Appendix 6, App. 284 — 29 U.S.C.A. § 655 Standards

Summary

This is part of an appendix filed December 17, 2021 in application No. 21A244. The pages shown include 29 U.S.C.A. § 655, the occupational safety and health standards section, including the Secretary's procedures for promulgating, modifying or revoking standards, emergency temporary standards, variances and review of the Secretary's determinations. The pages shown end with a declaration signed by Peter Demos, who describes workers struggling to wear masks in a restaurant environment and in kitchens, says masking alone will make employees quit and monitoring will harm morale, and says neither the company nor its employees, who live paycheck to paycheck, can afford testing.

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“Appendix 6, App. 284 — 29 U.S.C.A. § 655 Standards.” Original at www.supremecourt.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/21a244-003-dec-17-2021-other-20211217194631518-appendix-other-pdfa-4293536807/, SHA-256 fdd8dbd3f7463540a2e51ca6b0e542cccf66886c70119ecd9b4c6972c0fbfa7d.

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§ 655. Standards, 29 USCA § 655

KeyCite Yellow Flag - Negative Treatment

Proposed Legislation

United States Code Annotated
Title 29. Labor
Chapter 15. Occupational Safety and Health (Refs & Annos)

29 U.S.C.A. § 655
§ 655. Standards

Currentness

(a) Promulgation by Secretary of national consensus standards and established Federal standards; time for
promulgation; conflicting standards

Without regard to chapter 5 of Title 5 or to the other subsections of this section, the Secretary shall, as soon as practicable
during the period beginning with the effective date of this chapter and ending two years after such date, by rule promulgate
as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he
determines that the promulgation of such a standard would not result in improved safety or health for specifically designated
employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the
greatest protection of the safety or health of the affected employees.

(b) Procedure for promulgation, modification, or revocation of standards

The Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard in the following manner:

(1) Whenever the Secretary, upon the basis of information submitted to him in writing by an interested person, a representative
of any organization of employers or employees, a nationally recognized standards-producing organization, the Secretary of
Health and Human Services, the National Institute for Occupational Safety and Health, or a State or political subdivision,
or on the basis of information developed by the Secretary or otherwise available to him, determines that a rule should be
promulgated in order to serve the objectives of this chapter, the Secretary may request the recommendations of an advisory
committee appointed under section 656 of this title. The Secretary shall provide such an advisory committee with any
proposals of his own or of the Secretary of Health and Human Services, together with all pertinent factual information
developed by the Secretary or the Secretary of Health and Human Services, or otherwise available, including the results
of research, demonstrations, and experiments. An advisory committee shall submit to the Secretary its recommendations
regarding the rule to be promulgated within ninety days from the date of its appointment or within such longer or shorter
period as may be prescribed by the Secretary, but in no event for a period which is longer than two hundred and seventy days.

(2) The Secretary shall publish a proposed rule promulgating, modifying, or revoking an occupational safety or health standard
in the Federal Register and shall afford interested persons a period of thirty days after publication to submit written data
or comments. Where an advisory committee is appointed and the Secretary determines that a rule should be issued, he
shall publish the proposed rule within sixty days after the submission of the advisory committee's recommendations or the
expiration of the period prescribed by the Secretary for such submission.

App.285.
§ 655. Standards, 29 USCA § 655

(3) On or before the last day of the period provided for the submission of written data or comments under paragraph (2),
any interested person may file with the Secretary written objections to the proposed rule, stating the grounds therefor and
requesting a public hearing on such objections. Within thirty days after the last day for filing such objections, the Secretary
shall publish in the Federal Register a notice specifying the occupational safety or health standard to which objections have
been filed and a hearing requested, and specifying a time and place for such hearing.

(4) Within sixty days after the expiration of the period provided for the submission of written data or comments under
paragraph (2), or within sixty days after the completion of any hearing held under paragraph (3), the Secretary shall issue
a rule promulgating, modifying, or revoking an occupational safety or health standard or make a determination that a rule
should not be issued. Such a rule may contain a provision delaying its effective date for such period (not in excess of ninety
days) as the Secretary determines may be necessary to insure that affected employers and employees will be informed of the
existence of the standard and of its terms and that employers affected are given an opportunity to familiarize themselves and
their employees with the existence of the requirements of the standard.

(5) The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection,
shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that
no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to
the hazard dealt with by such standard for the period of his working life. Development of standards under this subsection
shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition
to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the
latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health
and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the
performance desired.

(6)(A) Any employer may apply to the Secretary for a temporary order granting a variance from a standard or any provision
thereof promulgated under this section. Such temporary order shall be granted only if the employer files an application which
meets the requirements of clause (B) and establishes that (i) he is unable to comply with a standard by its effective date because
of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with
the standard or because necessary construction or alteration of facilities cannot be completed by the effective date, (ii) he is
taking all available steps to safeguard his employees against the hazards covered by the standard, and (iii) he has an effective
program for coming into compliance with the standard as quickly as practicable. Any temporary order issued under this
paragraph shall prescribe the practices, means, methods, operations, and processes which the employer must adopt and use
while the order is in effect and state in detail his program for coming into compliance with the standard. Such a temporary
order may be granted only after notice to employees and an opportunity for a hearing: Provided, That the Secretary may issue
one interim order to be effective until a decision is made on the basis of the hearing. No temporary order may be in effect
for longer than the period needed by the employer to achieve compliance with the standard or one year, whichever is shorter,
except that such an order may be renewed not more than twice (1) so long as the requirements of this paragraph are met and
(II) if an application for renewal is filed at least 90 days prior to the expiration date of the order. No interim renewal of an
order may remain in effect for longer than 180 days.

(B) An application for a temporary order under this paragraph (6) shall contain:

(i) a specification of the standard or portion thereof from which the employer seeks a variance,

App.286
§ 655. Standards, 29 USCA § 655

(ii) a representation by the employer, supported by representations from qualified persons having firsthand knowledge
of the facts represented, that he is unable to comply with the standard or portion thereof and a detailed statement of the
reasons therefor,

(iii) a statement of the steps he has taken and will take (with specific dates) to protect employees against the hazard covered
by the standard,

(iv) a statement of when he expects to be able to comply with the standard and what steps he has taken and what steps he
will take (with dates specified) to come into compliance with the standard, and

(v) a certification that he has informed his employees of the application by giving a copy thereof to their authorized
representative, posting a statement giving a summary of the application and specifying where a copy may be examined at
the place or places where notices to employees are normally posted, and by other appropriate means.

A description of how employees have been informed shall be contained in the certification. The information to employees
shall also inform them of their right to petition the Secretary for a hearing.

(C) The Secretary is authorized to grant a variance from any standard or portion thereof whenever he determines, or the
Secretary of Health and Human Services certifies, that such variance is necessary to permit an employer to participate in an
experiment approved by him or the Secretary of Health and Human Services designed to demonstrate or validate new and
improved techniques to safeguard the health or safety of workers.

(7) Any standard promulgated under this subsection shall prescribe the use of labels or other appropriate forms of warning
as are necessary to insure that employees are apprised of all hazards to which they are exposed, relevant symptoms and
appropriate emergency treatment, and proper conditions and precautions of safe use or exposure. Where appropriate, such
standard shall also prescribe suitable protective equipment and control or technological procedures to be used in connection
with such hazards and shall provide for monitoring or measuring employee exposure at such locations and intervals, and in
such manner as may be necessary for the protection of employees. In addition, where appropriate, any such standard shall
prescribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at
his cost, to employees exposed to such hazards in order to most effectively determine whether the health of such employees is
adversely affected by such exposure. In the event such medical examinations are in the nature of research, as determined by
the Secretary of Health and Human Services, such examinations may be furnished at the expense of the Secretary of Health
and Human Services. The results of such examinations or tests shall be furnished only to the Secretary or the Secretary of
Health and Human Services, and, at the request of the employee, to his physician. The Secretary, in consultation with the
Secretary of Health and Human Services, may by rule promulgated pursuant to section 553 of Title 5, make appropriate
modifications in the foregoing requirements relating to the use of labels or other forms of warning, monitoring or measuring,
and medical examinations, as may be warranted by experience, information, or medical or technological developments
acquired subsequent to the promulgation of the relevant standard.

(8) Whenever a rule promulgated by the Secretary differs substantially from an existing national consensus standard, the
Secretary shall, at the same time, publish in the Federal Register a statement of the reasons why the rule as adopted will better
effectuate the purposes of this chapter than the national consensus standard.

App.287
§ 655. Standards, 29 USCA § 655

(1) The Secretary shall provide, without regard to the requirements of chapter 5 of Title 5, for an emergency temporary standard
to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave
danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that
such emergency standard is necessary to protect employees from such danger.

(2) Such standard shall be effective until superseded by a standard promulgated in accordance with the procedures prescribed
in paragraph (3) of this subsection.

(3) Upon publication of such standard in the Federal Register the Secretary shall commence a proceeding in accordance
with subsection (b), and the standard as published shall also serve as a proposed rule for the proceeding. The Secretary shall
promulgate a standard under this paragraph no later than six months after publication of the emergency standard as provided
in paragraph (2) of this subsection.

(d) Variances from standards; procedure

Any affected employer may apply to the Secretary for a rule or order for a variance from a standard promulgated under this
section. Affected employees shall be given notice of each such application and an opportunity to participate in a hearing. The
Secretary shall issue such rule or order if he determines on the record, after opportunity for an inspection where appropriate and
a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices,
means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of
employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard. The
tule or order so issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations,
and processes which he must adopt and utilize to the extent they differ from the standard in question. Such a rule or order may
be modified or revoked upon application by an employer, employees, or by the Secretary on his own motion, in the manner
prescribed for its issuance under this subsection at any time after six months from its issuance.

(e) Statement of reasons for Secretary's determinations; publication in Federal Register

Whenever the Secretary promulgates any standard, makes any rule, order, or decision, grants any exemption or extension of
time, or compromises, mitigates, or settles any penalty assessed under this chapter, he shall include a statement of the reasons
for such action, which shall be published in the Federal Register.

(f) Judicial review

Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after
such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for
the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of
the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The filing of such petition shall not, unless
otherwise ordered by the court, operate as a stay of the standard. The determinations of the Secretary shall be conclusive if
supported by substantial evidence in the record considered as a whole.

App.288
§ 655. Standards, 29 USCA § 655

(g) Priority for establishment of standards

In determining the priority for establishing standards under this section, the Secretary shall give due regard to the urgency of
the need for mandatory safety and health standards for particular industries, trades, crafts, occupations, businesses, workplaces
or work environments. The Secretary shall also give due regard to the recommendations of the Secretary of Health and Human
Services regarding the need for mandatory standards in determining the priority for establishing such standards.

CREDIT(S)

(Pub.L. 91-596, § 6, Dec. 29, 1970, 84 Stat. 1593; Pub.L. 96-88, Title V, § 509(b), Oct. 17, 1979, 93 Stat. 695.)

Notes of Decisions (295)

29 US.C.A. § 655, 29 USCA § 655
Current through PL 117-55.

App.289
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Texas Trucking Association et al.,
Petitioners

United States Occupational Safety and
Health Administration et al.,

Respondents.

Declaration of Lyle Beckwith

|, Lyle Beckwith, declare as follows under penalty of perjury:

L lam the Senior Vice President, Government Relations of the Na-
tional Association of Convenience Stores (“NACS”).

2. | NACS is a non-profit trade association and is the preeminent
representative of the interests of convenience store operators across the na-
tion.

3. NACShas 1,500 retail and 1,600 supplier company members na-
tionwide.

4. In 2020, the fuel wholesaling and convenience industry that
NACS represents employed approximately 2.5 million workers and gener-
ated $548.2 billion in total sales.

5. Inall, the industry sells approximately 80 percent of the motor

fuels purchased in the United States each year.

App. 291
6. | NACS has multiple members in every state in the nation includ-
ing Louisiana, Mississippi, and Texas.

7. My responsibilities at NACS include communicating with, and
advocating on behalf of, NACS members on subjects including workplace
safety, hiring practices, the labor market, relevant regulations, and other top-
ics of interest.

8. Iam familiar with OSHA’s “COVID-19 Vaccination and Testing;
Emergency Temporary Standard” (the “ETS”). It is my understanding that
the ETS applies to NACS members who would not otherwise be subject to
any similar requirement (i.e., who are not covered by the federal-contractor
mandate or the healthcare mandate).

9. [have personal knowledge of the ETS’s requirements and of the
severe effect it will have on many NACS’ members.

