"U.S. President Joe Biden’s plan requiring more than 100 million Americans to get vaccinated against COVID-19 relies on a rarely used workplace rule with a history of being blocked in court, making it an inviting target for legal challenges by employers. The rule is expected in the coming weeks, and it was not clear when it would take effect. OSHA can implement an emergency standard when workers are exposed to a “grave danger” and the standard is needed to protect them. This allows the agency to cut short the usual process for developing a standard, which averages seven years. Opponents could argue a grave danger, which is not defined in the law, doesn’t exist on a national level as the current spike in COVID-19 cases has been regional.

Before the pandemic, OSHA issued only nine emergency temporary standards, and the last one was in 1983. Courts blocked or stayed four of them and partially vacated another, according to a report by the Congressional Research Service. OSHA’s mandate could also be vulnerable to legal challenges because months have passed since vaccines became widely available, and it may be difficult for the agency to explain why there is a grave danger now but there was not one earlier this year, said James Sullivan of law firm Cozen O’Connor, who represents employers. Courts also could find that the mandate’s 100-employee threshold is arbitrary, providing grounds to invalidate the rule, according to Sullivan."

https://wkzo.com/2021/09/13/biden-vaccine-plan-hinges-on-rarely-used-rule-inviting-legal-challenges/