United Food & Commercial Workers v. OSHA ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0287p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ┐
INTERIM FINAL RULE: COVID-19 VACCINATION AND TESTING; EMERGENCY │
TEMPORARY STANDARD 86 FED. REG. 61402. │
_________________________________________________________________ │
│
MASSACHUSETTS BUILDING TRADES COUNCIL, et al. (21-7000); BENTKEY > Nos. 21-7000
SERVICES, LLC (21-4027); PHILLIPS MANUFACTURING & TOWER COMPANY, et │ /4027 /4028 /4031
al. (21-4028); COMMONWEALTH OF KENTUCKY, et al. (21-4031); ANSWERS IN │ /4032 /4033 /4080
GENESIS, INC. (21-4032); SOUTHERN BAPTIST THEOLOGICAL SEMINARY, et al. │ /4082 /4083 /4084
/4085 /4086 /4087
(21-4033); BST HOLDINGS, LLC, et al. (21-4080); REPUBLICAN NATIONAL │ /4089 /4088 /4090
COMMITTEE (21-4082); ASSOCIATED BUILDERS AND CONTRACTORS, INC., et al. │ /4091 /4093 /4092
(21-4083); MASSACHUSETTS BUILDING TRADES COUNCIL (21-4084); UNION OF │ /4095 /4094 /4096
AMERICAN PHYSICIANS AND DENTISTS (21-4085); ASSOCIATED GENERAL │ /4097 /4099 /4100
CONTRACTORS OF AMERICA, INC., et al. (21-4086); NATIONAL ASSOCIATION OF /4101 /4102 /4103
│ /4108 /4112 /4114
BROADCAST EMPLOYEES & TECHNICIANS, THE BROADCASTING AND CABLE │
TELEVISION WORKERS SECTOR OF THE COMMUNICATIONS WORKERS OF /4115 /4117 /4133
│
AMERICA, LOCAL 51, AFL-CIO (21-4087); STATE OF MISSOURI, et al. (21-4088);
│
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING
│
AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO
(21-4089); STATE OF INDIANA (21-4090); TANKCRAFT CORPORATION, et al. (21- │
4091); NATIONAL ASSOCIATION OF HOME BUILDERS (21-4092); JOB CREATORS │
NETWORK, et al. (21-4093); UNITED FOOD AND COMMERCIAL WORKERS │
INTERNATIONAL UNION, AFL/CIO-CLC, et al. (21-4094); SERVICE EMPLOYEES │
INTERNATIONAL UNION LOCAL 32BJ (21-4095); MFA, INC., et al. (21-4096); │
STATE OF FLORIDA, et al. (21-4097); AFT PENNSYLVANIA (21-4099); DENVER │
NEWSPAPER GUILD, COMMUNICATIONS WORKERS OF AMERICA, LOCAL 37074, │
AFL-CIO (21-4100); DTN STAFFING, INC., et al. (21-4101); FABARC STEEL │
SUPPLY, INC., et al. (21-4102); MEDIA GUILD OF THE WEST, THE NEWS GUILD- │
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 39213 (21-4103); │
NATURAL PRODUCTS ASSOCIATION (21-4108); OBERG INDUSTRIES, LLC (21- │
4112); BETTEN CHEVROLET, INC. (21-4114); TORE SAYS LLC (21-4115); │
KENTUCKY PETROLEUM MARKETERS ASSOCIATION, et al. (21-4117); AARON │
ABADI (21-4133), │
Petitioners, │
│
v. │
│
UNITED STATES DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH │
ADMINISTRATION, et al., │
Respondents. │
┘
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 2
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402On Emergency Motion to Dissolve Stay.
Multi-Circuit Petitions for Review from an Order of the U.S. Department of Labor,
Occupational Safety and Health Administration, No. OSHA-2001-0007.
Decided and Filed: December 17, 2021
Before: GIBBONS, STRANCH, and LARSEN, Circuit Judges.
_________________
COUNSEL
ON EMERGENCY MOTION TO DISSOLVE STAY AND REPLY: Sarah E. Harrington,
Michael S. Raab, Adam C. Jed, Brian J. Springer, Martin Totaro, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. IN RESPONSE: R. Trent
McCotter, BOYDEN GRAY & ASSOCIATES, Washington, D.C., for Job Creators Network
Petitioners. Felicia K. Watson, NATIONAL ASSOCIATION OF HOME BUILDERS OF THE
UNITED STATES, Washington, D.C., for Petitioner National Association of Home Builders of
the United States. Christopher Wiest, CHRIS WIEST, ATTORNEY AT LAW, PLLC,
Crestview Hills, Kentucky, for Petitioner Betten Chevrolet, Inc. Harold Craig Becker,
AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS, Washington, D.C., Peter J. Ford, UNITED FOOD & COMMERCIAL
WORKERS INTERNATIONAL UNION, Washington, D.C., Randy Rabinowitz, OSH LAW
PROJECT, LLC, Washington, D.C., Andrew D. Roth, BREDHOFF & KAISER, PLLC,
Washington, D.C., Nicole Berner, SERVICE EMPLOYEES INTERNATIONAL UNION,
Washington, D.C., Keith R. Bolek, O’DONOGHUE & O’DONOGHUE LLP, Washington, D.C.,
Victoria L. Bor, SHERMAN DUNN, P.C., Washington, D.C., for Petitioner Union of American
Physicians and Dentists. Cathleen A. Martin, John A. Ruth, NEWMAN, COMLEY & RUTH,
P.C., Jefferson City, Missouri, for MFA Incorporated Petitioners. Benjamin M. Flowers, May
Davis, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Christopher L.
Thacker, Lindsey R. Keiser, OFFICE OF THE KENTUCKY ATTORNEY GENERAL,
Frankfort, Kentucky, Clark L. Hildabrand, Brandon J. Smith, OFFICE OF THE TENNESSEE
ATTORNEY GENERAL, Nashville, Tennessee, Brian Kane, Leslie M. Hayes, Megan A.
Larrondo, OFFICE OF THE IDAHO ATTORNEY GENERAL, Boise, Idaho, Jeffrey A.
Chanay, OFFICE OF THE KANSAS ATTORNEY GENERAL, Topeka, Kansas, Mithun
Mansinghani, OFFICE OF THE OKLAHOMA ATTORNEY GENERAL, Oklahoma City,
Oklahoma, Lindsay S. See, OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL,
Charleston, West Virginia, Edmund G. LaCour Jr., OFFICE OF THE ALABAMA ATTORNEY
GENERAL, Montgomery, Alabama, Charles E. Brasington, OFFICE OF THE ALASKA
ATTORNEY GENERAL, Anchorage, Alaska, Drew C. Ensign, OFFICE OF THE ARIZONA
ATTORNEY GENERAL, Phoenix, Arizona, D. John Sauer, OFFICE OF THE MISSOURI
ATTORNEY GENERAL, Jefferson City, Missouri, David M. S. Dewhirst, Christian B.
Corrigan, OFFICE OF THE MONTANA ATTORNEY GENERAL, Helena, Montana, Nicholas
J. Bronni, Vincent M. Wagner, OFFICE OF THE ARKANSAS ATTORNEY GENERAL, Little
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 3
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402Rock, Arkansas, Henry C. Whitaker, Jason H. Hilborn, OFFICE OF THE FLORIDA
ATTORNEY GENERAL, Tallahassee, Florida, James A. Campbell, OFFICE OF THE
NEBRASKA ATTORNEY GENERAL, Lincoln, Nebraska, Anthony J. Galdieri, OFFICE OF
THE NEW HAMPSHIRE ATTORNEY GENERAL, Concord, New Hampshire, Matthew A.
Sagsveen, OFFICE OF THE NORTH DAKOTA ATTORNEY GENERAL, Bismarck, North
Dakota, Ross W. Bergethon, OFFICE OF THE GEORGIA ATTORNEY GENERAL, Atlanta,
Georgia, Thomas M. Fisher, OFFICE OF THE INDIANA ATTORNEY GENERAL,
Indianapolis, Indiana, Thomas T. Hydrick, OFFICE OF THE SOUTH CAROLINA
ATTORNEY GENERAL, Columbia, South Carolina, Samuel P. Langholz, OFFICE OF THE
IOWA ATTORNEY GENERAL, Des Moines, Iowa, Elizabeth B. Murrill, OFFICE OF THE
LOUISIANA ATTORNEY GENERAL, Baton Rouge, Louisiana, Judd E. Stone II, William F.
Cole, Ryan S. Baasch, OFFICE OF THE TEXAS ATTORNEY GENERAL, Austin, Texas,
Melissa A. Holyoak, OFFICE OF THE UTAH ATTORNEY GENERAL, Salt Lake City, Utah,
John V. Coghlan, OFFICE OF THE MISSISSIPPI ATTORNEY GENERAL, Jackson,
Mississippi, Ryan Schelhaas, OFFICE OF THE WYOMING ATTORNEY GENERAL,
Cheyenne, Wyoming, for State Petitioners. Michael E. Toner, Thomas M. Johnson, Jr., Stephen
J. Obermeier, Jeremy J. Broggi, Krystal B. Swendsboe, WILEY REIN LLP, Washington, D.C.,
for Petitioner Republican National Committee. Daniel P. Lennington, WISCONSIN
INSTITUTE FOR LAW & LIBERTY, Milwaukee, Wisconsin, for Tankcraft Petitioners.
Matthew R. Miller, Robert Henneke, Chance Weldon, Nathan Curtisi, TEXAS PUBLIC
POLICY FOUNDATION, Austin, Texas, for Burnett Specialists Petitioners. John Stone
Campbell III, John P. Murrill, TAYLOR, PORTER, BROOKS, & PHILLIPS L.L.P., Baton
Rouge, Louisiana, for Cox Operating Petitioners. Jessica Hart Steinmann, Josh Campbell,
Rachel Jag, AMERICA FIRST POLICY INSTITUTE, Washington, D.C., Kris W. Kobach,
ALLIANCE FOR FREE CITIZENS, Lecompton, Kansas, for DTN Staffing Petitioners. Daniel
R. Suhr, M. E. Buck Dougherty III, LIBERTY JUSTICE CENTER, Chicago, Illinois, Sarah
Harbison, PELICAN INSTITUTE FOR PUBLIC POLICY, New Orleans, Louisiana, for BST
Holdings Petitioners. Kurtis T. Wilder, Joseph E. Richotte, Steven R. Eatherly, BUTZEL
LONG, P.C., Detroit, Michigan, for Petitioner Small Business Association of Michigan. Henry
M. Perlowski, Ashley S. Kelly, ARNALL GOLDEN GREGORY LLP, Atlanta, Georgia,
Richard J. Oparil, ARNALL GOLDEN GREGORY LLP, Washington, D.C., for Petitioner
Natural Products Association. Robert Alt, THE BUCKEYE INSTITUTE, Columbus, Ohio,
Patrick Strawbridge, CONSOVOY MCCARTHY PLLC, Boston, Massachusetts, for Petitioner
Phillips Manufacturing & Tower Company. David A. Cortman, John J. Bursch, Matthew S.
Bowman, Frank H. Chang, ALLIANCE DEFENDING FREEDOM, Washington, D.C., Ryan L.
Bangert, Ryan J. Tucker, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for
Southern Baptist Theological Seminary Petitioners. Jordan A. Sekulow, Abigail A. Southerland,
Miles Terry, Christy Stierhoff, AMERICAN CENTER FOR LAW & JUSTICE, Washington,
D.C., Edward L. White III, AMERICAN CENTER FOR LAW & JUSTICE, Ann Arbor,
Michigan, for Petitioner Heritage Foundation. Steven P. Lehotsky, Scott A. Keller, Michael B.
Schon, LEHOTSKY KELLER LLP, Washington, D.C., for Business Association Petitioners.
Matthew J. Clark, ALABAMA CENTER FOR LAW AND LIBERTY, Birmingham, Alabama,
for FabArc Steel Supply Petitioners. J. Larry Stine, WIMBERLY, LAWSON, STECKEL,
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 4
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402SCHNEIDER & STINE, P.C., Atlanta, Georgia, for Associated Builders and Contractors
Petitioners. Jeffrey C. Mateer, Hiram S. Sasser III, David J. Hacker, Jeremiah G. Dys, Lea E.
Patterson, Keisha T. Russell, FIRST LIBERTY INSTITUTE, Plano, Texas, for Answers in
Genesis Petitioners. David A. Cortman, John J. Bursch, Matthew S. Bowman, Frank H. Chang,
ALLIANCE DEFENDING FREEDOM, Washington, D.C., Ryan L. Bangert, Ryan J. Tucker,
ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Harmeet K. Dhillon, Ronald D.
Coleman, Mark P. Meuser, Michael A. Columbo, DHILLON LAW GROUP INC., San
Francisco, California, for Petitioner Bentkey Services. Aaron Abadi, New York, New York, pro
se. ON AMICUS BRIEF: Brianne Gorod, CONSTITUTIONAL ACCOUNTABILITY
CENTER, Washington, D.C., Scott E. Rosenow WMC LITIGATION CENTER, Madison,
Wisconsin, Catherine L. Strauss, ICE MILLER LLP, Columbus, Ohio, Sheng Li, NEW CIVIL
LIBERTIES ALLIANCE, Washington, D.C., Emmy L. Levens, COHEN MILSTEIN SELLERS
& TOLL PLLC, Washington, D.C., Rachel L. Fried, Jessica Anne Morton, Jeffrey B. Dubner,
JoAnn Kintz, DEMOCRACY FORWARD FOUNDATION, Washington, D.C., Scott L. Nelson,
Allison M. Zieve, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., Michael T.
Anderson, Adam C. Breihan, MURPHY ANDERSON PLLC, Washington, D.C., Deepak Gupta,
GUPTA WESSLER PLLC, Washington, D.C., for Amici Curiae.
STRANCH, J., delivered the opinion of the court in which GIBBONS, J., joined.
GIBBONS, J. (pg. 38), delivered a separate concurring opinion. LARSEN, J. (pp. 39–57),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. The COVID-19 pandemic has wreaked havoc
across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs
across the country, and threatening our economy. Throughout, American employees have been
trying to survive financially and hoping to find a way to return to their jobs. Despite access to
vaccines and better testing, however, the virus rages on, mutating into different variants, and
posing new risks. Recognizing that the “old normal” is not going to return, employers and
employees have sought new models for a workplace that will protect the safety and health of
employees who earn their living there. In need of guidance on how to protect their employees
from COVID-19 transmission while reopening business, employers turned to the Occupational
Safety and Health Administration (OSHA or the Agency), the federal agency tasked with
assuring a safe and healthful workplace. On November 5, 2021, OSHA issued an Emergency
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 5
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402Temporary Standard (ETS or the standard) to protect the health of employees by mitigating
spread of this historically unprecedented virus in the workplace. The ETS requires that
employees be vaccinated or wear a protective face covering and take weekly tests but allows
employers to choose the policy implementing those requirements that is best suited to their
workplace. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending
judicial review, and it renewed that decision in an opinion issued on November 12. Under
28 U.S.C. § 2112(a)(3), petitions challenging the ETS—filed in Circuits across the nation—were
consolidated into this court. Pursuant to our authority under 28 U.S.C. § 2112(a)(4), we
DISSOLVE the stay issued by the Fifth Circuit for the following reasons.
I. BACKGROUND
A. OSHA’s History and Authority
Congress passed the Occupational Safety and Health Act of 1970 (OSH Act or the Act)
and established OSHA “to assure safe and healthful working conditions for the nation’s work
force and to preserve the nation’s human resources.” Asbestos Info. Ass’n/N. Am. v.
