OSHA has rarely used this option, which avoids the usual rule-making process, and most challenges to such edicts have been successful.
by Jacob Sullum
Reason.com
The Biden administration plans to impose a vaccination mandate on private-sector employees through an emergency temporary standard (ETS), a rarely used option that allows the Occupational Safety and Health Administration (OSHA) to avoid the usual rule-making process. The history of such standards suggests that the new rule, which demands that every U.S. business with 100 or more employees require them to be vaccinated or submit to weekly virus testing, may be vulnerable to legal challenges.
In the half-century after Congress approved the Occupational Safety and Health Act in 1970, the Congressional Research Service (CRS) noted in a report updated on July 13, OSHA issued an ETS just 10 times. Before June 21, when OSHA used an emergency standard to require specific COVID-19 precautions for health care workers, it had not issued an ETS in 38 years, and it had never cited the danger posed by a communicable disease as the justification for an ETS.