10. The ETS will likely require NACS’ members to incur significant
and unrecoverable compliance costs. It will also, in some instances, require
members to incur the cost of testing to retain employees.

11. Some NACS members have indicated that they will not be able
to procure testing kits or services sufficient to cover their workforce on a
weekly basis.

12. Some members expect that they will have many employees quit
their jobs rather than receiving vaccinations against their will.

13. Given the resistance of many employees to vaccination and the

inability to secure tests, some members doubt they will be able to comply
2

App. 292
with the ETS regardless of the cost and will, instead, be forced to pay sub-
stantial fines.

14. Some members also expect that the ETS will force them to termi-
nate employees who refuse testing/masking and vaccination. In each in-
stance, the consequences to members will be lost profits, lost sales, loss of
customer goodwill, and reputational harm.

15. NACS members already report severe difficulty hiring an ade-
quate number of employees to keep their stores open. Some have already
reduced hours or closed locations due to this shortage of labor.

16. _NACS members also are facing supply chain problems that they
have not faced at any time in recent memory.

17. These supply chain issues are caused by a number of factors but
the principal ones are the shortage of truck drivers to move products across
the nation and the shortage of workers to perform other key tasks including
manufacturing and distributing products.

18. The ETS will inflict severe damage on members’ businesses and
on their employees and families—all at a critical moment for the American
economy given the extant issues including labor shortages, supply chain
challenges, and rising prices.

19. NACS’ members generally support their employees becoming
vaccinated. Many of them have offered a variety of monetary and other in-
centives including paid time off for employees to get vaccinated. Vaccination

protects employee health, and thus the workforce on which employers
3

App. 293
depend. In other words, NACS’ members have a strong incentive to encour-
age a vaccinated workforce and they do so.

20. Despite members’ incentive to ensure that their workforce is vac-
cinated, and despite their efforts and commitment to achieving that goal,
there are still a significant number of employees across the industry who
refuse to be vaccinated (or refuse to disclose vaccination status).

21. There are also a significant number of employees who either re-
fuse to submit to weekly testing or maintain that they cannot find testing
resources on a weekly basis.

22. Members know their employees’ attitudes because this
knowledge is vital to maintaining a stable and experienced workforce—es-
pecially in the current labor market, where dissatisfied employees can easily
find employment with a competitor (who employs fewer than 100 employ-
ees) or elsewhere.

23. NACS’ communications with members unquestionably confirm
that there remain a significant number of individuals who adamantly refuse
vaccination and will not submit to weekly testing and masking.

24. NACS’ members report not only that many of their workers have
refused generous incentives offered to encourage them to get vaccinated but
that many of these workers have told employers directly and unequivocally
that they would choose to quit or be fired if keeping their job required them

to get vaccinated or submit to weekly testing.

App. 294
25. _NACS members also report an unprecedented percentage of va-
cancies in full-time jobs. These shortages have already forced members to
close some locations, reduce hours, and take similar measures. These reduc-
tions have caused lost profits, lost sales, and reputational harm.

26. If the ETS takes effect, NACS members expect that a significant
number of employees will refuse both vaccination and weekly testing, and
that member-employers will have no choice but to terminate these employ-
ees or face crippling fines.

27. By requiring NACS members to terminate employees during a
labor shortage, the ETS will worsen the severe labor difficulties that NACS
members are already experiencing. The already tight labor market will make
it immeasurably more difficult to replace employees, further hampering
members’ productivity and functionality. The upcoming holiday season—
during which many companies hire additional employees — will make hiring
even more difficult.

28. The ETS will also make it more difficult for members to hire new
workers—both for current vacancies and for vacancies that the ETS will cre-
ate.

29. Terminations and unfilled vacancies on this scale will diminish
the revenue and profits of NACS’ members because without an adequate
number of employees, businesses cannot function. Members are already fac-

ing an historic inability to fill vacancies.

App. 295
30. Each additional resignation or termination creates an even
greater negative impact on operations, profits, and sales, because remaining
employees no longer have capacity to pick up the slack. Members report that
they will lose sales if they cannot meet customer demands.

31. Members also report that a reduced workforce will decrease
productivity and therefore injure the goodwill that they have worked hard
to earn from their customers. Because replacement employees are not easy
to come by in the current labor market, the ETS will cause NACS’ members
to lose control of their own reputations and ultimately to suffer reputational
harm.

32. Many NACS members have direct or indirect competitors who
employ fewer than 100 employees. These competitors are also experiencing
a labor shortage. Job seekers who oppose the ETS’s requirements can avoid
those requirements by working for the companies that are not subject to the
ETS. The ETS therefore places NACS members at a competitive hiring dis-
advantage in a constrained labor market.

33. The jobs these almost certain-to-be-terminated workers perform
are critical to the successful operation of the convenience industry. They in-
clude store clerks, truck drivers who deliver motor fuels and other products,
and many others. These jobs are critical to the American economy.

34. Many of the employees who hold these jobs are the same em-
ployees who stayed at their posts as “essential workers” from the first days

of the pandemic. Significantly, many of these employees are at the lower end
6

App. 296
of the pay scale and can least afford to find themselves unemployed. In other
words, the ETS will require NACS member companies to lay off many of
their most vulnerable workers.

35. Members’ suppliers—including delivery partners—will be una-
ble to meet demand due to the labor shortage, and the ETS will exacerbate
this risk. It is widely reported that the trucking sector is already facing a
shortage of more than 80,000 drivers. Problems in the national supply chain
have already required members to increase their spending on shipping, and
these increases are undermining member’s profits.

36. Labor and materials shortages have already caused members to
delay expansions and product roll outs, and members will face even greater
threats in this area if the ETS goes into effect and worsens the already
strained supply chain and labor market.

37. Complying with the ETS will force NACS’ members to pay for
testing (if they can find enough of it), implement expensive and time-con-
suming tracking software, respond to negative employee morale that testing
and tracking will create, and otherwise incur compliance costs using funds
that would be better spent in other areas (e.g., raising salaries to stay com-
petitive in the current labor market).

38. OSHA has drastically underestimated compliance costs, includ-
ing recordkeeping for test results and vaccination status. The recordkeeping
that the ETS requires will necessitate significant additional expense —both to

perform and to keep secure (because the records contain sensitive health

App. 297
information). In some instances, this will require programming and deploy-
ing new software solutions. OSHA’s estimated costs for these measures are
simply not realistic.

39. To meet the ETS’s deadlines, NACS’ members must begin pre-
paring immediately to design and implement, among other things, record-
keeping, tracking, and mask-compliance solutions. Each will require signif-
icant and immediate time and expense.

40. Members also report serious concerns regarding the availability
of tests. In areas where tests are not readily and dependably available, mem-
bers are concerned that the ETS leaves them no choice but to select a “vac-
cinate-or-be-terminated” compliance approach.

41. Because the federal government enjoys sovereign immunity, any
compliance costs, lost profits, loss of goodwill, and reputational damages
will be unrecoverable.

42. NACS members will also suffer reputational harm and lose cus-
tomers due to the reduced staffing, shortages of products, and reduced cus-
tomer service that will result from the ETS. Those customers and members’
goodwill and reputations cannot be repaired or compensated.

I declare under penalty of perjury that the foregoing is true and correct.
Executed on this 9th day/of November, 2021, at Alexandria, Virginia.

Lyle Beckwith, SVP Government Relations
8

App. 298
DECLARATION OF MICHAEL GANNON, COO, CRST EXPEDITED, INC. d/b/a CRST
THE TRANSPORTATION SOLUTION, INC.
I, Michael Gannon, hereby declare as follows:

1. I am the Chief Operating Officer (COO) for CRST Expedited, Inc. d/b/a CRST The
Transportation Solution, Inc. (CRST).

2. I started my career with CRST in 1983 and have held various operations and leadership
roles on my way to becoming COO, a position I have held for three years.

3. Based upon my decades of experience in the transportation industry and with CRST, I have
personal knowledge of the facts set forth herein.

4. Founded in 1955, CRST is an lowa-based, transportation and logistics company which
services various niches and markets within the transportation industry. These markets include team
driving, where two drivers share a truck to be able to deliver long-haul freight on an expedited
basis. Team driving is also oftentimes required to deliver high-value, safety-sensitive freight such
as pharmaceuticals and life-saving vaccines.

5. In ateam-driving environment, the drivers generally are dispatched to deliver multiple
loads, on irregular routes, staying out on the road for several weeks at a time. The drivers take
turns driving so that more ground can be covered while remaining compliant with the U.S.
Department of Transportation Hours of Service regulations.

6. CRST is among the largest, if not the largest, team carrier in the nation and it also provides
training opportunities to introduce new drivers to the profession — in an industry that has been
experiencing a driver shortage for years now and which has reached chronic and critical status.

7. CRST (and other large carriers) pair newly minted CDL holders with an experienced driver

App. 300
in a mentor/mentee capacity so that new drivers can learn the profession and become a skilled and
safe driver. This is critical to CRST and the transportation industry in general in terms of building
and holding capacity (fleet size) and maintaining safety for the drivers and the motoring public.

8. In ateam driving environment, the drivers still have de minimis contact with third parties
and only have ongoing contact with one other person, i.e., their co-driver.

9. When the Biden Administration’s large employer vaccine mandate was first announced,
CRST surveyed its drivers to ascertain current vaccination levels and to get a sense of whether
those drivers who had not been vaccinated would be willing to do so if required by law and/or in
order to keep their jobs with CRST.

10. Five hundred and twenty (520) drivers in CRST’s Expedited/Team division responded to
the survey. Of those responding, 330 were not vaccinated (63.46%) and of those that were not
vaccinated, two hundred and seventy-one (271) said they would not get vaccinated if required as
part of a federal government requirement. Only ninety-five (95) drivers said they would get
vaccinated. Sixty-nine (69) drivers reported that they would leave the trucking industry altogether
to avoid the vaccine mandate and two hundred and fifty-three (253) drivers said they would move
to a smaller carrier to avoid the mandate.

11. If team drivers (2-person) are not exempted from OSHA’s ETS, it will result in multiple,
irreparable harms to the transportation industry, our nation’s supply chain, and the overarching
economy. As set forth above, it will result in introducing fewer drivers into an industry that is
starved for drivers. It will make it exceedingly difficult, if not impossible, to train new drivers to
make them as skilled and safe as possible. Finally, it will legitimately risk stretching an already

distressed supply chain to its breaking point, which will have a disastrous impact on our economy

App. 301
including, but not limited to, reducing the ability transport and deliver Covid-19 vaccines, which
require team drivers.

12. The alternative option, testing and masking, will cause enormous expense. See Bloomberg
Law, Covid-19 Testing Doesn't Come Cheap for Companies Embracing It,
https://www.bloomberglaw.com/bloomberglawnews/pharma-and-life-
sciences/X9ODARNG000000?bna_news_filter=pharma-and-life-sciences#jcite. Those costs
cannot be recouped, ever. And given already tight margins, inflation, and the tight labor market,
these costs will inflict irreparable harm on CRST, including lost profits, lost routes, and losing out
on employees who go elsewhere for higher wages.

13. Given the lack of testing capacity CRST must start planning now—and implementing
now-—a compliance strategy.

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Executed this 9" day of November 2021 in Cedar Rapids, Iowa.

App. 302
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Texas Trucking Association et al.,
Petitioners
v.

United States Occupational Safety and
Health Administration et al.,

Respondents.

Declaration of William R. Sullivan, Jr.

I, William R. Sullivan, Jr., declare as follows under penalty of perjury:

1. Iam the Executive Vice President for Advocacy of the American
Trucking Associations, Inc. (“ATA”).

2. ATA is the national association of the trucking industry, com-
prising motor carriers, suppliers of equipment and services, affiliated state
trucking associations, and national trucking conferences. ATA was created
to promote and protect the interests of the trucking industry.

3. ATA’s direct membership includes approximately 1,800 truck-
ing companies and suppliers. In conjunction with its affiliated organizations,
ATA represents over 30,000 companies of every size, type, and class of motor
carrier operation, including truckload and less-than-truckload carriers; for-

hire and private fleets; fuel haulers; household goods movers; agriculture

App. 304
and livestock transporters; auto carriers; and carriers who service the na-
tion’s container ports. These motor carriers range in size everywhere from
tens of thousands of trucks to single digits.

4. | My responsibilities at ATA include communicating with ATA’s
members on subjects including workplace safety, hiring practices, the labor
market, relevant regulations, and other topics of interest.

