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A lottery could determine the fate of Biden's vaccine rule for 84 million workers

People walk by a sign for a COVID-19 testing clinic and a COVID-19 vaccination location outside of a Brooklyn, New York, hospital on March, 29 2021.
People walk by a sign for a COVID-19 testing clinic and a COVID-19 vaccination location outside of a Brooklyn, New York, hospital on March, 29 2021.

In the fight over who has the authority to tell companies what to do when it comes to COVID-19 and workplace safety, a random drawing could play a big role in which side prevails.

A lottery 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 Jan. 4 deadline for some 84 million private sector workers to be vaccinated against COVID-19 or submit to regular testing.

More than two dozen Republican states, as well as a number of businesses, industry groups and religious organizations, have sued to block the rule, calling it an act of government overreach. The Biden administration asserts it has the authority to act amid an emergency to protect workers from "grave danger" on the job.

Under federal law, when multiple lawsuits involving "one or more common 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 handle product liability and antitrust cases, when thousands of lawsuits may be consolidated and heard by a single court.

Challenges to the OSHA rule have been filed in almost every U.S. Circuit court, and each one of those courts will get one entry, regardless of the number of cases filed in each court. According to the law, all of the entries will be placed in a drum, and the clerk of the Judicial Panel on Multidistrict Litigation, based in Washington, D.C., shall randomly draw one.

"It really is a true lottery," says Johnine Barnes, a labor and employment attorney at Greenberg Traurig. "There is no court that is given preferential treatment over another."

The U.S. Department of Justice says it expects the lottery to be held on or around Tuesday, Nov. 16.

While federal judges do not represent political parties, some courts have reputations 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 stayed the OSHA rule is the same panel that allowed Texas's strict anti-abortion law to stand in September.

However, its ruling on the vaccine-or-test rule will be overtaken by decisions issued by the federal appeals court chosen in the lottery. Of course, there is the possibility that the case could end up back with the 5th Circuit if that court is selected in lottery.

While a majority of the lawsuits filed against the Biden administration seek to overturn the OSHA rule, several labor unions have sued saying the rule does not go far enough to protect workers from COVID-19. The union lawsuits were mostly filed in courts that either have a majority of judges appointed by Democratic presidents or are evenly split, automatically entering those courts into the lottery.

The Biden administration has urged companies to prepare to comply with the OSHA rule while the various petitions wind their way through the courts. If the court that "wins" the lottery lifts the stay, companies will need to quickly determine which of their employees are vaccinated, which ones are not, and enforce a mask mandate for the unvaccinated starting Dec. 6.

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