Lawsuits opposing OSHA’s vax-or-test mandate will be decided by lottery, apparently.

I’ve been doing this employment law thing for over 20 years now.

Two decades of practice have taught me plenty. But, every once in a while, I learn something new.

For example, I was reading the government’s response in that federal appellate court case I blogged about yesterday in which several individuals and businesses asked the Fifth Circuit Court of Appeals to block the OSHA vaccine-or-test mandate. One of the government’s arguments is that the petitioners’ stay motions are premature.


Congress created a process for judicial review of OSHA standards, like the Emergency Temporary Standard (ETS) at issue here. The process involves consolidating all of the lawsuits that have been filed — in the Fifth Circuit and elsewhere — in one court of appeals.

How does that happen?

The Judicial Panel on Multidistrict Litigation will randomly designate” one circuit from among those where lawsuits have been filed within ten days of when OSHA issues the ETS. All other courts will transfer proceedings to that court.

So, apparently, a lottery will help decide the many lawsuits that get filed opposing the ETS. According to the government’s brief, that process will likely occur next week, on or about November 16, which is about three weeks before anyone has to get vaccinated, and about seven weeks before anyone who doesn’t get vaccinated must be tested.

But you won’t have to wait that long get the low-down on the mandate. I’ve assembled a group of fantastic employment lawyers to join me on Friday, November 12, 2021 at Noon ET to discuss the details of the ETS. If that sounds good to you, please join me and my partners Amy Epstein GluckDavid RennerSid SteinbergGordon Berger, as we answer all of your questions in a way that doesn’t involve giving any actual legal advice or creating an attorney-client relationship.

You can register here (

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