Court filing

Brief - Scotus

What This Document Is

This is a government-side motion for leave and amicus brief filed December 30, 2021 by the National Disability Rights Network and the Judge David L. Bazelon Center for Mental Health Law, opposing the emergency stay applications and urging the OSHA vaccine-or-testing ETS be allowed to take effect, in the consolidated proceeding "In re: MCP No. 165," Nos. 21A244 and 21A247.

Factual Summary

Counsel Agatha M. Cole states amici notified all parties by email on December 27, 2021 and obtained consent from several, including the Republican National Committee, the State of Ohio, Alliance Defending Freedom, NFIB, BST Holdings, Associated Builders and Contractors, First Liberty Institute, Betten Chevrolet, the Job Creators Network, and Scott Bedke et al.; no party objected. The brief argues the ETS is "necessary" under 29 U.S.C. § 655(c)(1) to protect employees who face a "grave danger from exposure" to COVID-19 in the workplace, focusing specifically on the millions of American workers with underlying medical conditions and disabilities that render them especially vulnerable to infection and severe illness. Amici argue the OSH Act's definition of "employees" necessarily includes those with such conditions, and contend the harm to these workers if the ETS is enjoined vastly outweighs the injuries cited by the parties seeking the stay.

Key Facts

Filed December 30, 2021, in the consolidated MCP No. 165 proceeding, Nos. 21A244/21A247.
Amici are the National Disability Rights Network and the Judge David L. Bazelon Center for Mental Health Law, represented by Pollock Cohen LLP.
Core argument: the ETS is a statutorily "necessary" protection for medically vulnerable and disabled workers, and enjoining it would cause disproportionate harm to that population.
Consent obtained from several stay Applicants and other named parties (RNC, Ohio, ADF, NFIB, BST Holdings, and others); no objections recorded.

Source Caveats

Use the linked source file for exact quotations, page references, signatures, attachments, and any redacted or sealed material.

Full text

Nos. 21A244 and 21A247
================================================================================================================

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

---------------------------------♦---------------------------------

On Applications For Stay Or Injunction Pending
Review Of Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit

---------------------------------♦---------------------------------

MOTION AND BRIEF OF THE NATIONAL
DISABILITY RIGHTS NETWORK AND THE JUDGE
DAVID L. BAZELON CENTER FOR MENTAL
HEALTH LAW AS AMICI CURIAE IN OPPOSITION
TO THE EMERGENCY APPLICATIONS FOR A STAY
OR INJUNCTION PENDING CERTIORARI REVIEW

---------------------------------♦---------------------------------

AGATHA M. COLE
Counsel of Record
ALISON BOROCHOFF-PORTE
CHRISTOPHER LEUNG
ADAM POLLOCK
POLLOCK COHEN LLP
60 Broad Street, 24th Floor
New York, NY 10004
(212) 337-5361
agatha@pollockcohen.com
Counsel for Amici Curiae

================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
1

MOTION FOR LEAVE TO FILE
Pursuant to Supreme Court Rule 37.2, the Na-
tional Disability Rights Network (“NDRN”) and the
Judge David L. Bazelon Center for Mental Health Law
respectfully move for leave to file the attached brief as
amici curiae in opposition to the various Emergency
Applications seeking to stay or otherwise enjoin the
Sixth Circuit’s decision in In re MCP NO. 165, 21-4027,
2021 WL 5989357 (6th Cir. Dec. 17, 2021), pending re-
view by this Court.
Due to the expedited briefing schedule in this mat-
ter, the undersigned amici were unable to provide the
requisite ten days’ notice of their intent to file the pre-
sent brief. Amici did provide notice to all parties via
email on December 27, 2021, however, and have since
obtained consent to the filing from many of those par-
ties, including: the Republican National Committee;
the State of Ohio; the Alliance Defending Freedom; the
National Federation of Independent Business; BST
Holdings, LLC; Associated Builders and Contractors,
Inc.; the First Liberty Institute; Betten Chevrolet; the
Job Creators Network; and Scott Bedke et al. No other
party has objected to the filing of this brief.
2

Accordingly, and in light of the foregoing circum-
stances, amici respectfully request that their motion
for leave to file the attached brief be granted.
December 30, 2021 Respectfully submitted,
AGATHA M. COLE
Counsel of Record
ALISON BOROCHOFF-PORTE
CHRISTOPHER LEUNG
ADAM POLLOCK
POLLOCK COHEN LLP
60 Broad Street, 24th Floor
New York, NY 10004
(212) 337-5361
Counsel for Amici Curiae
i

TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ......................... 1
SUMMARY OF THE ARGUMENT ..................... 2
ARGUMENT ........................................................ 3
I. THE ETS IS “NECESSARY” TO PROTECT
“EMPLOYEES” WHO FACE “GRAVE
DANGER FROM EXPOSURE” TO
“PHYSICALLY HARMFUL AGENT[S]”
OR “NEW HAZARDS” IN THE WORK-
PLACE ....................................................... 3
A. The definition of “employees” in the
Occupational Safety and Health Act
necessarily includes those with medi-
cal conditions and/or disabilities that
make them especially vulnerable to
COVID-19 ............................................ 5
B. COVID-19 presents an especially
“grave danger” to employees who are
exposed to others in the workplace and
who have medical conditions that
make them particularly vulnerable to
infection ............................................... 8
C. Exposure to COVID-19 through em-
ployees who refuse to either get vac-
cinated or wear a mask and undergo
regular testing to protect is a “new
hazard” in the workplace ..................... 12
ii

