Another Biden administration requirement that employees get the COVID-19 vaccine — this time for federal workers — was blocked by a federal district court in Texas on January 21. The directive is now on hold pending an appeal of the Justice Department’s decision.
The decision follows the U.S. Supreme Court’s blocking of the Biden administration’s vaccine or testing directive for large employers last week. However, the Supreme Court lifted the suspension of a directive on vaccination for health care providers receiving Medicare or Medicaid.
The president does not have enough powers to require all federal employees to consent to the COVID-19 vaccination or lose their jobs, according to the U.S. District Court for the Southern District of Texas.
“A Bridge Too Far”
“The court notes at the outset that this case is not about whether people should get vaccinated against COVID-19 – the court believes they should,” the court said. The case “is not even about the power of the federal government, properly exercised, to require the vaccination of its employees. Rather, it is about whether the President can, with the stroke of a pen and without input from Congress , requiring millions of federal employees to undergo a medical procedure as a condition of their employment.That, as the law stands, as the Supreme Court recently expressed, is a bridge too far.
Federal employees had until November 22, 2021 to be fully vaccinated. But Jeff Zients, the White House coronavirus coordinator, said he expected federal agencies and contractors “to follow their standard HR processes and that for the likely relatively small percentage of employees who are not in compliance, they will go through training, advice, accommodations and then enforcement,” Reuters reported. He added: “We are creating flexibility within the system. … There is no cliff here.”
The district court said it understood punishment for some employees who refused to be vaccinated was imminent. According to the district court, irreparable harm would likely result from a vaccine requirement for federal workers.
“The 5th Circuit has already determined that Hobson’s employees’ choice between their job(s) and their shot(s) amounts to irreparable harm,” the district court said, which noted that It was not deciding the ultimate question of whether the federal directive was legal, but merely whether to issue a preliminary injunction to block the requirement. “Regardless of the conventional wisdom regarding vaccination, no legal remedy adequately protects the liberty interests of employees who must choose between breaching a warrant of questionable validity or consenting to an unwanted medical procedure that cannot be undone.”
The federal government argued that the president had the authority for the vaccine directive for federal workers because the president can prescribe regulations for the conduct of executive branch employees. According to the government, getting vaccinated is one of these behaviors. But the court held that for the president to regulate worker conduct, the conduct must be work-related. “Any broader reading would allow the president to prescribe, or proscribe, certain private behaviors of civilian federal workers outside the context of their employment,” the court said. Because vaccination is not workplace conduct, the president was not authorized by law to issue the vaccination directive for federal employees, the court heard.
“While vaccines are undoubtedly the best way to prevent serious illness from COVID-19, there is no reason to believe that the public interest cannot be served by less restrictive measures than the mandate, such as masking, social distancing, or partial or full use of remote working time,” the court said. “Stopping the spread of COVID-19 will not be achieved by overbroad policies like the federal worker mandate.”
Private sector employers can still require vaccinations
Despite recent rulings, private-sector employers can still require their employees to get a COVID-19 vaccine, as long as the companies aren’t in states that prohibit such requirements, legal experts say.
If employers have indicated that the only reason they are implementing a vaccination mandate or vaccination or testing program is to comply with the Occupational Safety and Health Administration’s Temporary Emergency Standard (ETS) ( OSHA) for large employers, “they’ll have to walk this backwards,” said Susan Wiltsie, an attorney at Hunton Andrews Kurth in Washington, D.C. “But most of our clients haven’t communicated that their COVID-19 policy is only for ETS compliance. In the absence of the ETS, employers still have a legal duty to protect their employees from the potential spread of COVID-19 in the workplace. OSHA enforces this duty by OSHA also has a National COVID-19 Focus Program that covers certain industries.
If the workforce tends to oppose a private sector employer’s vaccination requirement, “it may be more difficult” for the employer to enforce their policy, said attorney Randi May. at Hoguet Newman Regal & Kenney in New York.
Nevertheless, many employers who require vaccines are staying the course.
“Communication in support of the policy can be rooted in the strong interest and duty of the employer to maintain a safe workplace for all, as well as high productivity and morale, which can be compromised when the number of positive cases in the workplace is increasing,” May said.