Occupational Safety & Health Admin., 727 F.2d 415, 417 (5th Cir. 1984). It expressly found that
“personal injuries and illnesses arising out of work situations impose a substantial burden upon,
and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical
expenses, and disability compensation payments.” 29 U.S.C. § 651(a). OSHA is charged with
ensuring worker safety and health “by developing innovative methods, techniques, and
approaches for dealing with occupational safety and health problems.” Id. § 651(b)(5). To fulfill
that charge, Congress authorized the Secretary of Labor (the Secretary) “to set mandatory
occupational safety and health standards applicable to businesses affecting interstate commerce.”
Id. § 651(b)(3). And it vested the Secretary with “broad authority . . . to promulgate different
kinds of standards” for health and safety in the workplace. Indus. Union Dep’t, AFL-CIO v. Am.
Petroleum Inst., 448 U.S. 607, 611 (1980) (plurality opinion); see, e.g., N. Am.’s Bldg. Trades
Unions v. Occupational Safety & Health Admin., 878 F.3d 271, 281 (D.C. Cir. 2017); United
Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1202, 1311 (D.C. Cir. 1980);
29 C.F.R. §§ 1910.141, 1926.51.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 6
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402An occupational safety and health standard is one that “requires conditions, or the
adoption or use of one or more practices, means, methods, operations, or processes, reasonably
necessary or appropriate to provide safe or healthful employment and places of employment.”
29 U.S.C. § 652(8). Before going into effect, OSHA’s standards must undergo a notice-and-
comment period for 30 days, during which time anyone who objects to the standard may request
a public hearing. Id. § 655(b)(2)–(3). Within 60 days from the end of the notice-and-comment
period, the Secretary must either publish the standard or decline to issue the standard. Id.
§ 655(b)(4). The Secretary has set standards that affect workplaces across the country in a wide
range of categories, including sanitation, air contaminants, hazardous materials, personal
protective equipment, and fire protection. See National Consensus Standards and Established
Federal Standards, 36 Fed. Reg. 10,466 (May 29, 1971).
In emergency circumstances, OSHA “shall” promulgate an “emergency temporary
standard” that takes “immediate effect.” 29 U.S.C. § 655(c)(1). Emergency temporary standards
do not displace notice-and-comment requirements; rather, the ETS serves as the “proposed rule,”
and OSHA must proceed over the course of six months with the notice-and-comment procedures
of a normal OSHA standard. Id. § 655(c)(2), (3). At the end of that period, the Secretary must
promulgate either the same standard or a revised standard in light of the notice-and-comment
process. Id. § 655(c)(2). Before issuing an ETS, OSHA must determine: (1) “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 (2) that an “emergency standard is necessary to
protect employees from such danger.” Id. § 655(c)(1).
With respect to any OSHA standard—emergency or otherwise—employers may seek a
“variance” from the standard. Id. § 655(d). Under that provision, an employer must demonstrate
“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.”
Id.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 7
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402B. Factual Background
OSHA monitored the COVID-19 pandemic from the beginning. As early as April 2020,
OSHA sought to protect workers through “widespread voluntary compliance” with “safety
guidelines,” specifying that workplaces should comply with personal protective equipment
standards, see 29 C.F.R. § 1910, and by reinforcing employers’ “general duty” to furnish each
worker “employment and a place of employment, which are free from recognized hazards that
are causing or are likely to cause death or serious physical harm,” see 29 U.S.C. § 654(a)(1).
Given the pandemic’s trajectory—and the emergence of rapidly-spreading variants causing
“increases in infectiousness and transmission,” 86 Fed. Reg. at 61,409—OSHA found that its
“nonregulatory enforcement tools” were “inadequate” to ensure all working individuals “safe
and healthful working conditions.” 29 U.S.C. § 651(b); see 86 Fed. Reg. at 61,410–45.
Determining that the continued spread of COVID-19 met the two requirements of
§ 655(c)(1), on November 5, 2021, OSHA published an ETS to fulfill its statutory directive and
address the “extraordinary and exigent circumstances” presented by this unprecedented
pandemic. 86 Fed. Reg. at 61,434. OSHA published a 153-page preamble to the ETS to explain
the bases for its decision to issue the ETS under 29 U.S.C. § 655(c). See COVID-19 Vaccination
and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be
codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926, and 1928).
The ETS does not require anyone to be vaccinated. Rather, the ETS allows covered
employers—employers with 100 or more employees—to determine for themselves how best to
minimize the risk of contracting COVID-19 in their workplaces. Id. at 61,438 (allowing
employers to “opt out” of any vaccination policies). Employers have the option to require
unvaccinated workers to wear a mask on the job and test for COVID-19 weekly. Id. They can
also require those workers to do their jobs exclusively from home, and workers who work
exclusively outdoors are exempt. Id. at 61,419. The employer—not OSHA—can require that its
workers get vaccinated, something that countless employers across the country have already
done. Id. at 61,436 (“[T]his ETS offers employers a choice in how to comply . . . .”).
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 8
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402Employers must also confirm their employees’ vaccination status and keep records of that
status. Id. at 61,552. Consistent with other OSHA standard penalties, employers who fail to
follow the standard may be fined penalties up to $13,653 for each violation and up to $136,532
for each willful violation. 29 C.F.R. § 1903.15(d).
C. Procedural History
Shortly after OSHA issued the ETS, private employers, labor unions, state governments,
and individual citizens across the country filed suit in virtually every circuit court, challenging
OSHA’s authority to issue such an ETS and OSHA’s basis for the ETS. One day after the ETS
went into effect, the Fifth Circuit issued a stay barring OSHA from enforcing the ETS until the
completion of judicial review. BST Holdings, LLC v. Occupational Safety & Health Admin.,
No. 21-60845, 2021 WL 5166656 (5th Cir. Nov. 6, 2021) (per curiam). Less than a week later,
the Fifth Circuit issued a written opinion, reaffirming the initial stay after “having conducted . . .
[an] expedited review.” BST Holdings, LLC v. Occupational Safety & Health Admin., 17 F.4th
604 (5th Cir. 2021).
In reaching its decision to stay the ETS, the Fifth Circuit generally forecasted that the
ETS faced fatal statutory and constitutional issues, then concluded that the Petitioners had
demonstrated a strong likelihood of success on the merits. Id. at 611–18. On the other stay
factors, the Fifth Circuit found that individuals, states, and employers would be “substantially
burdened” due to the compliance costs, loss of constitutional freedom, and intrusion into States’
“constitutionally reserved police power.” Id. at 618. Without addressing any of OSHA’s factual
explanations or its supporting scientific evidence concerning harm, the Fifth Circuit summarily
concluded that “a stay will do OSHA no harm whatsoever” and “a stay is firmly in the public
interest.” Id. at 618–19 (emphasis in original).
Under 28 U.S.C. § 2112(a)(3), the Government notified the judicial panel on multidistrict
litigation of petitions across multiple circuits, invoking the lottery procedure to consolidate all
petitions in a single circuit. On November 16, the panel designated the U.S. Court of Appeals
for the Sixth Circuit to review the petitions. On November 23, the Government moved to
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 9
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402dissolve the stay issued by the Fifth Circuit pursuant to § 2112(a)(4), which provides that the
court of appeals chosen through the multi-circuit lottery may modify, revoke, or extend a stay
that a court of appeals issued before the lottery.
II. ANALYSIS
Relying primarily on the evidence and authority set out in its 153-page preamble, OSHA
moved to dissolve the Fifth Circuit’s stay. Under 28 U.S.C. § 2112(a)(4), we review de novo the
challenged aspects of the ETS to determine whether the Fifth Circuit’s stay should be modified,
revoked, or extended.
A. Standard for Stay
“A stay is an ‘intrusion into the ordinary processes of administration and judicial
review.’” Nken v. Holder, 556 U.S. 418, 427 (2009) (quoting Va. Petroleum Jobbers Ass’n. v.
Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958)). Therefore, it “is not a matter of right,
even if irreparable injury might otherwise result to the appellant.” Id. (quoting Virginian Ry. Co.
v. United States, 272 U.S. 658, 672 (1926)). “[T]he heavy burden for making out a case for such
extraordinary relief” rests on “the moving parties.” Winston-Salem/Forsyth Cnty. Bd. of Educ. v.
Scott, 404 U.S. 1221, 1231 (1971); see also Nken, 556 U.S. at 433–34.
To determine whether a stay pending judicial review is merited, we consider four factors:
(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent
a stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.
Nken, 556 U.S. at 426 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
B. Likelihood of Success on the Merits
1. Scope of OSHA’s Statutory Authority
Petitioners’ arguments are primarily grounded in the Fifth Circuit’s blanket conclusion
that the ETS is beyond the scope of OSHA’s statutory authority. The ETS was issued under
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 10
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402§ 655(c)(1) of the Act, which requires OSHA to issue an emergency standard if necessary to
protect workers from a “grave danger” presented by “exposure to substances or agents
determined to be toxic or physically harmful or from new hazards.” 29 U.S.C. § 655(c)(1). In
assessing that authority, the Fifth Circuit focused solely on the words in § 655(c)(1): “substances
or agents,” “toxic or physically harmful,” and “grave danger,” opining that those words are to be
interpreted based on the words and phrases in the immediate vicinity of the statutory language at
issue. BST Holdings, 17 F.4th at 612–13. But the Supreme Court has instructed that words and
phrases must be viewed in the context of the entire statute. See Gade v. Nat’l Solid Wastes
Mgmt. Ass’n, 505 U.S. 88, 99 (1992) (instructing that, when evaluating a statute, a court “must
not be guided by a single sentence or member of a sentence, but look to the provisions of the
whole law”). We therefore take a holistic view of the language that Congress chose to include in
its statutory authorization to OSHA.
An “agent” is “a chemically, physically, or biologically active principle.” Agent,
Merriam-Webster Collegiate Dictionary, https://unabridged.merriam-webster.com/collegiate/
agent. And a virus is defined, in part, as “any large group of submicroscopic infectious agents.”
Virus, Merriam-Webster Collegiate Dictionary, https://unabridged.merriam-webster.com/
collegiate/virus. The statute requires OSHA to determine whether an agent is “toxic or
physically harmful or from new hazards,” 29 U.S.C. § 655(c)(1) (emphasis added), speaking in
the disjunctive, which specifies that words so connected “are to be given separate meanings,”
Loughrin v. United States, 573 U.S. 351, 357 (2014) (quoting United States v. Woods, 571 U.S.
31, 45–46 (2013)). To conflate two descriptors into one meaning would improperly render one
disjunctive phrase superfluous. See Bailey v. United States, 516 U.S. 137, 146 (1995); Reiter v.
Sonotone Corp., 442 U.S. 330, 338–39 (1979). Under the statutory definition, any agent,
including a virus, that is either “toxic” (i.e., poisonous, toxicity) or “physically harmful” (i.e.,
causing bodily harm) falls within OSHA’s purview. An agent that causes bodily harm—a
virus—falls squarely within the scope of that definition.
Other provisions of the Act reinforce OSHA’s authority to regulate infectious diseases
and viruses. As explained above, Congress enacted the OSH Act under the Commerce Clause
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 11
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402because Congress found that “illnesses arising out of work situations impose a substantial burden
upon . . . interstate commerce.” 29 U.S.C § 651(a) (emphasis added). Congress created the
safety and health administration to protect workers from those illnesses by reducing “health
hazards at their places of employment.” Id. § 651(b)(1). The Act’s objectives include exploring
“ways to discover latent diseases, establishing causal connections between diseases and work in
environmental conditions, and conducting other research relating to health problems . . . .” Id.
§ 651(b)(6). And finally, the Act sought to “provid[e] medical criteria which will assure insofar
as practicable that no employee will suffer diminished health, functional capacity, or life
expectancy as a result of his work experience.” Id. § 651(b)(7).
Section 20 of the OSH Act provides for OSHA to work with and through other agencies
by expressly directing the Secretary of Health and Human Services to conduct research in
consultation with the Secretary of Labor to develop “information regarding potentially toxic
substances or harmful physical agents,” including through medical examination and tests. Id.
§ 669(a)(5). That provision also contains the religious exemption for the entire OSH Act:
“[n]othing in this or any other provision of this chapter shall be deemed to authorize or require
medical examination, immunization, or treatment, for those who object thereto on religious
grounds, except where such is necessary for the protection of the health or safety of others.” Id.
The provision’s reference to immunization and its creation of a limited exception to the Act’s
authorization of standards involving immunization would be rendered meaningless if the statute
did not contemplate both that “harmful agents” include infectious, disease-causing agents, such
as viruses, and that OSHA would employ the use of immunizations to combat those agents.
Congress confirmed OSHA’s infectious disease authority in other statutes. In 1989,
OSHA proposed a standard governing bloodborne pathogens to curb transmission rates of HIV,
hepatitis B (HBV), and hepatitis C. See Occupational Exposure to Bloodborne Pathogens,
54 Fed. Reg. 23,042 (proposed May 30, 1989). When the standard had not been finalized by
1991, Congress ordered OSHA to finalize its rulemaking by a date certain, “warning that if
[OSHA] did not meet its deadline, the proposed standard would become effective in the interim.”
Dale and Tracy, Occupational Safety and Health Law 64 (2018). In 1992, Congress passed the
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Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402Workers Family Protection Act, codified in 29 U.S.C. § 671a, the same U.S. Code chapter as the
OSH Act. The statute resulted from findings that “hazardous chemicals and substances” were
being transported home on workers and their clothing posing a “threat to the health and welfare
of workers and their families.” 29 U.S.C. § 671a(b)(1)(A)–(B). Section 671a requires the
National Institute for Occupational Safety and Health to work with OSHA to study “issues
related to the contamination of workers’ homes with hazardous chemicals and substances,
including infectious agents, transported from the workplaces of such workers.” Id.
§ 671a(c)(1)(A) (emphasis added). OSHA is then specifically required to consider the need for
additional standards on the studied issues and to promulgate such standards “pursuant to . . . the
Occupational Safety and Health Act of 1970.” Id. § 671a(d)(2).
In 2000, Congress passed the Needlestick Safety and Prevention Act, directing OSHA to
strengthen its bloodborne pathogens standard and provide language for the regulatory text. Pub.
L. No. 106-430, 114 Stat. 1901 (2000). Although legal challenges were brought against the
standard, no party challenged OSHA’s authority to regulate bloodborne pathogens. See Am.
Dental Ass’n v. Martin, 984 F.2d 823, 826 (7th Cir. 1993). Removing any basis for doubt that
OSHA is authorized to regulate infectious diseases, Congress expressly included funding for
OSHA in the American Rescue Plan that is to be used “to carry out COVID-19 related worker
protection activities.” Pub. L. No. 117-2, § 2101, 135 Stat. 4, 30 (2021).
Based on the OSH Act’s language, structure, and Congressional approval, OSHA has
long asserted its authority to protect workers against infectious diseases. In 1991, it promulgated
a standard regarding exposure to bloodborne pathogens. Occupational Exposure to Bloodborne
Pathogens; Final Rule; 56 Fed. Reg. 64,004 (1991) (codified at 29 C.F.R. § 1910.1030). That
standard required employers to make the hepatitis B vaccine available to employees at risk of
exposure to HBV. 29 C.F.R. § 1910.1030(f). OSHA has also promulgated standards requiring
employers engaged in hazardous waste cleanup to protect against any “biological agent and other
disease-causing agent” that “upon exposure, ingestion, inhalation or assimilation into any
person,. . . will or may reasonably be anticipated to cause death [or] disease,” id.
§ 1910.120(a)(3); requiring use of respirators to prevent occupational diseases caused by
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Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402“harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors,” id. § 1910.134(a)(1); and
requiring employers to provide adequate toilet and handwashing facilities to protect workers
from pesticides and prevent the spread of harmful bacteria and disease, id. § 1910.141; see also
Field Sanitation, 52 Fed. Reg. 16,050, 16,087, 16,090–91 (May 1, 1987) (codified at 29 C.F.R.