TABLE OF CONTENTS—Continued
Page
D. The ETS is a “necessary” workplace pro-
tection that effectively mitigates the
risk of exposure to workers who are
themselves or whose loved ones are es-
pecially vulnerable to COVID-19 ........ 14
II. ENJOINING THE ETS WOULD HAVE A
DEVASTATING AND DISPROPORTION-
ATE IMPACT ON MEDICALLY VULNER-
ABLE AND/OR DISABLED PERSONS ...... 15
CONCLUSION..................................................... 20
iii

TABLE OF AUTHORITIES
Page
CASES
Asbestos Info. Ass’n/N. Am. v.
Occupational Safety & Health Admin.,
727 F.2d 415 (5th Cir. 1984) ......................................9
Associated Builders & Contractors, Inc. v. Shiu,
773 F.3d 257 (D.C. Cir. 2014) ....................................8
Fla. Peach Growers Ass’n, Inc. v.
U.S. Dep’t of Labor,
489 F.2d 120 (5th Cir. 1974) ......................................9
In re MCP NO. 165,
21-4027, 2021 WL 5989357
(6th Cir. Dec. 17, 2021) ............................ 9, 10, 12, 14
McMillan v. City of New York,
711 F.3d 120 (2d Cir. 2013) .......................................8

STATUTES AND REGULATIONS
Americans with Disabilities Act,
42 U.S.C. § 12101 et seq....................................... 8, 19
COVID-19 Vaccination and Testing;
Emergency Temporary Standard,
86 Fed. Reg. 61,402 ......................................... passim
Occupational Safety and Health Act of 1970
(“OSH Act”),
29 U.S.C. § 651 et seq....................................... passim
Rehabilitation Act,
29 U.S.C. § 794 et seq.................................................8
iv

TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIES
Accessibility, U.S. Dep’t of Transportation,
https://www.transportation.gov/accessibility .........18
CDC: 1 in 4 US Adults Live with a Disability,
Centers for Disease Control and Prevention
(Aug. 16, 2018), https://www.cdc.gov/media/
releases/2018/p0816-disability.html .........................7
COVID-19 Compared with Other Deadly Viruses,
Med. Xpress (Nov. 1, 2021), https://medical
xpress.com/news/2021-11-covid-deadly-viruses.
html ...........................................................................9
Disability Employment Statistics, Office of Dis-
ability Employment Policy, U.S. Dep’t of Labor,
https://www.dol.gov/agencies/odep/research-
evaluation/statistics ..................................................7
Disability, Health Equity & COVID-19, Nat’l
Inst. For Health Care Management (Sept. 21,
2021), https://nihcm.org/publications/disability-
health-equity ......................................................... 6, 7
Domenico Cucinotta & Maurizio Vanelli, WHO
Declares COVID-19 a Pandemic, 91(1) Acta
bio-medica: Atenei Parmensis (2020), https://
pubmed.ncbi.nlm.nih.gov/32191675/ ......................10
Getting to Work: Promoting Employment of Per-
sons with Mental Illness, Judge David L. Ba-
zelon Center for Mental Health Law (Sept.
2014), http://www.bazelon.org/wp-content/up
loads/2017/01/Getting-to-Work.pdf.........................17
v

TABLE OF AUTHORITIES—Continued
Page
Gina Livermore & Jody Schimmel Hyde, Workers
with Disabilities Face Unique Challenges in
Weathering the COVID-19 Pandemic, Mathemat-
ica (May 28, 2020), https://www.mathematica.
org/commentary/workers-with-disabilities-face-
unique-challenges-in-weathering-the-covid-19-
pandemic .................................................................16
Going Back to Work, National Cancer Institute
(Jan. 24, 2019), https://www.cancer.gov/about-
cancer/coping/day-to-day/back-to-work ..................17
Heather Long and Andrew Van Dam, U.S. Un-
employment Rate Soars to 14.7 Percent, the
Worst Since the Depression Era, Washington
Post (May 8, 2020), https://www.washingtonpost.
com/business/2020/05/08/april-2020-jobs-report/ .......16
Highlighting Disability/Poverty Connection, NCD
Urges Congress to Alter Federal Policies that
Disadvantage People with Disabilities, Nat’l
Council on Disabilities (Oct. 26, 2017), https://
ncd.gov/newsroom/2017/disability-poverty-
connection-2017-progress-report-release ...............18
Jonathan Gleason et al., The Devastating Im-
pact of Covid-19 on Individuals with Intellec-
tual Disabilities in the United States, NEJM
Catalyst (Mar. 5, 2021), https://catalyst.nejm.
org/doi/full/10.1056/CAT.21.0051 ............................11
vi

