Court filing
Brief - Scotus
What This Document Is
Note on filename: the archived filename references "Markos," who does not appear as a party or counsel in this document; the actual filer is a coalition of small-business advocacy groups and restaurant-operator LLCs. This is a government-side motion for leave and amicus brief filed December 30, 2021 by Small Business Majority (SBM), the American Independent Business Alliance (AMIBA), and several affiliated Border Grill restaurant entities, opposing the emergency stay applications in the consolidated "In re: MCP No. 165" proceeding.
Factual Summary
Counsel Richard A. Koffman states amici gave notice by email on December 27 and 29, 2021; counsel in 13 of 14 applications consented, DOL took no position, and counsel in No. 21A245 did not respond. SBM (founded 2005) represents a network of over 85,000 small businesses; AMIBA (founded 2001) represents more than 60 local-business alliances reaching over 50,000 businesses. The brief argues small businesses need the ETS because it preempts "counter-productive" state and local restrictions on employer vaccine-or-testing policies (citing more than 10 states that had restricted such employer requirements), cites a Chamber of Commerce survey showing roughly two-thirds of small businesses support the ETS plus SBM's own polling showing majority support, and argues the ETS is administratively feasible given large employers' and the federal government's own experience implementing similar policies. It also argues employee-exodus fears are overstated, contending vaccinated employees leaving over unvaccinated coworkers is an equal or greater risk.
Key Facts
- Filed December 30, 2021, in the consolidated MCP No. 165 proceeding covering all fourteen dockets.
- Amici: Small Business Majority, American Independent Business Alliance, and Border Grill-affiliated restaurant LLCs, represented by Cohen Milstein Sellers & Toll.
- Central argument: small businesses need the ETS to preempt state/local restrictions on employer vaccine-or-test policies, and most businesses (per cited Chamber of Commerce and SBM surveys) support it.
Source Caveats
- Archived filename references "Markos," a name not found in the document's caption, counsel list, or signature block; actual filer identity verified from the PDF's own text.
- Use the linked source file for exact quotations, page references, signatures, attachments, and any redacted or sealed material.
Full text
Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249, 21A250, 21A251,
21A252, 21A258, 21A259, 21A260, and 21A267
IN THE
Supreme Court of the United States
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 Stays of Injunctions Issued by the United States District Courts
for the Western District of Louisiana and Eastern District of Missouri Pending
Appeals to the United States Courts of Appeals for the Fifth and Eighth Circuits
MOTION OF SMALL BUSINESS MAJORITY; AMERICAN INDEPENDENT
BUSINESS ALLIANCE; BORDER GRILL LAS VEGAS, LLC; CIUDAD LA, LLC;
BORDER GRILL TRUCK AND CATERING, LLC; FEEDFOLKS, LLC; BG SM20,
LLC; AND MUNDO MANAGEMENT GROUP, LLC FOR LEAVE TO FILE
ATTACHED AMICUS BRIEF IN OPPOSITION TO EMERGENCY
APPLICATIONS FOR A STAY OR INJUNCTION PENDING CERTIORARI
REVIEW; AND FOR LEAVE TO FILE WITHOUT 10 DAYS’ NOTICE
Richard A. Koffman
*Counsel of record
Emmy L. Levens
Paul Stephan
Brendan Schneiderman
COHEN MILSTEIN SELLERS & TOLL
PLLC
1100 New York Ave NW, Suite 500
Washington, DC 20005
(202) 408-4600
rkoffman@cohenmilstein.org
December 30, 2021 Attorneys for Movants-Amici Small
Business Majority; American
Independent Business Alliance; Border
Grill Las Vegas, LLC; Ciudad LA, LLC;
Border Grill Truck and Catering, LLC;
Feedfolks, LLC; BG SM20, LLC; and
Mundo Management Group, LLC
Amici Small Business Majority; American Independent Business Alliance;
Border Grill Las Vegas, LLC; Ciudad LA, LLC; Border Grill Truck and Catering,
LLC; Feedfolks, LLC; BG SM20, LLC; and Mundo Management Group, LLC
respectfully move for leave (1) to file the attached amicus curiae brief in opposition
to the eleven Emergency Applications, filed on December 17– 20, 2021, seeking a stay
or injunction pending certiorari review of the Sixth Circuit’s decision granting a
motion to dissolve a stay of the Occupational Safety and Health Administration
(OSHA) Emergency Temporary Standard on COVID-19 vaccination and testing
(ETS), which was issued by the Fifth Circuit before the matter was transferred to the
Sixth Circuit, and (2) to file the enclosed brief without 10 days’ advance notice to the
parties of amici’s intent to file.
Amici provided notice to all parties of their intent to file an amicus brief in
opposition to the emergency applications by email on December 27, and 29, 2021.
Counsel for the petitioners-applicants in 13 of the 14 applications—Nos. 21A243,
21A244, 21A246, 21A247, 21A248, 21A249, 21A250, 21A251, 21A252, 21A258,
21A259, 21A260 and 21A267—stated that they consent to the filing. Counsel for the
U.S. Department of Labor responded that the government takes no position on our
request for leave to file. Counsel for petitioners-applicants in No. 21A245 did not
respond.
Founded in 2005, SBM engages a network of more than 85,000 small
businesses and 1,500 business and other partner organizations to create a strong
economy for all, through a combination of public policy advocacy and educational
outreach. SBM advocates for the development of pro-entrepreneurial policy through
i
research, recruitment and training of spokespeople, and amplification of the voices of
small businesses in the media. SBM also creates and distributes educational
seminars for small businesses on topics such as access to capital, retirement security,
and healthcare and other workforce benefits.
Founded in 2001, AMIBA is a network of independent business alliances,
affiliates, and organizations supporting the “Buy Local” movement. AMIBA has more
than 60 alliances spanning more than thirty states. Those alliances reach more than
50,000 locally owned businesses and organizations in the United States. AMIBA
hosts networking events such as leadership roundtables and publishes resources such
as guides on avoiding common business pitfalls, legal education materials, and guides
on how to start one’s own independent business alliance.
