Appeals Court Puts Brakes on Federal Employee Vaccine Requirement

Allen Smith, J.D. By Allen Smith, J.D. June 29, 2022
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A medical professional administering a COVID-19 vaccine

​The full 5th U.S. Circuit Court of Appeals on June 27 said it will reconsider President Joe Biden's executive order requiring federal employees to be vaccinated against COVID-19, setting aside a panel decision in April that had given the green light to the executive order. We've gathered articles on the news from SHRM Online and other media outlets.

Millions Potentially Affected

Biden said in September that he would require about 3.5 million government workers to get vaccinated, absent a religious or medical accommodation, or face discipline including termination. Most federal workers were vaccinated by December, but some opposition remained.

(Reuters)

Challengers of the Requirement

Those challenging the requirement—the group Feds for Medical Freedom and a union representing some Homeland Security Department employees—had said they would take their appeal to the Supreme Court if the 5th Circuit had rejected its request for a rehearing by the full appeals court.

(Government Executive)

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Pursuing Administrative Remedies

The vaccine requirement for federal employees was put on hold after a district judge in Texas blocked the directive in January. In a 2-1 order on April 7, a 5th Circuit panel reversed the district judge's ruling and dismissed the lawsuit against the vaccination directive. In the opinion, now vacated, the appeals court panel said the district judge did not have jurisdiction in the case. Instead, the employees who challenged the requirement could have pursued administrative remedies through the Merit Systems Protection Board or Office of Special Counsel in accordance with the Civil Service Reform Act, the 5th Circuit panel said.

(AP News) and (SHRM Online)

Directive Applies to Executive Branch Workers

The Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees applies to employees of the executive branch of the federal government. Employees in the judicial and legislative branches are not covered by the order. The Safer Federal Workforce Taskforce has issued guidance on the vaccination requirement for federal agencies.

(Safer Federal Workforce Taskforce)

Supreme Court Nixed OSHA Directive for Private Employers

Other vaccination directives have also been challenged. The Occupational Safety and Health Administration (OSHA) withdrew its COVID-19 vaccination-or-testing Emergency Temporary Standard (ETS) in light of a Supreme Court ruling that halted the directive. The ETS would have applied to private-sector employers with at least 100 employees. However, the high court allowed the Centers for Medicare & Medicaid Services to proceed with a vaccine directive that applies to health care workers at Medicare- and Medicaid-certified providers and suppliers. 

(SHRM Online)

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