The Biden administration has asserted before a federal court that “there is no coercion” in its Coronavirus vaccination mandate for federal employees.
Appeals rights available to employees under the Civil Service Reform Act “can provide reinstatement and backpay in a successful challenge to adverse employment action, and because even an employee who does not prevail through the CSRA can avoid discipline by becoming vaccinated at that point, employees who object to the vaccination requirement can challenge it without fear of punishment for doing so,” says a Justice Department filing before the Fifth Circuit appeals court.
That court is considering a request from a group of employees challenging the mandate to have all its judges reconsider an April decision by a panel of three judges to overturn an injunction that a federal district court issued against the mandate in January. The injunction remains in effect while the full court considers whether to accept that request, which the new Justice Department filing opposes.
The request for rehearing, like the case before the three-judge panel, focuses less on whether the mandate is legal and within the President’s powers to issue, but rather on whether a challenge to it must first go through federal employee appeals processes before going into federal court.
The request for rehearing argued that obligation does apply to challenges before disciplinary action has been enforced, such as the present case; the injunction was issued just as agencies were preparing to enforce it. However, the Justice Department argued that because employees can use internal appeals channels “to challenge any discipline ultimately imposed on them, they cannot circumvent that framework by suing before any discipline has been imposed.”
The mandate “does not coerce employees to take a COVID-19 vaccine, any more than it coerces them to perform their jobs, respect workplace policies, or fulfill other prerequisites of continued employment. If an employee chooses not to receive a COVID-19 vaccine (and is ineligible for an exception), he simply may no longer be permitted to continue in federal employment, just as an employee would be subject to termination if she chose to stop performing her job or chose to violate workplace policies. Covered employees who are disciplined or terminated for choosing not to take a COVID-19 vaccine (absent an exception) are free to challenge the vaccination requirement through the CSRA,” it says.
It adds that if an employee wins such a challenge, any adverse employment actions taken against them “can be remediated through reinstatement, backpay, and attorney’s fees—which means no employee should be chilled from pursuing a challenge by the fear that doing so will itself be costly. If an employee does not prevail, and wishes to avoid discipline by complying with the vaccination requirement at that point, he or she can do so . . if an employee does not prevail and still chooses not to become vaccinated, he or she can hardly complain about being disciplined or discharged for violating a lawful policy,” it says.