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Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249, 21A250, 21A251,
21A252, 21A258, 21A259, and 21A260
__________________
In the

Supreme Court of the United States
___________

IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND
TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402,
ISSUED ON NOVEMBER 4, 2021
__________________
MOTION OF NATIONAL EMPLOYMENT LAWYERS ASSOCIATION
AND JOBS WITH JUSTICE EDUCATION FUND FOR LEAVE TO FILE
ATTACHED AMICUS BRIEF IN OPPOSITION TO EMERGENCY
APPLICATIONS FOR A STAY OR INJUNCTION PENDING CERTIORARI
REVIEW; FOR LEAVE TO FILE WITHOUT 10 DAYS’ NOTICE;
AND FOR LEAVE TO FILE IN PAPER FORMAT
__________________

Michael T. Anderson*
*Counsel of record
MURPHY ANDERSON PLLC
1401 K Street NW, Suite 300
Washington, DC 20005
(202) 223-2620
manderson@murphypllc.com

December 27, 2021 Counsel for Movants/Proposed Amici
National Employment Lawyers
Association and Jobs With Justice
Education Fund
Amici National Employment Lawyers Association (NELA) and Jobs With

Justice Education Fund (JWJEF) respectfully move for leave to file the attached

amicus curiae brief in opposition to the eleven Emergency Applications, filed on

December 17–20, 2021, seeking a stay or injunction pending certiorari review of the

Sixth Circuit’s decision granting a motion to dissolve a stay of the Occupational

Safety and Health Administration (OSHA) Emergency Testing Standard on COVID-

19 vaccination and testing, which had been issued by the Fifth Circuit before the

matter was transferred to the Sixth Circuit. Amici further move for leave to file the

attached brief without 10 days’ advance notice to the parties of amici’s intent to file,

and to file in unbound format on 8½-by-11-inch paper. See Sup. Ct. R. 37.2(a).

By email on December 24, 2021, amici provided notice to the parties in

21A244 and 21A247 of their intent to file an amicus brief in opposition to the

emergency applications. Counsel for the petitioners-applicants (the National

Federation of Independent Businesses in 21A244 and the State petitioners in

21A247) stated that they do not oppose the filing. Counsel for the respondent U.S.

Department of Labor has not yet responded.

Amici curiae NELA and JWJEF are worker-advocacy organizations that seek

to empower workers who demand fair treatment in the workplace and dignity on

the job. Amici have an interest in the application of regulatory mandates in

American workplaces, and thus urge clarity from this Court concerning the reach of

its decision in this case to other restrictions that courts have upheld over worker

challenges for decades.

1
Amici NELA and JWJEF seek to file an amicus brief in opposition to the

emergency applications for a stay or injunction pending certiorari review because

Petitioners’ arguments, if accepted, would effectively end workplace regulation as it

has existed since the early 20th Century.

No counsel for any party authored the proposed brief in whole or in part, and

no person or entity, other than the amici curiae, contributed money intended to

fund preparing or submitting this brief.

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, with

oral argument in Cases 21A244 and 21A247 on January 7, 2022. Counsel for amici

provided notice to all parties in Cases 21A244 and 21A247 on December 24. Given

the expedited consideration of this matter, amici respectfully request leave to file

the attached brief without 10 days’ advance notice to the parties of intent to file and

to file in unbound format on 8½-by-11-inch paper. Because of the rapid schedule,

preparation of this brief in printed booklet form will not be practicable. Because no

party has opposed the filing, amici request that the Court grant leave to file the

attached amicus brief without 10 days’ advance notice to the parties and in

unbound format.

2
CONCLUSION

Amici NELA and JWJEF respectfully request that the Court grant this

motion to file the attached proposed amicus brief and accept it in unbound format

without the 10 days’ notice.

