Issue Briefs

Following is the section of a recent CRS report on legal considerations regarding vaccine mandates focusing on the legal issues being raised in the challenges to the mandate for federal employees.


Executive Order 14,043 (Federal Employee EO), issued on September 9, 2021, instructs each executive agency to implement a program to require COVID-19 vaccination for all of its federal employees, subject to exceptions required by law, including those based on a disability or medical condition or a sincerely held religious belief. The Federal Employee EO directs the Safer Federal Workforce Task Force (Task Force) to issue guidance on this requirement’s implementation. The Federal Employee EO is based on the President’s statutory authority under 5 U.S.C. §§ 3301, 3302, and 7301. These provisions grant the President general authority to prescribe rules and/or regulations for executive branch employees.

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Under the Task Force’s guidance, federal employees must be fully vaccinated or obtain an exception by November 22, 2021. Because employees will be considered fully vaccinated two weeks after they complete the requisite number of COVID-19 vaccine doses, federal employees must have received their last dose of their vaccine by no later than November 8, 2021. The vaccination requirements apply to employees who are under maximum telework or remote-work arrangements. Employees who refuse to be vaccinated or provide proof of vaccination, and have neither an exception nor an exception request under consideration, are subject to disciplinary measures, up to and including removal or termination. Under the guidance, however, the removal or termination would be preceded by a brief period of education and counseling and a suspension period up to 14 days.

Several federal employees and at least one employee union have sued to challenge the federal employee mandate. These suits raise a variety of claims, including some claims that are common to challenges to state vaccination requirements. For example, one common claim is based on an alleged violation of the plaintiffs’ substantive due process rights to bodily integrity or a right to refuse unwanted medical treatment. In the context of COVID-19 vaccination mandate litigation to date, courts have generally rejected those claims, concluding that a fundamental right is not implicated by the vaccination mandate, which reasonably furthers a legitimate government interest.

Another common claim is based on the emergency use authorization (EUA) provision of the Federal Food, Drug & Cosmetic Act. Plaintiffs asserting this claim generally allege that a vaccination mandate violates the informed consent requirement of the EUA provision, which directs the Secretary of the Department of Health and Services (HHS), when issuing an EUA for a medical product, to impose conditions necessary to protect the public health, including appropriate conditions designed to inform individuals “of the option to accept or refuse administration of the product.” Courts to date have also generally rejected this claim, holding that the EUA’s informed consent provision only requires medical providers administering the vaccines to inform would-be recipients of the vaccines’ risks and their right to refuse it. As a result, courts generally have concluded that the provision does not prohibit entities from requiring individuals, duly informed by their medical providers, to be vaccinated. In addition, courts have also emphasized that at least one COVID-19 vaccine has received full FDA approval, and is therefore no longer being distributed under an EUA.

Plaintiffs have also asserted several claims more specific to the federal employee mandate. One set of claims, for instance, challenged the agencies’ alleged denial of religious exemption requests as violating the Religious Freedom Restoration Act and the First Amendment’s Free Exercise Clause. In a November 2021 decision, however, the district court considering these claims rejected them as unripe—or too early—for review, given that each plaintiff has a pending request for exemption and has not suffered any adverse employment consequence. Another claim challenges the manner by which the mandate was implemented. According to the plaintiffs, the vaccination requirement was implemented without undergoing the notice-and-comment rulemaking procedures required by the Administrative Procedure Act (APA). This claim is currently subject to a pending motion for preliminary injunction by the plaintiffs, but the district court is likely to consider whether the mandate falls under an exception from APA rulemaking requirements as “a matter relating to agency management or personnel.”

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