Fedweek

federal vaccine mandate Image: Ringo Chiu/Shutterstock.com

A federal appeals court has scheduled a hearing for March 8 on the dispute over the Coronavirus vaccine mandate for federal employees, with the opposing sides set to make essentially the same arguments they have made previously.

The court is considering the Justice Department’s bid to lift the injunction that a federal district judge issued in late January. That order blocked disciplinary actions against employees not in compliance with the mandate—meaning those not vaccinated and who do not have an approved or pending request for an exception for medical or religious reasons—and stopped agencies from processing such requests.

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The injunction applies nationally and to all agencies except for VA and HHS personnel subject to an earlier mandate imposed by their own agencies, while the USPS was not subject to the broader mandate. Also, even agencies affected by the injunction still can collect information on employees’ vaccination status and enforce other pandemic-related safety policies.

On a 2-1 vote, a panel of the Fifth Circuit court earlier had refused the administration’s emergency request to lift the injunction. The case now is before three different judges for consideration of that request under standard procedures.

Similar to its arguments before the district court and in the earlier appeals court action, the administration argues that the dispute first should have been taken through civil service appeals channels rather than directly into federal court; and that President Biden was acting within his authority as the head of the federal workforce much as many private sector companies have done.

It also argues that the injunction harms the public interest in having an efficiently functioning federal workforce; that none of the complaining employees have suffered discipline and that even if they do, they can challenge it and potentially receive full relief through the civil service appeals processes; and that any injunction should be limited to the named plaintiffs in a group called Feds For Medial Freedom.

Meanwhile, similar to their prior arguments, the plaintiffs argue that a President “has not been empowered to mandate permanent and irreversible medical procedures for every civilian employee”; that even if the mandate falls within a President’s power to regulate conduct of federal employees, that power applies only to workplace conduct; and that forcing employees to choose between vaccination and the loss of their jobs is an “irreparable harm” that even winning an appeal with back pay and reinstatement would not correct.

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