Respectfully submitted,

Michael T. Anderson*
MURPHY ANDERSON PLLC
1401 K Street NW, Suite 300
Washington, DC 20005
(202) 223-2620
manderson@murphypllc.com
*Counsel of record

December 27, 2021 Counsel for Movants/Proposed Amici
National Employment Lawyers
Association and Jobs With Justice
Education Fund

3
Nos. 21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249, 21A250, 21A251,
21A252, 21A258, 21A259, and 21A260
__________________
In the

Supreme Court of the United States
___________

[PROPOSED] BRIEF OF AMICI CURIAE NATIONAL EMPLOYMENT LAWYERS
ASSOCIATION AND JOBS WITH JUSTICE EDUCATION FUND
IN OPPOSITION TO EMERGENCY APPLICATIONS FOR A STAY OR
INJUNCTION PENDING CERTIORARI REVIEW

__________________

Michael T. Anderson*
*Counsel of record
Adam C. Breihan
MURPHY ANDERSON PLLC
1401 K Street NW, Suite 300
Washington, DC 20005
(202) 223-2620
manderson@murphypllc.com

December 27, 2021 Counsel for Movants/Proposed Amici
National Employment Lawyers
Association and Jobs With Justice
Education Fund
CORPORATE DISCLOSURE STATEMENT

The National Employment Lawyers Association (NELA) has no parent

corporation, nor has it issued shares or securities. The Internal Revenue Service has

determined that NELA is organized and operated exclusively for advancing

employee interests and serving lawyers who advocate for workers, pursuant to

Section 501(c)(6) of the Internal Revenue Code and is exempt from income tax.

NELA is organized and operated as a not-for-profit corporation under the laws of

the state of Ohio.

Jobs With Justice Education Fund is a non-profit organization organized

under Section 501(c)(3) of the Internal Revenue Code and has no parent

corporation. No publicly held company has 10% or greater ownership in Jobs With

Justice Education Fund.

i
TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ............................................................... ii

TABLE OF AUTHORITIES ......................................................................................... iii

INTEREST OF AMICI CURIAE ................................................................................... 1

INTRODUCTION AND SUMMARY ............................................................................ 1

ARGUMENT .................................................................................................................. 3

I. Petitioners’ Theory Will Open the Door to “Personal Liberty” Challenges to
Employment Regulation Generally. .......................................................................... 3

A. Mandatory drug testing.................................................................................... 3

B. Physical requirements for employment ........................................................... 5

C. Mandatory retirement age ............................................................................... 6

D. Hard-hat and beard restrictions ...................................................................... 7

II. Pro-Vaccine Workers’ Right to Refuse Unsafe Work.......................................... 8

III. The Problem of Judicial Line-Drawing ............................................................. 10

IV. Petitioners’ Theory Implicates State, Local and Private Employer Mandates
as Well as Federal Government Mandates. ............................................................ 12

A. If federal mandates are invalid, then so are State mandates....................... 12

B. Private employer mandates will not survive challenge if Petitioners’ theory
is accepted.............................................................................................................. 12

V. Petitioners’ Commerce Clause Argument Would Invalidate All Federal
Employment Legislation. ......................................................................................... 13

CONCLUSION............................................................................................................. 15

ii
TABLE OF AUTHORITIES

CASES

Albertsons, Inc. v. Kirkingburg,
527 U.S. 555 (1999) .............................................................................................. 6, 12

American Textile Manufacturers Institute, Inc. v. Donovan,
452 U.S. 490 (1981). ................................................................................................... 3

Bey v. City of New York,
999 F.3d 157 (2d Cir. 2021)........................................................................................ 8

BNSF Railway Co. v. Department of Transportation,
566 F.3d 200 (D.C. Cir. 2009) .................................................................................... 4

Bondurant v. Air Line Pilots Association, International,
679 F.3d 386 (6th Cir. 2012). ..................................................................................... 7

CMC Electric, Inc. v. OSHA,
221 F.3d 861 (6th Cir. 2000). ..................................................................................... 7

Gade v. National Solid Wastes Management Association,
505 U.S. 88 (1992). ................................................................................................... 11

Heart of Atlanta Motel, Inc. v. United States,
379 U.S. 241 (1964) .................................................................................................. 14

International Brotherhood of Teamsters v. Department of Transportation,
932 F.2d 1292 (9th Cir. 1991). ................................................................................... 5

Jacobson v. Massachusetts,
197 U.S. 11 (1905) ...................................................................................................... 9

Kalsi v. New York City Transit Authority,
62 F. Supp. 2d 745 (E.D.N.Y. 1998) ........................................................................... 7

Kimel v. Florida Board of Regents,
528 U.S. 62 (2005) .................................................................................................... 13

