People walk past signs for both a COVID-19 testing clinic and a Covid vaccination site outside a Brooklyn hospital, New York, on March 29, 2021.
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Spencer Platt / Getty Images
People walk past signs for both a COVID-19 testing clinic and a Covid vaccination site outside a Brooklyn hospital, New York, on March 29, 2021.
Spencer Platt / Getty Images
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 drawing can play a vital role in which side prevails. position.
A lottery is scheduled to be held this week to determine which federal appeals court will hear challenges to the Occupational Safety and Health Administration. emergency rules, set a January 4 deadline for some 84 million private sector workers to be vaccinated against COVID-19 or get tested regularly.
More than two dozen Republican states, as well as a number of businesses, industry groups, and religious organizations have sue to block the rule, calling it an extreme act of the government. The Biden administration insists it has the authority to act in an emergency to protect workers from “serious danger” on the job.
Under federal law, when multiple lawsuits relating to “one or more commonly asked questions of fact” are filed in separate courts, the lawsuits are aggregated and heard by a randomly selected court. . This procedure is commonly used to handle product liability and antitrust cases, where thousands of lawsuits can be aggregated and heard by a single court.
Challenges to the OSHA rule have been filed in most US courts, and each of those courts will receive an entry, regardless of the number of cases filed in each court. By law, all entries would be placed in a drum and the secretary of the Multi-Regional Litigation Committee, based in Washington, DC, would randomly draw one entry.
“It really is a real lottery,” says Johnine Barnes, a labor and employment attorney at Greenberg Traurig. “No court is more privileged than another.”
The US Justice Department said it expected 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 New Orleans-based 5th Circuit Court of Appeals, which halted OSHA’s regulation on November 6 and then reaffirmed that decision on November 12, is known for being one of the conservatives. best in the country. The three-judge panel that upheld OSHA’s rule was the same board that allowed Texas’ strict anti-abortion law to go into effect in September.
However, their ruling on the vaccine or test rule will be overtaken by decisions made by a federal appeals court selected in the lottery. Of course, there’s a chance the case could end with the 5th Circuit if that court is chosen in the lottery.
While the majority of lawsuits against the Biden administration seek to overturn the OSHA rule, several labor unions have sued saying the rule doesn’t go far enough to protect workers from COVID-19. Union lawsuits are primarily filed in courts with a majority of judges appointed by Democratic presidents or equally divided, automatically placing those courts in the lottery.
The Biden administration has urged companies to prepare to comply with the OSHA rule while various petitions go to court. If the courts “win” the length of stay lottery, companies will need to quickly determine which of their employees have been vaccinated, who are not., and mask duty for the unvaccinated phase beginning December 6.
