`
`
`
`
`
`Nos. 21-7000
`/4027 /4028 /4031
`/4032 /4033 /4080
`/4082 /4083 /4084
`/4085 /4086 /4087
`/4089 /4088 /4090
`/4091 /4093 /4092
`/4095 /4094 /4096
`/4097 /4099 /4100
`/4101 /4102 /4103
`/4108 /4112 /4114
`/4115 /4117 /4133
`
`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
`SERVICES, LLC (21-4027); PHILLIPS MANUFACTURING & TOWER COMPANY, et
`al. (21-4028); COMMONWEALTH OF KENTUCKY, et al. (21-4031); ANSWERS IN
`GENESIS, INC. (21-4032); SOUTHERN BAPTIST THEOLOGICAL SEMINARY, et al.
`(21-4033); BST HOLDINGS, LLC, et al. (21-4080); REPUBLICAN NATIONAL
`COMMITTEE (21-4082); ASSOCIATED BUILDERS AND CONTRACTORS, INC., et al.
`(21-4083); MASSACHUSETTS BUILDING TRADES COUNCIL (21-4084); UNION OF
`AMERICAN PHYSICIANS AND DENTISTS (21-4085); ASSOCIATED GENERAL
`CONTRACTORS OF AMERICA, INC., et al. (21-4086); NATIONAL ASSOCIATION OF
`BROADCAST EMPLOYEES & TECHNICIANS, THE BROADCASTING AND CABLE
`TELEVISION WORKERS SECTOR OF THE COMMUNICATIONS WORKERS OF
`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.
`
`┐
`│
`│
`│
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`│
`│
`│
`│
`│
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`┘
`
`
`
`

`

`Nos. 21-7000, et al.
`
`In re: MCP No. 165, Occupational Safety &
`Health Admin. Rule on COVID-19 Vaccination
`and Testing, 86 Fed. Reg. 61402
`
`Page 2
`
`
`
`On 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 &
`Health Admin. Rule on COVID-19 Vaccination
`and Testing, 86 Fed. Reg. 61402
`
`Page 3
`
`
`
`Rock, 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 &
`Health Admin. Rule on COVID-19 Vaccination
`and Testing, 86 Fed. Reg. 61402
`
`Page 4
`
`
`
`SCHNEIDER & 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 &
`Health Admin. Rule on COVID-19 Vaccination
`and Testing, 86 Fed. Reg. 61402
`
`Page 5
`
`
`
`Temporary 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 &
`Health Admin. Rule on COVID-19 Vaccination
`and Testing, 86 Fed. Reg. 61402
`
`Page 6
`
`
`
`An 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 &
`Health Admin. Rule on COVID-19 Vaccination
`and Testing, 86 Fed. Reg. 61402
`
`Page 7
`
`
`
`B. 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 &
`Health Admin. Rule on COVID-19 Vaccination
`and Testing, 86 Fed. Reg. 61402
`
`Page 8
`
`
`
`Employers 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 &
`Health Admin. Rule on COVID-19 Vaccination
`and Testing, 86 Fed. Reg. 61402
`
`Page 9
`
`
`
`dissolve 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,
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`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
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`extraordinary relief” rests on “the moving parties.” Winston-Salem/Forsyth Cnty. Bd. of Educ. v.
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`Scott, 404 U.S. 1221, 1231 (1971); see also Nken, 556 U.S. at 433–34.
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`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.
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`Nken, 556 U.S. at 426 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
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`B. Likelihood of Success on the Merits
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`1. Scope of OSHA’s Statutory Authority
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`Petitioners’ arguments are primarily grounded in the Fifth Circuit’s blanket conclusion
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`that the ETS is beyond the scope of OSHA’s statutory authority. The ETS was issued under
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`