TABLE OF AUTHORITIES—Continued
Page
Lisa Ottomanelli & Lisa Lind, Review of Critical
Factors Related to Employment After Spinal
Cord Injury: Implications for Research and
Vocational Services, 32 J. Spinal Cord Med.
503 (2009), https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC2792457/ .............................................17
Long COVID-19 and Workplace Accessibility,
Partnership on Employment & Accessible Tech-
nology (Sept. 7, 2021), https://www.peatworks.
org/long-covid-19-and-workplace-accessibility/ .......10
New Employer Survey Portends Difficult Road
Ahead for People with Disabilities Who Lost
their Jobs During COVID-19 Pandemic, Nat’l
Org. on Disability (July 16, 2020), https://
www.nod.org/new-employer-survey-portends-
difficult-road-ahead-for-people-with-disabilities-
who-lost-their-jobs-during-covid-19-pandemic/ ........13
People with Certain Medical Conditions, Cen-
ters for Disease Control and Prevention (Oct.
14, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/need-extra-precautions/people-with-medical-
conditions.html...................................................... 5, 6
People with Disabilities, Centers for Disease Con-
trol and Prevention (Sept. 11, 2020), https://
www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-disabilities.html................6
vii

TABLE OF AUTHORITIES—Continued
Page
Press Release: Kessler Foundation, National
Trends In Disability Employment (nTIDE)
April 2020 Jobs Report: COVID Recession
Hits Workers with Disabilities Harder (May
8, 2020), https://kesslerfoundation.org/press-
release/ntide-april-2020-jobs-report-covid-
recession-hits-workers-disabilities-harder ............16
Sara Berg, What to Tell Immunocompromised
Patients About COVID-19 Vaccines, American
Medical Association (Aug. 17, 2021), https://
www.ama-assn.org/delivering-care/public-health/
what-tell-immunocompromised-patients-about-
covid-19-vaccines.......................................................7
Tae Chung et al., COVID ‘Long Haulers’: Long-
Term Effects of COVID-19, Johns Hopkins
Medicine (Apr. 1, 2021), https://www.hopkins
medicine.org/health/conditions-and-diseases/
coronavirus/covid-long-haulers-long-term-effects-
of-covid19 .................................................................10
Transcript of Statement by President George
H.W. Bush (July 26, 1990), Nat’l Archives,
https://www.archives.gov/research/americans-
with-disabilities/transcriptions/naid-6037493-
statement-by-the-president-americans-with-
disabilities-act-of-1990.html ...................................19
Underlying Medical Conditions Associated with
Higher Risk for Severe COVID-19: Information
for Healthcare Providers, Centers for Disease
Control and Prevention (Oct. 14, 2021), https://
www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-
care/underlyingconditions.html..............................11
viii

TABLE OF AUTHORITIES—Continued
Page
Unemployment Rises in 2020, as the Country
Battles the COVID-19 Pandemic, Monthly La-
bor Review (June 2021), https://www.bls.
gov/opub/mlr/2021/article/unemployment-rises-
in-2020-as-the-country-battles-the-covid-19-
pandemic.htm.................................................... 15, 16
United States COVID-19 Cases, Deaths, and La-
boratory Testing (NAATs) by State, Territory,
and Jurisdiction, Centers for Disease Control
and Prevention, https://covid.cdc.gov/covid-
data-tracker/#cases_casesper100klast7days ..... 9, 10
Vidya Sundar et al., Striving to Work and Over-
coming Barriers: Employment Strategies and
Successes of People with Disabilities, 28 Jour-
nal of Vocational Rehabilitation 93 (2018),
https://kesslerfoundation.org/sites/default/files/
2019-07/Striving%20to%20Work%20JVR.pdf .........17
Wendy Ross, The Terrible Toll of COVID-19 on
People with Intellectual Disabilities, Ass’n of
Am. Med. Colleges (Apr. 20, 2021), https://
www.aamc.org/news-insights/terrible-toll-covid-
19-people-intellectual-disabilities ...................... 6, 15
1

INTEREST OF AMICI CURIAE1
Amici curiae are non-profit and advocacy organi-
zations that represent the interests of persons who live
with certain medical conditions and/or disabilities that
render them especially vulnerable to the effects of
COVID-19 in the workplace:
The National Disability Rights Network
(“NDRN”) is the non-profit membership organization
for the federally mandated Protection and Advocacy
(“P&A”) and Client Assistance Program (“CAP”) agen-
cies for individuals with disabilities. The P&A and
CAP agencies were established by the United States
Congress to protect the rights of people with disabili-
ties and their families through legal support, advocacy,
referral, and education. There are P&As and CAPs in
all 50 states, the District of Columbia, Puerto Rico, and
the U.S. Territories (American Samoa, Guam, North-
ern Mariana Islands, and the US Virgin Islands), and
there is a P&A and CAP affiliated with the Native
American Consortium which includes the Hopi, Navajo
and San Juan Southern Paiute Nations in the Four
Corners region of the Southwest. Collectively, the P&A
and CAP agencies are the largest provider of legally
based advocacy services to people with disabilities in
the United States.

