District court blocks COVID-19 vaccine requirement for federal employees

First published by Safety+Health an NSC publication

Photo: CDC

Galveston, TX — The Biden administration can’t enforce its a COVID-19 vaccine mandate for federal employees, the U.S. District Court for the Southern District of Texas ruled in a decision issued Jan. 21.

President Joe Biden signed Executive Order 14043 on Sept. 9. The order initially gave federal employees until Nov. 30 to get vaccinated or obtain an exemption. That deadline was pushed back to the new year. During oral arguments made over the telephone Jan. 13, the two sides “agreed that the soonest any plaintiff might face discipline would be Jan. 21.”

In his decision, Judge Jeffrey Vincent Brown writes that although the court believes in COVID-19 vaccinations and “the federal government’s power, exercised properly, to mandate vaccinations for its employees,” a key question remained. That is “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?”

He concludes, in part, that because of the U.S. Supreme Court’s recent decision on OSHA’s emergency temporary standard on COVID-19 vaccination, testing and masking, the executive order was “a bridge too far.”

Brown also writes that the federal government could apply “less restrictive measures,” such as part- or full-time remote work, masking, and physical distancing.

“The government has not shown that an injunction in this case will have any serious detrimental effect on its fight to stop COVID-19,” the judge writes. “Moreover, any harm to the public interest by allowing federal employees to remain unvaccinated must be balanced against the harm sure to come by terminating unvaccinated workers who provide vital services to the nation.”

Brown also notes that a Dec. 9 press release from the White House states that the lowest vaccination rate among federal employees was 88%.

During a Jan. 21 press briefing, White House Press Secretary Jen Psaki said that 98% of federal workers are in compliance. “Obviously, we are confident in our legal authority here,” she said.

The Department of Justice has filed an appeal, according to multiple published reports. The 5th U.S. Circuit Court of Appeals, based in New Orleans, would have jurisdiction in that appeal.

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COVID-19 pandemic: House Democrats call for stronger guidelines for federal workers

Washington — Federal employees need more comprehensive guidance from the Office of Personnel Management before they return to the workplace amid the COVID-19 pandemic, House Democrats contended during a June 25 virtual hearing convened by the House Government Operations Subcommittee.

“This hearing is about ensuring federal agencies have plans and necessary resources to enable continuity of operations throughout the pandemic,” Connolly said. “This hearing is about ensuring the thousands of federal workers who have contracted the coronavirus are respected.”

Lorraine M. Martin, CEO and president of the National Safety Council and one of four witnesses testifying during the hearing, said the federal government “can set the example.” Such an example, Martin said, would follow “all the guidance from health organizations” as well as large multinational companies that “have very detailed playbooks on how to bring their folks back to work and when to bring them back.”

NSC launched its SAFER: Safe Actions for Employee Returns initiative in May to help employers understand all the needed steps and considerations for bringing employees back to the workplace. Martin highlighted a new SAFER resource: the Organizational Vulnerability Assessment tool, which organizations can use to get “tailored recommendations.”

The subcommittee’s Republicans want the federal government to stay away from a “one-size-fits-all” approach. Two subcommittee members pointed to Internal Revenue Service office closures, which they say have slowed the issuance of tax refunds.

In contrast, Jacqueline Simon, national policy director for the American Federation of Government Employees, called on federal workplaces to delay bringing workers back until “agencies have the full capacity to test, protect, trace and inform their workforces, and unless and until genuine, objective data on the status of the pandemic shows it has subsided.”

Simon also noted the success of remote work during the pandemic. “Since so many have been successfully teleworking throughout the pandemic, I inevitably ask why the rush to return?” she asked.

J. Christopher Mihm, managing director for strategic issues in the Government Accountability Office, added that “agencies’ experiences with telework during the global pandemic suggest opportunities for increased availability of telework in the future.”

Mihm also called for strengthened two-way communication, especially listening to and addressing employees’ concerns, as well as cooperation and information sharing among agencies in the same geographic areas.

Martin said telework by at least some employees in organizations – already a trend before the pandemic – likely is “here to stay.”

“Our country and its citizens have all experienced great trauma because of the coronavirus,” Martin said. “Worrying about one’s safety and well-being at work should not be needlessly added to this burden.”