There was little doubt there would be legal challenges to President Biden’s vaccine mandate for federal employees.
Vaccine Mandate and Federal Employee Unions
Some federal employees may have thought the instigators of the legal challenges would be federal employee unions since they are the “exclusive bargaining representative” for employees in various agencies.
Those who thought unions would be at the forefront of representing federal employees may have been premature with their conclusion. At least some federal employee unions, probably most, are in lockstep with the administration in supporting mandatory vaccinations for the federal workforce.
Perhaps at least in part because of this lack of interest, a new group of federal employees has formed a grassroots organization in response to the vaccine mandate now bearing down on the federal workforce.
Update: Request for Preliminary Injunction Denied
On November 8, 2021, the US District Court for DC in the case seeking an injunction denied the request as it was premature. The court concluded:
At this early stage of the proceedings, the record reflects that each Plaintiff has requested an exemption to the very COVID-19 vaccine mandates they challenge. These exemption requests all remain pending, and during their pendency, no Plaintiff faces disciplinary action for refusing the COVID-19 vaccine. Plaintiffs, therefore, come before this Court complaining of a compulsory inoculation they may never need to take, and of adverse employment actions they may never experience. This uncertainty weighs decisively against the ripeness of Plaintiffs’ claims and the irreparability of their purported injuries. Emergency injunctive relief is not appropriate under these circumstances.Church v. Biden, US District Court for the District of Columbia, Civil Action No. 21-2815 (CKK)
Replace Some Feds With Dog Teams Says Schumer
Some politicians, including Senate Majority Leader Chuck Schumer, expressed disdain for those who are not receiving the vaccine. Senator Schumer’s comment may be the most insulting when stating that some federal employees who have not been vaccinated should be replaced by dog teams. Despite the insults, and with more likely to come, that has not yet cowed some federal employees.
Fear of Harassment and Retaliation
Their legal challenge contends that the implementation of Executive Orders 14042 and 14043—which require federal employees to be vaccinated against COVID-19 and instruct agencies to implement similar programs with respect to contractors—violates the Administrative Procedure Act. The request by the employees for remaining anonymous was based on a fear of harassment and the disclosure of medical information.
The employees were concerned that because of the politicized environment surrounding the COVID-19 vaccine that they might face “retaliation in the workplace or in an online forum.”
They were particularly concerned that their personal information could be published online and that they could be subject to “threats of violence.”
Request Denied for Anonymous Plaintiffs
The court denied the request from the employees to remain anonymous. In denying the request, the court concluded:
While plaintiffs’ fear of such potential threats may be real, no substantiation for that concern is presented, making this concern purely theoretical….Without this conjectural threat of violence, the risk of harassment plaintiffs describe is one that can attend any litigation around a contentious issue and thus constitutes only “the annoyance and criticism that may attend any litigation.”
Request for Preliminary Injunction Denied
On October 19, 2021, the Federal Practice Group filed a request with the District Court in the District of Columbia for a preliminary national injunction enjoining all federal agencies from enforcing the Executive Orders mandating COVID vaccines for federal employees and contractors or from requiring information from individuals about their vaccination status.
In another case on the issue of mandatory vaccinations, also filed in the District Court for the District of Columbia, the Biden administration did not agree with a judge’s request to halt the discipline and termination of any employees in the process of seeking a religious exemption to the vaccine pending the court’s ruling on the temporary restraining order (TRO) motion.
On November 8, 2021, the judge in the case seeking an injunction denied the request. The court concluded:
At this early stage of the proceedings, the record reflects that each Plaintiff has requested an exemption to the very COVID-19 vaccine mandates they challenge. These exemption requests all remain pending, and during their pendency, no Plaintiff faces disciplinary action for refusing the COVID-19 vaccine. Plaintiffs, therefore, come before this Court complaining of a compulsory inoculation they may never need to take, and of adverse employment actions they may never experience. This uncertainty weighs decisively against the ripeness of Plaintiffs’ claims and the irreparability of their purported injuries. Emergency injunctive relief is not appropriate under these circumstances.
Church v. Biden, US District Court for the District of Columbia, Civil Action No. 21-2815 (CKK)
Issues and Relief Sought
The complaint filed in the District Court for the District of Columbia requests that the court:
- Declare the Orders unlawful as they violate the Rehabilitation Act and the Americans with Disabilities Act (ADA) by requiring agencies to make unlawful medical inquiries;
- Declare the Orders unlawful as they violate the Rehabilitation Act and the ADA by requiring agencies to discriminate based on a perceived disability;
- Declare the Orders unlawful as they violate the Federal Food Drug and Cosmetic Act’s (FDCA) requirement for informed consent and opportunity to refuse an FDA unlicensed vaccine;
- Issue a nationwide order permanently enjoining the agencies from enforcing Executive Orders 14042 and 14043.
Position of Federal Employee Unions on Vaccine Mandate
Each union decides what action to take regarding mandatory vaccinations. The largest union, the American Federation of Government Employees (AFGE), has determined it would not file a lawsuit. Here is the rationale:
AFGE attorneys have thoroughly evaluated the text of the executive order and any potential legal arguments for and against it. No potential arguments or avenues were ignored. However, based on the order’s express provision for exceptions required by law, along with a long line of Supreme Court and other federal cases upholding vaccinations in the interest of public health, as well as other cases foreclosing primary court jurisdiction over a federal union’s challenge to an employment-related executive order, a direct legal challenge or lawsuit over the order is unavailable.
The National Treasury Employees Union has taken a similar approach. It stated in a press release that “[M]aking vaccination a condition of employment for federal employees is a step the government, as an employer, has the legal right to take.”
Under the Trump administration, similar arguments could have been made for not filing legal challenges in various courts but the unions did not follow that logic.
Strong Opposition to Mandatory Vaccinations
In a recent survey of more than 5,200 people, most of whom are federal employees or retirees, more than 63% of those responding indicated they did not agree with the decision of the federal government to require COVID vaccinations for employees. More than 35% of respondents indicated they did not plan on getting vaccinated. Almost 32% said they would leave a federal job if it required being vaccinated. About 69% thought federal employee unions would go along with the vaccination mandate.
The muted reaction of federal employee unions on the topic of a vaccine mandate is not a surprise. Federal employee unions are strong allies of the administration. While their reaction from a Trump administration would have been long and loud, any opposition raised by the unions is likely to be more restrained.
The Biden administration has been favorable for unions. There are less restrictions on official time, more access to decision-making in agencies, fewer restrictions on the use of government facilities by unions, and appointments to agencies such as the FLRA, MSPB, and Impasses Panel of people likely to lean in favor of positions supported by unions.
Unions probably see their muted reaction on behalf of federal employees as “being for the greater good.” In other words, the unions have benefitted from the generosity and support of the administration and they do not want to lose any of those benefits by creating a lot of public support from federal employees who are opposed to the mandatory vaccination Executive Order.