Border Grill was founded in 1985 as a small, forty-seat “taco stand.” In the
years since, founders Susan Feniger and Mary Sue Milliken have grown their
business to several locations and food trucks. Border Grill also provides full-service
events and catering business. Border Grill blends a commitment to building
community with sustainability and a passion for authentic Mexican cuisine. With
their first-hand knowledge of how harmful COVID-19 has been for small,
independent businesses, and the need for regulatory intervention to ensure that
employers are taking the steps necessary to slow and eliminate that harm, Border
Grill is an example of the countless small businesses that would be both directly and
indirectly affected by the ETS.
Amici have a substantial interest in protecting the health and safety of small
business workers and operators while also reducing the probability of economic
ii
catastrophe for America’s small businesses. According to OSHA, the pandemic has
presented “special challenges for small businesses.” Whereas a quarter of larger
businesses – defined as those with more than 100 employees – have seen revenue
drop more than 30%, the same can be said for two-thirds of small businesses. Small
businesses have also been struck especially hard by staff shortages. Through their
roles as experts in, resources to, and members of the small and independent business
communities, amici have an interest in guiding how workplace-related safety policies
will impact small businesses, which account for 99% of all employer firms and half
the country’s jobs and economic production. Amici filed together a brief as amici
curiae in the Sixth Circuit.
Amici believe that a reversal of the Sixth Circuit’s decision not to stay the
Emergency Temporary Standard (“ETS”) will have deleterious effects on the health
and economic well-being of America’s small and independent businesses, most of
which support the ETS. A stay would prevent a rule from going into effect that would
set the ground floor for workplace protections, a rule that is necessary to make sure
the ongoing “winter surge” of COVID-19, along with the new Omicron variant, does
not cripple the American economy and that states do not enact legislation barring
businesses from imposing similar rules designed to protect workers.
Amici are concerned that a stay would endanger small and independent
businesses in three ways. First, those businesses which have at least 100 employees
lose the direct protection of the ETS. Second, businesses that have fewer than 100
employees lose the indirect protection of having larger businesses abide by the ETS.
Third, states would remain free to prevent employers from voluntarily implementing
iii
vaccination and/or testing requirements to protect their employees and customers.
Given the expedited consideration of this matter of significant national
interest, amici respectfully request leave to file the enclosed brief without 10 days’
advance notice to the parties of intent to file. The Sixth Circuit granted the
government’s motion to dissolve the stay imposed by the Fifth Circuit on the evening
of December 17, 2021, and the applications for a stay were filed in this Court on
December 17, 18, and 20. The Court has now set a deadline of December 30 for
respondent’s brief. Counsel for amici provided notice to all parties on December 27
and 29. Because of the rapid schedule and because no party has opposed the filing (and
nearly all parties have consented), amici request that the Court grant leave to file the
attached amicus brief without 10 days’ advance notice to the parties.
To the extent that leave is required, the proposed amicus respectfully moves
for leave to file the attached brief on 8½- by 11-inch paper rather than in booklet
form, given the expedited briefing. Should the Clerk’s Office or the Court so require,
the proposed amicus commit to re-filing expeditiously in booklet format. See S. Ct.
Rule 21.2(c).
CONCLUSION
For the foregoing reasons, Amici Small Business Majority; American
Independent Business Alliance; Border Grill Las Vegas, LLC; Ciudad LA, LLC;
Border Grill Truck and Catering, LLC; Feedfolks, LLC; BG SM20, LLC; and Mundo
Management Group, LLC respectfully request that the Court grant this motion to file
theattached proposed amicus brief at the time submitted.
iv
December 30, 2021 Respectfully submitted,
Richard A. Koffman
*Counsel of record
Emmy L. Levens
Paul Stephan
Brendan Schneiderman
COHEN MILSTEIN SELLERS &
TOLL PLLC
1100 New York Ave NW, Suite 500
Washington, DC 20005
(202) 408-4600
rkoffman@cohenmilstein.com
Attorneys for Amici Small Business
Majority; American Independent
Business Alliance; Border Grill Las
Vegas, LLC; Ciudad LA, LLC; Border
Grill Truck and Catering, LLC;
Feedfolks, LLC; BG SM20, LLC; and
Mundo Management Group, LLC
v
Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249, 21A250, 21A251,
21A252, 21A258, 21A259, 21A260, and 21A267
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 Stays of Injunctions Issued by the United States District Courts
for the Western District of Louisiana and Eastern District of Missouri Pending
Appeals to the United States Courts of Appeals for the Fifth and Eighth Circuits
MOTION OF SMALL BUSINESS MAJORITY; AMERICAN INDEPENDENT BUSINESS
ALLIANCE; BORDER GRILL LAS VEGAS, LLC; CIUDAD LA, LLC; BORDER GRILL TRUCK
AND CATERING, LLC; FEEDFOLKS, LLC; BG SM20, LLC; AND MUNDO MANAGEMENT
GROUP, LLC FOR LEAVE TO FILE ATTACHED AMICUS BRIEF IN OPPOSITION TO
EMERGENCY APPLICATIONS FOR A STAY OR INJUNCTION PENDING CERTIORARI
REVIEW; AND FOR LEAVE TO FILE WITHOUT 10 DAYS’ NOTICE
Richard A. Koffman
*Counsel of record
Emmy L. Levens Paul
Stephan
Brendan Schneiderman
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Ave NW, Suite 500
Washington, DC 20005
(202) 408-4600
rkoffman@cohenmilstein.org
December 30, 2021 Attorneys for Movants-Amici Small Business
Majority; American Independent Business
Alliance; Border Grill Las Vegas, LLC; Ciudad
LA, LLC; Border Grill Truck and Catering,
LLC; Feedfolks, LLC; BG SM20, LLC; and
Mundo Management Group, LLC
i
TABLE OF CONTENTS
Page
Table of Authorities .................................................................................................. i
INTEREST OF AMICI CURIAE ............................................................................. 1
SUMMARY OF ARGUMENT .................................................................................. 2
ARGUMENT .............................................................................................................4
CONCLUSION ....................................................................................................... 14
Table of Authorities Page(s)
Regulations
86 Fed. Reg. 61402 (2021) ........................................................................................ 6, 12
Other Authorities
Aaron Blake, Tucker Carlson Makes a Great Point About Fox News’s
Vaccination Policy, Washington Post (Oct. 12, 2021) ............................................ 13
About Us, Business Roundtable (last visited Dec. 29, 2021) .................................. 9, 12
Alison Kosik, 96% of Tyson’s Active Workers are Vaccinated, CNN (Oct.