§ 1928.110) (requiring construction employers to ban the use of common drinking cups to avoid
the risk of contracting diseases); 29 C.F.R. § 192.51(a)(4).
Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has
the authority to regulate infectious diseases that are not unique to the workplace. Indeed, no
virus—HIV, HBV, COVID-19—is unique to the workplace and affects only workers. And
courts have upheld OSHA’s authority to regulate hazards that co-exist in the workplace and in
society but are at heightened risk in the workplace. See, e.g., Forging Indus. Ass’n v. Sec’y of
Labor, 773 F.2d 1436, 1442–43 (4th Cir. 1985) (en banc) (rejecting the argument that “because
hearing loss may be sustained as a result of activities which take place outside the workplace . . .
OSHA acted beyond its statutory authority by regulating non-occupational conditions or
causes”); Am. Dental Ass’n, 984 F.2d at 826 (recognizing that the “infectious character of HIV
and HBV warrant[s] even on narrowly economic grounds more regulation than would be
necessary in the case of a noncommunicable disease”); see also 29 C.F.R. § 1910.1025 (OSHA
regulates workplace exposure to lead).
Longstanding precedent addressing the plain language of the Act, OSHA’s interpretations
of the statute, and examples of direct Congressional authorization following the enactment of the
OSH Act all show that OSHA’s authority includes protection against infectious diseases that
present a significant risk in the workplace, without regard to exposure to that same hazard in
some form outside the workplace.
The responsibility the Act imposes on OSHA to protect the safety and health of
employees, moreover, is hardly limited to “hard hats and safety goggles.” OSHA has wide
discretion to form and implement the best possible solution to ensure the health and safety of all
workers, and has historically exercised that discretion. See United Steelworkers of Am., 647 F.2d
at 1260. Having been charged by the Act with creating such health-based standards, it makes
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Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402sense that OSHA’s authority contemplates the use of medical exams and vaccinations as tools in
its arsenal. See id. at 1228–40 (concluding that OSHA has the authority to require medical
surveillance of lead levels). “To suggest otherwise would mean that Congress had to have
anticipated both the unprecedented COVID-19 pandemic and the unprecedented politicization of
the disease to regulate vaccination against it.” Florida v. Dep’t of Health & Hum. Servs., No.
21-14098-JJ, 2021 WL 5768796, at *12 (11th Cir. Dec. 6, 2021). No such prescience is required
to address the health and safety concerns of American workers as they seek to return to their
workplaces. The language of the OSH Act plainly authorizes OSHA to act on its charge “to
assure safe and healthful working conditions for the nation’s work force and to preserve the
nation’s human resources.” Asbestos Info. Ass’n, 727 F.2d at 417.
2. Major Questions Doctrine
Having established OSHA’s statutory authority, we pause to address Petitioners’ and the
Fifth Circuit’s arguments pertaining to the major questions doctrine. The Fifth Circuit’s
complete discussion of the point is contained in a single paragraph:
[T]he major questions doctrine confirms that the Mandate exceeds the bounds of
OSHA’s statutory authority. Congress must “speak clearly if it wishes to assign
to an agency decisions of vast economic and political significance.” The Mandate
derives its authority from an old statute employed in a novel manner, imposes
nearly $3 billion in compliance costs, involves broad medical considerations that
lie outside of OSHA’s core competencies, and purports to definitively resolve one
of today’s most hotly debated political issues. There is no clear expression of
congressional intent in § 655(c) to convey OSHA such broad authority, and this
court will not infer one. Nor can the Article II executive breathe new power into
OSHA’s authority—no matter how thin patience wears.
BST Holdings, 17 F.4th at 617–18 (citations and footnote omitted) (quoting Util. Air Regul. Grp.
v. EPA, 573 U.S. 302, 324 (2014)).
The seldom-used major questions doctrine is a canon of statutory interpretation that has
been described as an exception to Chevron deference. See, e.g., King v. Burwell, 576 U.S. 473,
485–86 (2015). If any agency’s regulatory action “bring[s] about an enormous and
transformative expansion in [the agency’s] regulatory authority,” then there must be “clear
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 15
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402congressional authorization.” Util. Air Regul. Grp., 573 U.S. at 324. “We expect Congress to
speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political
significance.’” Id. (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160
(2000)). The doctrine itself is hardly a model of clarity, and its precise contours—specifically,
what constitutes a question concerning deep economic and political significance—remain
undefined.
The major questions doctrine is inapplicable here, however, because OSHA’s issuance of
the ETS is not an enormous expansion of its regulatory authority. OSHA has regulated
workplace health and safety on a national scale since 1970, including controlling the spread of
disease. See Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 520 (1981). As cataloged at
length above, vaccination and medical examinations are both tools that OSHA historically
employed to contain illness in the workplace. The ETS is not a novel expansion of OSHA’s
power; it is an existing application of authority to a novel and dangerous worldwide pandemic.
The dissent assumes our conclusion rests on the length of time (since 1970) OSHA has
regulated workplaces and that we miss the point that the major questions doctrine is also about
the “scope or degree” of the power an agency wields. (Dissent Op. at 53) Our conclusion rests
on much more, including: An extensive catalog of OSHA’s regulatory authority, citing the text
of the Act and precedent, both replete with references that contemplate the authority OSHA uses
here; the actual components of OSHA’s work—such as its many years of regulating illness in the
workplace; and other statutes acknowledging OSHA’s authority, including one that expressly
allocates funding to OSHA for its intervention in the COVID-19 crisis. This listing shows that
OSHA was granted the authority that it exercised. The case cited by the dissent, FDA v. Brown
& Williamson Tobacco Corporation, is inapposite because there the FDA made the claim that its
authority to regulate “drugs” extended to cigarettes, but Congress had repeatedly declined to
grant the FDA that authority. See 529 U.S. at 125, 137–39.
Any doubt as to OSHA’s authority is assuaged by the language of the OSH Act. In
arguing that OSHA does not have this authority, Petitioners and the Fifth Circuit rely on the
Supreme Court’s and the Sixth Circuit’s recent cases invoking the major questions doctrine
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 16
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402regarding a nationwide moratorium on evictions in counties experiencing high levels of COVID-
19 transmission. See Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141 S. Ct.
2485 (2021); Tiger Lily, LLC v. U.S. Dep’t of Hous. & Urb. Dev., 5 F.4th 666 (6th Cir. 2021).
The Centers for Disease Control and Prevention (CDC) promulgated the moratorium under
§ 361(a) of the Public Health Service Act (PHSA), referencing its “broad authority to take
whatever measures it deems necessary to control the spread of COVID-19.” Ala. Ass’n of
Realtors, 141 S. Ct. at 2488. The Supreme Court determined that clear language in the PHSA
expressly limited the scope of the CDC’s authority to specific measures, which scope did not
include moratoria. Id. The Court noted that “[e]ven if the text were ambiguous, the sheer scope
of the CDC’s claimed authority under § 361(a) would counsel against the Government’s agency
interpretation.” Id. at 2489. Because 80 percent of the United States population fell within the
moratorium, which would cost nearly $50 billion, and the moratorium intruded into an area
traditionally left to the States, landlord-tenant law, the Court noted that if Congress wished the
CDC to have such authority, it needed to “enact exceedingly clear language” to that effect. Id.
(quoting U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837, 1850 (2020)).
As an initial point, Alabama Association of Realtors and Tiger Lily do not control this
case. Those cases concerned a different agency, the CDC, and a different regulation, the
suspension of evictions. Any authority to issue such regulation came from a different statute:
the PHSA. The decisions primarily focused on interpreting the language of that underlying
statute. Ala Ass’n of Realtors, 141 S. Ct. at 2488; Tiger Lily, 5 F.4th at 669–71.
Those cases are inapposite because here the statutory language unambiguously grants
OSHA authority for the ETS. As discussed at length, the OSH Act confers authority on OSHA
to impose standards and regulations on employers to protect workplace health and safety,
including the transmission of viruses in the workplace. See 29 U.S.C. §§ 651(b), 655(c).
OSHA’s ETS authority is circumscribed not only by the requirements of grave danger and
necessity, but also by the required relationship to the workplace. Id.; see United Steelworkers of
Am., 647 F.2d at 1230. And OSHA honored those parameters, issuing emergency standards only
eleven times, including the currently challenged ETS. See SCOTT D. SZYMENDRA, CONG. RSCH.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 17
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402SERV., R46288, OCCUPATION SAFETY AND HEALTH ADMIN. (OSHA): COVID-19 EMERGENCY
TEMPORARY STANDARDS (ETS) ON HEALTH CARE EMP. AND VACCINATIONS AND TESTING FOR
LARGE EMPS. at 35–36 tbl. A-1 (2021), https://crsreports.congress.gov/product/pdf/R/R46288.
This is, therefore, different from the CDC’s authority under the PHSA, which provided a limited
scope of tools to effectuate the Act’s purposes, which scope did not include moratoria, and which
regulated an area not traditionally in the CDC’s wheelhouse.1 Finally, the same federalism
concerns are not at issue here: “[a]lthough . . . ‘public health issues’ . . . have ‘traditionally been
a primary concern of state and local officials,’ Congress, in adopting the OSH Act, decided that
the federal government would take the lead in regulating the field of occupational health.”
Farmworker Just. Fund v. Brock, 811 F.2d 613, 625 (D.C. Cir. 1987) (quoting Am. Textile Mfrs.
Inst., 452 U.S. at 509).
In sum, the major questions doctrine is inapplicable here. OSHA’s issuance of the ETS is
not a transformative expansion of its regulatory power as OSHA has regulated workplace health
and safety, including diseases, for decades.
3. OSHA’s Basis for the Emergency Temporary Standard
Having found no threshold issue that OSHA exceeded its authority under the statute, we
turn to the challenges to the ETS itself.
As noted, OSHA is permitted to issue an emergency temporary standard, which takes
“immediate effect” and serves as a “proposed rule” for a notice-and-comment rulemaking if it
determines: (1) “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 (2) that a
standard “is necessary to protect employees from such danger.” 29 U.S.C. § 655(c). Those
determinations are “conclusive if supported by substantial evidence in the record as a whole.”
1In comparing this case with Alabama Association, the Fifth Circuit wrote, “But health agencies do not
make housing policy, and occupational safety administrators do not make health policy.” BST Holdings, 17 F.4th at
619. The Fifth Circuit fails to acknowledge that OSHA stands for the Occupational Safety and Health
Administration. See 29 U.S.C. § 651(b) (“The Congress declares it to be its purpose and policy . . . to assure so far
as possible every working man and woman in the Nation safe and healthful working conditions . . . .” (emphasis
added)).
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 18
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402Id. § 655(f). On judicial review, we determine “whether the record contains ‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Asbestos
Info. Ass’n, 727 F.2d at 421 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
While the ultimate question hinges on whether the record contains substantial evidence,
“the nature of the evidence in this case requires that we inquire into whether OSHA ‘carried out
[its] essentially legislative task in a manner reasonable under the state of the record before [it].’”
Id. at 421 (quoting Aqua Slide ‘n’ Dive Corp. v. Consumer Prod. Safety Comm’n, 569 F.2d 831,
838 (5th Cir. 1978)). To this end, deference is given to OSHA’s fact-finding expertise. Id.(citing Aqua Slide ‘n’ Dive Corp., 569 F.2d at 838). While “we must take a ‘harder look’ at
OSHA’s action than we would if we were reviewing the action under the more deferential
arbitrary and capricious standard,” id. at 421, by the very nature of the administrative
proceeding, some flexibility is to be exercised in judicial review, id. at 422.
The court “can review [the] data in the record and determine whether it reflects
substantial support for the Secretary’s findings.” Indus. Union Dep’t, AFL-CIO v. Hodgson,
499 F.2d 467, 475 (D.C. Cir. 1974) (recognizing that substantial evidence standard of review in a
legislative-type proceeding is only applicable to some dimensions of the agency’s decision). But
some “determinations involve policy choices or factual determinations so much ‘on the frontiers
of scientific knowledge’ that they resemble policy determinations more than factual ones.”
Asbestos Info. Ass’n, 727 F.2d at 422 (quoting Hodgson, 499 F.2d at 474). For these
determinations we respect “‘the boundaries between the legislative and the judicial function,’
[and] we ‘approach our reviewing task with a flexibility informed and shaped by sensitivity to
the diverse origins of the determinations that enter into a legislative judgment’ made by an
agency.” Id. (quoting Hodgson, 499 F.2d at 475). So too here.
In assessing the likelihood of success of the ETS challenges, we rely on the extensive
preamble to the ETS and the record before the courts.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 19
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and Testing, 86 Fed. Reg. 61402i. Emergency
We begin with the contention endorsed by the Fifth Circuit that the standard
automatically fails because OSHA did not issue the ETS at the outset of the pandemic. The
claim that COVID-19 does not present “a true emergency” in the workplace has no foundation in
the record and law and ignores OSHA’s explanations. OSHA addressed COVID-19 in
progressive steps tailored to the stage of the pandemic, including consideration of the growing
and changing virus, the nature of the industries and workplaces involved, and the availability of
effective tools to address the virus. This reasoned policy determination does not undermine the
state of emergency that this unprecedented pandemic currently presents.
Even if we assume that OSHA should have issued an ETS earlier, moreover, “to hold that
because OSHA did not act previously it cannot do so now only compounds the consequences of
the Agency’s failure to act.” Id. at 423. In Asbestos Information Association, the petitioners
challenged the Agency’s motives in promulgating an ETS “when the Agency has known for
years that asbestos constitutes a serious health risk, and, in fact, has had all the data it uses to
support its . . . action at hand, but nevertheless failed to act on it.” Id. The Fifth Circuit
concluded that the statutory language itself precludes a requirement that OSHA may only act on
“new information” because the Act permits regulation of harmful agents or “new hazards,”
proving that not all regulated dangers must be new. Id. “OSHA should, of course, offer some
explanation for its timing in promulgating an ETS,” id., and OSHA has done so here.
The record establishes that COVID-19 has continued to spread, mutate, kill, and block
the safe return of American workers to their jobs. To protect workers, OSHA can and must be
able to respond to dangers as they evolve. As OSHA concluded: with more employees returning
to the workplace, the “rapid rise to predominance of the Delta variant” meant “increases in
infectiousness and transmission” and “potentially more severe health effects.” 86 Fed. Reg. at
61,409–12. OSHA also explained that its traditional nonregulatory options had been proven
“inadequate.” Id. at 61,444. OSHA acted within its discretion in making the practical decision
to wait for Federal Drug Administration (FDA) approval of the vaccines before issuing the ETS;
“this fact demonstrates appropriate caution and thought on the part of the Secretary.”
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 20
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402Florida, 2021 WL 5768796, at *14 n.2. These findings, therefore, coupled with FDA-approved
vaccines, more widespread testing capabilities, the recognized Delta variant and the possibility of
new variants2 support OSHA’s conclusion that the current situation is an emergency, and one
that can be ameliorated by agency action.
ii. Grave Danger
Health effects may constitute a “grave danger” under the OSH Act if workers face “the
danger of incurable, permanent, or fatal consequences . . . , as opposed to easily curable and
fleeting effects on their health.” Fla. Peach Growers Ass’n, Inc. v. U.S. Dep’t of Labor,
489 F.2d 120, 132 (5th Cir. 1974). The “grave danger” required to warrant an ETS is a risk
greater than the “significant risk” that OSHA must show to promulgate a permanent standard
under § 655(b) of the Act. See Indus. Union Dep’t, 448 U.S. at 640 n.45. But the ultimate
determination of what precise level of risk constitutes a “grave danger” is a “policy consideration
that belongs, in the first instance, to the Agency.” Asbestos Info. Ass’n, 727 F.2d at 425(accepting OSHA’s determination that 80 lives at risk over six months was a grave danger).