`

`Nos. 21-7000, et al.
`
`In re: MCP No. 165, Occupational Safety &
`Health Admin. Rule on COVID-19 Vaccination
`and Testing, 86 Fed. Reg. 61402
`
`Page 10
`
` §
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` 655(c)(1) of the Act, which requires OSHA to issue an emergency standard if necessary to
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`protect workers from a “grave danger” presented by “exposure to substances or agents
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`determined to be toxic or physically harmful or from new hazards.” 29 U.S.C. § 655(c)(1). In
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`assessing that authority, the Fifth Circuit focused solely on the words in § 655(c)(1): “substances
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`or agents,” “toxic or physically harmful,” and “grave danger,” opining that those words are to be
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`interpreted based on the words and phrases in the immediate vicinity of the statutory language at
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`issue. BST Holdings, 17 F.4th at 612–13. But the Supreme Court has instructed that words and
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`phrases must be viewed in the context of the entire statute. See Gade v. Nat’l Solid Wastes
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`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
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`whole law”). We therefore take a holistic view of the language that Congress chose to include in
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`its statutory authorization to OSHA.
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`An “agent” is “a chemically, physically, or biologically active principle.” Agent,
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`Merriam-Webster Collegiate Dictionary, https://unabridged.merriam-webster.com/collegiate/
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`agent. And a virus is defined, in part, as “any large group of submicroscopic infectious agents.”
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`Virus, Merriam-Webster Collegiate Dictionary, https://unabridged.merriam-webster.com/
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`collegiate/virus. The statute requires OSHA to determine whether an agent is “toxic or
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`physically harmful or from new hazards,” 29 U.S.C. § 655(c)(1) (emphasis added), speaking in
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`the disjunctive, which specifies that words so connected “are to be given separate meanings,”
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`Loughrin v. United States, 573 U.S. 351, 357 (2014) (quoting United States v. Woods, 571 U.S.
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`31, 45–46 (2013)). To conflate two descriptors into one meaning would improperly render one
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`disjunctive phrase superfluous. See Bailey v. United States, 516 U.S. 137, 146 (1995); Reiter v.
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`Sonotone Corp., 442 U.S. 330, 338–39 (1979). Under the statutory definition, any agent,
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`including a virus, that is either “toxic” (i.e., poisonous, toxicity) or “physically harmful” (i.e.,
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`causing bodily harm) falls within OSHA’s purview. An agent that causes bodily harm—a
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`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 &
`Health Admin. Rule on COVID-19 Vaccination
`and Testing, 86 Fed. Reg. 61402
`
`Page 11
`
`
`
`because Congress found that “illnesses arising out of work situations impose a substantial burden
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`upon . . . interstate commerce.” 29 U.S.C § 651(a) (emphasis added). Congress created the
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`safety and health administration to protect workers from those illnesses by reducing “health
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`hazards at their places of employment.” Id. § 651(b)(1). The Act’s objectives include exploring
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`“ways to discover latent diseases, establishing causal connections between diseases and work in
`
`environmental conditions, and conducting other research relating to health problems . . . .” Id.
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`§ 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
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`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
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`by expressly directing the Secretary of Health and Human Services to conduct research in
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`consultation with the Secretary of Labor to develop “information regarding potentially toxic
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`substances or harmful physical agents,” including through medical examination and tests. Id.
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`§ 669(a)(5). That provision also contains the religious exemption for the entire OSH Act:
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`“[n]othing in this or any other provision of this chapter shall be deemed to authorize or require
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`medical examination, immunization, or treatment, for those who object thereto on religious
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`grounds, except where such is necessary for the protection of the health or safety of others.” Id.
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`The provision’s reference to immunization and its creation of a limited exception to the Act’s
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`authorization of standards involving immunization would be rendered meaningless if the statute
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`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.
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`Congress confirmed OSHA’s infectious disease authority in other statutes. In 1989,
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`OSHA proposed a standard governing bloodborne pathogens to curb transmission rates of HIV,
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`hepatitis B (HBV), and hepatitis C. See Occupational Exposure to Bloodborne Pathogens,
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`54 Fed. Reg. 23,042 (proposed May 30, 1989). When the standard had not been finalized by
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`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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`

`

`Nos. 21-7000, et al.
`
`In re: MCP No. 165, Occupational Safety &
`Health Admin. Rule on COVID-19 Vaccination
`and Testing, 86 Fed. Reg. 61402
`
`Page 12
`
`
`
`Workers Family Protection Act, codified in 29 U.S.C. § 671a, the same U.S. Code chapter as the
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`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,
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`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
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`Occupational Safety and Health Act of 1970.” Id. § 671a(d)(2).
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`In 2000, Congress passed the Needlestick Safety and Prevention Act, directing OSHA to
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`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
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`standard, no party challenged OSHA’s authority to regulate bloodborne pathogens. See Am.
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`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
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`OSHA in the American Rescue Plan that is to be used “to carry out COVID-19 related worker
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`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
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`long asserted its authority to protect workers against infectious diseases. In 1991, it promulgated
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`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
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`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
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`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.