5. Lam familiar with OSHA’s “COVID-19 Vaccination and Testing;
Emergency Temporary Standard” (the “ETS”). It is my understanding that
the ETS applies to ATA members with at least 100 employees and who
would not otherwise be subject to any similar requirement (i.e., who are not
covered by the federal-contractor mandate or the healthcare mandate).

6. Ihave personal knowledge of the ETS’s requirements and of the
severe effect it will have on many ATA’s members.

7. The ETS will likely require ATA’s members to incur significant
and unrecoverable compliance costs. It will also, in some instances, require
members to incur the cost of testing to retain employees. Some members also
expect that the ETS will force them to terminate employees who refuse test-
ing/masking and vaccination. In each instance, the consequences to mem-
bers will be lost profits, lost sales, loss of customer goodwill, and reputa-
tional harm.

8. The ETS will inflict severe damage on members’ businesses and

on their employees and families —all at a critical moment for the American

App. 305
economy given the upcoming holiday season and the extant issues including
supply chain challenges and rising prices.

9. | ATA’s members are in favor of vaccination and have committed
significant resources to ensuring that their employees are vaccinated to the
maximum extent possible. Vaccination protects employee health, and thus
the workforce on which employers depend. In other words, ATA’s members
have a strong incentive to encourage a vaccinated workforce.

10. Despite members’ incentive to ensure that their workforce is vac-
cinated, and despite their efforts and commitment to achieving that goal,
there are still a significant number of employees across the industry who
refuse to be vaccinated (or refuse to disclose vaccination status) and who will
likely refuse to submit to weekly testing.

11. Members know their employees’ attitudes because this
knowledge is vital to maintaining a stable and experienced workforce —es-
pecially in the current labor market, where dissatisfied employees can easily
find employment with a competitor (who employs fewer than 100 employ-
ees) or elsewhere.

12. ATA’s communications with members unquestionably confirm
that there remain a significant number of individuals who adamantly refuse
vaccination, and likely a substantial number who will not submit to weekly

testing and masking.

App. 306
13. ATA’s members report not only that their workers have in some
instances refused generous incentives offered to encourage them to get vac-
cinated but that many of these workers have told employers directly and
unequivocally that they would choose to be fired if keeping their job re-
quired them to get vaccinated. ATA’s members also report that testing and
employer verification is not a logistically viable option for drivers who are
subject to the requirements and often spend long periods on the road.

14. ATA’s members also report an unprecedented percentage of va-
cancies in full-time jobs. These shortages have already reduced members’
freight-hauling capacity, and these reductions have caused lost business op-
portunities and reputational harm.

15. If the ETS takes effect, ATA’s members expect that a significant
number of employees will refuse both vaccination and weekly testing, and
that member-employers will have no choice but to terminate these employ-
ees, or these employees will voluntarily move to a smaller employer not sub-
ject to the requirements.

16. By requiring ATA’s members to terminate employees during a
labor shortage, the ETS will worsen the severe labor difficulties that ATA’s
members are already experiencing. The already tight labor market will make
it immeasurably more difficult to replace employees, further hampering
members’ productivity and functionality. The upcoming holiday season—

during which many companies both hire additional employees and earn a

App. 307
significant portion of their annual revenue—will make hiring even more dif-
ficult.

17. The ETS will also make it more difficult for members to hire new
workers —both for current vacancies and for vacancies that the ETS will cre-
ate.

18. Terminations and unfilled vacancies on this scale will diminish
the revenue and profits of ATA’s members because without an adequate
number of employees, businesses cannot function. Members are already fac-
ing historic inability to fill vacancies.

19. Each additional resignation or termination creates an even
greater negative impact on operations, profits, and sales, because remaining
employees no longer have capacity to pick up the slack. Members report that
they will lose sales to competitors if they cannot meet customer demands.

20. Members also report that a reduced workforce will decrease
productivity and therefore injure the goodwill that they have worked hard
to earn from their customers. Because replacement employees are not easy
to come by in the current labor market, the ETS will cause ATA’s members
to lose control of their own reputations and ultimately to suffer reputational
harm.

21. Many ATA members have direct or indirect competitors who
employ fewer than 100 employees. These competitors are also experiencing
a labor shortage. Job seekers who oppose the ETS’s requirements can avoid

those requirements by working for the companies that are not subject to the

App. 308
ETS. The ETS therefore places many ATA members at a competitive hiring
disadvantage in a constrained labor market.

22. The jobs these almost certain-to-be-terminated workers perform
are critical to the successful operation of the trucking industry. They include
team drivers and other drivers whose duties require them to come into reg-
ular contact with customers or other employees; mechanics and technicians;
loaders, unloaders, and other logistics personnel; and safety managers, dis-
patchers and other back-office staff. These jobs are critical to the supply chain
and the American economy.

23. Many of the employees who hold these jobs are the same em-
ployees who stayed at their posts as “essential workers” from the first days
of the pandemic, in order to keep the nation’s supply chain moving. These
workers indispensably and safely kept the country running during the
height of the pandemic— delivering essentials from food, medicines, protec-
tive equipment, and the vaccines themselves—and should not face the po-
tential loss of their jobs now.

24. Members’ suppliers—including delivery partners— will be una-
ble to meet demand due to the labor shortage, and the ETS will exacerbate
this risk. It is widely reported that the trucking sector is already facing a
shortage of more than 80,000 drivers. Problems in the national supply chain
have already required members to increase their spending on moving

freight, and these increases are undermining member’s profits.

App. 309
25. Labor and equipment shortages have already caused members
to delay capacity expansions, and members will face even greater threats in
this area if the ETS goes into effect and worsens the already strained supply
chain and labor market.

26. Complying with the ETS will require ATA’s members to pay for
testing in cases involving medical or religious accommodations, and as a
practical matter will force them to do the same in order to retain other cov-
ered drivers. Compliance will also require employers to implement expen-
sive and time-consuming tracking software, respond to negative employee
morale that testing and tracking will create, and otherwise incur compliance
costs using funds that would be better spent in other areas (e.g., investments
in safety technology and training).

27. OSHA has drastically underestimated compliance costs, includ-
ing recordkeeping for test results and vaccination status. The recordkeeping
that the ETS requires will necessitate significant additional expense —both to
perform and to keep secure (because the records contain sensitive health in-
formation). In some instances, this will require programming and deploying
new software solutions, as well as significant investments in human re-
sources policy development and training. OSHA’s estimated costs for these
measures—as well as for the paid time off required for vaccination and re-

covery from side effects—are simply not realistic.

App. 310
28. To meet the ETS’s deadlines, ATA’s members must begin pre-
paring immediately to design and implement, among other things, record-
keeping, tracking, and mask-compliance solutions. Each will require signif-
icant and immediate time and expense.

29. Members also report serious concerns regarding the availability
of tests. In areas where tests are not readily and dependably available, mem-
bers are concerned that the ETS leaves them no choice but to select a “vac-
cinate-or-be-terminated” compliance approach. This concern is particularly
acute with respect to team drivers and other drivers whose duties require
them to come into regular contact with customers or other employees — such
drivers are often on the road for long periods of time, making it all the more
difficult for them to reliably obtain weekly testing.

30. Because the federal government enjoys sovereign immunity, any
compliance costs, lost profits, loss of goodwill, and reputational damages
will be unrecoverable.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 9th day of November, 2021, at Dewees Island, South Caro-

William R. Sullivan, Jr.

lina.

App. 311
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Texas Trucking Association et al.,
Petitioners
V.

United States Occupational Safety and
Health Administration et al.,

Respondents.

Declaration of Karen R. Harned

I, Karen R. Harned, declare as follows under penalty of perjury:

1. Iam the Executive Director of the National Federation of Inde-
pendent Business Small Business Legal Center (“NFIB Legal Center”).

2. The NFIB Legal Center is a nonprofit, public interest law firm
established to provide legal resources and be the voice for small businesses
in the nation’s courts through representation on issues of public interest af-
fecting small businesses. The National Federation of Independent Business
(“NFIB”) is the nation’s leading small business association, representing
members in Washington, D.C., and all 50 state capitals. Founded in 1943 as
a nonprofit, nonpartisan organization, NFIB’s mission is to promote and

protect the right of its members to own, operate and grow their businesses.

App. 313
3. NFIB represents small businesses nationwide, and its member-
ship spans the spectrum of business operations, ranging from sole proprietor
enterprises to firms with hundreds of employees.

4. NFIB’s members include all manner and type of business from
manufacturers, warehouses, foundries, retailers, restaurants, farmers, fran-
chisees of all types, construction firms, landscapers, etc.

5. | My responsibilities at NFIB include communicating with NFIB’s
members on subjects including workplace safety, hiring practices, the labor
market, relevant regulations, and other topics of interest.

6. lam familiar with OSHA’s “COVID-19 Vaccination and Testing;
Emergency Temporary Standard” (the “ETS”). It is my understanding that
the ETS applies to NFIB members who would not otherwise be subject to
any similar requirement (i.e., who are not covered by the federal-contractor
mandate or the healthcare mandate).

7. Thave personal knowledge of the ETS’s requirements and of the
severe effect it will have on many NFIB members.

8. The ETS will likely require thousands of NFIB’s members to in-
cur significant and unrecoverable compliance costs. It will also, in some in-
stances, require members to incur the cost of testing to retain employees.
Some members also expect that the ETS will force them to terminate employ-
ees who refuse testing/masking and vaccination. In each instance, the conse-
quences to members will be lost profits, lost sales, loss of customer goodwill,

and reputational harm.

App. 314
9. The ETS will inflict severe damage on members’ businesses and
on their employees and families—all at a critical moment for the American
economy given the upcoming holiday season and the ongoing problems
with the supply chain, the labor shortage, and rising prices.

10. | NFIB has members across the country who have committed sig-
nificant resources, including education and incentives, in an effort to ensure
their employees are vaccinated.

11. Despite members’ efforts to ensure that their workforce is vac-
cinated, there are still a significant number of employees across the country
who remain unvaccinated and/or do not want to disclose their vaccination
status.

12. Iam aware of members who are concerned about a significant
number of workers that wish to remain unvaccinated and will likely refuse
weekly testing and masking.

13. Some NFIB members report not only that their workers have de-
clined incentives offered to encourage them to get vaccinated, but those
workers have told employers directly and unequivocally that they would
choose to be fired if keeping their job required them to get vaccinated.

14. Iam also aware of NFIB members who themselves wish to re-
main unvaccinated, and object to requiring their employees be vaccinated or
subject to testing.

15. |. NFIB members also report an unprecedented percentage of va-

cancies in full-time jobs. These shortages have already forced members to

App. 315
reduce hours and adjust business operations. These reductions have caused
lost profits, lost sales, and reputational harm.

16. If the ETS takes effect, NFIB members suggest that a significant
number of employees, for a variety of reasons, will remain unvaccinated,
and that member-employers will have no choice but to terminate these em-
ployees or incur significant costs associated with weekly testing. Some NFIB
members also fear that many employees will refuse to submit to weekly test-
ing, requiring termination of the employees.

17. By requiring NFIB members to terminate employees during a la-
bor shortage, the ETS will exacerbate the severe labor difficulties that NFIB
members are already experiencing. The already tight labor market will make
it immeasurably more difficult to replace employees, further hampering
members’ productivity and functionality. The holiday season—during
which many companies both hire additional employees and earn a signifi-
cant portion of their annual revenue—will make hiring even more difficult.

18. The ETS will also make it more difficult for members to hire new
workers for current vacancies and for vacancies that the ETS will create.

19. Terminations and unfilled vacancies on this scale will diminish
the revenue and profits of NFIB’s members because without an adequate
number of employees, businesses cannot function. Members are already fac-
ing an historic inability to fill vacancies.

20. Each additional resignation or termination creates an even

greater negative impact on operations, profits, and sales, because remaining

App. 316
employees no longer have capacity to pick up the slack. Members report that
they will lose sales to competitors if they cannot meet customer demands.

21. Members also report that a reduced workforce will decrease
productivity and therefore injure the goodwill that they have worked hard
to earn from their customers. Because replacement employees are not easy
to come by in the current labor market, the ETS will cause many of NFIB’s
members to lose control of their own reputations and ultimately to suffer
reputational harm.

22. Members’ suppliers—including delivery partners—will be una-
ble to meet demand due to the labor shortage, and the ETS will exacerbate
this risk. It is widely reported that the trucking sector is already facing a
shortage of drivers. Problems in the national supply chain have already re-
quired members to increase their spending on shipping, and these increases
are undermining members’ bottom-line.

