The VA has said it has fired six employees under its Coronavirus vaccination mandate, which it has been continuing to enforce because it predated the government-wide policy and was unaffected by a court injunction against that broader policy.
In a press conference this week, officials said that of the six, four were for refusing to wear masks in settings where they are required, one for refusing to be tested and another for refusing to disclose vaccination status. Those are the first publicly confirmed firings of federal employees under either of the mandates, although the disciplinary process had started for some employees under the broader mandate before the injunction against it was issued in January.
Although the VA did not specify the grounds for those actions, they most likely would be for refusing to follow orders. Federal employees, their organizations and attorneys specializing in federal workplace law have been watching for such actions for potentially creating cases that on appeal would test whether such orders are within the government’s powers over its employees—and thus test the mandate’s enforceability.
That took on new importance recently as two federal appeals courts have ruled that federal courts do not have jurisdiction to hear challenges to a mandate at this point, but that employees instead must first go through civil service appeals channels—the MSPB process or, for union-represented employees, a grievance process.
The VA has been one of the agencies most transparent regarding its vaccination mandate, which took effect in several stages for employees of its Veterans Health Administration last year, beginning about a month before President Biden imposed the government-wide mandate. The VHA accounts for more than 380,000 of the VA’s 430,000 employees.
The VA also was one of the agencies with the lowest rates of vaccination as of the latest figures released by the administration last December: 89 percent of employees had received at least one vaccination dose by that point while 10 percent had asked for an exemption for medical or religious reasons. At that point 93 percent of all federal employees had received at least one dose and another 5 percent had asked for exemptions.
The VA also notably has said that it generally will not challenge the reasons employees give for requesting an exception. It has added, however, that due to the nature of its work, there are certain settings where an unvaccinated employee would have to wear a mask in any case.
Court cases so far have addressed only that broader mandate, resulting in the injunction against that program by a federal district judge in Texas, which this month was overturned by the Fifth Circuit federal appeals court. The Biden administration then asked that court to allow it to begin enforcing the mandate immediately — in the process moving forward with disciplinary sequences against employees it previously had started — it rather than having to wait until May 31 under default legal procedures. There has been no response to that request, however.
In the meantime a separate appeals court, the Fourth Circuit, also ruled that any challenge must go first through the MSPB / grievance route. However, that ruling came on an appeal by employees of a district judge’s refusal to grant an injunction in their case.