Vaccine Requirement for Federal Workers Blocked

Another Biden administration requirement that employees get vaccinated against COVID-19—this time for federal workers—was blocked by a federal district court in Texas on Jan. 21. The directive is now on hold pending a Justice Department appeal of the ruling. 

The ruling follows on the heels of the U.S. Supreme Court blocking the Biden administration's vaccine-or-testing directive for large employers last week. However, the Supreme Court lifted the stay on a vaccination directive for health care providers that are Medicare or Medicaid recipients.

The president does not have broad enough authority to require all federal employees to consent to vaccination against COVID-19 or lose their jobs, according to the U.S. District Court for the Southern District of Texas.

'A Bridge Too Far'

"The court notes at the outset that this case is not about whether folks should get vaccinated against COVID-19—the court believes they should," the court stated. The case "is not even about the federal government's power, exercised properly to mandate vaccination of its employees. It is instead about whether the president can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment. That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far."

Federal employees had until Nov. 22, 2021, to be fully vaccinated. But Jeff Zients, the White House coronavirus coordinator, said he expected federal agencies and contractors "will follow their standard HR processes and that for any of the probably relatively small percent of employees that are not in compliance, they'll go through education, counseling, accommodations and then enforcement," Reuters reported. He added, "We're creating flexibility within the system. … There is not a cliff here."

The district court said it understood that the disciplining of some employees who declined to get vaccinated was imminent. Irreparable harm would likely result from a vaccine requirement for federal workers, according to the district court.

"The 5th Circuit has already determined that the Hobson's choice employees face between their job(s) and their jab(s) amounts to irreparable harm," said the district court, which noted it wasn't deciding the ultimate issue of whether the federal directive was lawful, but simply whether to issue a preliminary injunction to block the requirement. "Regardless of what the conventional wisdom may be concerning vaccination, no legal remedy adequately protects the liberty interests of employees who must choose between violating a mandate of doubtful validity or consenting to an unwanted medical procedure that cannot be undone."

The federal government argued that the president had the authority for the vaccine directive for federal workers because the president may prescribe regulations for the conduct of employees in the executive branch. According to the government, the act of becoming vaccinated is included within such conduct. But the court held that for the president to regulate workers' conduct, the conduct must be work-related. "Any broader reading would allow the president to prescribe, or proscribe, certain private behaviors by civilian federal workers outside the context of their employment," the court stated. Because vaccination isn't workplace conduct, the president was without statutory authority to issue the federal-employee vaccination directive, according to the court.

"While vaccines are undoubtedly the best way to avoid serious illness from COVID-19, there is no reason to believe that the public interest cannot be served via less restrictive measures than the mandate, such as masking, social distancing, or part- or full-time remote work," the court stated. "Stopping the spread of COVID-19 will not be achieved by overbroad policies like the federal-worker mandate."

Private-Sector Employers Still Can Require Vaccinations

Despite the recent rulings, private-sector employers still can require employees to get vaccinated against COVID-19, so long as the companies aren't in states prohibiting such requirements, legal experts say.

If employers communicated that the only reason they were implementing a vaccine mandate or a vaccine-or-testing program was to comply with the Occupational Safety and Health Administration's (OSHA's) emergency temporary standard (ETS) for large employers, "they will need to walk that back," said Susan Wiltsie, an attorney with Hunton Andrews Kurth in Washington, D.C. "But most of our clients did not communicate that their COVID-19 policy only was for ETS compliance. Absent the ETS, employers still have a legal obligation to protect their employees from the potential spread of COVID-19 in the workplace. OSHA enforces that obligation through its general duty clause. OSHA also has a National Emphasis Program related to COVID-19 that covers certain industries."

If the workforce tends to be opposed to a private-sector employer's vaccination requirement, "it may be more difficult" for the employer to enforce its policy, said Randi May, an attorney with Hoguet Newman Regal & Kenney in New York City.

Nonetheless, many employers that require vaccines are staying the course.

"The communication supporting the policy can be rooted in the employer's strong interest and duty to maintain a safe workplace for everyone as well as high productivity and morale, which can be jeopardized when the number of positive cases in the workplace rises," May said.