26, 2021) ..................................................................................................................13
Anupam B. Jena & Christopher M. Worsham, Facts Alone Aren’t Going
to Win Over the Unvaccinated. This Might., N.Y. Times (Dec. 21,
2021) ................................................................................................................8, 11, 13
Aya Elamroussi, The US is Averaging More Than 100,000 New Covid-19
Cases a Day, the Highest Level in Two Months, CNN (Dec. 5, 2021), ..................... 4
Business Roundtable Statement on Extension of Vaccine Mandate
Implementation Period, Bus. Roundtable (Nov. 4, 2021) ........................................ 9
Coronavirus (COVID-19) Vaccines, Nat’l Health Serv. (Dec. 22, 2021) ....................... 7
California Small Businesses Support Statewide COVID-19 Vaccine and
Testing Requirement, Small Bus. Majority (Aug. 31, 2021) .................................... 9
Coronavirus Aid, Relief, and Economic Security Act: Hearing Before the
H.Comm. on Fin. Servs., 116th Cong ...................................................................... 6
Coronavirus Aid, Relief, and Economic Security Act: Hearing Before the
H.Comm. on Fin. Servs., 117th Cong ...................................................................... 6
Coronavirus Aid, Relief, and Economic Security Act: Hearing Before the
S.Comm. on Banking, Hous., & Urb. Affs., 116th Cong ......................................... 6
Coronavirus and CARES Act: Hearing Before the S. Comm. on Banking,
Hous., & Urb. Affs., 117th Cong, ........................................................................... 6, 8
Covid Data Tracker, Ctrs. for Disease Control & Prevention (last visited
Dec. 29, 2021) .......................................................................................................... 12
i
COVID-19: Our Global Response, Drs. Without Borders (Dec. 10, 2021) .................... 7
COVID-19 Vaccines are Effective, Ctrs. for Disease Control & Prevention
(Dec. 23, 2021) ........................................................................................................... 7
David Leonhardt & Ian Prasad Philbrick, Boosting Vaccinations, N.Y.
Times (July 23, 2021) .............................................................................................. 13
David Smagalla, Vaccine Mandate Legal Challenges Muddy the Waters
for Employers Preparing to Implement Rules, Wall St. J. (Nov. 26,
2021) ..........................................................................................................................8
David Bauer, Fox’s Vaccine Criticism Focuses Attention on its Own
Policy, Fox (Sept. 16, 2021) ..................................................................................... 13
Eric Groves, Road to Recovery Report, Alignable (Aug. 10, 2021), ............................... 7
Ewan Palmer, Joe Biden’s Employee Vaccine Rule Means 98 Percent of
Companies Unaffected, Newsweek (Sept. 10, 2021) ................................................ 5
Federal Rules of Appellate Procedure Rule 29(a)(4)(E) ................................................ 3
Frequently Asked Questions About Small Business, U.S. Small Bus.
Admin ........................................................................................................................ 4
Frequently Asked Questions, Occupational Safety and Health Admin ........................ 10
Harriett Torry & David Harrison, Omicron Variant Is Expected to Dent
Global Economy in Early 2022, Wall St. J. (Dec. 27, 2021) ................................ 4, 7
Understanding COVID-19 Vaccines, Nat’l Insts. of Health (Nov. 3, 2021).................. 7
Update on Implementation of COVID-19 Vaccination Requirement for
Federal Employees, White House, (Dec. 9, 2021) ................................................... 14
Jessica Matthews, All the Major Companies Requiring Vaccines for
Workers, Fortune (Aug. 30, 2021) ............................................................................. 8
Jonathan A. Segal, Employers Face Potential Preemption Clash on
Vaccine Rules, Bloomberg Law (Nov. 30, 2021) ....................................................... 9
Jonelle Marte, Analysis: Omicron Begins to Leave Mark on U.S.
Economy, but Unlikely to Derail It, Reuters (Dec. 23, 2021)................................... 7
Joseph Briggs et al., US Daily: The Effect of the Biden Vaccine Mandate
on Vaccination and Employment, Goldman Sachs (Sept. 13, 2021) ....................... 11
Lila MacLellan, Nearly 4 in 10 US Workers Say They May Quit If Their
ii
Employer Doesn’t Mandate Vaccines, Quartz at Work (Aug. 10, 2021) ............................. 11
Mariella Moon, Apple Will Require Unvaccinated Employees to Test for
COVID-19 Daily, Tech Crunch (Oct. 21, 2021) ...................................................... 13
New Research Shows the Unvaccinated and the Vaccinated Are on a
Collision Course at Work and School, Perceptyx (July 22, 2021), .......................... 11
Olivia S. Kim et al., Revenue Collapses and the Consumption of Small
Business Owners in the Early Stages of the COVID-19 Pandemic 1
(Nat’l Bureau of Econ. Rsch., Working Paper No. 28151, 2020) ............................. 5
Patricia Cohen & Melissa Eddy, As Virus Cases Rise in Europe, an
Economic Toll Returns, N.Y. Times (Nov. 23, 2021) ................................................ 5
Patricia Cohen & Melissa Eddy, Omicron Is Turning Europe’s Busy
Season Silent, N.Y. Times (Dec. 21, 2021) ............................................................... 7
Phillip L. Swagel, Director, CBO’s Budget and Economic Analysis During
the Pandemic, Cong. Budget Off. (Oct. 13, 2021) ..................................................... 6
Ruth Simon, Covid-19’s Toll on U.S. Business? 200,000 Extra Closures in
Pandemic’s First Year, Wall St. J. (April 16, 2021) ................................................. 6
Sarah Wild, How the Omicron Variant Got So Many Scary Mutations So
Quickly, Sci. Am. (Dec. 3, 2021)................................................................................ 4
Semiannual Monetary Policy Report to the Congress: Hearing Before the
S.Comm. on Banking, Hous., & Urb. Affs., 117th Cong .......................................... 8
Small Businesses Generate 44 Percent of U.S. Economic Activity, U.S.