23. Complying with the ETS will force many of NFIB’s members to
pay for testing, implement expensive and time-consuming tracking soft-
ware, respond to negative employee morale that testing and tracking will
create, and otherwise incur compliance costs using funds that would be bet-
ter spent in other areas (e.g., raising salaries to stay competitive in the current
labor market).

24. OSHA has drastically underestimated compliance costs, includ-
ing recordkeeping for test results and vaccination status. The recordkeeping

that the ETS requires will necessitate significant additional expense—both to

App. 317
perform and to keep secure (because the records contain sensitive health in-
formation). In some instances, this will require programming and deploying
new software solutions. OSHA’s estimated costs for these measures are
simply not realistic. NFIB research consistently shows that federal paper-
work is a significant problem confronting small business owners. (Holly
Wade, NFIB Research Center “Small Business Problems & Priorities” 10
edition, https://assets.nfib.com/nfibcom/NFIB-Problems-and-Priorities-
2020.pdf)

25. To meet the ETS’s deadlines, NFIB’s members must begin pre-
paring immediately to design and implement, among other things, record-
keeping, tracking, and mask-compliance solutions. Each will require signif-
icant and immediate time and expense.

26. Members also report serious concerns regarding the availability
of tests. In areas where tests are not readily and dependably available, mem-
bers are concerned that the ETS leaves them no choice but to terminate em-
ployees or put untested employees on leave.

27. Because the federal government enjoys sovereign immunity, any
compliance costs, lost profits, loss of goodwill, and reputational damages

will be unrecoverable.

App. 318
+ +

I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 9th day of November, 2021, at Ar ( (nator VA

Karen Harned

App. 319
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Texas Trucking Association et al.,
Petitioners

United States Occupational Safety and
Health Administration et al.,

Respondents.

Declaration of Stephanie A. Martz

1. Iam the Chief Administrative Officer and General Counsel of the
National Retail Federation (“NRF”).

2. NRF is the world’s largest retail trade association, representing
discount and department stores, home goods and specialty stores, Main
Street merchants, grocers, wholesalers, chain restaurants and internet re-
tailers from the United States and more than 45 countries. NRF members
account for 52 million employees through the U.S.

3. The purpose of NRF is to advocate for the economic and policy
interests of retailers. NRF regularly convenes hundreds of retail brands to
discuss issues as varied as supply chain management, data privacy, and tax
and trade issues. NRF supports its members as they navigate new logistical
and legal challenges, such as the global pandemic of COVID-19.

4. In my capacity as the Chief Administrative Officer and General
Counsel, I am deeply familiar with challenges that retailers throughout the
country have faced throughout the COVID-19 pandemic. I am familiar

with these challenges because I work closely and directly with retailers

App. 321
throughout the country, and coordinate with retailers to understand and
address these challenges.

5. Since March of 2020, NRF has provided dozens of webinars and
over 150 conference calls for our members to discuss their approaches to
curbing the COVID-19 pandemic within retail. NRF has also provided nu-
merous online tools, including an interactive map that shows laws, regula-
tions, and orders that apply to retailers, as well as screening questionnaires
and legal trackers. NRF has also developed and provided to its members
training modules on COVID-19 safety and hygiene, as well as conflict me-
diation for employees who have to administer safe shopping policies.

6. NRF members have been critical components in distributing vac-
cines and vaccine information to our employees and customers. Many of
our members administer vaccines, and others have created incentives,
awarded time off, and set up on-site clinics to ensure that their employees
have every opportunity to get vaccinated.

7. Inaddition, according to published reports, NRF members have
likely spent upwards of $8 billion on equipment and training to ensure safe
store operations during COVID-19. As also detailed in the complaint, those
measures include (but are not limited to) the following:

e Requiring masks and social distancing for employees and cus-
tomers;

e Metering customers at entrances;

e Providing innovative purchasing solutions, such as curbside
pick-up;

e Screening for employees for symptoms and exposure risk be-
fore shifts;

e Training for employees on COVID-19 safety and hygiene;

= App. 322
e Providing set-aside shopping hours for higher risk customers;
and
e Installing contactless payment systems and Plexiglas at check-

out stands.

8. Iam familiar with OSHA’s “COVID-19 Vaccination and Testing;
Emergency Temporary Standard” (the “ETS”). It is my understanding that
the ETS applies to NRF members who would not otherwise be subject to any
similar requirement (i.e., who are not covered by the federal-contractor man-
date or the healthcare mandate).

9. [have personal knowledge of the ETS’s requirements and of the
severe effect it will have on NRF’s members during the busiest and most
profitable time of the year for the retail industry.

10. The ETS will require NRF’s members to incur significant and un-
recoverable compliance costs. It will also, in some instances, require mem-
bers to incur the cost of testing to retain employees. Some members also ex-
pect that the ETS will force them to terminate employees who refuse test-
ing/masking and vaccination, and may also results in attrition, as employees
— especially those concentrated in parts of the country with low vaccination
rates — decide to quit their jobs rather than get vaccinated. In each instance,
the consequences to members will be lost profits, lost sales, loss of customer
goodwill, and reputational harm, all during the already challenging 2021

holiday season.

App. 323
11. NRF’s members are in favor of vaccination and have committed
significant resources to ensuring that their employees are vaccinated to the
maximum extent possible. Vaccination protects employee health, and thus
the workforce on which employers depend. Vaccinations have enabled
stores to re-open, students to return to school, and therefore, employees to
come back to work to continue to earn money to support their families and
communities. In other words, NRF’s members have a strong incentive to en-
courage a vaccinated workforce.

12. Despite members’ incentive to ensure that their workforce is vac-
cinated, and despite their efforts and commitment to achieving that goal,
there are still a significant number of employees across the industry who
refuse to be vaccinated, do not wish to disclose their vaccination status,
and/or who refuse to submit to weekly testing.

13. Members know their employees’ attitudes because this
knowledge is vital to maintaining a stable and experienced workforce —es-
pecially in the current labor market, where dissatisfied employees can easily
find employment with a competitor (who employs fewer than 100 employ-
ees) or elsewhere.

14. NRF’s communications with members unquestionably confirm
that there remain a significant number of individuals who adamantly refuse

vaccination and will not submit to weekly testing and masking.

App. 324
a. In the last week, NRF has hosted 2 emergency calls for members
to discuss the ETS. More than 300 people have joined the calls
from retailers across the country.

b. Retailers have reported grave concerns with gathering vaccina-
tion status information and storing it in a way that complies with
myriad state and federal laws, developing policies for either a
“hard mandate” or “soft mandate,” developing systems for ad-
judicating hundreds or even thousands of requests for exemp-
tions based on religious belief or disability — within 30 days, dur-
ing Black Friday, and in the face of already serious staffing chal-
lenges.

c. In addition, although the test-or-vaccinate mandate begins in
January, retailers must begin now to procure tests or assess the
availability of tests in each market where a retailer has a store.

15. NRF members also report an unprecedented percentage of va-
cancies in full-time jobs. These shortages have already forced members to
close storefronts, reduce hours, and take similar measures. These reductions
have already caused lost profits, lost sales, and reputational harm. If the ETS
takes effect during the holiday season, NRF members anticipate that they
will face millions in lost sales stemming from absent workers due to paid
leave requirements and vaccine refusal.

16. By effectively requiring NRF members to terminate employees

during a labor shortage, the ETS will worsen the severe labor difficulties that

App. 325
NRF members are already experiencing. The already tight labor market will
make it immeasurably more difficult to replace employees, further hamper-
ing members’ productivity and functionality. The upcoming holiday sea-
son—during which many companies both hire additional employees and
earn a significant portion of their annual revenue—will make hiring even
more difficult.

17. The ETS, because it encompasses both seasonal workers as well
as permanent workers, will also make it more difficult for members to hire
new workers—both for current vacancies and for vacancies that the ETS will
create.

18. Retail job openings were already at 1.3 million in August, and
retailers expect to hire 700,000 workers this holidays season.

19. Ontop of these needs, each additional resignation or termination
creates an even greater negative impact on operations, profits, and sales, be-
cause remaining employees no longer have capacity to pick up the slack.
Members report that they will lose sales to competitors if they cannot meet
customer demands.

20. Members also report that a reduced workforce will decrease
productivity and therefore injure the goodwill that they have worked hard
to earn from their customers. Because replacement employees are not easy
to come by in the current labor market, the ETS will cause NRF’s members
to lose control of their own reputations and ultimately to suffer reputational

harm.

App. 326
21. Many NRF members have direct or indirect competitors who
employ fewer than 100 employees. These competitors are also experiencing
a labor shortage. Job seekers who oppose the ETS’s requirements can avoid
those requirements by working for the companies that are not subject to the
ETS. Moreover, many other NRF members are neither large, national stores
nor “unrelated” employers with fewer than 100 employees. Rather, they
have between 101 and 500 employees, and do not have the systems or re-
sources in place to comply with the ETS in such a short period of time, and
during the holidays season, despite their strong desire to have a vaccinated
workforce.

22. The jobs these almost certain-to-be-terminated workers perform
are critical to the successful operation of retail, and critical to the American
economy.

23. Members’ suppliers—including delivery partners —will be una-
ble to meet demand due to the labor shortage, and the ETS will exacerbate
this risk. It is widely reported that the trucking sector is already facing a
shortage of more than 80,000 drivers. Problems in the national supply chain
have already required members to increase their spending on shipping, and
these increases are undermining member’s profits.

24. Labor and materials shortages have already caused members to
delay expansions and product roll outs, and members will face even greater
threats in this area if the ETS goes into effect and worsens the already

strained supply chain and labor market.

App. 327
25. The hard and direct costs of implementing the ETS — aside from
the opportunity costs that come with the time spent by employees and man-
agers to comply with the — are substantial. In addition to the massive invest-
ment that retailers have already made in health and safety, detailed in para-
graph 7, the ETS will force NRF’s members to pay for testing (depending on
state law and various exemption-based obligations), implement expensive
and time-consuming tracking software, assess wage-and-hour implications
of vaccinations and testing, implement new protocols for exemption re-
quests (given the dramatic increase in numbers of these requests that retail-
ers are expecting), respond to negative employee morale that testing and
tracking will create, and otherwise incur compliance costs using funds that
would be better spent in other areas (e.g., raising salaries to stay competitive
in the current labor market).

26. OSHA has drastically underestimated compliance costs, includ-
ing recordkeeping for test results and vaccination status. The recordkeeping
that the ETS requires will necessitate significant additional expense — both to
perform and to keep secure (because the records contain sensitive health in-
formation). In some instances, this will require programming and deploying
new software solutions. OSHA’s estimated costs for these measures are
simply not realistic.

27. To meet the ETS’s deadlines, NRF’s members must begin pre-

paring immediately to design and implement, among other things,

App. 328
recordkeeping, tracking, and mask-compliance solutions. Each will require
significant and immediate time and expense.

28. Members also report serious concerns regarding the availability
of tests. In areas where tests are not readily and dependably available, mem-
bers are concerned that the ETS leaves them no choice but to select a “vac-
cinate-or-be-terminated” compliance approach.

29. Because the federal government enjoys sovereign immunity, any
compliance costs, lost profits, loss of goodwill, and reputational damages
will be unrecoverable.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 9th day of November, 2021, at Washington, D.C.

Stephanie A. Martz

App. 329
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Texas Trucking Association et al.,
Petitioners

United States Occupational Safety and
Health Administration et al.,

Respondents.

Declaration of Leslie Sarasin

I, Leslie Sarasin, declare as follows under penalty of perjury:

1. Tam the President and Chief Executive Officer of FMI -— the Food
Industry Association (“FMI”).

2. FMI is a trade association that works with and on behalf of the
entire food industry to advance a safer, healthier and more efficient con-
sumer food supply. FMI brings together a wide range of members across the
value chain — from retailers who sell to consumers, to producers who sup-
ply the food, as well as the wide variety of companies providing critical ser-
vices — to amplify the collective work of the industry.

3. | FMI’s members include nearly 1,000 supermarket member com-
panies that collectively operate almost 33,000 food retail outlets and employ

approximately 6 million workers.

App. 331
4. FMI’s responsibilities include communicating with members on
subjects including workplace safety, hiring practices, the labor market, rele-
vant regulations, and other topics of interest.