1
No counsel for a party authored this brief in whole or in
part, and no counsel or party made a monetary contribution in-
tended to fund the preparation or submission of this brief. No per-
son other than amicus curiae, its members, or its counsel made a
monetary contribution to its preparation or submission.
2

The Judge David L. Bazelon Center for Men-
tal Health Law is a non-profit advocacy organization
that works to protect and advance the civil rights of
adults and children with mental illness or develop-
mental disabilities, and to promote a society where
Americans with mental disabilities live with auton-
omy, dignity, and opportunity in welcoming communi-
ties, supported by law, policy, and practices that help
them reach their full potential.
Amici have a strong and shared interest in the
outcome of this case based on their experiences advo-
cating for the rights of employees with disabilities and
related medical conditions to have safe and healthy
workplaces, and to prevent the exclusion of such per-
sons from meaningful participation in the workforce.
---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT
Amici write to describe the dire implications of
this case to the millions of American workers living
with underlying medical conditions and disabilities
that render them especially vulnerable to infection and
complications from COVID-19. For these individuals,
the risk of workplace exposure has devastating—and
deadly—consequences.
Focusing on the statutory provision that author-
izes OSHA to issue emergency temporary standards,
amici seek to highlight the necessity of the emergency
temporary standard (“ETS”) for covered “employees”
who live with medical conditions that render them
3

more vulnerable to infection—and who therefore face
a particularly “grave danger from exposure” to COVID-
19 in the workplace. 29 U.S.C. § 655(c)(1). Amici submit
this brief to stress the importance of the ETS as an es-
pecially “necessary” workplace protection for these em-
ployees, id., and to urge this Court against issuing a
stay or injunction that would prevent the ETS from go-
ing into effect.
Amici further write to underscore the immeasura-
ble and disproportionate harm that these employees
will suffer if the ETS is enjoined, as compared to the
far less consequential injuries that those opposing the
ETS are invoking as the basis for seeking this Court’s
intervention.
---------------------------------♦---------------------------------

ARGUMENT
I. THE ETS IS “NECESSARY” TO PROTECT
“EMPLOYEES” WITH MEDICAL CONDI-
TIONS OR DISABILITIES WHO FACE A
PARTICULARLY “GRAVE DANGER FROM
EXPOSURE” TO “PHYSICALLY HARMFUL
AGENT[S]” OR “NEW HAZARDS” IN THE
WORKPLACE.
The Occupational Safety and Health Act of 1970
(“OSH Act”), 29 U.S.C. § 651 et seq., was enacted “to
assure so far as possible every working man and
woman in the Nation safe and healthful working con-
ditions.” 29 U.S.C. § 651(b) (emphasis added). In order
to achieve that objective, Congress gave OSHA broad
4

authority to promulgate and enforce occupational
safety and health standards requiring “the adoption or
use of . . . practices, means, methods, operations, or
processes, reasonably necessary or appropriate to pro-
vide safe or healthful employment and places of em-
ployment” for American workers. 29 U.S.C. §§ 652(8),
655-659.
Although such regulations are ordinarily subject
to the notice-and-comment procedures described in 29
U.S.C. § 655(b), the emergency temporary standard
provision functions as an exception to these default
rulemaking procedures by allowing for “an emergency
temporary standard to take immediate effect” if it is
determined that: “(A) that employees are exposed to
grave danger from exposure to . . . agents determined
to be . . . physically harmful or from new hazards,” and
“(B) that such emergency standard is necessary to pro-
tect employees from such danger.” 29 U.S.C. § 655(c)(1).
The challenged ETS was issued pursuant to this
provision on November 5, 2021, and requires employ-
ers with 100 or more employees to implement a
“COVID-19 vaccination policy,” or require that employ-
ees “undergo regular COVID-19 testing and wear a
face covering at work[,] in lieu of vaccination.” 86 Fed.
Reg. 61,402.
As explained below, amici submit that the ETS is
especially “necessary” to protect “employees” with un-
derlying medical conditions and/or disabilities who
face a particularly “grave danger from exposure” to
5

COVID-19, which is a “physically harmful agent” and
presents “new hazards” in the workplace.

A. The definition of “employees” in the Oc-
cupational Safety and Health Act nec-
essarily includes those with underlying
medical conditions and/or disabilities
that render them especially vulnerable
to COVID-19.
The OSH Act defines the term “employee” as one
“who is employed in a business of his employer which
affects commerce.” 29 U.S.C. § 652(6) (“Definitions”).
This broad statutory definition necessarily includes
employees with underlying medical conditions and/or
disabilities that render them especially vulnerable to
COVID-19 infection as being within the scope of those
persons that the statute is designed to protect. These
individuals are just as entitled to reasonable protec-
tions from “grave danger” in the workplace as all other
employees—even if that means implementing protec-
tive measures that others may oppose on political and
ideological grounds.
The Centers for Disease Control and Prevention
(“CDC”) has identified numerous medical conditions
that exacerbate the risk of developing severe illness
from COVID-19 infection. People with Certain Medical
Conditions, Centers for Disease Control and Preven-
tion (Oct. 14, 2021), https://www.cdc.gov/coronavirus/
2019-ncov/need-extra-precautions/people-with-medical-
conditions.html. People with cancer, for example, as
6

well as those with diabetes, immune system disorders,
or heart disease—and countless other medical condi-
tions affecting large swaths of the U.S. population—are
all at an “increased risk of [developing] severe illness
from [exposure to] COVID-19.” Id.
Some individuals affected by these conditions also
face a heightened risk of contracting COVID-19 in the
first place—such as those with weakened immune sys-
tems, who are unable to mount a sufficiently strong an-
tibody response to vaccines—or those with limited
mobility, who have difficulty avoiding contact with
others or practicing other preventative measures
(e.g., frequent handwashing, wearing a mask, etc.).
People with Disabilities, Centers for Disease Control
and Prevention (Sept. 11, 2020), https://www.cdc.gov/
coronavirus/2019-ncov/need-extra-precautions/people-
with-disabilities.html. People with intellectual disabil-
ities also have a heightened risk of becoming infected.
See Wendy Ross, The Terrible Toll of COVID-19 on
People with Intellectual Disabilities, Ass’n of Am.
Med. Colleges (Apr. 20, 2021), https://www.aamc.org/
news-insights/terrible-toll-covid-19-people-intellectual-
disabilities (citation omitted) (“Having an intellectual
disability . . . [is] the highest independent risk factor
for contracting COVID-19, controlling for race, eth-
nicity, and other variables . . . [and] [is] higher even
than age or heart or lung problems.”). And in the case
of infection, those with disabilities are also less likely
to be able to afford medical care. See, e.g., Disability,
Health Equity & COVID-19, Nat’l Inst. For Health
Care Management (Sept. 21, 2021), https://nihcm.org/
7