Small Bus. Admin. (Jan. 30, 2019) ........................................................................... 4
Small Businesses Support COVID-19 Vaccine Requirements Amid
Setbacks from the Delta Variant, Small Bus. Majority (Sept. 22, 2021) ................. 9
Small Businesses Trying to Hire Face Growing Difficulty Finding
Workers, U.S. Chamber of Commerce (Oct. 28, 2021) ............................................. 9
Small Businesses Will Only Hire Vaccinated Employees Moving Forward,
Digital (Sept. 29, 2021) ............................................................................................. 9
Haley Messenger, From McDonald’s to Goldman Sachs, Here are the
Companies Mandating Vaccines for All or Some Employees, NBC
News (Nov. 16, 2021), NBC News (Nov. 16, 2021) .......................................... 12, 13
iii
State Efforts to Ban or Enforce COVID-19 Vaccine Mandates and
Passports, Nat’l Acad. for State Health Pol’y (Dec. 21, 2021) ................................. 9
Thaddeus Swanek, New Poll Shows Small Businesses Hopeful as
Pandemic Recovery Accelerates, U.S. Chamber of Com. (June 14,
2021) ...........................................................................................................................8
iv
INTEREST OF AMICI CURIAE
Small Business Majority (“SBM”) and American Independent Business Alliance
(“AMIBA”) are non-partisan, non-profit national small business organizations that
provide resources and support to empower small businesses in the United States.
These organizations represent tens of thousands of small businesses and hundreds of
thousands of workers around the country.1 Border Grill Las Vegas, LLC; Ciudad LA,
LLC; Border Grill Truck and Catering, LLC; Feedfolks, LLC; BG SM20, LLC; and
Mundo Management Group, LLC (collectively “Border Grill” and, with SBM and
AMIBA, “Small Business Amici” or “amici”) are a collection of independent
restaurants and food trucks in Las Vegas and Southern California, ranging in size
from a handful to nearly two hundred employees.
Amici have a substantial interest in protecting the health and safety of small
business workers and operators while also reducing the probability of economic
catastrophe for America’s small businesses. Through their roles as experts in,
resources to, and members of the small and independent business communities, amici
have an interest in guiding how workplace-related safety policies will impact small
businesses, which account for 99% of all employer firms and roughly half the country’s
jobs and economic production.
-1-
SUMMARY OF ARGUMENT
Small businesses are vital to the health of the American economy, accounting
for more than 40% of U.S. economic activity and more than two-thirds of U.S. job
creation. Small businesses have been hit especially hard by the COVID-19 pandemic.
OSHA’s ETS will reduce the risk of future shutdowns, preventing additional
hardships for small businesses.
Studies have shown that most businesses, large and small, support OSHA’s
policy. For example, a Chamber of Commerce survey showed that approximately two-
thirds of small businesses support the ETS. Amicus SBM’s own polling of small
businesses likewise shows that a majority supports a vaccine-or-test requirement for
employees. The Business Roundtable, which represents the CEOs of large
corporations, also supports the Administration’s vaccination efforts. The businesses
and business organizations challenging the ETS simply are not representative of the
business community.
Small businesses need the ETS because it will preempt counter-productive
state and local efforts to restrict employers’ use of worker safety protocols and vaccine
mandates. Thus far, more than 10 states have restricted businesses’ abilities to
impose vaccine requirements on their workers. Without federal intervention,
businesses in these states would be restrained from taking effective, common-sense
actions to protect themselves and the communities in which they operate.
Some opponents of the ETS contend that it will trigger a mass exodus of
employees who do not want to be vaccinated or tested. The actual experiences of large
employers that have required vaccinations and/or testing belie such concerns. It is
-2-
equally or more likely that vaccinated employees would leave their jobs rather than
work side-by-side with unvaccinated and untested co-workers.
Finally, OSHA’s ETS is administratively feasible. The federal government –
the Nation’s largest employer – and countless major corporations have effectively
implemented policies at least as strict as the ETS, demonstrating the feasibility of
such programs.
1 Pursuant to Rule 29(a)(4)(E) of the Federal Rules of Appellate Procedure, amici hereby certify
that no party’s counsel authored this brief in whole or in part; no party or party’s counsel contributed
money that was intended to fund the preparation or submittal of this brief; and no person – other than
amici, their members, or their counsel – contributed money that was intended to fund the preparation
or submittal of this brief.
-3-
ARGUMENT
Small businesses are vital to the health of the current economy and the
economy for generations to come. Small businesses account for more than 40% of U.S.
economic activity2 and more than two-thirds of U.S. job creation.3 Moreover, today’s
large businesses – automobile manufacturers, retail chains, technology firms, and
many others – started out as small businesses.
Small businesses have been hit especially hard by the COVID-19 pandemic.
With the emergence of new variants4 and an increase in cases associated with the
burgeoning winter surge,5 the economic toll of the pandemic on small businesses will
only increase over the coming months.6 The pandemic has already forced other
countries to re-impose community-wide quarantines.7 Absent intervention in the form
of OSHA’s ETS, American communities may be forced to adopt similar measures, with
harmful effects on small businesses.
The ETS is necessary to protect the health of millions of American workers
2 Small Businesses Generate 44 Percent of U.S. Economic Activity, U.S. Small Bus. Admin. (Jan. 30,
2019), https://advocacy.sba.gov/2019/01/30/small-businesses-generate-44-percent-of-u-s-economic-
activity/.
3 Frequently Asked Questions About Small Business, U.S. Small Bus. Admin.,
https://www.sba.gov/sites/default/files/advocacy/Frequently-Asked-Questions-Small-Business-2018.pdf.
4 Sarah Wild, How the Omicron Variant Got So Many Scary Mutations So Quickly, Sci. Am. (Dec. 3,
2021), https://www.scientificamerican.com/article/how-the-omicron-variant-got-so-many-scary-
mutations-so-quickly/.