5. FMI is familiar with OSHA’s “COVID-19 Vaccination and Test-
ing; Emergency Temporary Standard” (the “ETS”). It is our understanding
that the ETS applies to FMI members who would not otherwise be subject to
any similar requirement (i.e., who are not covered by the federal-contractor
mandate or the healthcare mandate).

6. Ihave personal knowledge of the ETS’s requirements and of the
severe effect it will have on many FMI members.

7. The ETS will likely require FMI members to incur significant and
unrecoverable compliance costs. It will also, in some instances, require mem-
bers to incur the cost of testing to retain employees. Some members also ex-
pect that the ETS will force them to terminate employees who refuse test-
ing/masking and vaccination. In each instance, the consequences to mem-
bers will be lost profits, lost sales, loss of customer goodwill, and reputa-
tional harm.

8. The ETS will inflict severe damage on members’ businesses and
on their employees and families—all at a critical moment for the American
economy given the upcoming holiday season and the extant issues including
supply chain challenges and rising prices.

9. | FMI’s members are in favor of vaccination and have committed

significant resources to ensuring that their employees are vaccinated to the

App. 332
maximum extent possible. Vaccination protects employee health, and thus
the workforce on which employers depend. In other words, FMI’s members
have a strong incentive to encourage a vaccinated workforce. In fact, super-
market pharmacies have administered a significant percentage of COVID-19
vaccines.

11. Members know their employees’ attitudes because this
knowledge is vital to maintaining a stable and experienced workforce —es-
pecially in the current labor market, where dissatisfied employees can easily
find alternative employment (with businesses who employ fewer than 100
employees).

12. FMI’s communications with members unquestionably confirm
that there remain a significant number of individuals who adamantly refuse
vaccination and will not submit to weekly testing and masking.

13. FMI’s members report not only that their workers have refused
generous incentives offered to encourage them to get vaccinated but that
many of these workers have told employers directly and unequivocally that
they would choose to be fired if keeping their job required them to get vac-

cinated or submit to weekly testing.

App. 333
14. FMI members also report an unprecedented percentage of va-
cancies in full-time jobs. These shortages have already forced members to
close storefronts, reduce hours, and take similar measures. They are also
having difficulty maintaining the stocking requirements of items offered un-
der the federal WIC program for children under 6 years old. These reduc-
tions and shortages have caused lost profits, lost sales, fines and reputational
harm.

15. If the ETS takes effect, FMI members expect that a significant
number of employees will refuse both vaccination and weekly testing, and
that member-employers will have no choice but to terminate these employ-
ees.

16. By requiring FMI members to terminate employees during a la-
bor shortage, the ETS will worsen the severe labor difficulties that FMI mem-
bers are already experiencing. The already tight labor market will make it
immeasurably more difficult to replace employees, further hampering mem-
bers’ productivity and functionality. The upcoming holiday season— during
which many companies both hire additional employees and earn a signifi-
cant portion of their annual revenue—will make hiring even more difficult.

17. The ETS will also make it more difficult for members to hire new
workers—both for current vacancies and for vacancies that the ETS will cre-
ate.

18. Terminations and unfilled vacancies on this scale will diminish

the ability of FMI’s members to meet the food needs of their communities

App. 334
because without an adequate number of employees, businesses cannot func-
tion. Members are already facing historic inability to fill vacancies.

19. Each additional resignation or termination creates an even
greater negative impact on operations, existing associates, and sales, because
remaining employees no longer have capacity to pick up the slack. Members
report that they will lose sales if they cannot meet customer demands.

20. Members also report that a reduced workforce will decrease
productivity and therefore injure the goodwill they have worked hard to
earn from their customers. Because replacement employees are not easy to
come by in the current labor market, the ETS will cause FMI’s members to
suffer reputational harm.

21. Most employers are experiencing a labor shortage. Job seekers
who oppose the ETS’s requirements can avoid those requirements by work-
ing for the companies that are not subject to the ETS. The ETS therefore
places FMI members at a competitive hiring disadvantage in a constrained
labor market.

22. The jobs these almost certain-to-be-terminated workers perform
are critical to the successful operation of the food industry. They include but
are not limited to jobs such as truck drivers, warehouse employees, produc-
tion line workers, sales associates, cashiers, stockers, cleaning and sanitation
staff, general maintenance workers, pickers, delivery workers, and more.

These jobs are critical to the American economy.

App. 335
23. Many of the employees who hold these jobs are the same em-
ployees who stayed at their posts as “essential workers” from the first days
of the pandemic. Significantly, many of these employees are at the lower end
of the pay scale and can least afford to find themselves unemployed. In other
words, the ETS will require FMI member companies to lay off many of their
most vulnerable workers, including a significant impact on communities of
color.

24. Members’ suppliers—including delivery partners—will be una-
ble to meet demand due to the labor shortage, and the ETS will exacerbate
this risk. It is widely reported that the trucking sector is already facing a
shortage of more than 80,000 drivers. Problems in the national supply chain
have already required members to increase their spending on shipping, and
these increases are undermining members’ ability to supply the needed
items in their communities.

25. Labor and materials shortages have already caused members to
delay expansions and product roll outs and reduce hours, and members will
face even greater threats in this area if the ETS goes into effect and worsens
the already strained supply chain and labor market.

26. Complying with the ETS will force FMI members to secure test-
ing, implement expensive and time-consuming tracking software, respond
to negative employee morale that testing and tracking will create, get paren-
tal approval for complying with the requirements as they relate to minor

employees, and otherwise incur compliance costs using funds that would be

App. 336
better spent in other areas (e.g., raising salaries to stay competitive in the
current labor market).

27. OSHA has drastically underestimated compliance costs, includ-
ing recordkeeping for test results and vaccination status. The recordkeeping
that the ETS requires will necessitate significant additional expense —both to
perform and to keep secure (because the records contain sensitive health in-
formation). In most instances, this will require programming and deploying
new software solutions. OSHA’s estimated costs for these measures are
simply not realistic or sufficiently comprehensive.

28. To meet the ETS’s deadlines, FMI’s members must begin prepar-
ing immediately to design and implement, among other things, recordkeep-
ing, tracking, identifying and securing testing, and deploying mask-compli-
ance solutions. Each will require significant and immediate time and ex-
pense.

30. Because the federal government enjoys sovereign immunity, any
compliance costs, lost sales, loss of goodwill, and reputational damages will

be unrecoverable.

App. 337
I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 9th day of November, 2021, at Nashville, Tennessee.

TJ
Leslie G. Sarasin

App. 338
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Texas Trucking Association et al.,
Petitioners

United States Occupational Safety and
Health Administration et al.,

Respondents.

Declaration of Steve DeHaan

I, Steve DeHaan, declare as follows under penalty of perjury:

1. Iam the President of the International Warehouse Logistics As-
sociation (IWLA)

2. Founded in 1891, IWLA is the trade association representing
warehouse-based third-party logistics (3PL) providers across North Amer-
ica. IWLA’s 350 member companies and partners provide a range of services,
including warehousing; fulfillment; reverse logistics; transportation; freight-
forwarding and brokerage services; inventory and supply chain manage-
ment; and a broad range of manufacturing and value-added services. Mem-
ber companies range in size from 10,000 square foot single city warehouses
to international companies with more than 25 million square feet of ware-

house space.

App. 340
3. My responsibilities at IWLA include communicating with mem-
bers on subjects including workplace safety, hiring practices, the labor mar-
ket, relevant regulations, and other topics of interest.

4. Iam familiar with OSHA’s “COVID-19 Vaccination and Testing;
Emergency Temporary Standard” (the “ETS”). It is my understanding that
the ETS applies to IVLA members who would not otherwise be subject to
any similar requirement (i.e., who are not covered by the federal-contractor
mandate or the healthcare mandate).

5. Lhave personal knowledge of the ETS’s requirements and of the
severe effect it will have on many IWLA members.

6. The ETS will require IWLA’s members to incur significant and
unrecoverable compliance costs. It will also, in some instances, require mem-
bers to incur the cost of testing to retain employees. Some members also ex-
pect that the ETS will force them to terminate employees who refuse test-
ing/masking and vaccination. In each instance, the consequences to mem-
bers will be lost profits, lost sales, loss of customer goodwill, and reputa-
tional harm.

7. The ETS will inflict severe damage on members’ businesses and
on their employees and families—all at a critical moment for the American
economy given the upcoming holiday season and the extant issues including
supply chain challenges and rising prices.

8. | IWLA’s members are in favor of vaccination and have commit-

ted significant resources to ensuring that their employees are vaccinated to

App. 341
the maximum extent possible. Vaccination protects employee health, and
thus the workforce on which employers depend. In other words, IWLA’s
members have a strong incentive to encourage a vaccinated workforce.

9. Despite members’ incentive to ensure that their workforce is vac-
cinated, and despite their efforts and commitment to achieving that goal,
there are still a significant number of employees across the industry who
refuse to be vaccinated (or refuse to disclose vaccination status) and who
refuse to submit to weekly testing.

10. Members know their employees’ attitudes because this
knowledge is vital to maintaining a stable and experienced workforce —es-
pecially in the current labor market, where dissatisfied employees can easily
find employment with a competitor (who employs fewer than 100 employ-
ees) or elsewhere.

11. IWLA’s communications with members unquestionably confirm
that there remain a significant number of individuals who adamantly refuse
vaccination and will not submit to weekly testing and masking.

12. IWLA’s members report not only that their workers have refused
generous incentives offered to encourage them to get vaccinated but that
many of these workers have told employers directly and unequivocally that
they would choose to be fired if keeping their job required them to get vac-

cinated or submit to weekly testing.

3 App. 342
13. IWLA Members also report an unprecedented percentage of va-
cancies in full-time jobs. These shortages have contributed to delays in the
supply chain.

14. If the ETS takes effect, IWLA members expect that a significant
number of employees will refuse both vaccination and weekly testing and
seek other employment.

15. By requiring IWLA members to terminate employees during a
labor shortage, the ETS will worsen the severe labor difficulties that IWLA
members are already experiencing. The already tight labor market will make
it immeasurably more difficult to replace employees, further hampering
members’ productivity and functionality. The upcoming holiday season will
make hiring even more difficult.

16. The ETS will also make it more difficult for members to hire new
workers—both for current vacancies and for vacancies that the ETS will cre-
ate.

17. Terminations and unfilled vacancies on this scale will diminish
the revenue and profits of IWLA’s members because without an adequate
number of employees, businesses cannot function. Members are already fac-
ing historic inability to fill vacancies.

18. Each additional resignation or termination creates an even
greater negative impact on operations, profits, and sales, because remaining

employees no longer have capacity to pick up the slack.

App. 343
19. Many IWLA members have direct or indirect competitors who
employ fewer than 100 employees. These competitors are also experiencing
a labor shortage. Job seekers who oppose the ETS’s requirements can avoid
those requirements by working for the companies that are not subject to the
ETS. The ETS therefore places IWLA members at a competitive hiring disad-
vantage in a constrained labor market.

20. The jobs these almost certain-to-be-terminated workers and cur-
rent workers who seek other employment perform are critical to the success-
ful operation of the third-party warehouse industry. They are warehouse
workers, forklift operators, logistics professionals, and truck drivers. These
jobs are critical to the American economy.

21. Many of the employees who hold these jobs are the same em-
ployees who stayed at their posts as “essential workers” from the first days
of the pandemic. Significantly, many of these employees are at the lower end
of the pay scale and can least afford to find themselves unemployed.

22. Members’ suppliers—including delivery partners—will be una-
ble to meet demand due to the labor shortage, and the ETS will exacerbate
this risk. It is widely reported that the trucking sector is already facing a
shortage of more than 80,000 drivers. Problems in the national supply chain
have already required members to increase their spending on shipping, and
these increases are undermining members’ profits.

23. Complying with the ETS will force IWLA’s members to pay for

testing, implement expensive and time-consuming tracking software,

5 App. 344
respond to negative employee morale that testing and tracking will create,
and otherwise immediately incur unrecoverable compliance costs using
funds that would be better spent in other areas (e.g., raising salaries to stay
competitive in the current labor market).

24. OSHA has drastically underestimated compliance costs, includ-
ing recordkeeping for test results and vaccination status. The recordkeeping
that the ETS requires will necessitate significant additional expense —both to
perform and to keep secure (because the records contain sensitive health in-
formation). In some instances, this will require programming and deploying
new software solutions. OSHA’s estimated costs for these measures are
simply not realistic.