The Fifth Circuit’s conclusion, unadorned by precedent, that OSHA is “required to make
findings of exposure—or at least the presence of COVID-19—in all covered workplaces” is
simply wrong. BST Holdings, 17 F.4th at 613 (emphasis in original). If that were true, no
hazard could ever rise to the level of “grave danger” because a risk cannot exist equally in every
workplace and so the entire provision would be meaningless. Almost fifty years ago, the Third
Circuit quickly dismantled this argument:
Industry petitioners argue that there must also be substantial evidence to support
OSHA’s determination that employees are in fact being exposed to those harmful
substances. Although subsection 6(c)(1) readily lends itself to such a reading, that
interpretation would render ineffective the provision for emergency temporary
standards. The purpose of subsection 6(c)(1) is to provide immediate protection
in cases where there is a grave danger of harm to employees. This necessarily
requires rather sweeping regulation. OSHA cannot be expected to conduct
on-the-spot investigations of every user to determine if exposure is occurring.
2This possibility has borne out with the Omicron variant.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 21
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402In cases where OSHA determines that a substance is sufficiently harmful that a
grave danger would be created by exposure, OSHA must be allowed to issue
necessary regulations. In other words exposure can be assumed to be occurring at
any place where there is a substance that has been determined to be sufficiently
harmful to pose a grave danger and where the regulations that have been
determined to be necessary to meet that danger are not in effect. This
interpretation of subsection 6(c)(1) is supported by the existence of subsection
6(d), which provides that any affected employer may obtain a variance from any
standard if he can show 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.”
Dry Color Mfrs. Ass’n v. Dep’t of Labor, 486 F.2d 98, 102 n.3 (3d Cir. 1973) (emphasis added).
Thus, OSHA is not required to investigate every business to show that COVID-19 is present in
each workplace nor is it required to prove that every worker will experience the same risk of
harm.3
On this point, OSHA has demonstrated the pervasive danger that COVID-19 poses to
workers—unvaccinated workers in particular—in their workplaces. First, OSHA explains why
the mechanics of COVID-19 transmission make our traditional workplaces ripe for the spread of
the disease, putting workers at heightened risk of contracting it. Transmission can occur “when
people are in close contact with one another in indoor spaces (within approximately six feet for
at least fifteen minutes)” or “in indoor spaces without adequate ventilation where small
respiratory particles are able to remain suspended in the air and accumulate.” 86 Fed. Reg. at
61,409. Transmissibility is possible from those who are symptomatic, asymptomatic, or pre-
symptomatic, and variants are likely to be more transmissible. Id. American workplaces often
require employees to work in close proximity—whether in office cubicles or shoulder-to-
shoulder in a meatpacking plant—and employees generally “share common areas like hallways,
restrooms, lunchrooms[,] and meeting rooms.” Id. at 61,411. Evidence cited by OSHA
3Our dissenting colleague argues that OSHA fails to satisfy the “grave danger” in the workplace limitation
on its authority because it does not establish that “all covered employees have a high risk both of contracting
COVID-19 and suffering severe consequences.” (Dissent Op. at 49) But this section on “Grave Danger” explains
that OSHA is not required to show the presence of COVID-19 in every workplace industry by industry nor that
every employee will be harmed in the same serious way by it. Am. Dental Ass’n, 984 F.2d at 827 (holding that
OSHA is not required to proceed “workplace by workplace”).
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 22
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402corroborates its conclusion: scientific studies and findings prescribed by the CDC show that the
nature of the disease itself provides significant cause for concern in the workplace. Id. (citing
studies).
OSHA relied on public health data to support its observations that workplaces have a
heightened risk of exposure to the dangers of COVID-19 transmission. Many empirical, peer-
reviewed studies cited by OSHA have found that because of the characteristics of our workplace,
“most employees who work in the presence of other people (e.g., coworkers, customers, visitors)
need to be protected.” 86 Fed. Reg. at 61,412. Reports produced by state public health
organizations corroborate that finding. See, e.g., id. at 61,413 (North Carolina Department of
Health and Human Services reporting that “number of cases associated with workplace clusters
began increasing in several different types of work settings, including meat processing,
manufacturing, retail, restaurants, childcare, schools, and higher education.”); id. (Colorado
Department of Public Health & Environment reporting similar outbreaks across many types of
industries.); id. (Louisiana Department of Health, reporting that “[m]ore than three quarters of
outbreaks through [August 24, 2021] were associated with workplaces.”).4
Having established the risk to covered employees in the workplace, OSHA also set out
evidence of the severity of the harm from COVID-19. Apart from death, COVID-19 can lead to
“serious illness, including long-lasting effects on health,” (now named “long COVID”). Id. at
61,410. It has also “killed over 725,000 people in the United States in less than two years.” Id.
at 61,402. The number of deaths in America has now topped 800,000 and healthcare systems
across the nation have reached the breaking point. COVID-19 affects individuals of all age
groups; but on the whole “working age Americans (18-64 years old) now have a 1 in 14 chance
of hospitalization when infected with COVID-19.” Id. at 61,410. The “severity is also likely
exacerbated by long-standing healthcare inequities experienced by members of many racial and
4Our dissenting colleague argues that OSHA fails to satisfy the grave danger “in the workplace” limitation
on its authority because the Secretary did not specify how many employees would contract the virus at work and
instead “calculated the number of people who happen to work who would, in any event, contract COVID-19.”
(Dissent Op. at 51) As shown in this section, however, OSHA presented substantial evidence both that the
workplaces of virtually every industry across America present a heightened risk of COVID-19 exposure to
employees and that a clear predominance of COVID-19 outbreaks come from workplaces.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 23
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402economic demographics.” Id. Compounding matters, mutations of the virus become
increasingly likely with every transmission, contributing to uncertainty and greater potential for
serious health effects. Id. at 61,409. Based on this record, the symptoms of exposure are
therefore neither “easily curable and fleeting” nor is the risk of developing serious disease
speculative. See Fla. Peach Growers, 489 F.2d at 132; Dry Color Mfrs. Ass’n, 489 F.2d at 106.
OSHA further estimated that the standard would “save over 6,500 worker lives and
prevent over 250,000 hospitalizations over the course of the next six months.” Id. at 61,408.
This well exceeds what the Fifth Circuit previously found to present a grave danger. See
Asbestos Info. Ass’n, 727 F.2d at 424 (assuming that 80 deaths over six months would constitute
a grave danger). As the death rate in America has continued to climb throughout 2021, those
estimates may prove to be understated. Bill Chappell, 800,000 Americans Have Died of
COVID. Now the U.S. Braces for an Omicron-Fueled Spike, NPR (Dec. 14,
2021), https://www.npr.org/sections/coronavirus-live-updates/2021/12/14/1063802370/america-
us-covid-death-toll. And where grave danger exists in a workplace, of course OSHA may
consider the statistical proof on lives saved and hospitalizations prevented when issuing an ETS,
even if the risk to individual workers varies within workplaces.
A few Petitioners attack the veracity of some of the studies on which OSHA relies in its
ETS or point to other studies that they claim contradict the studies on which OSHA relied. But
the court’s “expertise does not lie in technical matters.” Pub. Citizen Health Rsch. Grp. v. Tyson,
796 F.2d 1479, 1495 (D.C. Cir. 1986). “[I]t is not infrequent that the available data do not settle
a regulatory issue, and the agency must then exercise its judgment in moving from facts and
probabilities on the record to a policy conclusion.” Id. (quoting Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983)). OSHA pointed to extensive scientific
evidence, including studies conducted by the CDC, of the dangers posed by COVID-19. We
therefore cannot say that OSHA acted improperly in light of its clear reliance on “a body of
reputable scientific thought.” Indus. Union Dep’t., 448 U.S. at 656.
The claim that COVID-19 exists outside the workplace and thus is not a grave danger in
the workplace is equally unavailing. As discussed above, OSHA routinely regulates hazards that
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 24
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402exist both inside and outside the workplace. More to the point, OSHA here demonstrated with
substantial evidence that the nature of the workplace—commonplace across the country and in
virtually every industry—presents a heightened risk of exposure. Union Petitioners illustrate this
point as well. Within one week in mid-November, Michigan had reported 162 COVID-19
outbreaks, 157 of which were in workplaces;5 Tennessee reported 280 COVID-19 outbreaks,
161 of which were in workplaces;6 Washington state reported 65 outbreaks, of which 58 were in
workplaces.7 And other states similarly experienced outbreaks predominantly in the workplace.8
COVID-19 is clearly a danger that exists in the workplace.
Some Petitioners contend that COVID-19 is no longer a grave danger and claim that
OSHA’s delay in promulgating the ETS is evidence that no grave danger exists. As explained,
however, OSHA provided its reasoning for the delay. When the pandemic began, “scientific
evidence about the disease” and “ways to mitigate it were undeveloped.” 86 Fed. Reg. at 61,429.
At that point, OSHA chose to focus on nonregulatory options, and crafted workplace guidance
“based on the conditions and information available to the agency at that time,” including that
“vaccines were not yet available.” Id. at 61,429–30. The voluntary guidance, however, proved
inadequate, and as employees returned to workplaces the “rapid rise to predominance of the
Delta variant” meant “increases in infectiousness and transmission” and “potentially more severe
health effects.” Id. at 61,409–12.
At the same time, the options available to combat COVID-19 changed significantly: the
FDA granted approval to one vaccine on August 23, 2021, and testing became more readily
available. Id. at 61,431, 61,452. These changes, coupled with the ongoing risk workers face of
5Mich. Dep’t of Health & Human Servs., https://www.michigan.gov/coronavirus/0,9753,7-406-
98163_98173_ 102057---,00.html.
6TN Dep’t of Health, https://www.tn.gov/content/dam/tn/health/documents/cedep/novel-
coronavirus/Critical IndicatorReport.pdf
7Wash. Dep’t of Health, https://www.doh.wa.gov/Portals/1/Documents/1600/coronavirus/data-
tables/Statewide COVID-19 OutbreakReport.pdf.
8Union Petitioners point to California, New Mexico, and Oregon as other states that illustrate significant
outbreaks in a variety of workplaces.
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Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402contracting COVID-19, support OSHA’s conclusion that the time was ripe for OSHA to address
the ongoing danger in the workplace through an ETS. More importantly, we are not to second
guess what the Agency considers a “risk worthy of Agency action” because that “is a policy
consideration that belongs, in the first instance to the Agency.” Asbestos Info. Ass’n, 727 F.2d at
425. Relying on the history of the pandemic, OSHA explained that “the agency cannot assume
based on past experience that nationwide case levels will not increase again.” 96 Fed. Reg. at
61,431. That conclusion has proven correct, as we now see the rise of new and more
transmissible variants and the resulting increases in COVID-19 cases. See Centers for Disease
Control and Prevention (CDC), Omicron Variant: What You Need to Know (Dec. 13, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html. And we know that
in our nation, over 800,000 people have died in less than two years and the numbers continue to
climb, with more of those deaths having occurred in 2021 than in 2020. See Bill Chappell,
supra.
Based on the wealth of information in the 153-page preamble, it is difficult to imagine
what more OSHA could do or rely on to justify its finding that workers face a grave danger in
the workplace. It is not appropriate to second-guess that agency determination considering the
substantial evidence, including many peer-reviewed scientific studies, on which it relied. Indeed,
OSHA need not demonstrate scientific certainty. As long as it supports it conclusion with
“a body of reputable scientific thought,” OSHA may “use conservative assumptions in
interpreting the data . . . , risking error on the side of overprotection rather than underprotection.”
Indus. Union Dep’t, 448 U.S. at 656.
iii. Necessity
To issue an ETS, OSHA is also required to show that the ETS is “necessary to protect
employees from” the grave danger. 29 U.S.C. § 655(c)(1). This standard is more demanding
than the “reasonably necessary or appropriate” standard applicable to permanent standards. See
id. § 652(8); see also Indus. Union Dep’t, 448 U.S. at 615. To pass muster, OSHA must
demonstrate, by substantial evidence, that the regulation is essential to reducing the grave danger
asserted. See Dry Color, 486 F.2d at 105. In addition, OSHA must address economic feasibility
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 26
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402because the ETS’s “protection afforded to workers should outweigh the economic consequences
to the regulated industry.” Asbestos Info. Ass’n, 727 F.2d at 423.
Some Petitioners argue the word “necessity” mandates that OSHA’s standard may use
only the means that are absolutely required to quell the grave danger. Taken seriously, such a
cramped reading of the statute would require OSHA to prognosticate an emergency and devise
the most narrowly tailored ETS to entirely remove the grave danger from the workplace. But in
virtually every emergency situation that would require an ETS, no precaution proposed by
OSHA could ever be 100 percent effective at quelling the emergency. Courts have
acknowledged this practical reality, explaining that ETS standards “may necessarily be
somewhat general . . . . It cannot be expected that every procedure or practice will be strictly
necessary as to every substance, type of use, or plant operation.” Dry Color Mfrs. Ass’n, Inc.,
486 F.2d at 105. OSHA need only demonstrate that the solution it proposes “is necessary to
alleviate a grave risk of worker deaths during [the ETS’s] six month term.” Asbestos Info. Ass’n,
727 F.2d at 427 (emphasis added).
The dissent disagrees, contending that the Secretary must rule out alternatives to show
why his proposed means are “indispensable,” pointing us to Asbestos Information Association.
(Dissent Op. at 44) But in that case, the Fifth Circuit found that OSHA’s determination of
necessity for the proposed ETS was undercut by its existing regulation through which “much of
the claimed benefit could be obtained.” 727 F.2d at 427. The Fifth Circuit did not require that
OSHA rule out every plausible alternative in devising its ETS because the critical question was
whether OSHA’s current regulations were sufficient to address the problem. See id. To answer
that question, the Secretary here cataloged OSHA’s actions involving COVID-19, starting with
advisory guidance then moving to attempts to enforce its General Duty clause. 86 Fed. Reg. at
61,444. These actions were to no avail as COVID-19 transmission rates in the workplace
continued to climb and COVID-19-related complaints continued to pour in, suggesting “a lack of
widespread compliance.” Id. at 61,445. With nothing left at his disposal to curb the
transmission in the workplace, the Secretary issued the ETS. We find that this explanation
satisfies the Secretary’s obligation.
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Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402Turning to assess the remaining evidence supporting OSHA’s necessity finding, OSHA
explained that the pandemic in the United States has significantly changed course since the
emergence of COVID-19 in early 2020, necessitating an ETS at this point in time. In particular,
the emergence of the Delta variant significantly increased transmission when reported cases had
been dwindling for months. The realities of the Delta variant significantly changed public health
policy and underscored a need for issuing an ETS—not only to control the variant itself, but to
control the spread of the disease to slow further mutations. 86 Fed. Reg. at 61,431–32.
Recognizing this new reality, the Agency crafted an ETS with options for employers, noting that
“employers in their unique workplace settings may be best situated to understand their workforce
and strategies that will maximize worker protection while minimizing workplace disruptions.”
Id. at 61,436.