5 Aya Elamroussi, The US is Averaging More Than 100,000 New Covid-19 Cases a Day, the Highest
Level in Two Months, CNN (Dec. 5, 2021), https://www.cnn.com/2021/12/05/health/us-coronavirus-
sunday/index.html?utm_term=1638791573973b3545c5bbe52&utm_source=cnn_Five+Things+for+Mon
day%2C+December+6%2C+2021&utm_medium=email&bt_ee=oEjEDQYIXt5AO%2BKITV8UhQCastY
zGahjnfiZd5HSsldV2Bi%2FY7WG7QfQboO1gk6S&bt_ts=1638791573975.
6 Harriett Torry & David Harrison, Omicron Variant Is Expected to Dent Global Economy in Early
2022, Wall St. J. (Dec. 27, 2021), https://www.wsj.com/articles/omicron-variant-is-expected-to-dent-
global-economy-in-early-2022-11640631554.
7 Patricia Cohen & Melissa Eddy, As Virus Cases Rise in Europe, an Economic Toll Returns, N.Y.
Times (Nov. 23, 2021), https://www.nytimes.com/2021/11/23/business/economy/europe-covid-
economy.html.
-4-
and, by extension, millions of small businesses. The ETS would ensure that 66.6% of
the workforce – over 100 million Americans8 – is either vaccinated against, or tests
negative for, COVID-19. This in turn protects the customers, family, friends, and, in
some instances, employees9 of small businesses against this deadly virus, while
keeping America open for business.
Most small businesses support policies like OSHA’s ETS, and businesses of all
sizes have feasibly implemented policies similar to, and at times more restrictive
than, OSHA’s ETS.10 This policy should be allowed to go into effect, and the sooner
the better for the health of American workers. Accordingly, the Small Business Amici
ask that the Court decline to stay or enjoin OSHA’s ETS.
A. The ETS is critical to keeping small businesses in business. Small
businesses are a vital part of the national economy, creating roughly two-thirds of all
new jobs.11 But they are also vulnerable12 and bear the brunt of economic
downturns.13
The COVID-19 pandemic has proven especially challenging for small
businesses. As OSHA notes, early in the pandemic “66% of businesses with fewer than
8 Ewan Palmer, Joe Biden’s Employee Vaccine Rule Means 98 Percent of Companies Unaffected,
Newsweek (Sept. 10, 2021), https://www.newsweek.com/joe-biden-employee-vaccine-mandate-rules-98-
percent-most-companies-unaffected-1627824.
9 The U.S. Small Business defines a “small business” as one with 500 or fewer employees;
accordingly some small businesses would be subject to the ETS.
10 See infra notes 31–38, 52–63 and accompanying text.
11 Frequently Asked Questions About Small Business, supra note 3. For the purpose of these
statistics, the Small Business Administration defines small businesses as those with fewer than 500
employees.
12 Id. (reporting that one-fifth of small businesses fail within the first year, and half fail within five
years).
13 Olivia S. Kim et al., Revenue Collapses and the Consumption of Small Business Owners in the
Early Stages of the COVID-19 Pandemic 1, (Nat’l Bureau of Econ. Rsch., Working Paper No. 28151,
2020), https://www.nber.org/papers/w28151.
-5-
100 employees had suffered revenue[] losses exceeding 30%. By contrast, only 27% of
larger businesses with more than 100 employees had seen revenue drops of more than
30%.”14 When the pandemic started, small businesses experienced “mass layoffs,
temporary closures, and downsizing.”15 Relief from the federal government may have
blunted the impact on small businesses,16 but the federal government is unlikely to
offer such extraordinary relief again.
In the coming months and years, the fate of small businesses, and the
American economy generally, will be dictated largely by the pandemic’s trajectory.
Federal Reserve Chair Jerome H. Powell has made this clear in his testimony before
Congress on several occasions.17 In surveys, small businesses report that surging
COVID cases, and the government-ordered shutdowns they may spark, are a major
14 86 Fed. Reg. 61402, 61511 (Nov. 5, 2021) (citation omitted).
15 Kim et al., supra note 13, at 5–6.
16 Ruth Simon, Covid-19’s Toll on U.S. Business? 200,000 Extra Closures in Pandemic’s First Year,
Wall St. J. (April 16, 2021), https://www.wsj.com/articles/covid-19s-toll-on-u-s-business-200-000-extra-closures-
in-pand
emics-first-year-11618580619; Phillip L. Swagel, Director, CBO’s Budget and Economic Analysis
During the Pandemic, Cong. Budget Off. (Oct. 13, 2021), https://www.cbo.gov/system/files/2021-
10/57520-Pandemic-Budget-Analysis.pdf (COVID-19 legislation estimated to have grown GDP by $1.5
trillion).
17 Coronavirus and CARES Act: Hearing Before the S. Comm. on Banking, Hous., & Urb. Affs.,
117th Cong. (2021) (statement of Jerome H. Powell, Chair, Federal Reserve) (citing the Delta variant
as a reason for slower job growth this summer),
https://www.federalreserve.gov/newsevents/testimony/powell20211130a.htm; Coronavirus Aid, Relief,
and Economic Security Act: Hearing Before the H. Comm. on Fin. Servs., 117th Cong. (2021) (statement
of Jerome H. Powell, Chair, Federal Reserve) (“As we have emphasized throughout the pandemic, the
path of the economy continues to depend on the course of the virus.”),
https://www.federalreserve.gov/newsevents/testimony/powell20210323a.htm; Coronavirus Aid, Relief,
and Economic Security Act: Hearing Before the S. Comm. on Banking, Hous., & Urb. Affs., 116th Cong.
(2020) (statement of Jerome H. Powell, Chair, Federal Reserve) (“As we have emphasized throughout
the pandemic, the outlook for the economy is extraordinarily uncertain and will depend, in large part,
on the success of efforts to keep the virus in check.”),
https://www.federalreserve.gov/newsevents/testimony/powell20201201a.htm; Coronavirus Aid, Relief,
and Economic Security Act: Hearing Before the H. Comm. on Fin. Servs., 116th Cong. (2020) (statement
of Jerome H. Powell, Chair, Federal Reserve) (“[I]t is safe to reengage in a broad range of activities.