Maniscalco v. New York City Dep't of Educ., No. 21-CV-5055 (BMC), 2021 WL
4344267 (E.D.N.Y. Sept. 23, 2021), aff'd, No. 21-2343, 2021 WL 4814767 (2d Cir.
Oct. 15, 2021), pet. cert. docketed Dec. 9, 2021....................................................... 10

iii
Murphy v. United Parcel Service,
527 U.S. 516 (1999). ................................................................................................... 6

Norris v. Premier Integrity Solutions,
641 F.3d 695 (6th Cir. 2011). ..................................................................................... 4

Skinner v. Railway Labor Executives’ Association,
489 U.S. 602 (1989) ................................................................................................ 4, 5

United States v. Darby,
312 U.S. 100 (1941) .................................................................................................. 13

United States v. Mississippi Department of Public Safety,
321 F.3d 495 (5th Cir. 2003) .................................................................................... 13

United Steelworkers v. Weber,
443 U.S. 193 (1979) .................................................................................................. 13

Vance v. Bradley,
440 U.S. 93 (1979) ...................................................................................................... 7

Vernonia School District 47J v. Acton,
515 U.S. 646 (1995). ................................................................................................... 5

We The Patriots USA Inc. v. Hochul,
17 F.4th 266 (2d Cir. 2021) ...................................................................................... 10

West Coast Hotel v. Parrish,
300 U.S. 379 (1935) .............................................................................................. 2, 11

Whirlpool Corp. v. Marshall,
445 U.S. 1 (1980) .................................................................................................... 2, 9

STATUTES

29 U.S.C. § 143 ............................................................................................................... 9

29 U.S.C. § 201 ............................................................................................................. 13

29 U.S.C. § 621 ......................................................................................................... 7, 13

29 U.S.C. § 651……………………………………………………………………………. 11
42 U.S.C. § 12101 ......................................................................................................... 13

iv
42 U.S.C. § 12111 ......................................................................................................... 13

42 U.S.C. § 12112 ........................................................................................................... 6

42 U.S.C. § 2000e ......................................................................................................... 13

46 U.S.C. § 2103 ............................................................................................................. 4

46 U.S.C. § 7101 ............................................................................................................. 4

49 U.S.C. § 20140 ........................................................................................................... 4

49 U.S.C. § 31306 ........................................................................................................... 3

49 U.S.C. § 45102 ........................................................................................................... 3

49 U.S.C. § 5331 ............................................................................................................. 4

REGULATIONS

5 C.F.R. § 842.806 .......................................................................................................... 6

14 C.F.R. § 121.383 ........................................................................................................ 6

29 C.F.R. § 1910.135 ...................................................................................................... 7

29 C.F.R. § 1926.100 ...................................................................................................... 7

29 C.F.R. § 1977.12 ........................................................................................................ 2

46 C.F.R. § 16.101 .......................................................................................................... 4

49 C.F.R. § 382.101 ........................................................................................................ 4

49 C.F.R. § 391.41. ......................................................................................................... 6

49 C.F.R. § 40.67 ............................................................................................................ 4

v
INTEREST OF AMICI CURIAE

Amici Curiae National Employment Lawyers Association (NELA) and Jobs

With Justice Education Fund (JWJEF) are advocacy organizations that empower

workers who demand fair treatment in the workplace and dignity on the job.

NELA and its 69 circuit, state, and local affiliates have a membership of over

4,000 attorneys committed to the rights of workers, engaged in on-premises work, in

employment, wage and hour, labor, and civil rights disputes.

JWJEF is a non-profit organization which advocates for all workers to have

employment security and a decent standard of living within an economy that works

for everyone. During the COVID-19 pandemic, Jobs With Justice Education Fund

has advocated on behalf of essential workers with a focus on their health, safety,

voice, and dignity in the workplace.

No counsel for any party authored the proposed brief in whole or in part, and

no person or entity, other than the amici curiae, contributed money intended to

fund preparing or submitting this brief.

INTRODUCTION AND SUMMARY

Petitioners urge the Court to strike down OSHA’s COVID-19 mandate, by

asking the Court to make an independent judicial assessment that the costs to

individual worker choice outweigh its benefits. Petitioners also argue that OSHA’s

COVID-19 mandate of vaccination or regular testing in large workplaces exceeds

Congress’ Article I power under the Commerce Clause. If these arguments are

accepted, a substantial number of workplace requirements, both regulatory and

privately-mandated, will be subject to similar challenges.

