The order has remained in effect through a series of back and forth legal challenges. Image: CL Shebley/Shutterstock.com
By: FEDweek StaffAlong with new guidance on workplace safety practices, an administration task force has tweaked prior policies regarding the vaccine mandate for federal employees, stressing in several places that the policy is not “currently” in effect due to a court order.
That court order was issued early this year just as agencies were about to start taking potentially widespread disciplinary actions up to and including firing against employees not in compliance—that is, those not vaccinated and who did not have a granted or pending request for an exception for medical or religious reasons.
The order has remained in effect through a series of back and forth legal challenges, with the next step to be a hearing by the full Fifth Circuit court of appeals sometime in September. The Justice Department has defended the mandate at each step against arguments that it exceeds a President’s authority over the federal workforce.
A new question and answer document for agencies on the mandate, issued following revised CDC guidance on COVID-19 safety protocols in general, for example states that agencies should post on any websites listing job vacancies that the mandate “does not currently apply” and that they should not include mention of the mandate in vacancy announcements “while the nationwide injunction is in place.”
It similarly says that agencies should notify employees who have requested an exception that the mandate “is currently enjoined and that an exception therefore is not necessary so long as the nationwide injunction is in place.” Agencies may continue to accept requests for exceptions but should hold them in abeyance and inform those employees of the same, it says.
Further, for any disciplinary actions initiated before the injunction was issued, agencies should notify affected employees that the mandate “is currently enjoined and that the disciplinary action is being held in abeyance so long as the nationwide injunction is in place.”
Agencies do not need to revoke or rescind actions associated with the mandate “at this time,” it says, and they may continue to take disciplinary actions not directly related to the mandate such as for failure to comply with other workplace safety protocols.
The document also notes that the injunction applies only to the executive order setting a government-wide policy and not to the VA, which separately had issued a mandate for employees of its Veterans Health Administration, which makes up the large majority of its workforce. The VA has reported taking only a small number of disciplinary actions, mostly related to refusal to divulge vaccination status or failure to comply with safety protocols.
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