publications/disability-health-equity (“26.7% of people
with a disability could not see a doctor due to cost in
the past 12 months compared to 10.1% of people with-
out a disability.”).
Individuals living with these medical conditions
comprise a significant portion of the American work-
force. One in four adult Americans (approximately 61
million people) have a disability. CDC: 1 in 4 US Adults
Live with a Disability, Centers for Disease Control and
Prevention (Aug. 16, 2018), https://www.cdc.gov/media/
releases/2018/p0816-disability.html. And nearly 40%
of persons with disabilities aged 16 to 64 are gainfully
employed. See Disability Employment Statistics, Office
of Disability Employment Policy, U.S. Dep’t of Labor,
https://www.dol.gov/agencies/odep/research-evaluation/
statistics. Millions of Americans are also immunocom-
promised. Sara Berg, What to Tell Immunocompro-
mised Patients About COVID-19 Vaccines, American
Medical Association (Aug. 17, 2021), https://www.
ama-assn.org/delivering-care/public-health/what-tell-
immunocompromised-patients-about-covid-19-vaccines
(“Immunocompromised people account for at least
2.7% of U.S. adults—about 7 million people. This in-
cludes those who have had organ transplants, stem cell
transplants and cancer, as well as those with primary
immunodeficiency and those treated with immunosup-
pressive medications.”). Many of these individuals
want to continue working—or must do so in order to
provide for themselves and their families.
It is the aim of our federal laws to ensure the em-
ployment and protection of persons with disabilities
8

and to enable them to be employees. This goal is en-
shrined in the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. and Rehabilitation Act, 29 U.S.C.
§ 794 et seq. See Associated Builders & Contractors, Inc.
v. Shiu, 773 F.3d 257, 260 (D.C. Cir. 2014) (“Congress
enacted the Rehabilitation Act . . . ‘to empower individ-
uals with disabilities to maximize employment, eco-
nomic self-sufficiency, independence, and inclusion and
integration into society,’ as well as ‘to ensure that the
Federal Government plays a leadership role in promot-
ing the employment of individuals with disabilities.’ ”);
McMillan v. City of New York, 711 F.3d 120, 122-23 (2d
Cir. 2013) (“One of the central goals of the Americans
with Disabilities Act . . . is to ensure that, if reasonably
practicable, individuals are able to obtain and main-
tain employment without regard to whether they have
a disability.”). This cannot be achieved without effectu-
ating the interdependent goals of the OSH Act to as-
sure “safe and healthful working conditions,” 29 U.S.C.
§ 651(b), which, by its terms protects all such individ-
uals as “employees,” who are equally entitled to safe
workplaces. 29 U.S.C. § 652(6).

B. COVID-19 presents an especially “grave
danger” to employees who are exposed
to others in the workplace and who have
medical conditions that make them par-
ticularly vulnerable to infection.
It has been said that the “[g]ravity of [the] danger”
contemplated by the emergency temporary standard
provision, 29 U.S.C. § 655(c)(1), is “a policy decision
9

committed to OSHA, [and] not to the courts.” Asbestos
Info. Ass’n/N. Am. v. Occupational Safety & Health Ad-
min., 727 F.2d 415, 427 (5th Cir. 1984). Nevertheless,
since the meaning of this phrase is apparently in dis-
pute before this Court, the practical health and safety
concerns that prompted OSHA to issue the ETS merit
some discussion here—especially as they relate to the
populations that amici represent.
“Health effects may constitute a ‘grave danger’ un-
der the OSH Act if workers face ‘the danger of incura-
ble, permanent, or fatal consequences.’ ” In re MCP NO.
165, 21-4027, 2021 WL 5989357, at *10 (6th Cir. Dec.
17, 2021) (quoting Fla. Peach Growers Ass’n, Inc. v. U.S.
Dep’t of Labor, 489 F.2d 120, 132 (5th Cir. 1974)).
It is abundantly clear that exposure to COVID-19
presents a “grave danger” (i.e., a threat of fatal conse-
quences) in the workplace. COVID-19 is a contagious
disease caused by an airborne virus (SARS-CoV-2) that
is remarkably lethal. See, e.g., COVID-19 Compared
with Other Deadly Viruses, Med. Xpress (Nov. 1, 2021),
https://medicalxpress.com/news/2021-11-covid-deadly-
viruses.html (“The human toll of COVID-19 . . . far out-
strips that of other viral epidemics in the 21st century
[including H1N1 and SARS]”).
Over the 21-month period since COVID-19 was de-
clared be a global pandemic, the virus has infected ap-
proximately 52.8 million Americans and led to over
812,000 deaths in the United States. See United States
COVID-19 Cases, Deaths, and Laboratory Testing
(NAATs) by State, Territory, and Jurisdiction, Centers
10