1
In Part I, we outline the many regulatory requirements that would become

fair game for relitigation if Petitioners’ theory were adopted. For example, the

Department of Transportation (DOT) mandates drug-testing for all employees in

aviation, rail, motor carrier, mass transit, maritime and pipeline industries. If

Petitioners’ argument is accepted, individual workers would be entitled to revisit

whether DOT-mandated drug testing is truly worth the cost to individual workers’

personal choices.

In Part II, we discuss the right to refuse unsafe working conditions, a

countervailing right of pro-vaccine workers that would be triggered by any stay on

OSHA’s mandate. This Court has upheld the right of workers to refuse work under

OSHA when they reasonably fear unsafe working conditions. See Whirlpool Corp. v.

Marshall, 445 U.S. 1, 12 (1980), upholding 29 C.F.R. § 1977.12. If workers who

object to vaccination are given a liberty interest that supersedes the government’s,

then vaccinated workers who fear the spread of COVID-19 may choose to exercise

their equal and opposite right to refuse work if Petitioners’ theory is adopted.

In Part III, we examine the glaring problem in Petitioners’ demand that

courts refuse to enforce OSHA regulations whenever judges deem them too “major”

to suit judge-made notions of administrative policy. This would require courts to

engage in the quasi-legislative line-drawing that courts improperly indulged in

prior to West Coast Hotel v. Parrish, 300 U.S. 379, 398–399 (1935). If OSHA is

acting within the scope of its statutory commission, courts have no legitimate role in

declaring that Congress gave it too much power.

2
In Part IV, we show that even privately-imposed employer mandates would

now be subject to challenge under Petitioners’ theory.

In Part V, we show that Petitioners’ Commerce Clause challenge, if accepted,

would invalidate virtually all federal anti-discrimination law, including Title VII,

the ADEA, the ADA and the RFRA.

ARGUMENT

I. Petitioners’ Theory Will Open the Door to “Personal Liberty” Challenges to
Employment Regulation Generally.

Petitioners claim that OSHA’s vaccine or testing requirement imposes more

burden on individual choices than it yields tangible economic benefits. Petitioners’

core position is that courts may second guess OSHA’s determination that a vaccine

requirement is warranted. Until now, courts have rejected such arguments, by

according deference to OSHA’s cost-benefit judgments. See, e.g., American Textile

Mfrs. Institute v. Donovan, 452 U.S. 490, 510 (1981).

If courts accept Petitioners’ arguments, the consequences cannot be limited to

COVID-19 vaccination. For decades, unions and individual workers have challenged

many workplace regulations on the same theory, but were unsuccessful. The Court

needs to be clear that a decision for Petitioners would revive challenges that until

now the courts have uniformly rejected.

A. Mandatory drug testing

As it has with OSHA, Congress has delegated authority to the Department of

Transportation to require mandatory drug-testing of airline employees, 49 U.S.C. §

45102(a)(1), commercial motor carrier operators, 49 U.S.C. § 31306(b), merchant

3
mariners, 46 U.S.C. §§ 2103, 7101, mass-transit workers, 49 U.S.C. § 5331, and

railroad employees, 49 U.S.C. § 20140. This includes direct observation of some

employees’ urine testing to prevent cheating. See BNSF Ry. Co. v. Dep’t of Transp.,

566 F.3d 200, 208 (D.C. Cir. 2009), citing 49 C.F.R. § 40.67, approved in Norris v.

Premier Integrity Solutions, 641 F.3d 695, 701–702 (6th Cir. 2011).

These regulations are not enforced as a paternalistic measure to reform the

personal lifestyles of American workers. The Agency’s stated purpose is to protect

fellow workers and the public who may be harmed by impaired workers. See, e.g.,

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 621 (1989); 49 C.F.R. §

382.101 (commercial trucking); 46 C.F.R. § 16.101 (shipping). The Supreme Court

has until now held that such agency mandates for invasive testing are permissible

because (like COVID-19 infection) the signs of impairment are not always obvious.

Skinner, 489 U.S. at 621.