The path forward will depend on keeping the virus under control, and on policy actions taken at all
levels of government.”), https://www.federalreserve.gov/newsevents/testimony/powell20200922a.htm.
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concern.18
Recent events have only underscored the connection between controlling the
virus and growing our economy. The Omicron variant is likely to stifle economic
growth in 2022.19 In Europe, Omicron is sapping consumer demand and spurring
government shutdowns, threatening permanent closure for small businesses;20 absent
the ETS, small businesses here could face the same dire scenario.21
Clearly, COVID-19 is a major cause of economic turmoil for small businesses,
and mitigating COVID-19 is the best available solution. Just as clearly, widespread
vaccination is essential to combatting this pandemic. That is the view not only of
amicus American Medical Association,22 but also of the National Institutes of
Health,23 the Centers for Disease Control,24 the U.K.’s National Health Service,25
Doctors Without Borders,26 and many others. Amici public health and health care
18 Eric Groves, Road to Recovery Report, Alignable (Aug. 10, 2021),
https://www.alignable.com/forum/alignable-road-to-recovery-report-august-2021 (reporting that 47% of
businesses were most concerned about government re-closures during rise of Delta variant).
19 Harriett Torry & David Harrison, Omicron Variant Is Expected to Dent Global Economy in Early
2022, Wall St. J. (Dec. 27, 2021), https://www.wsj.com/articles/omicron-variant-is-expected-to-dent-
global-economy-in-early-2022-11640631554.
20 Patricia Cohen & Melissa Eddy, Omicron Is Turning Europe’s Busy Season Silent, N.Y. Times
(Dec. 21, 2021), https://www.nytimes.com/2021/12/21/business/omicron-europe-
business.html?referringSource=articleShare.
21 Jonelle Marte, Analysis: Omicron Begins to Leave Mark on U.S. Economy, but Unlikely to Derail
It, Reuters (Dec. 23, 2021), https://www.reuters.com/business/omicron-begins-leave-mark-us-economy-
unlikely-derail-it-2021-12-23/.
22 Sixth Circuit Amicus Brief of American Medical Ass’n at 5–8 (ECF No. 102).
23 Understanding COVID-19 Vaccines, Nat’l Insts. of Health (Nov. 3, 2021),
https://covid19.nih.gov/treatments-and-vaccines/covid-19-vaccines.
24 COVID-19 Vaccines are Effective, Ctrs. for Disease Control & Prevention (Dec. 23, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/index.html; New CDC Study:
Vaccination Offers Higher Protection than Previous COVID-19 Infection, Ctrs. for Disease Control &
Prevention (Aug. 6, 2021), https://www.cdc.gov/media/releases/2021/s0806-vaccination-protection.html.
25 Coronavirus (COVID-19) Vaccines, Nat’l Health Serv. (Dec. 22, 2021),
https://www.nhs.uk/conditions/coronavirus-covid-19/coronavirus-vaccination/coronavirus-vaccine/.
26 COVID-19: Our Global Response, Drs. Without Borders (Dec. 10, 2021),
https://www.doctorswithoutborders.org/covid19.
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practitioners have outlined the substantial research showing that vaccination is the
most effective means of preventing COVID-19 infection and mortality.27 And when
employers require vaccination, experience shows that even employees who expressed
hesitancy to get vaccinated do so in overwhelming numbers.28 Small businesses
recognize that widespread vaccination is the path to ending the pandemic and
revitalizing the economy. As the U.S. Chamber of Commerce reports, “[s]mall
businesses are very clear on what will help their businesses thrive: both easing
COVID restrictions and more vaccinations. Small businesses say that [these] are the
two biggest keys to their success[.]”29 Federal Reserve Chair Powell has repeatedly
testified that more vaccinations will help restore normal economic conditions.30
Unsurprisingly, then, “[m]any businesses already were in the process of
implementing different types of vaccine requirements before the . . . ETS[] was
issued.”31 A Chamber of Commerce poll showed that a majority of small business
27 Sixth Circuit Amicus Brief of American Public Health Ass’n et al. at 12–15 (ECF No. 244).
28 Anupam B. Jena & Christopher M. Worsham, Facts Alone Aren’t Going to Win Over the
Unvaccinated. This Might., N.Y. Times (Dec. 21, 2021),
https://www.nytimes.com/2021/12/21/opinion/vaccine-hesitancy-covid-omicron.html.
29 Thaddeus Swanek, New Poll Shows Small Businesses Hopeful as Pandemic Recovery Accelerates,
U.S. Chamber of Com. (June 14, 2021), https://www.uschamber.com/small-business/new-poll-shows-
small-businesses-hopeful-pandemic-recovery-accelerates.
30 Coronavirus and CARES Act: Hearing Before the S. Comm. on Banking, Hous., & Urb. Affs.,
117th Cong. (2021) (statement of Jerome H. Powell, Chair, Federal Reserve) (“Continued progress on
vaccinations would help support a return to more normal economic conditions.”),
https://www.federalreserve.gov/newsevents/testimony/powell20210928a.htm; The Federal Reserve’s
Response to the Coronavirus Pandemic: Hearing Before the H. Select Subcomm. on the Coronavirus
Crisis, 117th Cong. (June 22, 2021) (statement of Jerome H. Powell, Chair, Federal Reserve) (“Job
gains should pick up in coming months as vaccinations rise........ Continued progress on vaccinations
will support a return to more normal economic conditions.”); Semiannual Monetary Policy Report to the
Congress: Hearing Before the S. Comm. on Banking, Hous., & Urb. Affs., 117th Cong. (Feb. 23, 2021)
(statement of Jerome H. Powell, Chair, Federal Reserve) (“In particular, ongoing progress in
vaccinations should help speed the return to normal activities.”),
https://www.federalreserve.gov/newsevents/testimony/powell20210223a.htm.
31 David Smagalla, Vaccine Mandate Legal Challenges Muddy the Waters for Employers Preparing
to Implement Rules, Wall St. J. (Nov. 26, 2021), https://www.wsj.com/articles/vaccine-mandate-legal-
challenges-muddy-the-waters-for-employers-preparing-to-implement-rules-11637952516.
