Though we await the full legal rationale, the Biden plan on the White House website says the order will come through the Department of Labor’s Occupational Safety and Health Administration, which will issue an Emergency Testing Standard (ETS) to implement the requirement. In other words, the rule will be expedited to avoid the comment period that typically allows those who would be affected by a given order to weigh in. While OSHA has authority to set certain health and safety standards in the workplace, it would be stretching its authority to claim that it can be used as a means to facilitate broader public-health goals. Just this July, the Congressional Research Service updated a report on the emergency standard and noted that OSHA “has rarely used this authority in the past—not since the courts struck down its ETS on asbestos in 1983.”

The report goes on to explain that an ETS requires 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 “that such emergency standard is necessary to protect employees from such danger.” In the case of asbestos, a federal appeals court ultimately said OSHA couldn’t sufficiently support its claim that 80 workers would die from asbestos exposure if the rule were not implemented. In Biden’s speech, he acknowledged that the risk of serious illness is extremely low for anybody who is vaccinated. That means that anybody who enters a workplace and has the choice to be vaccinated can protect themselves from grave danger. So it is unclear how such an emergency order can be justified.