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In the battle over who has the authority to tell companies what to do when it comes to COVID-19 and workplace safety, a random draw can play a huge role in which side has the upper hand.
A raffle is expected to be held this week to determine which federal appeals court will hear the numerous challenges to the Occupational Safety and Health Administration’s emergency rule, which set a deadline on Jan. 4 for about 84 million private sector workers to to be vaccinated against COVID-19 or undergo regular testing.
More than two dozen Republican states, as well as a number of corporations, industry groups and religious organizations have filed a lawsuit to block the rule, calling it an act of force majeure by the government. The Biden administration claims it has the authority to act in the midst of an emergency to protect workers from “serious danger” at work.
Under federal law, when multiple lawsuits involving “one or more general questions of fact” are filed in separate courts, the petitions are consolidated and heard by one court chosen at random. The procedure is often used to settle product liability and antitrust cases, when thousands of lawsuits can be consolidated and heard by a single court.
Appeals to the OSHA rule have been filed in nearly every U.S. Circuit Court, and each of those courts gets one listing, regardless of the number of cases filed in each court. By law, all submissions are put in a drum and the clerk of the Judicial Panel on Multidistrict Litigation, based in Washington, DC, will draw one at random.
“It really is a real lottery,” said Johnine Barnes, labor and employment attorney at Greenberg Traurig. “There is no court that is given preferential treatment over another.”
The US Department of Justice says it expects the lottery to be held on or around Tuesday, November 16.
While federal judges do not represent political parties, some courts have a reputation for being more partisan than others.
The 5th Circuit Court of Appeals, based in New Orleans, which temporarily halted the OSHA rule on Nov. 6 and then reaffirmed that decision on Nov. 12, is known as one of the most conservative in the country. The three-judge panel that upheld the OSHA rule is the same panel that enforced Texas’ strict anti-abortion law in September.
However, his ruling on the vaccine-or-test rule will be overtaken by decisions of the federal appeals court chosen in the lottery. Of course, there is the possibility that the case could come back to the 5th circuit if that court is selected in lottery.
While a majority of lawsuits filed against the Biden administration seek to overturn the OSHA rule, several unions have sued over the rule not going far enough to protect workers from COVID-19. The union lawsuits were usually filed in courts that either have a majority of judges appointed by Democratic presidents or are equally divided, automatically including those courts in the lottery.
The Biden administration has urged companies to prepare to comply with the OSHA rule as the various petitions meander through the courts. If the court that “wins” the lottery lifts the postponement, companies will have to quickly determine which of their employees have been vaccinated and which have not., and enforce a mask mandate for the unvaccinated from December 6.