If this Court rejects OSHA’s COVID-19 vaccination/testing requirements as

“unduly” invasive, then workers affected by mandatory drug-testing would have a

fresh opportunity to challenge DOT drug-testing regulations on the same ground.

Petitioners advance Judge Sutton’s dissent in the Sixth Circuit that

mandatory drug-testing under DOT regulations is somehow different because it is

limited to transportation workers. App. 211. Yet DOT’s mandate covering any and

all workers within its jurisdiction is also subject to criticism as overbroad. Plaintiffs

challenging such industry-wide regulations have argued that the justification for

drug-testing airline pilots does not have the same force for flight attendants,

4
baggage handlers or pipeline workers. Yet this Court and the lower courts have

deferred to the Government’s judgment that all transportation workers may

legitimately be covered by a blanket rule, even though impairment may be more

dangerous in pilots than in airport clerks. See Skinner v. Railway Labor Executives’

Ass’n, 489 U.S. 602, 621 (1989); Int’l Bhd. of Teamsters v. Department of Transp.,

932 F.2d 1292, 1296 (9th Cir. 1991).

Justice Scalia made the same point for this Court in upholding mandatory

urinalysis for school athletes without individualized suspicion in Vernonia School

District 47J v. Acton, 515 U.S. 646, 656–657 (1995). Justice Scalia cited the

universal requirements for school vaccinations. He noted that students’ expectation

of privacy in crowded schools is less than that of the general public:

For their own good and that of their classmates, public school children
are routinely required to submit to various physical examinations, and
to be vaccinated against various diseases. . . In the 1991–1992 school
year, all 50 States required public school students to be vaccinated
against diphtheria, measles, rubella, and polio. [cit.om.] Particularly
with regard to medical examinations and procedures, therefore,
students within the school environment have a lesser expectation of
privacy than members of the population generally.

Id. What is true for crowded schools is true for large workplaces in interstate

commerce. If the government may legitimately require vaccination in the former, it

may legitimately do so in the latter. Petitioners are merely rehashing the

arguments rejected in Skinner and Vernonia School District 47J.

B. Physical requirements for employment

DOT regulations also impose requirements that workers satisfy vision,

hearing, blood pressure, and other physical standards. See, e.g., 49 C.F.R. § 391.41.

5
Absent such regulations, affected workers might have a claim under the Americans

with Disabilities Act (ADA), 42 U.S.C. § 12112 (a) and (b)(5), for a more lenient

accommodation. Until now, this Court has been firm that employer compliance with

DOT regulations supersedes any affected worker’s ADA rights. See Albertsons, Inc.

v. Kirkingburg, 527 U.S. 555, 518 (1999); Murphy v. United Parcel Service, 527 U.S.

516, 519, 522–23 (1999). This Court has not until now allowed workers to sue their

employers by collaterally attacking government regulations, any more than those

workers may ask judges and juries to reconsider judgments by medical professionals

about a worker’s fitness for work. See Murphy, 527 U.S. at 522.

Petitioners’ theory, if accepted, would change this decisional law. If courts

have the authority to second-guess the wisdom of minimum workplace safety

standards, then compliance with those regulations cannot remain a complete

defense to an ADA claim for accommodation. Employers will no longer have a safe

harbor to comply with federal workplace regulations, if those regulations are now

open to collateral attack by individual workers who object to them.

C. Mandatory retirement age

Federal agencies like the Federal Aviation Administration often impose

mandatory retirement ages as a regulatory condition for employment. See, e.g., 14

C.F.R. § 121.383(e) (air carrier pilots must retire after their 65th birthday); 5 C.F.R.

§ 842.806 (mandatory retirement for air traffic controllers, law enforcement officers,

and firefighters); Vance v. Bradley, 440 U.S. 93, 100 (1979) (mandatory retirement

age for foreign service officers). It is not illegal age discrimination for employers or

6
unions to comply with such regulations. Bondurant v. Air Line Pilots Ass’n, Intern.,

679 F.3d 386, 396 (6th Cir. 2012).

Mandatory retirement-age regulations would be subject to the same

objections that Petitioners urge here. Courts would have to entertain collateral

attacks on the wisdom of mandatory retirement mandates under the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.

D. Hard-hat and beard restrictions

OSHA regulations also require employees in many industries, like

construction and longshore, to wear hard hats. See 29 C.F.R. §§ 1910.135, 1926.100.

