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6th Circuit Court 'wins' lottery to hear lawsuits against Biden's vaccine rule

President Biden promotes his administration's vaccine or testing requirements for workers at the Clayco construction site in Elk Grove Village, Ill., on Oct. 7.
Nicholas Kamm
AFP via Getty Images
President Biden promotes his administration's vaccine or testing requirements for workers at the Clayco construction site in Elk Grove Village, Ill., on Oct. 7.

The 6th Circuit Court of Appeals has won the lottery to hear legal challenges to the Biden administration's vaccine rule that affects some 84 million workers.

The lottery was announced after multiple lawsuits against the administration were filed in several federal appeals courts. In a process resembling a Powerball drawing, a dozen ping pong balls, each representing one court, were placed into a wooden drum on Tuesday. The winning ball was drawn in Washington, D.C., by a selector from a judicial panel that oversees multidistrict litigation.

The Biden administration rule was formally issued on Nov. 5 by the Occupational Safety and Health Administration. It requires employers with 100 or more workers to ensure their workers are vaccinated against COVID-19 or undergo weekly testing starting Jan. 4.

Lawsuits were filed in all 12 regional circuit courts

Lawsuits challenging the rule came in quick succession. Within 10 days, 34 lawsuits were filed, covering all 12 regional circuit courts and giving each of those courts one entry into the lottery.

The 6th Circuit Court of Appeals, based in Cincinnati, Ohio, is known to lean conservative, with most of its judges appointed by Republican presidents. Six were appointed by President Donald Trump and five were appointed by President George W. Bush, while a total of five were appointed by Democratic Presidents Bill Clinton and Barack Obama.

It will now be up to the 6th Circuit to decide whether to lift the stay issued by the 5th Circuit. A three-judge panel temporarily blocked the OSHA rule one day after it took effect and reaffirmed that decision last Friday, calling the rule "a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers)."

"All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor," wrote Judge Kurt D. Engelhardt. "Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus."

The OSHA rule does exempt workers whose jobs do not put them into contact with coworkers or customers, as well as those who work entirely outdoors.

Labor unions also sued, but they want more protections

While a majority of the lawsuits seek to overturn the OSHA rule, several labor unions went the other way. They sued saying the rule does not go far enough to protect workers from COVID-19. The rule does not apply to employers with fewer than 100 workers.

The union lawsuits were mostly filed in courts that either have a majority of judges appointed by Democratic presidents or are evenly split.

OSHA estimates rule could save thousands of lives

The Biden administration has repeatedly asserted that it has the authority to act in an emergency to protect workers facing "grave danger" on the job. Administration officials frequently cite the high death toll from COVID-19 — now topping 760,000 in the U.S. alone. OSHA estimates the rule could save some 6,500 lives and prevent 250,000 hospitalizations over a six-month period.

The White House is urging companies to prepare to comply with the rule's requirements, which include a Dec. 6 deadline for employers to identify which workers are vaccinated or not, and to enforce a mask mandate.

Even if the the 6th Circuit weighs in quickly, it's likely the decision will be appealed and the litigation could continue for some weeks and months.

Ultimately, the case could wind up in the Supreme Court.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Andrea Hsu is NPR's labor and workplace correspondent.