for Disease Control and Prevention, https://covid.cdc.
gov/covid-data-tracker/#cases_casesper100klast7days;
Domenico Cucinotta & Maurizio Vanelli, WHO De-
clares COVID-19 a Pandemic, 91(1) Acta bio-medica:
Atenei Parmensis 157-160 (2020), https://pubmed.ncbi.
nlm.nih.gov/32191675/. And although the majority of
Americans infected with COVID-19 ultimately sur-
vive, there is mounting evidence that the disease
causes serious, long-lasting, and in some cases perma-
nent health problems in some individuals—affecting
their quality of life and potential life-expectancy over
the long-term. Tae Chung et al., COVID ‘Long Haul-
ers’: Long-Term Effects of COVID-19, Johns Hopkins
Medicine (Apr. 1, 2021), https://www.hopkinsmedicine.
org/health/conditions-and-diseases/coronavirus/covid-
long-haulers-long-term-effects-of-covid19; Long COVID-
19 and Workplace Accessibility, Partnership on Em-
ployment & Accessible Technology (Sept. 7, 2021),
https://www.peatworks.org/long-covid-19-and-workplace-
accessibility/; see also In re MCP NO. 165, 21-4027,
2021 WL 5989357, at *11 (6th Cir. Dec. 17, 2021).
In light of the foregoing, the fact that COVID-19
presents a “grave danger” to the health of those who
are exposed to the virus should hardly be a point of real
contention. And, of course, the gravity of that danger is
even more stark and consequential for those individu-
als who themselves, or whose loved ones, have medical
conditions or live with disabilities that make them es-
pecially susceptible to infection and who are more vul-
nerable to severe illness and complications if they
contract the disease.
11

The gravity of the danger is sobering. Millions of
Americans are currently living with underlying medi-
cal conditions which the CDC has identified as signifi-
cantly increasing the risk complications that can lead
to “hospitalization, admission to the intensive care
unit[s] . . . intubation or mechanical ventilation, [and
even] death,” due to COVID-19 infection. Underlying
Medical Conditions Associated with Higher Risk for
Severe COVID-19: Information for Healthcare Provid-
ers, Centers for Disease Control and Prevention (Oct.
14, 2021), https://www.cdc.gov/coronavirus/2019-ncov/
hcp/clinical-care/underlyingconditions.html. And many
others live with intellectual and/or developmental dis-
abilities that make them more vulnerable to the dis-
ease; according to one study, the “mortality [rate] of
those with intellectual disabilities and developmen-
tal disabilities . . . [is] nearly 8 times higher than the
general population.” Jonathan Gleason et al., The
Devastating Impact of Covid-19 on Individuals with
Intellectual Disabilities in the United States, NEJM
Catalyst (Mar. 5, 2021), https://catalyst.nejm.org/doi/
full/10.1056/CAT.21.0051. In other words, the threat is
unquestionably real for the millions of Americans
amici represent.
No one should be forced to contend with the pro-
spect of facing such great harm in the workplace or
made to choose between their own basic health and
safety—or that of a child or other loved one who is es-
pecially vulnerable to infection—and their ability to
work for a living. Particularly not where, as here, em-
ployers can implement reasonable, low-cost measures,
12

as required by the ETS, to effectively mitigate the risks
of exposure.

C. Exposure to COVID-19 through em-
ployees who refuse to either get vac-
cinated or wear a mask and undergo
regular testing is a “new hazard” in the
workplace.
The government has already convincingly articu-
lated why workplace exposure to COVID-19 consti-
tutes a “physically harmful [biological] agent” within
the meaning of 29 U.S.C. § 655(c)(1), and the U.S. Court
of Appeals for the Sixth Circuit agreed with its well-
reasoned analysis. In re MCP NO. 165, 21-4027, 2021
WL 5989357, at *4 (6th Cir. Dec. 17, 2021) (“An agent
that causes bodily harm—a virus—falls squarely
within the scope of that definition.”).
In addition, it is worth noting that the risk of
workplace exposure through colleagues and co-work-
ers who refuse to either get vaccinated, or wear a mask
and undergo regular testing, is also a relatively “new”
phenomenon and workplace “hazard” that many em-
ployees are now facing for the first time—given the
momentous return to the workplace that has been
precipitated, in recent months, by the widespread
availability of vaccines and testing technologies.
At the onset of the COVID-19 pandemic, many
businesses were forced to drastically downsize or alter
their in-person work arrangements and operations, or
shutdown altogether, in order to reduce the spread of
13

infection. Many employees who were laid-off, fur-
loughed, or instructed to work-from-home are now be-
ing asked and expected to return to the workplace. For
those individuals, the threat of exposure to COVID-19
in the workplace is clearly a “new hazard” that they
did not necessarily have to contend with until very re-
cently. And many employers do not have the necessary
accommodations in place for the safe return of employ-
ees with disabilities. New Employer Survey Portends
Difficult Road Ahead for People with Disabilities Who
Lost their Jobs During COVID-19 Pandemic, Nat’l
Org. on Disability (July 16, 2020), https://www.nod.org/
new-employer-survey-portends-difficult-road-ahead-for-
people-with-disabilities-who-lost-their-jobs-during-covid-
19-pandemic/ (explaining that “many employers still
do not have adequate accommodations processes in
place and fewer HR and hiring managers are receiving
needed disability training to effectively on-board new
employees.”). This is especially problematic given the
more recent increase of COVID-19 infection due to the
Omicron variant.
Moreover, for those employees who are them-
selves, or whose children or loved ones are more vul-
nerable to COVID-19, the risk of exposure through co-
workers who refuse to get vaccinated or undergo regu-
lar testing makes the prospect of returning to or re-
maining in the workplace impossibly difficult. Our
laws serve—and should be utilized—to protect these
individuals, rather than forcing them to contend with
draconian Darwinistic social policies masquerading as
non-interventionism.
14

