If you have been following the news, you have likely heard that President Joe Biden recently announced a plan to require private businesses with more than 100 workers to require vaccinations or mandatory COVID testing.

The question everyone has been asking their lawyer friends is “Can he do that?”

The answer is – maybe. The Occupational Safety and Health Act of 1970 (OSHA) authorizes the Secretary of the U.S. Department of Labor to implement emergency rules, without the formal notice and comment process, when “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”

The rule is known as an “emergency temporary standard,” and it must be “necessary to protect employees from such danger.” The formal rule-making process—which can take years to complete—would follow the emergency rule.

The emergency provision has been used only nine times in history and only on one of these occasions was it upheld in court.

James Sullivan, a lawyer at Cozen O’Connor, suggests some legal challenges the emergency vaccine rule could allege that there is no “grave danger,” because circumstances are not any worse today than they were a year ago, and that the 100-employee threshold is an entirely arbitrary one.

The last time that the OSHA tried to enact an emergency standard was in 1983, when the Reagan administration sought to limit workers’ asbestos exposure. The 5th U.S Circuit Court of Appeals at New Orleans struck down the rule in Asbestos Information Association v. OSHA. The appeals court gave the OSHA leeway to define “grave danger” but said the agency failed to consider lesser alternative rules, such as requiring worker respirators.

There is a likelihood that the dispute could eventually reach the U.S. Supreme Court.

You can read more about this issue here.

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