25. To meet the ETS’s deadlines, IWLA’s members must begin pre-
paring immediately to design and implement, among other things, record-
keeping, tracking, and mask-compliance solutions. Each will require signif-
icant and immediate time and expense.

26. Members also report serious concerns regarding the availability
of tests. In areas where tests are not readily and dependably available, mem-
bers are concerned that the ETS leaves them no choice but to select a “vac-
cinate-or-be-terminated” compliance approach.

27. Because the federal government enjoys sovereign immunity, any
compliance costs, lost profits, loss of goodwill, and reputational damages

will be unrecoverable.

6 App. 345
I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 9th day of November 2021, at Des Plaines, IL

Steve DeHaan

App. 346
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Texas Trucking Association et al.,
Petitioners
Vv.

United States Occupational Safety and
Health Administration et al.,

Respondents.

Declaration of Jade West

I, Jade West, declare as follows under penalty of perjury:

1. Tam the Chief Government Relations Officer of the National As-
sociation of Wholesaler-Distributors (“NAW”).

2. NAW is anon-profit, non-stock, incorporated trade association.
NAW is the national voice of wholesale distribution. Its members include
employers of all sizes, and national, regional, state, and local line-of-trade
associations spanning the $6 trillion wholesale distribution industry that em-
ploys more than 5.7 million workers in the United States. NAW affiliates and
members include approximately 35,000 enterprises with places of business
in all 50 states and the District of Columbia.

3. NAW members’ critical infrastructure workers form the back-
bone of the United States economy —the essential link in the supply chain

for critical products and industries such as pharmaceutical, healthcare,

App. 348
technology, biotechnology, chemicals and sanitization, waste pickup and
disposal, agriculture, food and beverage, transportation, energy, steel and
steel products, petroleum and fuel, mining, construction, national defense,
communications, as well as products used by other essential businesses and
operations.

4. My responsibilities at NAW include communicating with NAW
members on subjects including workplace safety, hiring practices, the labor
market, relevant regulations, and other topics of interest.

5. Iam familiar with OSHA’s “COVID-19 Vaccination and Testing;
Emergency Temporary Standard” (the “ETS”). It is my understanding that
the ETS applies to members who would not otherwise be subject to any sim-
ilar requirement.

6. NAW member companies report to us that the ETS will cause
them to lose thousands of employees through resignation or termination,
that compliance costs will stretch them to a breaking point, and that the ETS
will inflict severe damage on employees and their families, individual busi-
nesses, and the recovering U.S. economy as a whole.

7. | NAW member companies are fully committed to the mission of
getting every eligible American vaccinated. Earlier this year, NAW part-
nered with National Football League teams and the National League of Cit-
ies to support mass vaccination and pop-up vaccine sites throughout the
country. NAW member companies donated more than $1 million in PPE and

other supplies to this effort to help safely vaccinate thousands of Americans.

App. 349
8.

NAW member companies are also firmly pro-vaccine for their

own employees, and they want their teams to be healthy and safe. Indeed,

their interest in getting their employees vaccinated is greater than the gov-

ernment’s.

NAW members have taken expensive and creative steps to en-

courage their workforce to get vaccinated, including offering:

10.

paid time off to employees to receive the vaccine and to re-
cover from any side effects;

reimbursement for any vaccine costs that are not covered by
an employee’s health plan;

on-site vaccination and employer-organized vaccine appoint-
ments for their workers;

monetary bonuses of as much as $1,000 to employees who get
the vaccinated;

gift cards and gas cards;
full days off with pay;

extra vacation days and extra sick leave days.

Despite these employers’ efforts, there are still a significant num-

ber of employees across the distribution industry who—for whatever rea-

son—refuse to be vaccinated or submit to weekly testing. NAW members

continue their efforts to get their employees vaccinated, but many would not

enforce a vaccine or test-and-mask regime as a condition of employment.

App. 350
11. Ithas been asserted that only a negligible number of workers will
quit their jobs because of the ETS, but recent data contradicts that assertion.
According to Bureau of Labor Statistics reports, more than 24 million work-
ers have quit their jobs since April, with more than four million doing so in
both August and September. This trend shows no signs of abating.

12. NAW member companies report not only that their workers
have refused every incentive offered to encourage them to get vaccinated,
but that many of these workers have told them unequivocally that they will
choose to quit or be fired if keeping their job will require them to get vac-
cinated or submit to weekly testing.

13. Ina recent survey of NAW member companies, more than 74%
of the respondents told us they expect to lose more than 10% of their workers
as a result of the ETS. Almost 10% of the respondents expect to lose more
than 50% of their workforce if the ETS takes effect.

14. _NAW member companies, like most businesses, know their em-
ployees well because that knowledge is vital to maintaining a stable and ex-
perienced workforce, and they have no evidence and no reason to believe
that these workers will now acquiesce to a mandate from Washington.

15. Therefore, if the ETS takes effect, NAW members will be faced
with the loss of thousands of workers through either resignation or the ter-
minations that the ETS will require.

16. These workers are essential to the operation of distribution com-

panies and to the economy; they are warehouse workers, drivers, operations

App. 351
and front-line employees without whom products simply do not move from
distribution centers through the supply chain.

17. Significantly, many of these employees are at the lower end of
the socio-economic system and can least afford to find themselves suddenly
unemployed. In other words, the ETS will require NAW member companies
to lose or lay off many of their most vulnerable workers.

18. Whether this critical loss of employees results from resignations
or terminations, the already tight labor market will make it virtually impos-
sible to replace those lost workers. The ETS will worsen the severe labor dif-
ficulties that NAW members are already experiencing, in some cases making
it impossible to continue in business.

19. NAW members echoed all of these points in response to a recent

member survey.

e One NAW member responded to our recent survey saying that:
“While my leadership team and I are supportive of vaccination,
we are very concerned about the impact of the mandate given
the condition of the labor market and escalating costs. We are
already stretched so thin.”

e Another company reported that: “I strongly support vaccina-
tions, but the reality is that there is a percentage of my employees
who are vehemently opposed to the covid vaccines, and no car-
rot or stick is going to change their mind. The labor market is
extremely tight, and we already can't fill all our open positions.
Losing existing employees due to these rules would make an al-
ready difficult hiring environment almost impossible.”

App. 352
e And another said: “If we felt that a vaccine mandate would push
our unvaccinated employees to get the vaccine then we would
go forward with a mandate. Instead we believe a mandate would
force many unvaccinated employees to pursue other employ-
ment options.”

20. Many NAW members have direct and indirect competitors who
employ fewer than 100 employees. The workers NAW member companies
will lose will be in great demand elsewhere in this tight labor market and
will be able to easily find new work with a company with fewer than 100
workers and not subject to the ETS.

21. The ETS therefore places NAW members at a competitive disad-
vantage in an already constrained labor market.

22. _ NAW members also report that complying with the ETS will im-
pose direct and unrecoverable costs on their companies. Several NAW mem-
bers reported that, while the ETS would allow them to require unvaccinated
workers to pay for the alternative weekly testing, they cannot and will not
require these generally lower-wage workers to do so. As a result, NAW
members will largely absorb that cost, and some report that providing the
tests will cost them, depending on the size of the employer and region, be-
tween $500,000 to $10 million per year. Moreover, the required record keep-
ing will add to these already potentially crippling costs.

23. NAW members will face irreparable harm from the ETS in mul-
tiple ways: (1) the cost of paying for weekly alternative COVID tests for un-

vaccinated workers; (2) the high cost of competing for replacement labor in

App. 353
this extremely tight labor market; and (3) potential loss of business resulting
from labor shortages that will make it impossible for these companies to sup-
ply their customers’ needs.

24. In the wholesale-distribution industry, the average after-tax
profit margin is just 2%, and many wholesaler-distributors will be unable to
absorb the ETS costs by cutting expenses elsewhere. These companies will
have no choice but to attempt to pass the added costs on to their customers
through increased prices, fueling already-rising inflation and causing irrep-
arable harm to the supply chain and the overall economy.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 15" day of November, 2021, at Arlington, Virginia.

Jade West

App. 354
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Texas Trucking Association et al.,
Petitioners
v.

United States Occupational Safety and
Health Administration et al.,

Respondents.

Declaration of Mark S. Allen

I, Mark S. Allen, declare as follows under penalty of perjury:

1. Iam the President & CEO of the International Foodservice Dis-
tributors Association (“IFDA”).

2. IFDA is the trade association representing foodservice distribu-
tors throughout the United States and internationally. IFDA members in-
clude broadline, systems, and specialty foodservice distributors who supply
food and related products to more than one million professional kitchens
daily, including restaurants, colleges and universities, K-12 schools, U.S. mil-
itary and government facilities, hospitals and care facilities, hotels and re-
sorts, and many other operations that make meals away from home possible.

3. Prior to the pandemic, the foodservice distribution industry op-
erated more than 15,000 distribution facilities that together accounted for

more than $303 billion in annual sales in the United States alone.

App. 356
4. My responsibilities at IFDA include overseeing IFDA’s day-to-
day operations, including all initiatives in education, research, and govern-
ment relations, and serving on IFDA’s Board of Directors, which comprises
the presidents and CEOs of 25 major foodservice distribution companies and
purchasing cooperatives.

5. Lam familiar with OSHA’s “COVID-19 Vaccination and Testing;
Emergency Temporary Standard” (the “ETS”). It is my understanding that
the ETS applies to IFDA members who would not otherwise be subject to
any similar requirement.

6. | IFDA members have reported that the ETS will likely cause the
loss of essential workers, such as commercial truck drivers and warehouse
workers, resulting in a substantial impact on the ability of our members to
maintain their operational capabilities and fulfill their customers’ orders.
The consequences to members could include lost profits, lost sales, loss of
customer goodwill, and reputational harm.

7. IFDA’s members are fully in favor of vaccinations as an effective
way to stop the spread of COVID-19. In fact, when the vaccine was first an-
nounced, IFDA members were eager to be the first in line to access the vac-
cines for their employees. They saw the benefit of having a vaccinated work-
force.

8. IFDA’s member companies are motivated to encourage a vac-
cinated workforce because their employees are their greatest assets, and the

health and safety of each employee is of paramount interest to them. IFDA

App. 357
members have taken a variety of steps to get their employees vaccinated.
Examples include providing bonuses, partnering with health clinics, and
promoting vaccinations through corporate information campaigns.

9. | IFDA members generally report that their office workforce vac-
cination rates are in line with national averages; however, the driver and
warehouse workforce vaccination rates are substantially lower. Although
IFDA members have worked diligently to educate their employees on the
benefits of being vaccinated, great numbers of driver and warehouse per-
sonnel have chosen not to get vaccinated. These individuals may choose to
leave their positions, possibly to join companies with under 100 employees,
rather than submit to a vaccinate-or-test-and-mask regimen.

10. Even a loss of a very small percentage of their workforce, partic-
ularly truck drivers and warehouse workers, would have a dramatic impact
on our members’ ability to serve their customers.

11. Ina recent member survey conducted by IFDA, members re-
ported 15,000 driver openings (11.4 percent of the pre-pandemic total) and
17,500 warehouse positions that were open (14.4 percent of the total). In the
same survey, 100 percent of members indicated it was “difficult” or “ex-
tremely difficult” to fill both driver and warehouse positions. Even prior to
the pandemic, finding qualified workers was considerably challenging.

12. Without sufficient qualified staff, many members have not been

able to service their foodservice customers as they have previously done,

App. 358
and some have even had to forgo or resign business due to their inability to
deliver foodservice products and supplies.

13. Recently, K-12 schools have received media attention, as food-
service distributors have had to walk away from the business due to their
inability to find qualified labor. This has injured the goodwill they have
worked hard to earn from their customers and caused them to suffer repu-
tational harm.

14. The ETS will only compound the severe labor difficulties that
IFDA members are already experiencing, if they are required to terminate
employees. The already tight labor market will make it immeasurably more
difficult to replace employees, further hampering members’ productivity
and functionality.

15. The ETS will also make it more difficult for members to hire new
workers for current vacancies. Terminations and unfilled vacancies on this
scale will diminish the capacity, revenue, and profits of IFDA’s members be-
cause their businesses cannot function without an adequate number of qual-
ified employees.

16. Each additional resignation or termination will create an even
greater negative impact on operations, profits, and sales, because remaining
employees no longer have the capacity to pick up the slack, which not only
affects morale but will further impact their ability to deliver products to

foodservice customers.

App. 359
17. The jobs IFDA members’ workers perform are critical for Amer-
icans to be able to have a meal away from home, whether at school, a hospi-
tal, or a military base, or on a cherished family night out.

