Even as state courts call off their jury trials amid a surge in COVID-19 infections, Colorado’s federal trial court is staying the course for now.

During a teleconference hearing on Wednesday, U.S. District Court Senior Judge R. Brooke Jackson told the parties in a civil case that the judges planned to meet in two weeks to assess what to do about trials.

“I literally just got off the phone before I dialed you. I was on a judges’ meeting en banc,” Jackson said, using a legal term referring to an all-judges gathering. “Toward the end of the meeting, we started discussing the COVID issue and the state court suspensions of jury trials and so forth. But we really didn’t have enough time to discuss it and take a position.”

Data from the Colorado Department of Public Health and Environment show more than 5,400 cases of COVID-19 reported on Tuesday, with a positivity rate of 26.7%. That vastly exceeds the 7% rate of positive tests registered on Dec. 17 as the highly infectious omicron variant was just beginning to take hold in the state.

Several state judicial districts have put a pause on jury trials through the end of January or even into February. On Tuesday, the chief judge of the Denver District Court announced a halt to juror summonses until Jan. 28, also mentioning the absences of staff related to COVID.

Jackson is overseeing the employment discrimination case of Robinson v. Jefferson County School District No. R-1, which is scheduled for a jury trial beginning on Jan. 24. He fielded questions from the lawyers about what would happen if a witness or an attorney tested positive for COVID-19 in the middle of trial.

“If it were a witness who had not yet testified but could be presented remotely, that could be done,” the judge replied. “But if it’s somebody in the courtroom who gets sick or tests positive, we would have to follow the CDC [Centers for Disease Control and Prevention] and our court’s procedures if there is close contact – within six feet for at least 15 minutes – then you have to quarantine.”

Jackson went on to say that if one juror tested positive, that “wouldn’t be fatal. But the problem is if the juror tested positive and has been with all the other jurors, I think that could be a problem.”

Michael W. Schreiner, the lawyer representing defendant Jeffco Public Schools, believed that COVID-19 exposure for lawyers, jurors or critical witnesses could be grounds for a mistrial. That was the case last month in Summit County, after a key witness in a trial tested positive for COVID-19 and was displaying symptoms, and a defense lawyer objected to remote testimony.

Jackson warned that if the parties did not settle and the jury trial could not take place later in January, it would be hard to find another date given how booked the schedule is.