Until now, this has been thought an unexceptional exercise of OSHA’s authority

delegated by Congress under the Commerce Clause, even as to small employers. See

CMC Elec. Inc. v. OSHA, 221 F.3d 861, 868–69 (6th Cir. 2000) (small electrical

contractor cited for failing to enforce hard-hat policy).

Hard hats may be uncomfortable. They may interfere with the wearing of

religious headgear by Sikh or Orthodox Jewish workers. The risk of head injury is

arguably confined to the person choosing to forgo the protection. But few until now

would have challenged mandatory hard-hat regulations in the name of each

worker’s freedom to work bare-headed. See Kalsi v. New York City Transit Auth.,

62 F.Supp.2d 745, 760 (E.D.N.Y. 1998) (rejecting Sikh employee’s claim for religious

accommodation from employer’s hard-hat policy, inter alia, because of the potential

for injury to other workers), aff’d, 189 F.3d 461 (2d Cir. 1999).

Similarly, government regulations forbid certain workers like firefighters

from wearing beards that some religions require, since beards may create a hazard

7
for people who may need to wear respirators. See, e.g., Bey v. City of New York, 999

F.3d 157, 167–169 (2d Cir. 2021). Even where the aggrieved workers offer to prove

that the risk is too minimal to justify the restriction against their religious

observance, courts until now have deferred to the agencies’ regulatory judgment.

Yet Petitioners’ theory, if adopted, would open the door to lawsuits by

workers who claim their personal freedom outweighs the benefit of the occasional

head injury or respiratory malfunction. At a minimum, courts would have to

legislate “safe harbor” exemptions from general mandates in every case. If this is

available to Petitioners here, it must be available to all other workers whose

personal and religious freedoms are affected by workplace mandates.

II. Pro-Vaccine Workers’ Right to Refuse Unsafe Work

Petitioners’ individual liberty theory ignores the countervailing OSHA rights

of vaccinated workers to refuse unsafe work alongside unvaccinated, untested co-

workers. As Petitioners’ Brief in Case No. 21-4080 pointed out, a vaccinated worker

is still at risk of a “breakthrough” infection if he/she works in close contact with

unvaccinated co-workers. Pet’rs’ Mot. to Stay at 17, BST Holdings LLC v. OSHA,

Case No. 21-60845 (5th Cir. Nov. 5, 2021).

Those vaccinated workers who fear contracting COVID also have rights

under OSHA. Absent a uniform mandate, vaccinated workers who reasonably fear

breakthrough infections from their unvaccinated colleagues have a legally protected

right to refuse to work. See Whirlpool Corp. v. Marshall, 445 U.S. 1, 12 (1980)

(upholding 29 C.F.R. § 1977.12, protecting employees’ right not to perform assigned

8
tasks because of a reasonable apprehension of injury); see also 29 U.S.C. § 143

(“[T]he quitting of labor by an employee or employees in good faith because of

abnormally dangerous conditions for work at the place of employment of such

employee or employees [shall not] be deemed a strike.”). Petitioners’ theory would

then open the door to a civil war between pro- and anti-vaccine workers, each with a

countervailing right to refuse to work with the others based on their own conflicting

opinions about COVID-19 safety and vaccine efficacy.

Until now, government authorities had the police power to resolve these

scientific and social debates. Government could enforce mandatory vaccination in

response to pandemics, without having to litigate its wisdom against those who

doubt the Government’s scientific judgment. Jacobson v. Massachusetts, 197 U.S.

11, 31 (1905). Even in 1905, the Jacobson Court acknowledged that some questioned

the efficacy and safety of smallpox vaccination. But the presence of dissenters could

not disable the Government from taking decisive action based on the majority

consensus. Id., 191 U.S. at 34.

But if courts now assert the authority to entertain skeptical litigation over

the value of COVID-19 vaccination, they will not be able to deny the pro-vaccine

majority of workers the right to believe, with OSHA and the Center for Disease

Control, that unvaccinated co-workers pose a clear and present danger to their

health. OSHA and its enabling Congress will have lost any ability to impose binding

regulations to protect workplaces in interstate commerce, since each side of the

debate will have a judicially conferred right not to work with the other side.

