By Dan Gephart, January 24, 2022
The FELTG mailbag has been overfilled of late with questions from readers preparing to take adverse actions against employees who failed to comply with President Biden’s vaccine mandate. Today we can answer all those questions with just five words:
Put those actions on hold.
Last week, a Federal judge in Texas issued a nationwide injunction against the requirement that Federal employees be vaccinated against COVID-19, thus enjoining the defendants from “implementing or enforcing Executive Order 14043 until this case is resolved on the merits.”
Judge Jeffrey Brown of the Southern District of Texas 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.”
The Supreme Court struck down Biden’s similar mandate for private sector companies with more than 100 employees. The U.S. Postal Service was part of that mandate. It’s highly likely that this case – Feds for Medical Freedom v. Joseph R. Biden – will make its way to the Supreme Court, as well. Indeed, the Biden Administration has already appealed the ruling to the Fifth Circuit.
The decision came as agencies were preparing to move forward with adverse actions against Feds who, after counseling and education, still refused or failed to get vaccinated and did not request a legal exemption. The judge referred to this looming discipline in his decision as the “imminent harm” that required the injunction.
Despite this setback for the President, the vaccine mandate has already been considered a success by many. In a press briefing soon after news of the decision broke, White House Press Secretary Jen Psaki said that 98 percent of Federal workers are already vaccinated.
However, the decision leaves many of you hanging as you continue to deal with employees who outright refuse vaccination, as well as those who have requested exemptions to the mandate.
If you were in the middle of the reasonable accommodation process on mandate exceptions, you should, obviously, as we mentioned earlier, pause the process. However, make sure that you document that pause. If a higher court reinstates the mandate, it could lead to challenges on processing time, and you’ll need that documented legitimate reason for the delay.
You will also need to re-think your plans for returning employees en masse to the physical workplace to account for the return of unvaccinated employees while ensuring the safety of employees and customers.
While the Office of Personnel Management will not take action to implement or enforce the vaccine requirement, it announced that the Safer Federal Workforce Task Force guidance on protocols related to masking, distancing, travel, testing, and quarantine remains in effect. In addition, the Task Force released a four page Q & A with answers including what to do if agencies have already disciplined employees who failed to meet the vaccine mandate.
Keep an eye on FELTG’s website for updated guidance and news and join us on February 8 from 1 – 4:30 pm ET for Managing COVID-related EEO Challenges in the Federal Workplace. [email protected]