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owners require, or are likely to require, their staff to be vaccinated.32 Another survey
showed that 59% of small businesses would require new employees to be vaccinated,
and another 23% would consider it.33 Large businesses, too – including AT&T, Bank
of America, CVS, McDonald’s, Tyson Foods, United Airlines, UPS, Walmart, and
many others – now require employees to be vaccinated.34
It is also worth noting that businesses opposing the ETS are outliers: several
studies have shown that most businesses, large and small, support the policy. For
example, a Chamber of Commerce survey showed that around two-thirds of small
businesses support the ETS.35 SBM’s own polling of small businesses shows that a
majority supports a vaccine-or-test requirement for employees.36 Likewise, the
Business Roundtable, which represents the CEOs of large corporations,37 also
“support[s] the Administration’s vaccination efforts.”38 Importantly, the businesses
and business organizations opposing the ETS here do not represent the views of most
32 Small Businesses Trying to Hire Face Growing Difficulty Finding Workers, U.S. Chamber of
Commerce (Oct. 28, 2021), https://www.uschamber.com/workforce/small-businesses-trying-to-hire-face-
growing-difficulty-finding-workers.
33 60% of Small Businesses Will Only Hire Vaccinated Employees Moving Forward, Digital (Sept.
29, 2021), https://digital.com/small-businesses-to-only-hire-vaccinated-employees/.
34 Jessica Matthews, All the Major Companies Requiring Vaccines for Workers, Fortune (Aug. 30,
2021), https://fortune.com/2021/08/23/companies-requiring-vaccines-workers-vaccination-mandatory/.
35 Small Businesses Trying to Hire Face Growing Difficulty Finding Workers, supra note 32.
36 Small Businesses Support COVID-19 Vaccine Requirements Amid Setbacks from the Delta
Variant, Small Bus. Majority (Sept. 22, 2021), https://smallbusinessmajority.org/our-research/small-
businesses-views-on-vaccine-requirements; see also California Small Businesses Support Statewide
COVID-19 Vaccine and Testing Requirement, Small Bus. Majority (Aug. 31, 2021),
https://smallbusinessmajority.org/our-research/california-small-businesses-support-statewide-covid-19-
vaccine-and-testing-mandate (59% of California small businesses “would support a state law requiring
businesses to mandate vaccinations and/or weekly testing for employees.”).
37 About Us, Business Roundtable, https://www.businessroundtable.org/about-us (last visited Dec.
29, 2021).
38 Business Roundtable Statement on Extension of Vaccine Mandate Implementation Period, Bus.
Roundtable (Nov. 4, 2021), https://www.businessroundtable.org/business-roundtable-statement-on-
extension-of-vaccine-mandate-implementation-period.
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American businesses.
Small businesses – whether affected directly or merely indirectly by the ETS –
support OSHA’s regulation. Some of SBM’s members, though still considered small
businesses, have more than 100 employees and thus fall directly within the purview
of the ETS. Additionally, given that businesses with more than 100 employees
manage two-thirds of America’s workers,39 many, if not most, customers of small
businesses are likely employees of large businesses covered by the ETS. Thus, the
ETS protects small businesses and their employees and customers even if its
requirements do not directly apply to them.
Finally, small businesses need the ETS because it will preempt counter-
productive state and local efforts to restrict employers’ use of worker safety protocols
and vaccine mandates.40 Thus far, more than 10 states have restricted businesses’
abilities to impose vaccine requirements on their workers.41 Without federal
intervention, businesses in these states would be restrained from taking effective,
common-sense actions to protect themselves and the communities in which they
operate. However, OSHA has stated that it intends for the ETS to preempt “any State
or local requirements that ban or limit an employer’s authority to require vaccination,
face covering, or testing.”42 Thus, the ETS protects all American workers by
39 Palmer, supra note 8.
40 See Jonathan A. Segal, Employers Face Potential Preemption Clash on Vaccine Rules, Bloomberg
Law (Nov. 30, 2021), https://news.bloomberglaw.com/daily-labor-report/employers-face-potential-
preemption-clash-on-vaccine-rules.
41 State Efforts to Ban or Enforce COVID-19 Vaccine Mandates and Passports, Nat’l Acad. for State
Health Pol’y (Dec. 21, 2021), https://www.nashp.org/state-lawmakers-submit-bills-to-ban-employer-
vaccine-mandates/.
42 Frequently Asked Questions, Occupational Safety and Health Admin.,
https://www.osha.gov/coronavirus/ets2/faqs.
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permitting businesses to implement the safety protocols they believe will best protect
their employees and communities.
Several parties and amici argue that the ETS will trigger a mass exodus of
employees who do not want to be vaccinated or tested for COVID. The experiences of
large employers that have required vaccinations show that these concerns are
exaggerated.43 It is equally or more likely that vaccinated employees would leave their
jobs rather than work side-by-side with unvaccinated and untested co-workers.44
Moreover, COVID outbreaks previously prompted state and local governments to shut
down small businesses, and future outbreaks could necessitate similar action.45 The
ETS would make such future outbreaks less likely.
As the above discussion shows, it is the pandemic, not the ETS, that poses the
gravest threat to businesses large and small. One brief below cites a Goldman Sachs
report stating that, “at least seven million affected workers report that they definitely
will not get the vaccine.”46 But that same report concludes, “[t]he medium-run net
employment impact is likely positive since higher full vaccination rates will reduce
virus spread, which should boost labor demand ....... ”47 Moreover, higher vaccination
43 Jena, supra note 28.
44 See, e.g., Lila MacLellan, Nearly 4 in 10 US Workers Say They May Quit If Their Employer
Doesn’t Mandate Vaccines, Quartz at Work (Aug. 10, 2021), https://qz.com/work/2045018/survey-shows-
the-business-risk-of-not-adopting-a-vaccine-mandate/; New Research Shows the Unvaccinated and the
Vaccinated Are on a Collision Course at Work and School, Perceptyx (July 22, 2021),
https://blog.perceptyx.com/news-research-vaccinated-versus-unvaccinated-at-work-and-school (“[O]nly
19 percent of vaccinated workers feel very little or no stress/anxiety” working with unvaccinated co-
workers ....... “If [vaccinated employees’] concerns aren’t addressed, employers could see quit rates rise
even higher as the vaccinated look for remote-friendly jobs and/or offices they feel are safer.”).