D. The ETS is a “necessary” workplace
protection that effectively mitigates
the risk of exposure to workers who
are themselves especially vulnerable.
As explained by the Sixth Circuit, OSHA proffered
“extensive” and “substantial” evidence to substantiate
its finding that the challenged ETS is a “necessary”
workplace protection within the meaning of 29 U.S.C.
§ 655(c)(1). In re MCP NO. 165, 21-4027, 2021 WL
5989357, at *13-16 (6th Cir. Dec. 17, 2021) (explaining
that OSHA’s decision to issue the ETS was supported
by “extensive evidence” regarding the effectiveness
and necessity of vaccine policies or masking-and-test-
ing protocols to protect employees from being infected
and infecting others in workplace); see also id. at *19
(citing OSHA’s estimate that the ETS will “save over
6,500 worker[s’] lives” and “prevent over 250,000 hos-
pitalizations” over the six-month period during which
it is slated to take effect).
The “necessity” of that protection is even more
critical for those who live with medical conditions that
make them especially susceptible to contracting the vi-
rus and more vulnerable to severe illness, complica-
tions, or even death, if they become infected. Indeed,
the challenged ETS and the protections that it will
provide to workers when it goes into effect are quite
literally life-saving measures for persons with these
conditions. Recent policies have demonstrated that
lives are saved when individuals with disabilities are
prioritized. In Tennessee, for example, “the first state
to include people with intellectual disabilities in its
15

initial vaccine rollout,” new infections among individ-
uals with intellectual disabilities and their caregivers
fell approximately 80 percent between December 2020
and February 2021. Wendy Ross, The Terrible Toll of
COVID-19 on People with Intellectual Disabilities,
Ass’n of Am. Med. Colleges (Apr. 20, 2021), https://www.
aamc.org/news-insights/terrible-toll-covid-19-people-
intellectual-disabilities (citation omitted).
And while the ETS is of course “necessary” to pro-
tect all covered employees from the risks and dangers
associated with COVID-19, the critical importance of
these protections to millions of Americans who either
themselves, or whose loved ones, live with conditions
that render them more vulnerable to infection, should
weigh heavily on this Court’s conscience in deciding
whether to intervene at this stage.

II. ENJOINING THE ETS WOULD HAVE A
DEVASTATING AND DISPROPORTION-
ATE IMPACT ON MEDICALLY VULNERA-
BLE AND DISABLED PERSONS
COVID-19 has already resulted in a massive loss
of work and employment opportunities for many Amer-
icans. In early 2020, the national unemployment rate
was relatively low at 3.6 percent, and the United
States was in the midst of a decade-long economic ex-
pansion. Unemployment Rises in 2020, as the Country
Battles the COVID-19 Pandemic, Monthly Labor Re-
view (June 2021), https://www.bls.gov/opub/mlr/2021/
16

article/unemployment-rises-in-2020-as-the-country-
battles-the-covid-19-pandemic.htm. At the onset of the
pandemic, millions of Americans were laid off as busi-
nesses downsized or suspended their operations—
causing an unprecedented spike in the national unem-
ployment rate to 14.7 percent by April 2020—the high-
est rate since the Great Depression. Heather Long and
Andrew Van Dam, U.S. Unemployment Rate Soars to
14.7 Percent, the Worst Since the Depression Era, Wash-
ington Post (May 8, 2020), https://www.washingtonpost.
com/business/2020/05/08/april-2020-jobs-report/. The
impact of these layoffs had a disproportionate effect
on workers with disabilities, who experienced a 20
percent decline in employment as compared to a 14
percent decline experienced by workers without dis-
abilities. See Gina Livermore & Jody Schimmel Hyde,
Workers with Disabilities Face Unique Challenges in
Weathering the COVID-19 Pandemic, Mathematica (May
28, 2020), https://www.mathematica.org/commentary/
workers-with-disabilities-face-unique-challenges-in-
weathering-the-covid-19-pandemic; see also Press
Release: Kessler Foundation, National Trends In
Disability Employment (nTIDE) April 2020 Jobs Re-
port: COVID Recession Hits Workers with Disabilities
Harder (May 8, 2020), https://kesslerfoundation.org/press-
release/ntide-april-2020-jobs-report-covid-recession-hits-
workers-disabilities-harder.
These figures are especially dismaying when viewed
alongside evidence of the critical benefits that secure
employment has on the psychological and socioeco-
nomic well-being of persons who live with disabilities,
17

