Now more than a month since a federal appeals court cleared the way for the return of the Coronavirus vaccine mandate for federal employees and a request by the Justice Department to reinstate it immediately, things remain in limbo.
However, that state likely will not continue much longer. The ruling by the Fifth Circuit appeals court will take effect by default May 31. That would clear the way for agencies to restart disciplinary procedures that had started in early January before a federal district judge had imposed the injunction later in that month.
In most cases, that had started with letters of counseling or warning that unvaccinated employees were subject to discipline (up to and including firing unless they had a pending or approved request for an exception on religious or medical grounds). The next phase under pre-injunction guidance would be one or more unpaid suspensions, then potentially firing.
There have been no reports of firings that were ordered under the mandate when it was in effect earlier, although the VA has reported firing a half-dozen employees in its medical branch for failing to comply with its own mandate. The injunction did not affect the VA because that department had issued its own mandate for those employees before President Biden issued the government-wide mandate.
Reinstating the mandate policy also would mean that agencies would again begin wading through requests for exemptions, which have been estimated to number about 100,000. The injunction also had prevented further action on those requests, although it didn’t prevent agencies from receiving them.
However, as has been the case so often in the back-and-forth over the mandate, changes of direction are possible. The full Fifth Circuit still could decide to rehear “en banc” the 2-1 decision of a panel that upheld the mandate, raising the question of what would be the status during that process, which could consume many more months.
An appeal to the U.S. Supreme Court also has been considered a possibility all along, given that the case could be used to decide to what extent federal employees can take complaints straight to court rather than first go through the MSPB or negotiated grievance processes.
Further, after the Fifth Circuit’s most recent action, the Fourth Circuit federal appeals court and the federal district court in the District of Columbia have ruled against challenges to the mandate, also on jurisdictional grounds. Because of those rulings, courts other than the district court that issued the injunction have not addressed issues underlying the challenges regarding a President’s authority over the federal workforce in general and over a vaccine mandate in particular.
Meanwhile, in a filing in a separate case, the NTEU union has asked the U.S. Supreme Court specify rights to go directly into federal court, saying that taking complaints through administrative channels is “a lengthy process and it leaves federal employees vulnerable to potentially illegal actions that infringe on their legal rights in the workplace.”