The OSHA rule does allow for employees to remain unvaccinated if they so choose, but the employee must provide a verified negative test to their employer on at least a weekly basis and must wear face masks in the workplace.
Sean Marotta, a lawyer at Hogan Lovells, said he was surprised that the Fifth Circuit Court of Appeals acted to block the mandate on a Saturday, particularly because the mandate does not require employers or employees to act for months.
He noted that Congress has specified that challenges to OSHA rules get reviewed in the first instance at a federal appeals court, instead of a district court. When several petitioners are challenging the same rule in several circuits, the cases are ultimately consolidated in one circuit through a process known as the “multicircuit lottery.”
Under that system, broadly speaking, a petitioner who files a case within the first 10 days of the issuance of an OSHA rule and follows certain procedural steps gets its circuit entered into the lottery.
Na 10 dae, the Judicial Panel on Multidistrict Litigation — based in Washington, DC — conducts a blind lottery and chooses a circuit at random.
Once the circuit is chosen, all the cases challenging a rule are transferred to it.
The Fifth Circuit did not circumvent the lottery by being the first to issue a stay.
The court, egter, now has the opportunity to issue an opinion, even before the lottery, and make its views known.
“The Fifth Circuit’s decision to issue a stay today was pretty shocking,” Marotta, an expert on the multicircuit lottery, gesê. “Because the OSHA rule does not require vaccination until January, there was no emergency requiring the court to act on a Saturday.”
“Verder, the multicircuit lottery hasn’t happened yet, so another court may end up hearing the cases filed in the Fifth Circuit and lifting the Fifth Circuit’s stay,” hy het gesê.
Marotta thinks that while the DOJ could go directly to the Supreme Court and ask it to lift the stay, it is likely to wait and see which circuit “wen” the lottery.
This story has been updated with additional information.