Regarding the vaccine component of the ETS, OSHA explained the importance of
vaccination to combat the transmission of COVID-19 and relied upon studies demonstrating the
“power of vaccines to safely protect individuals,” including from the Delta variant. Id. at 61,432,
61,450. Extensive evidence cited by OSHA shows that vaccination “reduce[s] the presence and
severity of COVID-19 cases in the workplace,” and effectively “ensur[es]” that workers are
protected from being infected and infecting others. Id. at 61,434, 61,520, 61,528–29 (citing
studies). Likewise, the face-covering-and-test facet of the ETS is similarly designed based on
the scientific evidence to reduce the risk of transmission and infection of COVID-19. Regular
testing “is essential because SARS-CoV-2 infection is often attributable to asymptomatic or
pre-symptomatic transmission.” Id. at 61,438 (citing studies). And wearing a face covering
provides an additional layer of protection, designed to reduce “exposure to the respiratory
droplets of co-workers and others[, and] . . . to significantly reduce the wearer’s ability to spread
the virus.” Id. at 61,439.
Vaccinated employees are significantly less likely to bring (or if infected, spread) the
virus into the workplace. Id. 61,418–19. And testing in conjunction with wearing a face
covering “will further mitigate the potential for unvaccinated workers to spread the virus at the
workplace.” Id. at 61,439. Based on the evidence relied on by OSHA, these measures will
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 28
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402“protect workers” from the grave dangers presented by COVID-19 in the workplace. See
29 U.S.C. § 655(c)(1). And OSHA is required to minimize a grave danger, even if it cannot
eliminate it altogether. Nat’l Grain & Feed Ass’n v. Occupational Safety & Health Admin.,
866 F.2d 717, 737 (5th Cir. 1988).
OSHA limited the ETS to coverage of 100 or more employees, based on four reasons.
First, as a practical matter, those employers have the administrative and managerial capacity to
be able to promptly implement and meet the standard. Id. at 61,511. Second, the coverage
threshold is sufficiently expansive to ensure protection to meaningfully curb transmission rates to
offset the impact of the virus. Id. Third, the ETS “will reach the largest facilities, where the
most deadly outbreaks of COVID-19 can occur.” Id. And finally, the standard is consistent with
size thresholds established in analogous congressional and agency decisions, including standards
promulgated by the Equal Employment Opportunity Commission under Title VII of the Civil
Rights Act of 1964, requirements under the Affordable Care Act (in allowing greater flexibility
with its requirements for employers with 100 or fewer employees), and requirements under the
Family Medical Leave Act (exempting compliance for employers with fewer than 50 employees
given decreased administrative capacity and inability to easily accommodate such employee
absences). Id. at 61,513.
Petitioners contend, relying on the Fifth Circuit’s decision, that the necessity of the ETS
is undermined by the fact that it is both “overinclusive” and “underinclusive.” Neither
observation warrants a stay. OSHA may lean “on the side of overprotection rather than
underprotection” when promulgating an ETS. Indus. Union Dep’t, 448 U.S. at 656.9 And
OSHA is not required to proceed “workplace by workplace,” Am. Dental Ass’n, 984 F.2d at 827,in its ETS nor would it “be expected to conduct on-the-spot investigations,” Dry Color Mfrs.
Ass’n Inc., 486 F.2d at 102 n.3. To expect otherwise of OSHA would belie the whole point of an
9The dissent contends that our citation is inapposite because it “did not review an emergency standard” and
refers to the Secretary’s interpretation of data underlying a risk assessment. (Dissent Op. at 47) The language cited,
however, addresses whether OSHA’s evidence supporting its estimation of a risk, which was the basis for the
standard, was supported by substantial evidence. Indus. Union Dep’t, 448 U.S. at 656. Critically, the substantial
evidence standard at issue there governs both emergency temporary standards and run-of-the-mill OSHA standards
and is applicable here. See 29 U.S.C. § 655(f).
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 29
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402emergency temporary standard, which demands that OSHA act quickly “to provide immediate
protection” to workers facing a grave danger. Id. at 105. OSHA explored the dangers in varied
workplaces and industries and concluded that “employees can be exposed to the virus in almost
any work setting” and that employees routinely “share common areas like hallways, restrooms,
lunchrooms[,] and meeting rooms” and are at risk of infection from “contact with coworkers,
clients, or members of the public.” 86 Fed. Reg. at 61,411–12. OSHA supported those
conclusions by relying on peer-reviewed studies and data collected by government health
departments. But in any case, OSHA tailored the ETS by excluding workplaces where the risk is
significantly lower, including those where employees are working exclusively outdoors,
remotely from home, or where the employee does not work near any other individuals. Id. at
61,516.
The argument that the ETS is overinclusive because it imposes requirements on some
workers that are at lesser risk of death than others overlooks OSHA’s reasoning. OSHA
promulgated the ETS to prevent employees from transmitting the virus to other employees—that
risk is not age-dependent. See, e.g., id. at 61,403; 61,418–19; 61,435; 61,438. OSHA found that
unvaccinated workers in workplaces where they encountered other workers or customers faced a
grave danger and that vaccination or testing and masking were necessary to protect those
workers from COVID-19. Those workers are in “a wide variety of work settings across all
industries” thus counseling for the broad standard. Id. at 61,411–12.
That the ETS is underinclusive, as some Petitioners argue, suggests that OSHA has not
done enough to eliminate the grave danger facing workers, and more workplace safeguards—not
fewer—are needed to protect the workplace. And OSHA explained that it chose a tailored
threshold because those employers would be best positioned to actually effectuate the standard
and their employees are more at risk. Id. at 61,513 (“OSHA has set the threshold for coverage
based primarily on administrative capacity for purposes of protecting workers as quickly as
possible.”); id. at 61,512 (suggesting that “larger employers are more likely to have many
employees gathered in the same location” and have “larger” and “longer” outbreaks).
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 30
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402OSHA also demonstrates that selecting larger employers means that the ETS reaches enough
workers to make a meaningful difference in mitigating the risk. Id. at 61,513.
It has long been the case that an agency “is not required to identify the optimal threshold
with pinpoint precision. It is only required to identify the standard and explain its relationship to
the underlying regulatory concerns.” Nat’l Shooting Sports Found. v. Jones, 716 F.3d 200, 214
(D.C. Cir. 2013) (quoting WorldCom, Inc. v. FCC, 238 F.3d 449, 461–62 (D.C. Cir. 2001)); see
also Providence Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181, 1191 (9th Cir. 2010); Williams-
Yulee v. Fla. Bar, 575 U.S. 433, 449 (2015) (noting that the government “need not address all
aspects of a problem in one fell swoop”). Courts are “generally unwilling to review line-drawing
performed by the [agency] unless a petitioner can demonstrate that lines drawn . . . are patently
unreasonable, having no relationship to the underlying regulatory problem.” Cassel v. FCC,
154 F.3d 478, 485 (D.C. Cir. 1998) (alteration in original) (quoting Home Box Off., Inc. v. FCC,
567 F.2d 9, 60 (D.C. Cir. 1977)). OSHA’s ETS readily shows a relationship to the underlying
regulatory problem—larger employers are better able to implement the policies, are at
heightened risk, and regulating them will be a significant step in protecting the entire workforce
from COVID-19 transmission. And of course, agencies can later revise, refine, and broaden (or
narrow) their regulations, but exigent circumstances allow there to be some reasonable discretion
at the initial steps of promulgating a regulation. See Forging Indus. Ass’n, 773 F.2d at 1454;
United Steelworkers of Am., 647 F.2d at 1309–10 (D.C. Cir. 1980).
Turning to the cost analysis, OSHA is not required to conduct a “formal cost-benefit
analysis” before issuing an ETS. Asbestos Info. Ass’n, 727 F.2d at 423 n.18 (reasoning that it is
“unlikely” that “the agency would have time to conduct such an analysis” in the context of an
emergency). Congress recognized that OSHA standards would impose costs, but placed “the
benefit of worker health above all other considerations save those making attainment of this
benefit unachievable.” Am. Textile Mfrs. Inst., 452 U.S. at 509. The question is whether the
standard is economically feasible. United Steelworkers of Am., 647 F.2d at 1264. An OSHA
“standard is economically feasible if the costs it imposes do not ‘threaten massive dislocation
to, or imperil the existence of, the industry.’” Am. Iron & Steel Inst. v. Occupational Safety
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 31
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402& Health Admin., 939 F.2d 975, 980 (D.C. Cir. 1991) (quoting United Steelworkers of Am.,
647 F.2d at 1265). OSHA must consider the costs in relation to the financial health of the
affected industries or their impact on consumer prices. United Steelworkers of Am., 647 F.2d at
1265.
Here, OSHA conducted a detailed economic analysis, concluding that the costs amounted
to approximately 0.02 percent of the revenue of the average covered employer, or about $11,298
per affected entity. 86 Fed. Reg. at 61,493–94. “To put this into perspective, if the average firm
decided to raise prices to cover the costs of the ETS, the price of a $100 product or service, for
example, would have to be increased by 2 cents (during the six-month period).” Id. at 61,499.
These costs are modest in comparison to other standards OSHA has implemented. See, e.g.,
United Steelworkers of Am., 647 F.2d at 1281 (estimating capital costs for primary lead smelters
to comply with OSHA’s lead exposure standard to be between $32 million and $47 million).
OSHA’s analysis, moreover, does not consider the economic harm a business will undergo if it is
closed by a COVID-19 outbreak in its workplace—taking this into account would further show
that the benefits will outweigh the costs of the ETS. If the costs of implementation become too
high for a single business, an employer can raise infeasibility or impossibility as a defense to any
citation that OSHA may issue for violating the ETS. 29 C.F.R. § 2200.34(b)(3).
Based on the substantial evidence referenced and relied upon by OSHA, there is little
likelihood of success for the challenges against OSHA’s bases for issuing the ETS.
4. Constitutional Challenges
We turn to the likelihood of success on the remaining constitutional arguments raised by
the Petitioners and were presumed persuasive by the Fifth Circuit.10
10Some Petitioners raise challenges regarding religious liberty. The ETS states, “if the vaccination, and/or
testing for COVID-19, and/or wearing a face covering conflicts with a sincerely held religious belief, practice or
observance, a worker may be entitled to a reasonable accommodation.” 86 Fed. Reg. at 61,522. Therefore,
Petitioners are unlikely to succeed on their argument that the ETS infringes on religious liberty. Regardless, their
circumstance-specific arguments are premature and do not provide a basis to stay the entire ETS.
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Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402i. Commerce Clause
First, Petitioners raise challenges to the ETS under the Commerce Clause, directing us to
the Fifth Circuit’s conclusion that the ETS “likely exceeds the federal government’s authority
under the Commerce Clause because it regulates noneconomic inactivity that falls squarely
within the States’ police power.” BST Holdings, 17 F.4th at 617. Relying on National
Federation of Independent Business v. Sebelius, 567 U.S. 519, 522 (2012), the Fifth Circuit
reasoned that “[a] person’s choice to remain unvaccinated and forego regular testing is
noneconomic activity,” and falls within the States’ police power. Id. On that basis, the stay
opinion summarily concluded that because the ETS “commandeers” employers to compel
activity that falls within the States’ police power, it “far exceed[s] current constitutional
authority.” Id.Petitioners and the Fifth Circuit miss the mark. The ETS regulates employers with more
than 100 employees, not individuals. It is indisputable that those employers are engaged in
commercial activity that Congress has the power to regulate when hiring employees, producing,
selling and buying goods, etc. See NFIB, 567 U.S. at 550 (“The power to regulate commerce
presupposes the existence of commercial activity to be regulated.”). The ETS regulates
economic activity by regulating employers.
It has long been understood that regulating employers is within Congress’s reach under
the Commerce Clause. To hold otherwise would upend nearly a century of precedent upholding
laws that regulate employers to effectuate a myriad of employee workplace policies. See, e.g.,
United States v. Darby, 312 U.S. 100, 109, 114 (1941) (finding the Fair Labor Standards Act
imposed a permissible use of government power when it set a minimum wage standard to
prevent the production of goods “for interstate commerce, under conditions detrimental to the
maintenance of the minimum standards of living necessary for health and general well-being”);
United Steelworkers of Am., AFL-CIO v. Weber, 443 U.S. 193, 206 n.6 (1979) (finding proper
use of the commerce power to bar employers from discriminating against employees on a
protected ground under Title VII); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937)
(finding proper use of commerce power to safeguard “the right of employees to self-organization
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 33
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402and to select representatives of their own choosing for collective bargaining or other mutual
protection without restraint or coercion by their employer”). These cases recognize, for example,
that, a person’s choice to discriminate against another based on race is “noneconomic activity,”
but the effect of that choice on the workplace and the flow of commerce in and from that
workplace is economic—hence, it is subject to regulation under the Commerce Clause.
Cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 253 (1964) (finding
“discrimination by hotels and motels impedes interstate travel”).
That principle was at the heart of the Supreme Court’s decision in NLRB v. Jones &
Laughlin Steel, 201 U.S. 1 (1927). There, the Court emphasized that to determine the Commerce
Clause’s applicability, we focus on the “effect upon commerce, not the source of the injury,” 301
U.S. at 32, and that Congress may legislate under the Commerce Clause to ensure the safety of
commerce, id. at 37. When industries occupy a “national scale,” moreover, Congress may
protect interstate commerce from “paraly[sis].” Id. at 41. COVID-19’s paralyzing effect on
commerce has been repeatedly demonstrated throughout the pandemic. See, e.g., U.S. Bureau of
Labor Statistics, TED: The Economics Daily (July 8, 2021),
https://www.bls.gov/opub/ted/2021/6-2-million-unable-to-work-because-employer-closed-or-
lost-business-due-to-the-pandemic-june-20 21.htm.
This also demonstrates why NFIB v. Sebelius is inapposite. In NFIB, the Supreme Court
considered challenges to the Affordable Care Act’s individual mandate. 567 U.S. at 539.
Critically, and fatal to the Fifth Circuit’s point, the Affordable Care Act contains two separate
types of mandates: the individual mandate to direct individuals to purchase health insurance—at
issue in NFIB—and the employer mandate—not at issue in NFIB. See 26 U.S.C. § 4980H. A
plurality of five Justices questioned whether the Commerce Clause gave Congress the power to
mandate that people engage in economic activity to sustain the individual mandate. See NFIB,
567 U.S. at 547–58. But no Justice doubted that Congress could, under the Commerce Clause,
require employers to provide health insurance to their employees. So too here.
Citing Zucht v. King, 260 U.S. 174 (1922), and Jacobson v. Massachusetts, 197 U.S. 11(1905), Petitioners and the Fifth Circuit contend that the ETS “falls squarely within the States’
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 34
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402police powers.” BST Holdings, 17 F.4th at 617. But those cases concerned challenges to state
vaccine requirements under the Fourteenth Amendment, not federalism questions over whether
states or the federal government can impose such a requirement. If the suggestion here is that the
federal and state regulatory powers over economic activity are mutually exclusive, the Supreme
Court rejected that argument in Willson v. Black Bird Creek Marsh Co., 27 U.S. 245, 251–52
(1829) (holding an act empowering the State’s construction of a dam that obstructed an interstate
walkway is not “repugnant to the power to regulate commerce in its dormant state”). To be sure,
there are numerous areas—for example, education—in which States and the federal government
have overlapping authority. But that states may regulate COVID-19 safety measures does not
operate to preclude the federal government from doing so.
Finally, Congress already addressed the issue when it passed the OSH Act, expressing its
intention to preempt state and local standards that conflict with OSHA standards. See Gade,
505 U.S. at 98–99 (holding that “nonapproved state regulation of occupational safety and health
issues for which a federal standard is in effect is impliedly preempted” by OSHA’s standard).
Hazards are often regulated by both OSHA and state agencies, such as exposure to lead. But
overlap does not limit the authority Congress granted to OSHA to regulate the same risk of
exposure.
