Fedweek

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The vaccine mandate for federal employees remains suspended – pending further action by a federal appeals court. The court earlier had ordered it to be restored, though a deadline to do so has now passed.

A three-judge panel of the Fifth Circuit appeals court in April overturned an injunction against the mandate that a federal district judge had issued in January against the mandate, which called for discipline up to and including firing of unvaccinated employees who didn’t have an approved or pending request for an exception for religious or medical reasons.

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That decision, a 2-1 split, held that those bringing the challenge had to first go through federal employee appeals channels. It did not address the underlying issues regarding whether such a mandate is within a President’s powers over the federal workforce.

Under terms of that ruling, a procedural step called a mandate was to issue no later than May 31, instructing the lower court to lift the injunction. The administration then asked the appeals court to take that action earlier but the court in effect refused by taking no action on that request.

However, in the meantime, the group sponsoring the suit—Feds for Medical Freedom—asked for a rehearing by all the judges on the appeals court, called rehearing en banc. The appeals court has not issued the mandate pending a decision on whether it will accept that request.

The timing of that decision is uncertain, although it could lie not far ahead because the court set a June 2 deadline for the administration to respond to that request.

If the full court rejects the request for rehearing, a further appeal to the U.S. Supreme Court is possible; that has been an expectation all along. In that case, the panel’s decision to reinstate the mandate likely would take effect shortly afterward.

If the full court accepts the request for rehearing, the injunction likely would remain in effect pending the outcome; the timing of the decision by the full court also would be uncertain but likely would not occur for several months at least.

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2022 Federal Employees Handbook

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