9
III. The Problem of Judicial Line-Drawing

Petitioners imply that a vaccination mandate might be permissible if it were

limited to specific industries. See, e.g., Pet’rs’ Mot. to Stay, at 20-24. They also

argue for a vague, judge-made distinction between “major” and “minor”

administrative orders. They argue that courts have the power to refuse enforcement

of agency regulations if judges deem they are too consequential. Id. at 16-18.

But here it is hard for unelected courts to define which workplaces are

uniquely at risk of COVID-19 outbreaks compared to others. Healthcare institutions

serve especially vulnerable patients, see We The Patriots USA Inc. v. Hochul, 17

F.4th 266, 270 (2d Cir., 2021) (denying injunction against New York law requiring

vaccination for healthcare workers), application for injunctive relief denied, ___

S.Ct. ___ 2021 WL 5873122 (Dec. 13, 2021), as do institutions that serve the elderly

or children, see Does 1-6 v. Mills, 16 F.4th 20, 33 (1st Cir. 2021) (denying injunction

against Maine regulation mandating vaccination for nursing and residential care

facilities); Maniscalco v. New York City Dep't of Educ., No. 21-CV-5055 (BMC), 2021

WL 4344267, at *3 (E.D.N.Y. Sept. 23, 2021), aff'd, No. 21-2343, 2021 WL 4814767

(2d Cir. Oct. 15, 2021) (same for school employees), pet. cert. docketed Dec. 9, 2021.

But ultimately all occupations that serve the public create the risk of infection to

and from customers, and even in-person workplaces without public contact involve

close proximity between co-workers.

Similarly, Petitioners do not identify any statutory or constitutional test,

beyond judges’ own policy preferences, to distinguish “major” from “routine”

10
administrative action, Petitioners do not dispute that OSHA’s Congressional

mandate is to address “personal injuries and illnesses arising out of work situations

[that] impose a substantial burden upon, and are a hindrance to, interstate

commerce in terms of lost production, wage loss, medical expenses, and disability

compensation payments.” 29 U.S.C. § 651(a). The spread of COVID-19 through

workplace contact is clearly within that statutory mandate. Petitioners are not

complaining that OSHA is acting outside its statutory authority; they are

complaining that Congress gave OSHA too much power, and that Congress may

only delegate OSHA authority to do things that judges deem sufficiently routine.

Petitioners do not give any clear rationale for unelected judges to decide how

consequential an OSHA order must be to lose its right to judicial enforcement, nor

which industries might be legitimately subject to such a mandate. If hospitals may

be subject to such a mandate, why not schools, meatpacking plants or offices? OSHA

has stated that COVID-19 does not discriminate in the public venues where the

virus may be transmitted, so it is hard to see how any court may legitimately draw

lines where Congress and the Executive Branch have not. See West Coast Hotel v.

Parrish, 300 U.S. 379, 398-399 (1935) (elected officials, not courts, should make

policy decisions whether worker-protection statutes should be limited to specific

industries or classes). If courts return to the pre-West Coast Hotel regime by

making judicial policy choices about when Congress may authorize OSHA to

respond to a nationwide pandemic, judges will become the relevant policy-makers in

place of Congress and the President.

11
IV. Petitioners’ Theory Implicates State, Local and Private Employer Mandates
as Well as Federal Government Mandates.

A. If federal mandates are invalid, then so are State mandates.

Petitioners suggest that the vice of the OSHA mandate is that it is federal.

They imply that COVID is a matter for State and local regulation.

But if individual workers’ personal choices are the reason that the OSHA

mandate is invalid, State safety regulations will meet the same fate. Indeed, absent

a uniform federal standard, individual workers asserting ADA and Title VII rights

will have an even stronger argument against State regulation, since their federal

ADA and Title VII rights will arguably supersede any contrary state laws that

would permit employers to do what federal law prohibits. See Gade v. Nat’l Solid

Wastes Mgmt. Ass’n, 505 U.S. 88, 103 (1992). More lenient laws in other states will

always be ammunition for dissident plaintiffs against a stronger law in their state.

For example, any worker in New York who feels burdened by state COVID

mandates need only point to less restrictive rules in Idaho or Arkansas. Absent a

uniform national mandate, the least-restrictive State laws will presumptively

become the national standard when invoked by plaintiffs objecting to vaccination.