For the foregoing reasons, the Commerce Clause challenges do not have a meaningful
likelihood of success.
ii. Non-Delegation Doctrine
Relying on the Fifth Circuit’s decision, Petitioners cast constitutional doubt on the ETS
by questioning Congress’s delegation of authority to OSHA when it passed the OSH Act. The
Fifth Circuit cursorily concluded that Congress cannot “authorize a workplace safety
administration in the deep recesses of the federal bureaucracy to make sweeping pronouncement
on matters of public health affecting every member of society in the profoundest of ways.” BST
Holdings, 17 F.4th at 611. That contention never specifies which provision of the OSH Act is an
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 35
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402improper delegation. We therefore construe its analysis in line with the Petitioners’ arguments
that 29 U.S.C. § 655(c)(1) constitutes an improper delegation.
The Supreme Court has only twice invoked the non-delegation doctrine to strike down a
statute. See Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935); A.L.A. Schechter Poultry
Corp. v. United States, 295 U.S. 495, 542 (1935). In Gundy v. United States, the Supreme Court
stated that, “[t]he nondelegation doctrine bars Congress from transferring its legislative power to
another branch of Government.” 139 S.Ct. 2116, 2121 (2019) (plurality opinion). “But the
Constitution ‘does not deny[] to the Congress the necessary resources of flexibility and
practicality [that enable it] to perform its function[s].” Id. at 2123 (alterations in original)
(quoting Yakus v. United States, 321 U.S. 414, 425 (1944)) (alterations in original). To the
contrary, Congress “may confer substantial discretion on executive agencies to implement and
enforce the laws.” Id. (citing Mistretta v. United States, 488 U.S. 361, 372 (1989)). A statutory
delegation is therefore constitutional as long as “Congress ‘lay[s] down by legislative act an
intelligible principle to which the person or body authorized to [exercise the delegated authority]
is directed to conform.’” Id. (quoting Mistretta, 488 U.S. at 372) (alterations in original). The
starting and often ending point for the analysis is “statutory interpretation”: We must “constru[e]
the challenged statute to figure out what task it delegates and what instructions it provides” and
then “decide whether the law sufficiently guides executive discretion to accord with Article I.”
Id. at 2124.
The Supreme Court has long recognized the power of Congress to delegate broad swaths
of authority to executive agencies under this standard and has ultimately concluded that
extremely broad standards will pass review. See id. at 2129. How broad? Delegations to
regulate in the “public interest,” Nat’l Broad. Co. v. United States, 319 U.S. 190, 216 (1943), to
set “fair and equitable prices,” Yakus, 321 U.S. at 427, and to issue air quality standards
“requisite to protect the public health,” Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 472
(2001). See Gundy, 139 S. Ct. at 2129 (collecting sources).
Our extensive discussion of the statutory framework of the OSH Act above starts and
ends the inquiry. OSHA’s statutory authority to issue standards is found in 29 U.S.C. § 655.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 36
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and Testing, 86 Fed. Reg. 61402Specific authorization is in § 655(c)(1) and requires the Secretary to promulgate “emergency
temporary standards,” when he determines that employees are in “grave danger” from exposure
to a workplace hazard and that the standard is “necessary to protect the employees from such
danger.” As shown above, it is well-established that the scope of the OSH Act and OSHA’s
authority include infectious diseases in the workplace, even when those diseases also exist
outside the workplace. Therefore, Congress applied an “intelligible principle” when it directly
authorized OSHA to exercise this delegated authority in particular circumstances. The Supreme
Court long ago recognized this authority: “The [Occupational Safety and Health] Act delegates
broad authority to the Secretary to promulgate different kinds of standards.” Indus. Union Dep’t,
448 U.S. at 611.
There is little possibility of success under the non-delegation doctrine.
C. Irreparable Harm
The foregoing analysis shows that Petitioners cannot establish a likelihood of success on
the merits, and this reason alone is sufficient to dissolve the stay. Nken, 556 U.S. at 433–34. We
also conclude, however, that Petitioners have not shown that any injury from lifting the stay
outweighs the injuries to the Government and the public interest.
To merit a stay, Petitioners bear the burden to demonstrate an irreparable injury; “simply
showing some ‘possibility of irreparable injury’ fails to satisfy the second factor.” Nken,
556 U.S. at 434–35 (quoting Abbassi v. INS, 143 F.3d 513, 514 (9th Cir. 1998)). Moreover,
because this case involves the Government as an opposing party, the third and fourth factors
“merge.” Id. at 435. The Fifth Circuit failed to analyze any harm to OSHA, instead baldly
concluding that a stay will “do OSHA no harm whatsoever.” BST Holdings, 17 F.4th at 618.
We engage in our own balancing of the parties’ harm.
The injuries Petitioners assert are entirely speculative. First, some Petitioners assert that
compliance costs will be too high. As detailed in the preceding section, these assertions ignore
the economic analysis OSHA conducted that demonstrates the feasibility of implementing the
ETS. To the extent that a business with over 100 employees impacted at this stage of the ETS
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 37
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402faces true impossibility of implementation, it can assert that as an affirmative defense in response
to a citation. 29 C.F.R. § 2200.34(b)(3). Relying on employee declarations, other Petitioners
claim that they will need to fire employees, suspend employees, or face employees who quit over
the standard. These concerns fail to address the accommodations, variances, or the option to
mask-and-test that the ETS offers. For example, employers that are confident that they can keep
their employees safe using alternative measures can seek a variance from the standard pursuant
to 29 U.S.C. § 655(d). Or employers may choose to comply with the standard by enforcing the
mask-and-test component, which are entirely temporary in nature and do not create irreparable
injuries. These provisions of the ETS undercut any claim of irreparable injury.
By contrast, the costs of delaying implementation of the ETS are comparatively high.
Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that
has killed over 800,000 people in the United States, brought our healthcare system to its knees,
forced businesses to shut down for months on end, and cost hundreds of thousands of workers
their jobs. In a conservative estimate, OSHA finds that the ETS will “save over 6,500 worker
lives and prevent over 250,000 hospitalizations” in just six months. 86 Fed. Reg. 61,402,
61,408. A stay would risk compromising these numbers, indisputably a significant injury to the
public. The harm to the Government and the public interest outweighs any irreparable injury to
the individual Petitioners who may be subject to a vaccination policy, particularly here where
Petitioners have not shown a likelihood of success on the merits. See Coleman v. Paccar, Inc.,
424 U.S. 1301, 1307–08 (1976).
In light of the foregoing, we find that the factors regarding irreparable injury weigh in
favor of the Government and the public interest.
III. CONCLUSION
For the foregoing reasons, we GRANT the Government’s motion and DISSOLVE the
stay issued by the Fifth Circuit.
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and Testing, 86 Fed. Reg. 61402_________________
CONCURRENCE
_________________
GIBBONS, Circuit Judge, concurring. I agree that the government’s motion to dissolve
the stay should be granted and concur fully in Judge Stranch’s opinion. I write separately to note
the limited role of the judiciary in this dispute about pandemic policy. Petitioners and various
opinions discuss at length how OSHA could have handled the pandemic’s impact on places of
employment differently. Some of the writings include sweeping pronouncements about
constitutional law and the scope of OSHA’s statutory authority. Much of this writing is
untethered from the specific facts and issues presented here and overlooks the limited nature of
our role.
Reasonable minds may disagree on OSHA’s approach to the pandemic, but we do not
substitute our judgment for that of OSHA, which has been tasked by Congress with policy-
making responsibilities. See Charles D. Bonnano Linen Serv., Inc. v. NLRB, 454 U.S. 404, 418
(1982). This limitation is constitutionally mandated, separating our branch from our political co-
branches. “[F]ederal judges—who have no constituency—have a duty to respect legitimate
policy choices made by those who do.” Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 866
(1984). Beyond constitutional limitations, the work of an agency, often scientific and technical
in nature, is outside our expertise. See Kisor v. Wilkie, 139 S. Ct. 2400, 2413 (2019).
Our only responsibility is to determine whether OSHA has likely acted within the bounds
of its statutory authority and the Constitution. As it likely has done so, I concur.
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and Testing, 86 Fed. Reg. 61402_________________
DISSENT
_________________
LARSEN, Circuit Judge, dissenting. As the Supreme Court has very recently reminded
us, “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”
Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021). The
majority’s theme is that questions of health science and policy lie beyond the judicial ken.
I agree. But this case asks a legal question: whether Congress authorized the action the agency
took. That question is the bread and butter of federal courts. And this case can be resolved using
ordinary tools of statutory interpretation and bedrock principles of administrative law. These tell
us that petitioners are likely to succeed on the merits, so I would stay OSHA’s emergency rule
pending final review.
I.
The majority opinion describes the emergency rule at issue here as permitting employers
“to determine for themselves how best to minimize the risk of contracting COVID-19 in their
workplaces.” Maj. Op. at 7. With respect, that was the state of federal law before the rule, not
after.
Here is what the emergency rule does. It binds nearly all employers with 100 or more
employees,1 and requires them to “establish, implement, and enforce a written mandatory
vaccination policy.” 29 C.F.R. § 1910.501(b)(1), (d)(1). It covers all employees, part-time, full-
time, and seasonal, except for those who work exclusively from home, outdoors, or alone. Id.
1The rule exempts employers covered by two different federal rules: the federal contractors and
subcontractors already subject to a vaccine mandate and healthcare workers subject to OSHA’s June 2021
emergency standard. 29 C.F.R. § 1910.501(b)(2). The latter rule required healthcare employers to adopt a COVID-
19 protection plan and encouraged vaccination but did not impose a vaccinate-or-test mandate. Id. § 1910.502. In
addition, neither “the United States . . . [n]or any State or political subdivision of a State” is a covered “employer.”
29 U.S.C. § 652(5). Several states say that they nonetheless will be forced to comply with the standard because they
have adopted their own OSHA plans pursuant to 29 U.S.C. § 667. Such plans must be “at least as effective in
providing safe and healthful employment and places of employment as the standards promulgated under section
655.” Id. § 667(c)(2).
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 40
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and Testing, 86 Fed. Reg. 61402§ 1910.501(b)(3). Employees must “be fully vaccinated,” unless they qualify for medical or
religious exemptions or reasonable accommodations. Id. § 1910.501(c). While vaccines are free
to the public, employers must provide employees with paid time off both to secure the vaccine
and to recover from any side effects. Id. § 1910.501(f).
An employer may instead permit unvaccinated employees to undergo weekly COVID-19
testing and wear a mask in the workplace. Id. § 1910.501(d)(2), (g)(1), (i)(1). But OSHA
consciously designed this exception to be less palatable to employers and employees. The
agency expects that employers who adopt a mandatory-vaccination policy will “enjoy
advantages,” including fewer “administrative burden[s],” than employers who permit the mask-
and-test exception. 86 Fed. Reg. at 61,437. And even if an employer elects to take on these
additional burdens, it need not absorb the cost of masks and tests, nor provide time off (paid or
otherwise) to secure them. Id. § 1910.501(d)(2), (g)(1) n.1. This, despite the fact that OSHA’s
ordinary regulations require employers to pay for agency-mandated equipment, tests, and exams.
See Employer Payment for Personal Protective Equipment, 72 Fed. Reg. 64,341, 64,342 (Nov.
15, 2007); 86 Fed. Reg. at 61,532 (noting OSHA “has commonly required” employers to pay for
protective equipment); 29 C.F.R. § 1910.1030(d)(3)(i), (f)(1)(ii) (Hepatitis B equipment and
testing “at no cost”); id. § 1910.1018(j)(1), (n)(1)(ii) (same for arsenic); id. § 1910.1001(h)(1),
(l)(1)(ii)(A) (same for asbestos); Sec’y of Lab. v. Beverly Healthcare-Hillview, 541 F.3d 193,
200–01 (3d Cir. 2008) (OSHA’s interpretation of “at no cost” includes compensation for testing
time and travel expenses). Indeed, OSHA required employers to provide COVID-19 tests “at no
cost” to employees under its earlier healthcare ETS. See 29 C.F.R. § 1910.502(l)(1)(ii). OSHA
was candid about why it deviated from its normal rule: Putting the onus on employees “will
provide a financial incentive . . . to be fully vaccinated.” 86 Fed. Reg. at 61,437. The rule, in
sum, is a mandate to vaccinate or test.
One more background point: The purpose of the mandate is to protect unvaccinated
people. Id. at 61,419. The rule’s premise is that vaccines work. Id. And so, OSHA has
explained that the rule is not about protecting the vaccinated; they do not face “grave danger”
from working with those who are not vaccinated. Id. at 61,434.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 41
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402The various monitoring and reporting duties required by the mandate were to go into
effect on December 6, 2021. 29 C.F.R. § 1910.501(m)(2)(i). And employees were required to
be fully vaccinated or comply with mask-and-test requirements (if available) by January 4, 2022.
Id. § 1910.501(m)(2)(ii). The United States Court of Appeals for the Fifth Circuit stayed the
enforcement of the vaccinate-or-test mandate. BST Holdings, LLC v. Occupational Safety
& Health Admin., 17 F.4th 604 (5th Cir. 2021). After a multi-circuit lottery held pursuant to
28 U.S.C. § 2112(a)(3), this court obtained jurisdiction over all petitions challenging the mandate
filed throughout the country. OSHA has now moved to dissolve the stay entered by the Fifth
Circuit.2
II.
A. Likelihood of Success on the Merits
In this case, a multitude of petitioners—individuals, businesses, labor unions, and state
governments—have levied serious, and varied, charges against the mandate’s legality. They say,
for example, that the mandate violates the nondelegation doctrine, the Commerce Clause, and
substantive due process; some say that it violates their constitutionally protected religious
liberties and the Religious Freedom Restoration Act of 1993. To lift the stay entirely, we would
have to conclude that not one of these challenges is likely to succeed. A tall task. To keep the
stay, however, there is no need to resolve each of these questions; the stay should remain if we
conclude that petitioners are likely to succeed on just one ground. In my view, the petitioners
have cleared this much lower bar on even the narrowest ground presented here: The Secretary of
Labor lacks statutory authority to issue the mandate. So the most important factor supporting the
stay is satisfied. See Tiger Lily, LLC v. U.S. Dep’t of Hous. & Urb. Dev., 992 F.3d 518, 524 (6th
Cir. 2021).
2Petitioners moved for initial en banc hearing, which this court denied. In re MCP No. 165, No. 21-7000,
2021 WL 5914024, at *1 (6th Cir. Dec. 15, 2021). I would have granted the petitions regardless of the merits of the
case. Given the unique nature of these consolidated proceedings, I thought it preferable to enlist the talents of all
sixteen active judges. This panel agreed that the work of the en banc court was separate from the work of this panel
and that the orders and opinions from each should issue as soon as they were ready.
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and Testing, 86 Fed. Reg. 614021. Statutory Authority
OSHA cannot act without a source of authority. The ordinary way to bring about a rule
affecting the people’s health and safety is for a state legislature, or sometimes Congress, to pass
one into law. Because the legislature “wields the formidable power of ‘prescrib[ing] the rules by
which the duties and rights of every citizen are to be regulated,’” it is, by design, the branch of
government “most responsive to the will of the people.” Tiger Lily, LLC v. U.S. Dep’t of
Housing & Urb. Dev., 5 F.4th 666, 674 (6th Cir. 2021) (Thapar, J., concurring) (quoting The
Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961)).
But there is a workaround. “In the modern administrative state, many ‘laws’ emanate not
from Congress but from administrative agencies, inasmuch as Congress has seen fit to vest broad
rulemaking power in the executive branch.” Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 951
(D.C. Cir. 1987) (Starr, J., concurring in part and dissenting in part). To preserve at least a
modicum of democratic protections, Congress created the notice-and-comment requirements of
the Administrative Procedure Act (APA), which provide public notice of a proposed rule and an
opportunity for the public to express its concerns. Id. Whether successful or not, the aim is to
ensure “that agency ‘rules’ are also carefully crafted (with democratic values served by public
participation) and developed only after assessment of relevant considerations.” Id.Consistent with this scheme, Congress delegated to OSHA the authority to promulgate
“occupational safety or health standard[s]” that are “reasonably necessary or appropriate” to
address a “significant risk” of harm in the workplace. See Indus. Union Dep’t, AFL-CIO v. Am.