mental illness and/or other serious medical conditions.
See, e.g., Lisa Ottomanelli & Lisa Lind, Review of Crit-
ical Factors Related to Employment After Spinal Cord
Injury: Implications for Research and Vocational Ser-
vices, 32 J. Spinal Cord Med. 503 (2009), https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC2792457/ (ex-
plaining that persons who resume work after becoming
disabled due to spinal cord injuries report having a sig-
nificantly higher quality-of-life than those who become
unemployed as a result); Vidya Sundar et al., Striving
to Work and Overcoming Barriers: Employment Strat-
egies and Successes of People with Disabilities, 28
Journal of Vocational Rehabilitation 93 (2018), https://
kesslerfoundation.org/sites/default/files/2019-07/Striving
%20to%20Work%20JVR.pdf (“Work is a highly valued
activity that provides opportunities to engage in mean-
ingful activity, socialize with others, and achieve eco-
nomic self-sufficiency [for people with disabilities].”);
Getting to Work: Promoting Employment of Persons
with Mental Illness, Judge David L. Bazelon Center for
Mental Health Law (Sept. 2014), http://www.bazelon.
org/wp-content/uploads/2017/01/Getting-to-Work.pdf
(explaining that “employment has been widely recog-
nized as a fundamental part of recovery and of com-
munity integration for people with serious mental
illness”); see also Going Back to Work, National Cancer
Institute (Jan. 24, 2019), https://www.cancer.gov/about-
cancer/coping/day-to-day/back-to-work.
If the various challenges to the ETS succeed, the
absence of reasonable workplace protections from
COVID-19 will only deepen this divide by effectively
18

precluding large swaths of Americans with disabilities
and underlying medical conditions from participating
in the workforce due to legitimate concerns for their
health and safety. Individuals with disabilities already
face inordinate difficulties in sustaining employment,
and suffer disproportionately from poverty, and access
to adequate transportation for commuting purposes.
See Highlighting Disability/Poverty Connection, NCD
Urges Congress to Alter Federal Policies that Disad-
vantage People with Disabilities, Nat’l Council on
Disabilities (Oct. 26, 2017), https://ncd.gov/newsroom/2017/
disability-poverty-connection-2017-progress-report-release
(“People with disabilities make up approximately 12
percent of the U.S. working-age population; however,
they account for more than half of those living in long-
term poverty.”); Accessibility, U.S. Dep’t of Transporta-
tion, https://www.transportation.gov/accessibility (“Ac-
cording to the National Household Travel survey, 25.5
million Americans have travel-limiting disabilities.”).
Moreover, it is plainly disingenuous to express concern
over those employees who might resign because of a
vaccine or test-and-mask requirement, while staying
silent about those employees who would have no choice
but to resign to protect themselves or their families
from unsafe conditions. See Emergency Application of
Twenty-Six Bus. Ass’ns for Immediate Stay of Agency
Action at 27, Consolidated Case No. 21A244, at 30-32
(Dec. 17, 2021) (expressing concern over employees
who “would be more likely to quit their jobs” in re-
sponse to OSHA regulations).
To the extent that the ETS challenges seek to levy
the interests of employers and employees who are
19

by personal choice ideologically opposed to vaccines,
masks, testing, above the interests of employees who
possess legitimate health and safety concerns through
no choice of their own, the balance of the equities
strongly favors the latter group of employees who face
a real and substantial risk of physical, irreparable in-
jury in the absence of such protections.
In signing the Americans with Disabilities Act of
1990, the late President George H.W. Bush stated that
“the American people have once again given clear
expression to our most basic ideals of freedom and
equality,” and heralded the Act for “promis[ing] to open
up all aspects of American life to individuals with
disabilities—employment opportunities, government
services, public accommodations, transportation, and
telecommunications,” and setting the stage to reverse
the “persistent discrimination in the workplace” that
persons with disabilities face. Transcript of Statement
by President George H.W. Bush (July 26, 1990), Nat’l
Archives, https://www.archives.gov/research/americans-
with-disabilities/transcriptions/naid-6037493-statement-
by-the-president-americans-with-disabilities-act-of-
1990.html.
As our nation contends with the dual threat of a
public health emergency and economic recession that
have both had a disproportionate impact on persons
with disabilities, it is incumbent upon the Court to con-
sider how enjoining the ETS would exacerbate the his-
torical exclusion and contemporary inequities that
these communities have already faced in the work-
place and in society at large.
20

In the words of Hubert H. Humphrey, “the moral
test of government is how . . . [it] treats those who are
in the dawn of life, the children; those who are in the
twilight of life, the elderly; and those who are in the
shadows of life, the sick, the needy and the handi-
capped.” Celebrating the 100th Anniversary of Hubert
H. Humphrey’s Birth, The Leadership Conference Ed-
ucation Fund, https://civilrights.org/edfund/resource/
humphrey100/. This precise moment in history is no
doubt such a test, as are the issues presently before the
Court. Accordingly, amici implore the Court to consider
these individuals in its analysis of the pending appli-
cations.
---------------------------------♦---------------------------------

CONCLUSION
For these reasons, the Court should deny the pend-
ing applications to stay or enjoin the ETS, which is a
critically important and proper exercise of OSHA’s
statutory authority under 29 U.S.C. § 655(c)(1).
December 30, 2021 Respectfully submitted,
AGATHA M. COLE
Counsel of Record
ALISON BOROCHOFF-PORTE
CHRISTOPHER LEUNG
ADAM POLLOCK
POLLOCK COHEN LLP
60 Broad Street, 24th Floor
New York, NY 10004
(212) 337-5361
Counsel for Amici Curiae

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