18. Many of the employees who hold these jobs are the same em-
ployees who stayed at their posts as “essential workers” from the first days
of the pandemic. Significantly, the ETS may require IFDA member compa-
nies to terminate some of their most valuable workers at a consequential
time.

19. Many members’ suppliers—including food manufacturers—are
unable to meet the demand for product due to the labor shortage, and the
ETS will exacerbate this risk, as well. Problems in the national supply chain
have already required members to increase their spending on inventory and
transportation, and these increases are reducing spending in other areas.

20. Complying with the ETS will force IFDA’s members to imple-
ment expensive and time-consuming tracking software, respond to negative
employee morale that testing and tracking are likely to create, and otherwise
incur compliance costs using funds that would be better spent in other areas,
such as attracting, training, and retaining workers.

21. Members also report serious concerns regarding the availability
of tests. In areas where tests are not readily and dependably available, mem-
bers are concerned that the ETS leaves them no choice but to select a “vac-

cinate-or-be-terminated” compliance approach.

App. 360
22. IFDA member companies continue to be committed partners in
stemming the spread of COVID-19 while also ensuring the timely delivery
of essential products and supplies to professional kitchens throughout the
nation. Without an adequate workforce—and strapped with compliance
costs— foodservice distributors will be forced to reduce their operations,
forgo orders, and/or lose customers, causing not only irreparable harm and
reputational damage to their businesses but diminishing their ability to con-
tribute to their communities and our nation’s economic recovery.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 16th day of November, 2021, at McLean, Virginia.

Mark S. Allen

App. 361
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Texas Trucking Association et al.,
Petitioners

United States Occupational Safety and
Health Administration et al.,

Respondents.

Declaration of Robb MacKie

I, Robb Mackie, declare as follows under penalty of perjury:

1. Iam the President and CEO of American Bakers Association
(“ABA”).

2. ABA is the Washington D.C.-based voice of the wholesale bak-
ing industry. Since 1897, ABA has worked to increase protection from costly
government actions, build the talent pool of skilled workers with specialized
training programs, and forge industry alignment by establishing a more re-
ceptive environment to grow the baking industry.

3. ABA’s members include more than 300 companies with a com-
bined 1600+ facilities. Bakers are found in all 50 states, in the District of Co-
lumbia, and in Puerto Rico. The baking industry employs almost 800,000
skilled individuals, generates over $44 billion in direct wages, and has an

overall economic impact of over $154 billion.

App. 363
4. My responsibilities at ABA include communicating with ABA’s
members on subjects including workplace safety, hiring practices, the labor
market, relevant regulations, and other topics of interest.

5. lam familiar with OSHA’s “COVID-19 Vaccination and Testing;
Emergency Temporary Standard” (the “ETS”). It is my understanding that
the ETS applies to ABA members who would not otherwise be subject to any
similar mandate (i.e., who are not covered by the federal-contractor mandate
or the healthcare mandate).

6. Ihave personal knowledge of the ETS’s requirements and of the
severe effect it will have on many ABA’s members.

7. | ABA’s members forecast that the ETS will require them to incur
significant and unrecoverable compliance costs. It will also, in some in-
stances, require members to incur the cost of testing to retain employees.
Some members also expect that the ETS will force them to terminate employ-
ees who refuse testing and vaccination. In each instance, the consequences
to members will be loss of employees who refuse to be vaccinated or tested,
low employee morale, lost profits, lost sales, loss of customer goodwill, and
reputational harm.

supply chain challenges and rising prices.

App. 364
9. | ABA’s members are in favor of vaccination and have committed
significant resources to ensuring that their employees are vaccinated to the
maximum extent possible. Vaccination protects employee health, and thus
the workforce on which employers depend. In other words, ABA’s members
have a strong incentive to encourage a vaccinated workforce.

10. Despite members’ incentive to ensure that their workforce is vac-
cinated, and despite their efforts and commitment to achieving that goal,
there are still a significant number of employees across the industry who, for
various reasons, refuse to be vaccinated (or refuse to disclose vaccination
status) and who refuse to submit to weekly testing.

12. ABA’s communications with members unquestionably confirm
that there remain a significant number of individuals who adamantly refuse
vaccination and will not submit to weekly testing.

13. ABA’s members report not only that their workers have refused
generous incentives offered to encourage them to get vaccinated but that
many of these workers have told employers directly and unequivocally that
they would choose to be fired if keeping their job required them to get vac-

cinated or submit to weekly testing. Members know their employees can

App. 365
easily find employment with a competitor who employs fewer than 100 em-
ployees, or elsewhere.

14. ABA Members also report an unprecedented percentage of va-
cancies in full-time jobs. These shortages have already forced members to
shut down production lines, reduce available products, and take similar
measures. These reductions have caused lost profits, lost sales, and reputa-
tional harm.

15. If the ETS takes effect, ABA members expect that a significant
number of employees will refuse both vaccination and weekly testing, and
that member-employers will have no choice but to terminate these employ-
ees. This will directly impact the amount of product that can be produced
and supplied to retailers leading to SKU rationalization and potentially a re-
duced amount of available products for sale.

16. By requiring ABA members to terminate employees during a la-
bor shortage, the ETS will worsen the severe labor difficulties that ABA
members are already experiencing. The already tight labor market will make
it immeasurably more difficult to replace employees, further hampering
members’ productivity and functionality. The upcoming holiday season—
during which many companies must hire additional employees and where
companies earn a significant portion of their annual revenue—will make the

effect of these terminations worse.

App. 366
17. The ETS will also make it more difficult for members to hire new
workers — both for current vacancies and for vacancies that the ETS will cre-
ate.

18. ABA members anticipate that terminations and unfilled vacan-
cies on this scale will severely diminish their revenue and profits, because
without an adequate number of employees, businesses cannot function and
produce products. Members are already facing historic inability to fill vacan-
cies. The loss of valued employees will directly impact the amount of prod-
ucts that can be produced, potentially leading to a reduction in the amount
of available products for sale.

20. Members also report that a reduced workforce will decrease
productivity and therefore injure the goodwill that they have worked hard
to earn from their employees and customers. Because replacement employ-
ees are not easy to come by in the current labor market, members expect that
the ETS will cause them to lose control of their own reputations and ulti-
mately to suffer reputational harm.

21. Many ABA members have direct or indirect competitors who
employ fewer than 100 employees. These competitors are also experiencing

a labor shortage. Job seekers and current member employees who oppose

App. 367
the ETS’s requirements can avoid those obligations by working for the com-
panies that are not subject to the ETS. The ETS therefore places some ABA
members at a competitive hiring disadvantage in a constrained labor market.

22. The jobs these almost certain-to-be-terminated workers perform
are critical to the successful operation of the baking industry. They are driv-
ers, bakery production workers, distribution and shipping workers, and en-
gineers and equipment maintenance workers. These jobs are critical to the
American economy.

23. Many of the employees who hold these jobs are the same em-
ployees who stayed at their posts as “essential workers” from the first days
of the pandemic. Significantly, many of these employees are at the lower end
of the pay scale and can least afford to find themselves unemployed. In other
words, the ETS will require ABA member companies to lay off many of their
most vulnerable workers.

24. Members are also concerned that their suppliers—including de-
livery partners—will be unable to meet demand due to the labor shortage,
and that the ETS will exacerbate this risk. It is widely reported that the truck-
ing sector is already facing a shortage of more than 80,000 drivers. Problems
in the national supply chain have already required members to increase their
spending on shipping, and these increases are undermining member’s prof-
its.

25. The baking industry is already dealing with strained supply

chains for many ingredients. Additionally, labor and materials shortages

App. 368
have already caused members to delay expansions and product roll outs and
limit or terminate certain production lines. Members will face even greater
threats in this area if the ETS goes into effect and worsens the already
strained supply chain and labor market.

26. ABA members report that complying with the ETS will force
them to pay for testing, implement time-consuming tracking, respond to
negative employee morale that testing and tracking will create, and other-
wise incur compliance costs using funds that would be better spent in other
areas (e.g., raising salaries to stay competitive in the current labor market).

27. _ABA’s members also believe that OSHA has drastically underes-
timated compliance costs, including recordkeeping for test results and vac-
cination status. The recordkeeping that the ETS requires will necessitate sig-
nificant additional expense—both to perform and to keep secure (because
the records contain sensitive health information). In some instances this will
require programming and deploying new software solutions. OSHA’s esti-
mated costs for these measures, and an employer's ability to comply with
the obligations are simply not realistic.

28. To meet the ETS’s deadlines, ABA’s members must begin pre-
paring immediately to design and implement, among other things, vaccina-
tion policies, post-vaccine sick time policies, recordkeeping, and tracking so-
lutions. Each will require significant and immediate time and expense.

29. Members also report serious concerns regarding the availability

of tests. In areas where tests are not readily and dependably available,

App. 369
members are concerned that the ETS leaves them no choice but to select a
“vaccinate-or-be-terminated” compliance approach.
30. Because the federal government enjoys sovereign immunity,
ABA members understand that compliance costs, lost profits, loss of good-
will, and reputational damages will be unrecoverable.
I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 21 day of November, 2021, at Columbia, Maryland.

Robb MacKie

App. 370
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Texas Trucking Association et al.,
Petitioners
v.

United States Occupational Safety and
Health Administration et al.,

Respondents.

Declaration of Lori Buss Stillman

I, Lori Buss Stillman, declare as follows under penalty of perjury:

1. Tam the Vice President of Research for the National Association
of Convenience Stores (“NACS”).

2. | NACS is a non-profit trade association and is the preeminent
representative of the interests of convenience store operators across the na-
tion.

4. In 2020, the fuel wholesaling and convenience industry that
NACS represents employed approximately 2.34 million workers and gener-
ated $548.2 billion in total sales.

5. In all, the industry sells approximately 80 percent of the motor

fuels purchased in the United States each year.

App. 372
6. | NACS conducted a survey of its members regarding OSHA’s
“COVID-19 Vaccination and Testing; Emergency Temporary Standard” (the
“ETS”) during the week of November 15-19, 2021 (the “Survey”).

7. |NACS regularly surveys its members regarding their businesses
and the current business climate. The industry relies on the resulting survey
data as accurate depictions of the state of the industry.

8. | NACS compiles certain industry survey data into an annual
State of the Industry report which is considered the leading source of data
on the convenience industry in the United States.

9. The Survey generated more than eighty responses from compa-
nies in the convenience industry in the United States with more than one
hundred employees. We consider this rate of response to provide a reliable
cross-section of the convenience industry.

10. The Survey asked respondents for their data based upon the ETS
going into effect.

11. The Survey found that 46% of the industry plans to provide em-
ployees with the option to get vaccinated or get tested weekly, while 6% plan
to require all employees to be vaccinated and 48% remain undecided on
which course to choose.

12. The Survey found that 99% of the industry expects that employ-
ees would quit their jobs rather than undergo vaccination, and that 92% of
the industry expects that employees would quit their jobs rather than un-

dergo weekly testing for COVID-19.

App. 373
13. According to the Survey, employers indicating that they would
lose employees expect that imposing a vaccination requirement would cause
them to lose 32% of their employees.

14. According to the Survey, employers indicating that they would
lose employees expect that imposing a weekly testing requirement would
cause them to lose 22% of their employees.

15. The Survey revealed the following anticipated effects if the ETS
were implemented:

a. 89% of employers in the industry would be forced to re-
duce store hours;

b. 58% would need to close one or more stores;

c. 57% would expect increased difficulty getting products to
their stores;

d. 72% would need to reduce cleaning at one or more stores;
e. 93% would face increased difficulty hiring staff; and

f. 47% would expect reduced customer traffic.

16. According to the Survey, 65% of respondents have already re-
searched the ability to secure testing resources on a weekly basis for their
employees. Of those employers that have research testing resources, the av-
erage per-employee cost of testing per week was $61.

17. The Survey found that among those employers who have at-
tempted to do so, only 28% are able to find adequate providers to ensure that

weekly testing is available for their employees.

App. 374
18. According to the Survey, less than one-third (32%) of respond-

ents report that they will be able to comply with the ETS if it goes into effect.