Petroleum Inst., 448 U.S. 607, 642–43 (1980); 29 U.S.C. §§ 652(8), 655(b). Those standards
must go through a notice-and-comment procedure. 29 U.S.C. § 655(b) (prescribing procedures
similar to those of the APA).
This case, though, involves yet a more truncated process. Congress understood that
emergencies might arise, and so it provided the Secretary with authority to bypass the public and
the deliberative process, and to issue emergency temporary standards that “take immediate effect
upon publication” and remain effective for six months. Id. § 655(c)(1), (c)(3). Because this is
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 43
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402such a departure from the ordinary processes, federal courts have recognized this authority as the
“most dramatic weapon in [OSHA’s] enforcement arsenal.” Asbestos Info. Ass’n/N. Am. v.
Occupational Safety & Health Admin., 727 F.2d 415, 426 (5th Cir. 1984). It is an
“[e]xtraordinary power” that “should be delicately exercised, and only in those emergency
situations which require it.” Fla. Peach Growers Ass’n, Inc. v. Dep’t of Lab., 489 F.2d 120,
129–30 (5th Cir. 1974); see also Pub. Citizen Health Rsch. Grp. v. Auchter, 702 F.2d 1150, 1155
(D.C. Cir. 1983) (“[E]mergency standards are to be used only in limited situations” and “only as
an unusual response to exceptional circumstances.” (quotation marks omitted)).
Perhaps wary of misusing such immense authority, OSHA has rarely invoked it. The
agency has issued only ten previous emergency standards in the half-century that it has held that
power. Six of those were challenged in court; five were struck down. BST Holdings, 17 F.4th at
609.
Congress too was wary of conferring this authority, “repeatedly express[ing] its concern
about allowing the Secretary to have too much power” in this area. Indus. Union, 448 U.S. at
651. Accordingly, Congress “narrowly circumscribed” the Secretary’s ability to use this
considerable tool. Id. Before the Secretary may issue an emergency standard, he must
“determine[] (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.”3 29 U.S.C § 655(c)(1)
(emphases added).
So the Secretary’s emergency authority extends no further than to issue temporary
standards that are (1) necessary to protect employees from (2) grave danger. And because the
Secretary’s authority is to set “occupational safety and health standards,” governing
“employment and places of employment,” the danger to be regulated must come from
3I assume here that the virus that causes COVID-19 constitutes a “substance[] or agent[] determined to be
toxic or physically harmful” or a “new hazard,” within the meaning of § 655(c)(1). Even if so, OSHA lacked
authority to issue the rule.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 44
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402(3) “exposure” in the workplace. 29 U.S.C. §§ 652(8), 655(c)(1); Indus. Union, 448 U.S. at 612.
I doubt the Secretary has met this test.
a. Necessary
The Secretary has not made the appropriate finding of necessity. An emergency standard
must be “necessary to protect employees from [grave] danger.” 29 U.S.C. § 655(c)(1).
“Necessary,” in the legal vernacular, is a tailoring word. It asks how closely, or how loosely, a
regulatory solution must fit a particular problem. Sometimes “necessary” means simply
“useful.” Necessary, Black’s Law Dictionary (5th ed. 1979). In those instances, the government
may impose solutions that it thinks might help the problem, even if it ends up regulating a good
deal more than it really needs to. At other times, though, “necessary” means “indispensable.”
American Heritage Dictionary of the English Language 877 (1976). Then, the government must
stitch together its solution with more precision, regulating only as much as is critical to its
mission. Every American law student will be familiar with these dueling meanings of
“necessary,” prominently displayed in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
There, as here, the choice between meanings is revealed by context.
Consider first the textual differences between a permanent OSHA standard and an
emergency one. A permanent standard, issued after public notice and comment, need be only
“reasonably necessary or appropriate” to address the problem at hand. 29 U.S.C. § 652(8); see
Indus. Union, 448 U.S. at 642–43. But when conferring emergency authority on the Secretary,
Congress shaved that down to “necessary.” An emergency measure must, therefore, be more
than “reasonably” needful; it must be closer to “indispensable.” Cf. McCulloch, 17 U.S. (4
Wheat.) at 413–15. And then consider context. The Supreme Court has already said that
Congress “narrowly circumscribed” the Secretary’s authority to issue emergency standards.
Indus. Union, 448 U.S. at 651 & n.59. It follows that, in this context especially, “necessary”
must be read as a word of limitation, not enlargement. Cf. McCulloch, 17 U.S. (4 Wheat.) at
420.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 45
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and Testing, 86 Fed. Reg. 61402The majority opinion initially agrees with this statutory construction point. It notes that
an emergency standard must be more than “reasonably necessary”; it must be “essential.” Maj.
Op. at 25. But then that word, and the concept, disappear from the analysis. What starts as a
demand for an “essential” solution, quickly turns into acceptance of any “effective” or
“meaningful[]” remedy, id. at 26–30; and later, acquiescence to a solution with a mere
“reasonable” “relationship” to the problem, id. at 30. The majority opinion never explains why
“necessary” undergoes such a metamorphosis.
While the majority opinion starts with the right read on the statute, the Secretary seems to
have missed this point altogether. He made no finding that the emergency rule is “necessary” in
any sense even approaching “indispensable.” We cannot uphold a rule based on a finding the
agency never made. S.E.C. v. Chenery Corp., 318 U.S. 80, 87 (1943).
What the Secretary did say is that the agency’s existing regulatory tools and “non-
mandatory guidance” were insufficient. 86 Fed. Reg. at 61,440, 61,444. In other words, OSHA
believed there was a problem to be solved. But the statute requires OSHA to find that the
solution it actually picked—the nationwide vaccinate-or-test mandate—was “necessary” to solve
the problem.4 See 29 U.S.C § 655(c)(1); see also Asbestos Info., 727 F.2d at 426–27 (OSHA
failed to show that an emergency standard was “necessary” when other means were available “to
achieve the projected benefits.”). OSHA never makes that case. Like the majority opinion, the
Secretary focused on explaining why his solution will be effective. 86 Fed. Reg. at 61,434–39.
But that is not enough. Many over-broad solutions might work; but they would not be a
“necessary,” or “indispensable,” means of curing the ill.
4The statute requires the Secretary to find that “such” emergency standard is necessary. 29 U.S.C.
§ 655(c)(1). In other words, he must find that this solution—the vaccinate-or-test mandate—is indispensable. The
majority opinion suggests that the Secretary’s duty would be fulfilled if he found simply that “an” emergency
standard (whatever its content) is necessary. Maj. Op. at 6; id. at 26 (citing Asbestos Info., 727 F.2d at 427). That
reading is inconsistent with the statutory text.
To the extent that the majority reads my opinion to say that an emergency standard must remove the grave
danger from the workplace entirely, that is a misread. I do not read “necessary” to require total elimination of the
harm.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 46
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402To illustrate (without intending to trivialize) OSHA’s task, consider the danger from fire
in a workplace: a pizzeria. One way to protect the workers would be to require all employees to
wear oven mitts all the time—when taking phone orders, making deliveries, or pulling a pizza
from the flames. That would be effective—no one would be burned—but no one could think
such an approach necessary. What OSHA’s rule says is that vaccines or tests for nearly the
whole American workforce will solve the problem; it does not explain why that solution is
necessary.
Bedrock principles of administrative law also support this point. It is a “quintessential
aspect[] of reasoned decisionmaking” that an agency explore “common and known or otherwise
reasonable options” and “explain any decision to reject” them. Int’l Ladies’ Garment Workers’
Union v. Donovan, 722 F.2d 795, 818 (D.C. Cir. 1983); see also Dist. Hosp. Partners, LP v.
Burwell, 786 F.3d 46, 58–59 (D.C. Cir. 2015) (holding an agency action arbitrary and capricious
for failing to explain inconsistencies in the agency’s own data when the data revealed a
“significant and viable and obvious” alternative that the agency failed to consider (quoting Nat’l
Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 215, 405 (D.C. Cir. 2013)). Emergency
decisionmaking may lessen, but does not relieve, the agency of this basic responsibility. While a
temporary measure may require “further refinement in the subsequent permanent standard,” the
agency should “not overlook those obvious distinctions . . . that make certain regulations that are
appropriate in one category of cases entirely unnecessary in another.” Dry Color Mfrs.’ Ass’n v.
Dep’t of Lab., 486 F.2d 98, 105 (3d Cir. 1973); see also id. at 107 (Emergency standard must
explain “the alternative kinds of regulations considered by OSHA.”).
OSHA’s mandate applies, in undifferentiated fashion, to a vast swath of Americans: 84
million workers, 26 million unvaccinated, with varying levels of exposure and risk. 86 Fed. Reg.
at 61,424. The burden is on “the agency to articulate rationally why the rule should apply to a
large and diverse class.” United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d
Cir. 1977). The agency does not do so.
And it is easy to envision more tailored solutions OSHA could have explored. It might,
for example, have considered a standard aimed at the most vulnerable workers; or an exemption
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 47
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402for the least. The government’s own data show that unvaccinated workers between the ages of
18 and 29 bear a risk roughly equivalent to vaccinated persons between 50 and 64. See Ctr. for
Disease Control, Rates of COVID-19 Cases and Deaths by Vaccination Status (last visited Dec.
16, 2021), https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status;
https://perma.cc/8SU2-SVLZ. Or it might have considered a standard aimed at specific
industries or types of workplaces with the greatest risk of COVID-19 exposure. Congress told
the Secretary to “give due regard” to the need for standards “for particular industries” and types
of “workplaces or work environments.” 29 U.S.C. § 655(g). And OSHA acknowledges that
death rates are higher in “[c]ertain occupational sectors,” 86 Fed. Reg. at 61,415; yet its rule
never considers what results would obtain from targeting those sectors alone. Would these, or
other alternatives, have achieved similar results? We do not know because OSHA did not ask.
OSHA counters that given the COVID-19 emergency, rough-cut mandates are the best it
can do. I see two problems with OSHA’s assertion. First, even an emergency standard must
consider “obvious distinctions” among those it regulates. Dry Color, 486 F.2d at 105. Here,
there are many, none reflected in the emergency rule. Second, the agency’s claim of emergency
rings hollow. It waited nearly two years since the beginning of the pandemic and nearly one year
since vaccines became available to the public to issue its vaccinate-or-test mandate. The agency
does not explain why, in that time, it could not have explored more finely tuned approaches.
The majority opinion contends that to require more of OSHA would contradict the point
of an emergency standard. But it offers no support for this proposition. It cannot be found in the
text of § 655 itself. Indeed, as discussed, the only distinction apparent from the statutory text is
that emergency standards should be more tailored to the problem, not less. The majority cites
Industrial Union for the proposition that “OSHA may lean ‘on the side of overprotection rather
than underprotection’ when promulgating an ETS.” Maj. Op. at 28 (quoting Indus. Union,
448 U.S. at 656). But that case did not review an emergency standard, and in any event, the
quoted language refers to “us[ing] conservative assumptions in interpreting the data” underlying
a risk assessment. Indus. Union, 448 U.S. at 656. It says nothing about excusing OSHA from
considering alternative means. Perhaps, instead, the majority relies on a bit of intuition;
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 48
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and Testing, 86 Fed. Reg. 61402circumstances demanding swift action often produce a less measured response. That may be
true, but only so far as it goes. Surely, when an agency fails to treat a situation as an emergency,
we should refuse to afford it any extra bit of deference, regardless of what label it attaches. See
Fla. Peach Growers, 489 F.2d at 130–31 (addressing exposure to pesticides that had been used
for years was not an emergency). Here, OSHA waited well over a year to respond to, in the
agency’s words, “the biggest threat to employees in OSHA’s more than 50-year history.”
86 Fed. Reg. at 61,424. To be sure, the agency may have had reasons for its wait-and-see
approach—hoping individuals would vaccinate voluntarily, for example. Id. at 61,431–32. But
that is beside the point. What matters is that the agency had plenty of time to consider and
develop more tailored responses, belying any notion that its blunt approach is merely the
expected product of an unexpected emergency.
Having failed to explore whether other feasible alternatives would have allowed him to
tackle the problem, the Secretary cannot show that his solution is “necessary”; nor is he able to
survive the requirements of “hard look” review. See Asbestos Info., 727 F.2d at 421 (When
reviewing an emergency standard, we must “take a ‘harder look’ . . . than we would if we were
reviewing the action under the more deferential arbitrary and capricious standard applicable to
agencies governed by the [APA].”).
b. Grave Danger in the Workplace
This case can be resolved on the ground that the Secretary is unlikely to be able to show
that the mandate was necessary. But there are also significant concerns with OSHA’s
determination that all unvaccinated employees face grave danger from exposure to the virus in
the workplace. 29 U.S.C. § 655(c)(1).
Grave danger. “Grave danger” comprises two meanings. First, severity: A “grave
danger” is a risk of “incurable, permanent, or fatal consequences to workers.” Fla. Peach
Growers, 489 F.2d at 132. The agency determined that symptomatic cases of COVID-19 can
cause such consequences, 86 Fed. Reg. at 61,408, and no one seriously questions that finding.
But the statutory concept of “danger,” or risk, also carries a second connotation—the likelihood
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Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402of its occurrence. See Asbestos Info., 727 F.2d at 424 (noting “gravity” includes “the number of
workers likely to suffer [severe] consequences”); Fla. Peach Growers, 489 F.2d at 132(measuring danger “relative to the mass of agricultural workers in contact with treated foliage”).
I question whether the Secretary has made this second showing—that all covered employees
have a high risk both of contracting COVID-19 and suffering severe consequences from it.
The agency must provide substantial evidence supporting the risk it has identified and
give reasons for the conclusions it has drawn. Asbestos Info., 727 F.2d at 421; see also Dry
Color, 486 F.2d at 105–06. Substantial evidence is that which “a reasonable mind might accept
as adequate to support a conclusion.” Asbestos Info., 727 F.2d at 421 (quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). Here, a quick look at the evidence raises an eyebrow.
OSHA has determined that no vaccinated worker is in “grave danger,” whereas all unvaccinated
workers are. 86 Fed. Reg. at 61,434, 61,419. But the government’s own data reveal that the
death rate for unvaccinated people between the ages of 18 and 29 is roughly equivalent to that of
vaccinated persons between 50 and 64. See Rates of COVID-19 Cases and Deaths by
Vaccination Status, supra, at 10.5 So an unvaccinated 18-year-old bears the same risk as a
vaccinated 50-year-old. And yet, the 18-year-old is in grave danger, while the 50-year-old is not.
One of these conclusions must be wrong; either way is a problem for OSHA’s rule.
In the Workplace. OSHA’s authority extends only so far as Congress provides. And
Congress has clearly marked the perimeter of OSHA’s authority: the workplace walls. See
29 U.S.C. § 651(a) (“work situations”); id. § 651(b) (“occupational safety and health standards”)
(“working conditions”); see also Steel Joint Inst. v. Occupational Safety & Health Admin.,
287 F.3d 1165, 1167 (D.C. Cir. 2002) (“[T]he Act authorizes OSHA to regulate only the
employer’s conduct at the worksite.”).
The virus that causes COVID-19 is not, of course, uniquely a workplace condition. Its
potency lies in the fact that it exists everywhere an infected person may be—home, school, or
grocery store, to name a few. So how can OSHA regulate an employee’s exposure to it?
