers for
Disease Control, https://gis.cdc.gov/grasp/COVIDNet/COVID19_5.html
(For week beginning December 11, adults ages 18-64 accounted for 56.2%
of COVID hospitalizations).
28
31-32);18 and why its prior reliance on existing standards and the general
duty clause were not effective methods of reducing the risk of COVID-19,
making an ETS necessary. Pmbl-61,440-43 (App. 40-43). The Sixth
Circuit, after taking a hard look at OSHA’s explanation for the ETS and
each of the alleged deficiencies in OSHA’s analysis, found the ETS was
supported by substantial evidence. Slip op. at 19-31 (App. 245-57). This
Court has previously held, in another OSHA case, that it “‘will intervene
only in what ought to be the rare instance when the [substantial
evidence] standard appears to have been misapprehended or grossly
misapplied’ by the court below.” Am. Textile Mfrs. Inst. v. Donovan, 452
U.S. 490, 523 (1981) (“ATMI v. Donovan”) (alteration in original) (citation
omitted). Petitioners barely mention OSHA’s detailed explanations in
their briefs and make no effort to show that the Sixth Circuit misapplied
the substantial evidence test. They have thus offered no basis for this
Court to intervene.
18 The Fifth Circuit has held that OSHA’s failure to act sooner does not
establish the absence of an emergency warranting an ETS. Asbestos Info.
Ass’n, 727 F.2d at 423.
29
In the face of a new hazard like that posed by the pandemic,
Congress recognized the need to act quickly based on rapidly evolving
scientific information. Congress tasked OSHA with making factual
findings to implement its policy goal “to assure so far as possible . . . safe
and healthful working conditions” by, inter alia, “reduc[ing] . . . health
hazards at . . . places of employment.” 29 U.S.C. § 651(b), (b)(1). The fact
that Petitioners read the evidence differently or suggest that OSHA
might have drawn lines differently – for example, that it might have
adopted different requirements for different industries based on differing
levels of risk estimated from incomplete data – does not mean that the
ETS is flawed. “The possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.” ATMI v. Donovan, 452
U.S. at 523 (citation omitted). As Judge Gibbons observed about the
proper role of the judiciary in reviewing the ETS, “reasonable minds may
disagree on OSHA’s approach to the pandemic, but we do not substitute
our judgement for that of OSHA.” Slip op. at 38 (App. 264) (Gibbons, J.,
concurring).
30
While Petitioners characterize the ETS as too broad, the Unions
petitioned for review of OSHA’s ETS in the court below because it is too
limited. Our concern, that the ETS does not do enough to protect all at-
risk workers, would require a remand to strengthen the ETS, not a stay
to put its protections on hold. In any event, questions about the proper
breadth of the ETS are properly resolved in the first instance by a three-
judge panel in the Sixth Circuit after briefing on the merits, not by this
Court after expedited briefing on a petition for a stay.
III. The Balance of Equities Favors Allowing the ETS to Remain
in Effect
The Sixth Circuit recognized the unprecedented death and illness
COVID-19 has caused over the past two years, observing that the
pandemic has wreaked havoc across America, leading to the
loss of over 800,000 lives, shutting down workplaces and jobs
across the country, and threatening our economy.
Throughout, American employees have been trying to survive
financially and hoping to find a way to return to their jobs.
Despite access to vaccines and better testing, however, the
virus rages on, mutating into different variants, and posing
new risks.
Slip op. at 4. Fifty million people in the United States have been infected
with COVID-19 since January 2020; many were infected at work and will
suffer long-term adverse health effects from their illness. Eight hundred
31
thousand people have died in this country, seventy-five thousand more
than when OSHA issued the ETS less than two months ago. Pmbl-61,406
(App. 6). OSHA estimates that its ETS will prevent 6,500 additional
COVID-19 deaths and 250,000 hospitalizations in just six months. Pmbl-
61,408 (App. 8). Even if OSHA’s projections do not prove precisely
accurate, there is no denying that the ETS will significantly reduce the
devastating toll COVID-19 has had, and continues to have, on working
families due to exposure in their workplaces.
The Unions represent millions of workers whose lives have been
disrupted by the COVID pandemic. Thousands of businesses have closed,
laying off their workers. Many workers afraid of contracting COVID-19
have left the workforce. Others have used paid and unpaid leave to
recover from COVID-19 or to care for family members who fell ill. Most
recently, bus service and airline flights have been canceled during the
holidays because so many workers are sick. In many states, hospitals
have reached capacity and are rationing care. The public interest
demands that OSHA’s modest protections against these threats remain
in place.
32
Against this backdrop, Petitioners’ speculative claims that they will
incur compliance costs – modest by OSHA standards – under the ETS
that may prove unnecessary if it is invalidated pale in comparison to the
cost of failing to protect workers from this deadly virus. Employers claim
they may be forced to “fire employees, suspend employees, or face
employees who quit over the [ETS],” Slip op. at 37 (App. 263), but OSHA
found that the risk that other employees would opt out of the workforce
to avoid exposure to the coronavirus or be absent because of illness or
exposure was just as great. Pmbl-61,474 (App. 74). Petitioners’ claims
also ignore the cost to employers if they are required to close their
businesses because of a COVID-19 outbreak among their workforce.
In light of the unprecedented scope and severity of the COVID-19
pandemic and the ever-mutating virus causing wave after wave of spikes
in positive cases, hospitalizations and deaths, the balance of equities
clearly favors leaving the ETS in place pending full judicial review in the
court of appeals.
Conclusion
For the foregoing reasons, this Court should deny the requests for
an emergency stay of OSHA’s ETS.
33
Respectfully submitted,
/s/ Randy Rabinowitz
Randy Rabinowitz
Counsel of Record
P.O. Box 3769
OSH Law Project, LLC
Washington, D.C. 20027
(202) 256-4080
randy@oshlaw.org
December 30, 2021
34
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