Further details most likely will address issues such as workplace protocols and what agencies are to do with employee records and vaccination status. Image: grandbrothers/Shutterstock.com
By: FEDweek StaffThe White House’s decision to lift its Coronavirus vaccination mandate for federal employees leaves questions unanswered, with the announcement of its end saying that “further details” are to come.
“In the interim, agencies should continue to take no action to implement or enforce the COVID-19 vaccination requirement pursuant to Executive Order 14043 on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees to ensure compliance with the applicable preliminary nationwide injunction,” says a posting by the Safer Federal Workforce Task Force, which indicates that a new executive order to cancel that one is in the offing.
Those further details most likely will address issues such as workplace protocols and what agencies are to do with records of employees who disclosed they were vaccinated and records of those who requested an exception for medical or religious reasons. Also still not clear is the status of vaccine mandates that some agencies imposed for their health care employees—by far the largest of which was at the VA—before Biden’s order.
The decision presumably makes moot more than a dozen lawsuits against the mandate, one of which resulted in an early 2022 injunction that prevented it from being enforced beyond some letters of warning issued before the court’s ruling. That would put off until another day several broad questions about federal employee rights that were raised in those cases.
The September 2021 order said a vaccine mandate was needed for “ensuring the health and safety of the federal workforce and the efficiency of the civil service.” The suits challenged the notion that a President’s authority to promote the “efficiency of the civil service” extends to requiring them to be vaccinated or else potentially be fired.
The court that issued the injunction found that the plaintiffs, a group called Feds for Medical Freedom, were likely to prevail in their argument that the order exceeded that authority. The court said the issue is “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 . . . is a bridge too far.”
However, the court never examined those arguments in full because the administration appealed. The injunction remained in effect since then through a series of legal maneuvers, most recently a ruling by the full Fifth Circuit federal appeals court upholding the injunction.
That process did not directly address the issue of the President’s authority but rather another important issue regarding employees’ rights to appeal. The Justice Department argued that the Civil Service Reform Act requires that the challenge had to first go through internal government appeals processes before going into court, potentially lengthening such challenges by many months if not several years. Both the district court and later the Fifth Circuit rejected that assertion.
That issue has arisen in several other disputes in recent years, including one recently over an OPM change to a policy on dividing annuities in a divorce and before that to the challenge to a series of Trump administration orders on federal employee union rights and disciplinary rights.
There had been some expectations that the Biden administration would appeal the Fifth Circuit ruling to the U.S. Supreme court to gain a final resolution. Two other federal appeals courts ruled that the vaccine mandate dispute must first go through internal channels, creating the kind of conflict among judicial circuits that the high court often steps in to resolve.
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