5Hospitalization rates corresponding to these age groups is not readily available from the CDC.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 50
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402OSHA answers that it has authority to protect employees from general types of hazards
that may occur both inside and outside of the workplace. It may, for example, protect employees
from the danger of workplace fire, even though every person in America has some risk of injury
by fire outside the workplace. See, e.g., 29 C.F.R. § 1910.157 (requiring fire extinguishers in the
workplace). Sure. But one’s exposure to fire may be easily differentiated by location, and
OSHA has heretofore respected that its regulatory authority extends no further than the
workplace walls. In Industrial Union, for example, the Court noted that although “[t]he entire
population of the United States is exposed to small quantities of benzene” in the air, OSHA
sought to regulate the increased risk of exposure to benzene only in the workplace. 448 U.S. at
615, 622–23. And the Fourth Circuit upheld OSHA’s Occupational Noise Exposure standard
because workers faced “sustained noise of great intensity” at work, which did not exist at those
levels outside the workplace. Forging Indus. Ass’n v. Sec’y of Lab., 773 F.2d 1436, 1442–44
(4th Cir. 1985) (en banc) (“The hazard is identified as sustained noise of great intensity-85 db
and above. Non-occupational noise of that intensity sustained over a period of eight hours each
day is hard to imagine.”).
Yet OSHA admits that it “cannot state with precision the total number of workers in our
nation who have contracted COVID-19 at work.” 86 Fed. Reg. at 61,424. And it has not
identified any particular rate or risk of workplace exposure to COVID-19. So instead OSHA
determined that each of the 26 million unvaccinated workers are “in grave danger” based on
“current mortality data show[ing] that unvaccinated people of working age have a 1 in 202
chance of dying when they contract COVID-19.” Id. I can find no example of a court accepting
generalized statistics like these, totally untied to the workplace. Cf. Asbestos Info., 727 F.2d at
425–26. “The ‘grave danger’ and ‘necessity’ findings must be based on evidence of actual,
prevailing [workplace] conditions, i.e., current levels of employee exposure.” UAW v. Donovan,
590 F. Supp. 747, 751 (D.D.C. 1984).
The risk the Secretary calculated to support his “grave danger” finding was in no way
tied to any workplace. Instead, he calculated the risk of being a person “of working age” in
America. 86 Fed. Reg. at 61,424. Indeed, in OSHA’s eyes, the risk to an employee who starts a
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 51
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402job today is no more “grave” than it was yesterday, before she entered the workforce; and,
should she quit tomorrow, it will remain the same. In other words, the Secretary did not
calculate the number of people who will contract COVID-19 at work; he calculated the number
of people who happen to work who would, in any event, contract COVID-19. That kind of risk
assessment is hard to justify as an “occupational safety and health standard[].” 29 U.S.C.
§ 651(b)(3). And it is hard to square with Congress’s codified mission statement for the
Agency: to prevent “personal injuries and illnesses arising out of work situations.” Id. § 651(a).
And what of the solution? Here, OSHA has ventured into entirely new territory. An
authority to protect “employees” from a “grave danger” encountered in the workplace, id. at
§ 655(c)(1), is most naturally read to place a workplace boundary on the solution. Flame-
retardant clothing may be mandated at work, but not also at home. And that is true even if taking
such precautions at home would save many “employee” lives.
OSHA has never before acted otherwise. It has consistently regulated workplace hazards
with workplace solutions. See, e.g., 29 C.F.R § 1926.96 (steel-toe boots); id. § 1926.97
(electrical protective equipment); id. § 1926.100 (hard hats); id. § 1926.101 (ear protective
devices); id. § 1926.102 (eye and face protection); id. § 1926.103 (respirators). Even its one
foray into vaccines was offered to, but not required of, employees who had been exposed to
Hepatitis B in the workplace. See, e.g., id. § 1910.1030(f)(2)(i). Here, employers, not
employees, control any non-vaccine option in the first instance; and OSHA has been candid that
it has stacked the deck in favor of vaccination. 86 Fed. Reg. at 61,437. OSHA has alerted us to
no prior attempt on its part to mandate a solution that extends beyond the workplace walls—
much less a permanent and physically intrusive one, promulgated on an emergency basis,
without any chance for public participation. But that it is what OSHA has done here. A vaccine
may not be taken off when the workday ends; and its effects, unlike this rule, will not expire in
six months.
Accordingly, I question whether the Secretary can show that OSHA’s risk assessment
and solution are tied to its authority—to protect employees against grave danger in the
workplace.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 52
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 614022. Major Questions Doctrine
If there were doubt, the major questions doctrine tells us how to respond. Congress must
“speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political
significance.’” Util. Air Reg. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)). And we should be skeptical when an
agency suddenly discovers “in a long-extant statute an unheralded power to regulate a significant
portion of the American economy.” Id. (quotation marks omitted).
OSHA has never issued an emergency standard of this scope. Each of this rule’s few
predecessors addressed discrete problems in particular industries. See 48 Fed. Reg. 51,086,
51,087–93 (Nov. 4, 1983) (targeting workplaces where “asbestos is handled,” specifically
375,000 employees in manufacturing, construction, fabrication, brake repair, and shipbuilding);
43 Fed. Reg. 2,586, 2,593 (Jan. 17, 1978) (targeting acrylonitrile manufacturing, acrylic fiber
production, and similar activities with the “highest exposure” to acrylonitrile); 42 Fed. Reg.
45,536, 45,536 (Sept. 9, 1977) (targeting DBCP manufacturers, specifically 2,000 to 3,000
employees in a handful of companies); 42 Fed. Reg. 22,516, 22,517–22 (May 3, 1977) (targeting
150,000 employees in the chemical, printing, lithograph, rubber, paint, varnish, stain remover,
adhesive, and petroleum industries with high exposure to Benzene, but exempting retail gas
stations); 41 Fed. Reg. 24,272, 24,275 (June 15, 1976) (targeting 2,305 commercial divers);
39 Fed. Reg. 12,342, 12,343 (Apr. 5, 1974) (targeting vinyl chloride manufacturers, processers,
and storers); 38 Fed. Reg. 10,929, 10,929 (May 3, 1973) (targeting 14 carcinogens when
manufactured, processed, used, repackaged, released, or otherwise handled, as requested by oil,
chemical, and atomic workers); 38 Fed. Reg. 17,214, 17,216 (June 29, 1973) (targeting field
workers exposed to 12 pesticides, but limited to crops of apples, citrus, grapes, peaches, and
tobacco); 36 Fed. Reg. 23,207, 23,207 (Dec. 7, 1971) (targeting workplaces with extremely high
levels of asbestos). Most of those were challenged in court and only one of those survived. Now
the Secretary claims authority to impose a vaccinate-or-test mandate across “all industries” on
84 million Americans (26 million unvaccinated) in response to a global pandemic that has been
raging for nearly two years. 86 Fed. Reg. at 61,424. But no congressional grant of authority
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 53
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402does what the Supreme Court requires in such circumstances: speak with “exceedingly clear
language.” Ala. Ass’n of Realtors, 141 S. Ct. at 2489.
The majority deems the major questions doctrine inapplicable, first because, in its eyes,
OSHA’s authority to undertake a nationwide vaccine-or-test mandate is “unambiguous.” Maj.
Op. at 16. It rests that conclusion primarily on the fact that OSHA has been regulating
workplace health and safety since 1970. But the major questions doctrine is not about the age of
the agency; and it is not only about the kind of power but also the scope or degree. Claiming that
it made no such error, the majority doubles down with examples of OSHA exercising power
similar in kind and calls that “scope.” But no matter how many times OSHA has regulated
discrete illnesses in particular workspaces, this emergency rule remains a massive expansion of
the scope of its authority. In Brown & Williamson, the FDA had been regulating “drugs” and
“devices” for 58 years. 529 U.S. at 125. And regulating nicotine seemed to fit in the FDA’s
wheelhouse. See id. at 127. Nonetheless, the Court denied the FDA’s authority to make “a
policy decision of such economic and political magnitude”—even one in the agency’s ken, and
even though tobacco was “perhaps the single most significant threat to public health in the
United States” at the time.6 Id. at 133, 161.
Just months ago, the Supreme Court rejected a similar attempt by a different agency to
take the pandemic into its own hands. See Ala. Ass’n of Realtors, 141 S. Ct. at 2486. The CDC
had imposed an eviction moratorium for any counties with high levels of COVID-19
transmission, citing its authority in the Public Health Act to make “such regulations as . . . are
necessary to prevent the introduction, transmission, or spread of communicable diseases from
foreign countries.” Id. at 2487. Deciding that a challenge to the moratorium was “virtually
certain to succeed on the merits,” the Court found that even if the provision could be read that
6The majority thinks Brown & Williamson is distinguishable because there Congress had directly spoken
on the issue of tobacco, which was further evidence that the FDA had no such authority. See 529 U.S. at 137–39.
However, in Utility Air Regulatory Group, the Supreme Court reaffirmed the language in Brown & Williamson and
applied it even where Congress had been silent. See 573 U.S. at 307, 324 (finding that an EPA determination “that
its motor-vehicle greenhouse-gas regulations automatically triggered permitting requirements” was an “enormous
and transformative expansion” in authority that triggered Brown & Williamson). Utility Air Regulatory Group is yet
another example of the Supreme Court applying the major questions doctrine to a regulation similar in kind but with
an increased scope.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 54
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402way, “the sheer scope of the CDC’s claimed authority” belied the government’s interpretation.
Id. at 2489.
The majority gives short shrift to this very recent precedent, calling the major questions
doctrine a “seldom-used . . . exception to Chevron deference.” Maj. Op. at 14. It is hard to see
how that can be right when Alabama Association of Realtors just applied the doctrine and
Chevron made no appearance in the case. The majority protests that the doctrine is “hardly a
model of clarity” and that “economic and political significance” is undefined. Id. Maybe so.
Yet it is hard to think of a more apt comparison than the one the Supreme Court just gave us to
follow. Finding it to be a power of “vast economic and political significance,” the Court
emphasized that the CDC’s moratorium covered “80% of the country, including between 6 and
17 million tenants,” all to “combat[] the spread of COVID-19.” Ala. Ass’n of Realtors, 141 S.
Ct. at 2489–90. OSHA’s rule covers two-thirds of the private sector, including 84 million
workers (26 million unvaccinated), also to combat COVID-19. 86 Fed. Reg. at 61,424–41. If it
is not clear on its face that OSHA’s vaccinate-or-test mandate covering most of the country is
significant, then Alabama Association of Realtors tells us it is.
Finally, the majority tries to escape the doctrine by claiming that the Secretary’s authority
is carefully circumscribed by the requirements in § 655 that the rule be “necessary” to combat a
“grave danger,” and that OSHA has “honored those parameters” by using its power infrequently.
Maj. Op. at 16. Two short responses are in order. One, the provision in Alabama Association of
Realtors was similarly circumscribed; the CDC could act only when it was “necessary” to
prevent the “spread of communicable disease,” and it had “rarely . . . invoked” its power.
141 S. Ct. at 2487. Two, the fact that § 655 “narrowly circumscribe[s]” OSHA’s authority,
Indus. Union, 448 U.S. at 651, and that its assertions of power in the past have been limited,
supports a restrictive reading, not an expansive one.
A last point bears mention. Congress may enlist the help of administrative agencies to
implement and enforce the laws, as it has done here. See Gundy v. United States, 139 S. Ct.
2116, 2123 (2019). But there are limits to how much Congress may delegate. See id. And the
greater the putative delegation of power, the less discretion an agency has when exercising it.
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 55
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001) (“[T]he degree of agency
discretion that is acceptable varies according to the scope of the power congressionally
conferred.”).
Here, the Secretary asks for maximum authority and maximum discretion; he wants to
issue a rule of national import, covering two-thirds of American workers, and he wants to do it
without clear congressional authorization, without even public notice and comment, and with a
capacious understanding of necessity. Such a combination of authority and discretion is
unprecedented, and the Secretary is unlikely to show that he has been granted it.
B. Other Stay Factors
Petitioners have shown a likelihood of success on the merits of their challenge to the
emergency rule. That factor is the most important; but the other factors favor the stay as well.
Will petitioners be irreparably harmed absent a stay? Yes. Nken v. Holder, 556 U.S.
418, 434 (2009). Consider just two classes of petitioners. First, individuals. Without a stay,
they will be forced to decide whether to get vaccinated. In some cases, employers may permit
employees to undergo weekly testing and wear a mask. But some will fire those who are not
vaccinated, rather than deal with the recordkeeping hassles of the testing requirement. In those
instances, the individuals will be irreparably harmed, either by loss of livelihood or an
unwelcome vaccination. And even if given the choice by her employer, an individual petitioner
might reluctantly submit to vaccination, rather than incur a weekly hit to her finances and to her
time. And if it turns out she did so due to an invalid regulation, she will have been irreparably
harmed.
Second, businesses. The business petitioners say they will be harmed in various ways,
including unrecoverable compliance costs and loss of employees amidst a labor shortage. For
example, one petitioner, Oberg Industries, says that it will incur more than “$22 million in lost
revenue per year,” and that the vaccinate-or-test mandate “will imperil Petitioner’s business
going forward given significant labor market shortages.” Docket Nos. 21-7000, 21-4112,
Motion for Emergency Stay at 2. Currently, the company has 21 open positions and, according
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Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402to Oberg, “studies show that at least seven million affected workers report that they definitely
will not get the vaccine.” Id. The vaccinate-or-test mandate will exacerbate these shortages,
with Oberg estimating that it will lose “200 employees—approximately 30% of its existing
workforce.” Id. at 2–3. The papers before this court are filled with similar stories. There is no
question that if these harms occur, they will be irreparable.
OSHA responds that the administrative record it compiled does not support the alleged
severity of petitioners’ harms. Of course the record is silent as to petitioners’ concerns, given
that the emergency standard circumvents any public input. And while OSHA says its projected
costs are much lower than petitioners’, the projected costs are not de minimis, ranging from as
little as $2,000 to almost $900,000 per entity, with a combined projected cost of almost
$3 billion. 86 Fed. Reg. at 61,493.
Would the stay substantially injure OSHA and where does the public interest lie? Nken,
556 U.S. at 434. These two factors merge when the government is a party. Id. at 435. It is hard
to find harm to OSHA from delay, as it waited almost two years since the pandemic began, and
nearly a year after vaccines became publicly available, to issue the mandate. That is not to
mention the almost two-month delay between the President’s mandate announcement and the
issuance of the emergency standard.
As for the societal costs of the pandemic, few could dispute their size and scope.
To focus on just one, in many states, the healthcare system is being overrun and many healthcare
workers report both a physical and emotional toll from the relentless effort of caring for the sick
and dying. See Michigan’s Hospitals Near Breaking Point: ‘We Can’t Take Care of Our
Patients as We Need’, The Detroit News (last visited Dec. 15, 2021),
https://www.detroitnews.com/in-depth/news/nation/coronavirus/2021/12/15/michigan-hospitals-
crisis-health-care-workers-exhausted-covid-19-pandemic/6462036001/. The agency record in
this case contains substantial evidence that we could give them some rest if more of us rolled up
our sleeves. But the Secretary himself claims no authority to regulate for these ends. He cannot
even regulate for the sake of the vaccinated; they are not in “grave danger.” Instead, the mandate
is aimed directly at protecting the unvaccinated from their own choices. Vaccines are freely
Nos. 21-7000, et al. In re: MCP No. 165, Occupational Safety & Page 57
Health Admin. Rule on COVID-19 Vaccination
and Testing, 86 Fed. Reg. 61402available, and unvaccinated people may choose to protect themselves at any time. And because
the Secretary likely lacks congressional authority to force them to protect themselves, the
remaining stay factors cannot tip the balance. See Tiger Lily, 992 F.3d at 524.
***
I would deny OSHA’s motion to dissolve the stay.