B. Private employer mandates will not survive challenge if Petitioners’
theory is accepted.

Petitioners also imply that vaccine mandates would be better left to the

management decisions of individual employers. But this ignores the rights of

individual workers against private employers under the ADA and Title VII. If

OSHA regulation is not a complete defense, then even private employers that

choose to mandate vaccination will have to justify that mandate against employees

12
who assert accommodation under the ADA and Title VII. This would impose a novel

burden on private employers without “comparable example in our law.” Albertson’s,

527 U.S. at 577 (finding it unreasonable “to read the ADA as requiring a[ private]

employer … to shoulder the general statutory burden to justify a job qualification

that would tend to exclude the disabled, whenever the employer chooses to abide by

the otherwise clearly applicable, unamended substantive regulatory [safety]

standard … issued by the Government itself.”). If the Court imposes such a burden

here, it must impose that burden on private employers in every other case where

safety mandates affect individual worker choice.

V. Petitioners’ Commerce Clause Argument Would Invalidate All Federal
Employment Legislation.

Petitioners also claim that the OSHA mandate exceeds Congress’s power

under the Commerce Clause. They argue that Congress and its delegated agency

lack the power under the Commerce Clause to protect interstate commerce from the

effects of a 50-state pandemic that spreads without regard to state lines.

If that argument is accepted, it is hard to see how the Fair Labor Standards

Act, 29 U.S.C. § 201 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., or

the Americans with Disabilities Act 42 U.S.C. §§ 12101 et seq., could be continue to

be deemed a valid exercise of the Commerce Clause power. If the prevention of a

spreading pandemic in large workplaces is insufficiently related to Congress’s power

to regulate interstate commerce, the federal interest in a national minimum wage,

or preventing sex, age or disability discrimination in employment would not either.

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But until now such noncommercial interests in employment fairness have been

deemed to have sufficient connection to interstate commerce to give Congress the

Article I authority to legislate over them. See, e.g., United States v. Darby, 312 U.S.

100, 109 (1941) (Fair Labor Standards Act was constitutional under Commerce

Clause when it set a minimum wage standard to prevent the production of goods

“for interstate commerce, under conditions detrimental to the maintenance of the

minimum standards of living necessary for health and general well-being”); United

Steelworkers v. Weber, 443 U.S. 193, 206 n.6 (1979) (Congress had power under

Commerce Clause to bar employers from discriminating against employees on a

protected ground under Title VII); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 78

(2005) (ADEA); United States v. Miss. Dep't of Pub. Safety, 321 F.3d 495, 500 (5th

Cir.2003) (noting that “the ADA is an exercise of Commerce Clause power”); see 42

U.S.C. § 12111(5) (“ ‘employer’ means a person engaged in an industry affecting

commerce”). These cases recognize that an employer’s choice to discriminate based

on a federally protected category like race is “noneconomic activity,” but the effect of

that choice on the workplace and the flow of commerce in and from that workplace

is economic—hence, it is subject to regulation under the Commerce Clause. Cf.

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 253 (1964) (finding

“discrimination by hotels and motels impedes interstate travel”).

But if preventing the COVID-19 pandemic, including the current omicron

variant, from paralyzing the interstate economy by incapacitating America’s

workers is not a sufficient basis for OSHA’s mandate under the Commerce Clause,

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it is hard to see how the purely metaphorical “plagues” of substandard wages or

invidious discrimination could qualify. There will be nothing left of Congress’ power

to legislate the FLSA, Title VII, ADEA or ADA if the Commerce Clause is as limited

as Petitioners claim.

CONCLUSION

If the Court accepts Petitioners’ arguments, the Court should recognize that

individual workers and their unions will have the same opportunity to revive

similar challenges to regulatory workplace restrictions that courts have rejected for

decades. Petitioners may not win relief here without opening the courthouse doors

to all other dissenting workers, and obliterating the foundations of all federal

employment law.

December 27, 2021

____________________________
Michael T. Anderson
*Counsel of Record
Adam C. Briehan
MURPHY ANDERSON PLLC
1401 K Street NW, Suite 300
Washington, DC 20005
(202) 223-2620
manderson@murphypllc.com

Counsel for Proposed Amici Curiae
National Employment Lawyers Association
and Jobs With Justice Education Fund

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