19. The Survey gave respondents the option to provide any com-
ments on the ETS that they chose. Those comments include:

a. “In ways we have not yet imagined, recruiting, training,

lost sales, increased wages, Discouraged Essential work force,

negative impact to consumers just to name a few.”

b. “OSHA should not mandate vaccines.”
c. “This is crazy to ask companies or employees to mandate
vaccines.”

d. “We are already struggling to get and keep employees.
This mandate will create an even larger challenge to keep our
business open and operating.”

f. “Short term could be devastating - loss of employees and
increased demand of those remaining. Will impact overall cus-
tomer service and cripple out ability to staff the stores. Will prob-
ably drive wage rates up as a result.”

g. “Weare already very short of staff in our stores. This man-
date will cause many non vaccinated employees to quit and fur-
ther limit our ability to get more staff. Most of our competition
in small rural markets are not subject to this mandate as they are

small employers.”

App. 375
h. “Our workforce will not get vaccinated & they are not go-
ing to put forth effort to test. They also will not wear masks (we
already fought that battle). We will not be able to operate to pro-
vide fuel & food as we do today. Huge cost that is unnecessary
and most importantly will not make a difference. ... We oper-
ated through the pandemic: did not lose 1 team member and had
very few actually contract covid. Our current protective
measures are working.”

1. “We have grave reservations about being held responsible
for verifying medical testing records and vaccination records
due to the effect it will have on labor, liability associated, and
increased record keeping associated with HR.”

j. “The OSHA mandate is a major inconvenience that is un-
helpful and most probably destructive. We run a geographically
diverse business making frequent testing highly infeasible.”

k. “Ata time where hiring is our number one issue, this will
have us lose good employees that currently are employed.”

lL. “This mandate makes little to no sense.”

m. “Could put us out of business.”

n. “[T]his could be catastrophic to our organization.”

o. “This will be very difficult to track and will cause a lot of

confusion and extra work for our frontline team members.”

App. 376
p- “This ETS is government over-reach on a scale I never
thought I’d see in my lifetime. Not a single employee and/or
business leader that I have spoken with wants to worry with this
nonsense. It is not small-business’s role to play ‘enforcer’ for
hare-brained government ideas where the science is shaky at
best. Case-in-point - the state of Vermont has the highest vac-
cination rate in the country, yet the 7-day average of COVID
cases in Vermont today is double what it was in April. This vac-
cine mandate is NOT the way out of this thing, and it distracts
business in a very real way at a time we are all working to get
the economy back on track.”

q. “Wealready are 100 people short and these rules will close
the stores due to lack of workers.”

r. “This is an undue hardship on already struggling compa-
nies and a ridiculous burden on HR and safety personnel.”

S. “[TR]Jeduced staff, inability to continue to operate in rural
areas, reduced gas availability, store closures.”

t. “It will have a negative impact all around, financially, stra-
tegically, and operationally. This is why business [would] rather
leave the US and rather take jobs to other countries. This is too
intrusive, not only on people, but on business as a whole.”

u. “We have 145 employees over 18 locations and an HR

Dept. of 1. Each location runs []with a maximum of 5 employees

App. 377
at any one time making the risk extremely low given all proto-
cols we have put in place over the last 20 months. The adminis-
trative tracking and requirements are overly burdensome to a
small company who has done everything to keep employees safe
during this pandemic.”

v. “If the OSHA Mandate becomes effective it would be the
most devastating event our company has ever experienced.”

w. “Unfairly applies to Large dispersed organizations. Inde-
pendent operators with less than 100 employees are exempt.”

x. “I]t would bankrupt our company because of the closure
of so many stores. We have already reduced hours in some stores
due to staffing issues.”

y. “In an environment where team members are difficult to
find and keep. This is a well intentioned but short si[gh]ted
power grab by a government reliant on the tax revenues small
businesses supply. As Covid-19 becomes endemic as opposed to
pandemic, this is a scary precedent for increasing government
oversight.”

z. “Wehave a large number of employees that have not got-
ten vaccinated (over 50%). They will not get vaccinated if it is
required.”

aa. “It would bea total disaster to our company, our industry,

and to the U.S. economy.”

App. 378
bb. “This mandate will be a serious detriment to our ability to
operate our business.”

cc. “We will be able to comply with the mandate, but the loss
in staff and resulting decrease in revenue could be catastrophic.”
dd. “[I]mpossible to comply with and will have very negative
impacts on us as we will have to cut hours and /or close stores
due to staffing issues.”

ee. “In order to stay in business, we would have to allow
weekly testing as there are just too many other businesses with
less than 100 employees that our employees could leave us for.
We have already been unable to hire several people who did not
want to work for company that would be under this mandate.
They went to work for someone smaller. The idea that we can
test weekly and track it is ludicrous. We operate large stores (30
- 50 employees) in very rural communities with little access to
testing. This would require our store managers to manage this,
on top of what they already do. This mandate puts even more
strain on good, hard-working people that have been very loyal
to us and their communities throughout this pandemic.”

ff. “With multiple retail sites spread over 2 states I'm not sure
how practical the weekly testing will be. It will also be difficult

with a small HR department.”

App. 379
ge. “This will the[] straw that breaks the camel[‘s] back for a
lot of our locations. Especially more rural locations where there
is over 50% of the people unvaccinated (or higher). They will
simply just not work anymore.”

I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 22nd day of November, 2021, at Bristol, Virginia.

Lori Stillman

App. 380
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Texas Trucking Association et al.,
Petitioners

United States Occupational Safety and
Health Administration et al.,

Respondents.

Declaration of Peter Demos

I, Peter Demos, declare as follows under penalty of perjury:

1. | Myname is Peter Demos. I am the President and CEO of Demos
Brands.
2. Demos Brands is a family, independently owned restaurant

group comprising Demos Restaurants in Murfreesboro, Lebanon and Hen-
dersonville, Tennessee; and PDK Southern Kitchen & Pantry in Bellevue and
Mt. Juliet, Tennessee. Demos Brands is a member of the National Federation
of Independent Business.

3. Demos Brands employs approximately 300-350 employees. I
oversee the entire business.

4. I am familiar with the “COVID-19 Vaccination and Testing;
Emergency Temporary Standard” (the “ETS”). It is my understanding that

the ETS applies to Demos Brands.

App. 382
5. As President and CEO of Demos Brands, and an attorney, I have
personal knowledge of what the ETS requires and how it will affect Demos
Brands.

6. We are a Christian business, and one of the reasons I am con-
cerned about the ETS is that it will require us to go against our values by
terminating employees during the holiday season.

7. Weare already short-staffed by a large percentage, and we are
already having to close early and lose shifts because of the pandemic and
ongoing labor shortage. The ancillary impacts of the existing labor shortage
and supply chain issues would be exacerbated if the ETS were to go into
effect.

8. We already struggle completing existing regulatory paperwork
requirements because we don’t have staff. The ETS will only increase the
amount of paperwork we will have to do. I predict I personally will lose up
to two days of being able to be in business. I also predict that Demos Brands
will lose five servers or two grill cooks for several days.

9. | Demos Brands complied with all the state regulations as they
came up. Among other things, we instituted a policy requiring employee
temperature checks, masking, social distancing of tables, and increased fre-
quency of cleaning. We made bars carryout stations and put up plywood
separators. We started curbside delivery, which included systems that al-

lowed guests to be paged in their cars when their order was ready. Our

App. 383
locations already had strong ventilations system with more HVC units than
required.

10. Demos Brands would not enforce a vaccine or test-and-mask
mandate but for the ETS.

11. Demos Brands has 300-350 employees, who are spread across
five locations: three Demos Restaurants in Murfreesboro, Lebanon, and Hen-
dersonville, Tennessee, and two PDK Southern Kitchen & Pantry restaurants
in Bellevue and Mt. Juliet, Tennessee. We have been trying for over a year to
obtain a permit to open a third PDK Southern Kitchen & Pantry but cannot
because the government is so behind and short-staffed due to the pandemic.

12. I meet with managers quarterly, and one of the most frequent
questions I am asked involves what managers would do if the mandate went
into effect. Many managers said they would quit if the mandate takes effect.

13. I estimate that about 75 percent of Demos Brands’ hourly em-
ployees, 50 percent of salaried on-site restaurant employees, and 25 percent
of administrative employees have been vaccinated.

14. Tlestimate that 90 percent of our employees who are in manage-
ment or administration have had Covid. To the best of my knowledge, no
one has been hospitalized from it. We have experienced no deaths.

15. Covid has had an impact on business. We were forced to close
when employees were sick because we did not have enough employees to
operate. We were forced to close two days a week for three weeks at two

different locations.

App. 384
16. The average age of my management employees is thirty years of
age, for hourly employees the average age is twenty-three. Including myself,
Demos Brands has only three employees who are fifty or older.

17. To the best of my knowledge my employees are generally in
good health.

18. Although I don’t know how many employees I would lose if the
mandate were to take effect, I know that my managers at each of the restau-
rants are worried about losing people.

19. Some employees will not get vaccinated for political and other
reasons not related to religious belief or medical conditions.

20. We have already lost employees because they believed we had
too many rules relating to protecting against transmission of Covid-19. Oth-
ers quit because they did not think we had enough rules.

21. If the mandate were to take effect, we anticipate losing enough
employees to cause us to have to close a minimum of one day a week.

22. The ETS will worsen the severe labor difficulties that Demos
Brands is already experiencing.

23. The ETS will also make it more difficult to hire new workers for
current vacancies, for vacancies that the ETS will create, and for new posi-
tion(s) that the ETS will require us to create and fill (for example, someone
to oversee recordkeeping requirements for vaccination and testing status).

24. Demos Brands has direct and indirect competitors who em-

ployee fewer than 100 employees. These competitors are also experiencing a

App. 385
labor shortage. Job seekers who oppose the ETS’s requirements can avoid
them by working for the companies that are not subject to the Mandate. The
ETS therefore places Demos Brands at a competitive disadvantage in an al-
ready constrained labor market.

25. When we had to shut down for a day or two due to being short-
staffed as referenced above. That shutdown significantly impacted our net
profit. For some periods we had a net loss.

26. We typically see a ten percent increase in sales between Thanks-
giving and Valentine’s Day. Within the last two weeks we had three people
call out at one of our restaurants leaving us with four servers and only one
cashier (instead of three). That night we lost fifty to sixty percent in sales, yet
our electricity bill stayed the same.

27. When it comes to implementing the OSHA ETS, every manager
would be responsible for ensuring the compliance of their own restaurant,
reporting up to human resources to maintain the records, and then the Vice
President of Operations and I would audit to ensure proper compliance.
There are many compliance issues we will face, even with this structure.

28. Recordkeeping is going to be particularly hard due to: (a) the
ever-changing make up of our employee workforce due to people quitting
and others getting hired; (2) lack of physical space to keep records and keep
them secure; (3) lack of technology to keep them stored digitally in a manner
that is safe; (4) time it will take to get employees tested and test results

properly stored if and when we figure out how we will do that. Given the

App. 386
transient nature of our workforce we already struggle with current record-
keeping requirements.

29. At this point I do not know how I am going to track employees.
For vaccinated employees I think I could devise a system. For the unvac-
cinated, there are so many factors including how to track them on a weekly
basis.

30. Weare not a Monday-Friday business. Managers and employees
are all on different schedules. Oversight is going to be very challenging.

31. We will monitor mask compliance the way we did when masks
were required in restaurants in Tennessee, which is the same way we moni-
tor uniforms. We line up the employees at the beginning of the shift and
check them. But the problems with masks are the difficulties properly wear-
ing them in a restaurant environment. For example, elderly customers
couldn’t hear my employees and so the employee would have to pull down
the mask to speak. In the kitchen, my cooks are wearing masks while cook-
ing over grease and hot fumes. They do not have the time or ability to change
their mask every thirty minutes.

32. Masking alone will result in employees quitting.

33. Monitoring will harm worker morale. I pride myself on how we
treat employees. I have an employee council comprising one employee per
location. These representatives meet only with me — one-on-one. They give
me suggestions and we have an open and productive dialogue. With this

new mandate, most of the employees are going to think they must follow

App. 387
these rules because I am making them do it. They will see my competitors
with under 100 employees and how they are not following the same rules.

34. Ireally have no earthly idea how I'm going to keep the data se-
cure. Many of our office doors don’t have locks, and some units don’t even
have doors.

35. None of us can afford the testing. If the company pays, it won't
be able to stay open.

36. Our employees can’t afford to pay for tests either. They are
paycheck to paycheck. For an employee who works only a few hours each
week, paying for testing could cause that employee’s wage to be a net nega-
tive.

I declare under penalty of perjury that the foregoing is true and correct.
Executed on this ds day of December, 2021, at Kfbkes Cant, , LeAners

[Peter Demos]

7 App. 388

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