Federal Employee Vaccine Mandate May Be Heading to the Supreme Court

A U.S. appeals court did not overturn a lower court’s decision blocking enforcement of the federal employee vaccine mandate. It could go to the Supreme Court.

A U.S. appeals court did not overturn an injunction issued by a lower court that has stopped the federal government from enforcing President Biden’s vaccine mandate for federal employees.

In a 2-1 vote issued February 9, 2022, the appeals court declined to block the lower court ruling (Feds for Medical Freedom v. Joe Biden 22-40043). That lower court ruling was issued by U.S. District Judge Jeffrey V. Brown. Brown said that Biden had gone too far in exercising his power over federal employees with his Executive Order that required the federal workforce to get the COVID vaccine. In his decision, Brown wrote:

The court notes at the outset that this case is not about whether folks should get vaccinated against COVID-19—the court believes they should. It is not even about the federal government’s power, exercised properly, to mandate vaccination of its employees. It is instead about whether the President can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment. That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far.

Circuit judge Stephen A. Higginson wrote the dissenting opinion in the February 9, 2022 appeals court case. He said that in light of the latest court action on the vaccine mandate, the only court which can resolve the matter now is the Supreme Court. Higginson wrote:

The district court issued its preliminary injunction on January 21. The Government moved to stay that order on January 28. The district court refused to rule on that motion. The Government, presumably with Solicitor General approval, then moved this court for a stay on February 4. Today, our court too refuses to rule. Thus, a presidential order affecting millions of federal employees has been enjoined nationwide, yet two separate federal courts have failed to rule on the Government’s emergency request for a stay. The only court that can now provide timely relief is the Supreme Court.

Higginson also wrote in his dissent that Biden was within his authority to issue the vaccine mandate. He wrote:

The President is not an unelected administrator. He is instead the head of a co-equal branch of government and the most singularly accountable elected official in the country. This federal workplace safety order displaces no state police powers and coerces no private sector employers. Instead, consistent with his Article II duty to “take Care that the Laws be faithfully executed,” the President is performing his role as CEO of the federal workforce, taking executive action in order to keep open essential government buildings; to maintain the provision of vital government services, such as the Transportation Security Administration; and to prevent unvaccinated federal employees from infecting co-workers or members of the public who, whether because of age or infirmity, might be highly vulnerable to hospitalization and death.

Federal employees that disagree with the content of Executive Order 14043 retain the right to claim an exemption, to leave the government’s employment, to collectively bargain, and to challenge the order through the CSRA [Civil Service Reform Act]. And, of course, any American that disagrees with the content of the order has the right to vote the President out of office. Thus, consistent with NFIB v. OSHA and Biden v. Missouri, accountability for the federal executive employee immunization requirement is open, obvious, and vested in one elected, democratically-accountable official. These two cases do not cast doubt on, but rather determinatively confirm, the President’s power to issue Executive Order No. 14043.

Recent Supreme Court Rulings on Vaccine Mandates

The Supreme Court recently struck down the vaccine mandate for large private sector companies that the Occupational Safety and Health Administration (OSHA) had tried to impose on businesses with 100 or more employees. Although this did not directly impact federal employees, one government organization that was impacted was the U.S. Postal Service.

The Supreme Court did, however, leave the vaccine mandate in place for most U.S. health care workers.

Given this recent ruling, it is possible the Supreme Court might strike down the federal employee vaccine mandate, at least for federal employees who do not work in health care, if the case were to be heard by the Supreme Court. Obviously, it will not be possible to know the outcome of such a scenario if or until the Supreme Court hears and rules on the case.

The White House has said that 98% of the federal workforce is currently in compliance with the federal employee vaccine mandate, meaning that the majority of federal employees had either been fully vaccinated or sought an exemption. The White House made this statement at the time the lower court’s injunction was issued but also added that it would be appealing the decision.

Government Has Stopped Enforcing the Federal Employee Vaccine Mandate

Since the lower court’s ruling on January 21, 2022, the federal government has halted enforcement of the federal employee vaccine mandate.

However, the Biden administration has made clear that even though harsher disciplinary measures will not be enforced for the time being, it is still enforcing additional COVID protocols for federal employees who have opted not to get the vaccine. For instance, agencies are instructed to discipline unvaccinated federal employees who refuse to follow the additional measures put in place such as wearing masks, keeping distance from their co-workers, or submitting to weekly COVID testing.

These additional COVID protocols are based on one’s vaccination status. The Safer Federal Workforce Task Force recently posted a frequently asked question on its website explaining this:

Q: If a Federal employee is not fully vaccinated due to a pending or approved request for an exception or extension to the COVID-19 vaccination requirement for Federal employees, what workplace safety protocols should that individual follow?

A: Generally, Federal employees who are not fully vaccinated because they have a pending or approved request for an exception or extension to the COVID-19 vaccination requirement for Federal employees should follow applicable masking, physical distancing, and testing protocols, as well as applicable travel guidance. There may be circumstances in which an agency determines that the nature of an employee’s job responsibilities requires heightened safety protocols if they are provided with a legally required exception or extension. In some cases, the nature of the employee’s job may be such that an agency determines that no safety protocol other than vaccination is adequate. In such circumstances, the agency may deny the requested accommodation.

The Task Force still notes on its website that agencies must develop testing programs for unvaccinated federal employees by February 15. According to this guidance, federal employees who have not been fully vaccinated against COVID will be subject to COVID tests on at least a weekly basis when working onsite.

About the Author

Ian Smith is one of the co-founders of FedSmith.com. He has over 20 years of combined experience in media and government services, having worked at two government contracting firms and an online news and web development company prior to his current role at FedSmith.