45 See Groves, supra note 18.
46 Phillips Manufacturing & Tower Co. et al. Motion for Emergency Stay at 44 (ECF No. 168).
47 Joseph Briggs et al., US Daily: The Effect of the Biden Vaccine Mandate on Vaccination and
Employment, Goldman Sachs (Sept. 13, 2021) (emphasis added),
https://www.gspublishing.com/content/research/en/reports/2021/09/13/cd67a3b5-bb9e 4659-b605-
6618d5aa825f.html.
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rates will result in fewer employees lost to avoidable deaths: according to the latest
data from the Centers for Disease Control, “unvaccinated people are at 14 times
greater risk of dying from COVID-19 than people who are vaccinated.”48
B. OSHA’s vaccine-or-test policy is administratively feasible. Opponents of the
ETS argue that it is burdensome to administer, but evidence suggests precisely the
opposite. Consider, for example, the Signatories to this brief. The SBM itself
represents a network of more than 85,000 small businesses and 1,500 partner
organizations.49 AMIBA, likewise, has fostered alliances that protect over 50,000
independent businesses. Together, these groups include hundreds of businesses with
more than 100 employees that are directly subject to the ETS. Moreover, given that
OSHA is considering reducing the ETS employee threshold to fewer than 100
employees,50 it is possible that even more small businesses will become subject to the
ETS. Small Business Amici, with their substantial expertise in what businesses need
to not only survive but thrive, enthusiastically support the policy at issue here.
Moreover, countless major corporations – from financial firms to transportation
entities – have effectively implemented policies at least as strict as the ETS,
demonstrating the feasibility of such programs.51 For example, the investment bank
Goldman Sachs, hospitality chain MGM Resorts International, and Amtrak – all
companies with thousands if not tens of thousands of employees – have implemented
48 See Covid Data Tracker, Ctrs. for Disease Control & Prevention https://covid.cdc.gov/covid-data-
tracker/#rates-by-vaccine-status (last visited Dec. 29, 2021).
49 About Us, supra note 37.
50 See 86 Fed. Reg. 61402, 61403 (Nov. 5, 2021).
51 See, e.g., Haley Messenger, From McDonald’s to Goldman Sachs, Here are the Companies
Mandating Vaccines for All or Some Employees, NBC News (Nov. 16, 2021),
https://www.nbcnews.com/business/business-news/here-are-companies-mandating-vaccines-all-or-some-
employees-n1275808.
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vaccine-or-test policies indistinguishable from the ETS.52 Indeed, many corporations
have successfully implemented policies more stringent than the ETS. For example,
some employers – including the most highly valued company in the United States53
and the most-watched cable channel in the United States54 – require daily testing of
non-vaccinated employees, whereas the ETS requires only weekly testing.
Opponents of the ETS argue that it could cause employees to quit their jobs
rather than comply with the policy. But this has not been the experience of those
employers who have required vaccines; to the contrary, vaccine uptake rates for these
employees has been strikingly high. Tyson Foods, for example, gave its employees
three months to get vaccinated or cease working. Before that deadline had even
passed, over 96% of employees had complied.55 When United Airlines required its
employees to be vaccinated, less than 0.3% of its employees chose termination over
vaccination.56 At Houston Methodist Hospital, less than one in a hundred employees
quit or was fired for refusing to comply with a vaccine requirement.57 Perhaps no data
point is more compelling on the question of uptake rates than the federal
government’s success in protecting its own employees. Despite being the largest
52 See id.
53 See Mariella Moon, Apple Will Require Unvaccinated Employees to Test for COVID-19 Daily,
Tech Crunch (Oct. 21, 2021), https://techcrunch.com/2021/10/21/apple-will-require-unvaccinated-
employees-to-test-for-covid-19-daily/.
54 See David Bauer, Fox’s Vaccine Criticism Focuses Attention on its Own Policy, Fox
(Sept. 16, 2021), https://apnews.com/article/joe-biden-business-health-arts-and-
entertainment-fox-corp- 26096a8781c7c7f1d6c0ddff98a5fe6d.
55 Alison Kosik, 96% of Tyson’s Active Workers are Vaccinated, CNN (Oct. 26, 2021),
https://www.cnn.com/2021/10/26/business/tyson-covid-vaccine/index.html.
56 Jena, supra note 28.
57 David Leonhardt & Ian Prasad Philbrick, Boosting Vaccinations, N.Y. Times (July 23, 2021),
https://www.nytimes.com/2021/07/23/briefing/vaccination-mandates-delta-breakthrough-
infections.html.
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workforce in the United States – with more than 3.5 million workers, worldwide – as
of November 24, 2021, 97.2% of federal employees had complied with the Executive
Order requiring vaccination.58
CONCLUSION
For the foregoing reasons, Small Business Amici respectfully request that this
Court decline to stay or enjoin the ETS.
58 Update on Implementation of COVID-19 Vaccination Requirement for Federal Employees, White
House (Dec. 9, 2021), https://www.whitehouse.gov/omb/briefing-room/2021/12/09/update-on-
implementation-of-covid-%E2%81%A019-vaccination-requirement-for-federal-employees/.
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Respectfully submitted,
Richard A. Koffman
Counsel of record
Emmy L. Levens
Paul Stephan
Brendan Schneiderman
COHEN MILSTEIN SELLERS &
TOLL PLLC
1100 New York Ave NW, Suite 500
Washington, DC 20005
(202) 408-4600
rkoffman@cohenmilstein.com
December 30, 2021 Attorneys for Amici Small
Business Majority; American
Independent Business Alliance;
Border Grill Las Vegas, LLC;
Ciudad LA, LLC; Border Grill
Truck and Catering, LLC;
Feedfolks, LLC; BG SM20, LLC;
and Mundo Management Group,
LLC
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