Fedweek

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A federal judge in Texas has issued a nation-wide injunction against the Coronavirus vaccine mandate for federal employees, saying it “amounts to a presidential mandate that all federal employees consent to vaccination against COVID-19 or lose their jobs.”

The court said the issue “is not about whether folks should get vaccinated against COVID-19—the court believes they should. It 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.”

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That was a reference to a recent decision blocking a separate mandate to compel private sector employers with 100 or more workers to require that their employees be vaccinated or be subject to frequent testing. Under the mandate for federal employees, in contrast, frequent testing is not an alternative to vaccination but rather an “accommodation” for those who are excepted from vaccination for religious or medical reasons.

The administration likely will appeal the ruling, which came in one of about a dozen challenges to the mandate that have been filed since it was issued last fall. Up to now, no courts had ruled against it, in some cases saying that the issue was not ripe for a decision because no employees had suffered consequences more severe than counseling for not complying.

However, Judge Jeffrey Vincent Brown, a Trump appointee to the federal district court for the Southern District of Texas, said that “the disciplining of at least some non-compliant employees is now imminent” since some “already have received letters from their employer agencies suggesting that suspension or termination is imminent, have received letters of reprimand, or have faced other negative consequences.”

He wrote that “requiring the plaintiffs to wait to be fired to challenge the mandate would compel them to ‘bet the farm by taking the violative action before testing the validity of the law.’”

He rejected the administration’s argument that any challenges had to be brought through civil service appeals procedures as a challenge to a change in “working conditions.” While the law does not specifically define it “the interpretation that courts have given that term would not encompass a requirement that employees subject themselves to an unwanted vaccination.”

He said the situation meets the standards for issuing an injunction because it threatens “irreparable harm” to non-compliant employees.

“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,” he wrote.

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He added that he considered the suit to be likely to succeed on the merits of legal arguments that vaccination is not the type of employment-related policy over which presidents have broad authority.

“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,” he added.

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