Court blocks vaccine mandate for federal employees

A federal judge in Texas ruled Friday that the Biden Administration cannot enforce its vaccine mandate for federal employees, issuing an injunction that halts the requirement nationwide.

Judge Jeffrey Brown found the president had no legal authority to require feds to get vaccinated, saying that while he has broad power over federal employment policies, those authorities aren’t sweeping enough to justify the September executive order that implemented the requirement.

“This case is not about whether folks should get vaccinated against COVID-19 — the court believes they should,” he wrote. “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 government had told the court that federal employees could start being disciplined for being unvaccinated as soon as Jan. 21. The timing, the judge found, put those employees at risk of “imminent harm,” and required his order to take effect the same day.

In deciding the president didn’t have the authority to issue the federal employee mandate, the judge relied partly on the Supreme Court’s recent decision striking down the Occupational Safety and Health Administration’s vaccine mandate for large private employers. He said that case — NFIB v. OSHA — made clear that that agency can impose workplace safety standards, but not public health measures.

“Similarly, [the law] authorizes the president to regulate the workplace conduct of executive-branch employees, but not their conduct in general,” he wrote. “And in NFIB, the Supreme Court specifically held that COVID-19 is not a workplace risk, but rather a ‘universal risk’ that is ‘no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.’”

The executive order Judge Brown enjoined Friday applied specifically to federal civilian employees. The ruling did not appear to have an immediate effect on the Defense Department’s separate vaccine mandate for uniformed members of the military.

The decision came as part of a lawsuit by a group called Feds for Medical Freedom, which says it has about 6,000 members throughout the civil service, and AFGE Local 918, a union that represents employees in the Federal Protective Service and the Cybersecurity and Infrastructure Security Agency. The groups had sued to block both the administration’s federal employee mandate and its federal contractor vaccine mandate, but the judge declined to rule on the contractor portion, since that mandate is already the subject of a separate nationwide injunction by a court in Georgia.

Explaining his decision to apply the injunction to all federal agencies nationwide, the judge said it would be too complicated to block the mandate’s enforcement only for the thousands of employees the plaintiffs represent. He found at least some of them would inevitably be fired if the vaccine requirement weren’t blocked.

“The court does not have to speculate as to what the outcome of the administrative process will be. Many plaintiffs have not only declined to assert any exemption but have also submitted affidavits swearing they will not. The court takes them at their word,” he wrote. “Many of these plaintiffs already have received letters from their employer agencies suggesting that suspension or termination is imminent, have received letters of reprimand, or have faced other negative consequences.”

The Justice department plans to appeal the ruling; a separate appeal seeking to reverse the Georgia court’s injunction of the contractor mandate is already underway before the 11th Circuit Court of Appeals.

“We are confident in our legal authority here,” Jen Psaki, the White House Press Secretary said at a briefing shortly after the ruling. She added that 98 percent of federal employees are now vaccinated as of Friday.

“That is a remarkable number,” she said.

But in Judge Brown’s view, the overwhelmingly high vaccination rate in the federal workforce actually weighs against letting the government enforce the mandate with regard to the relative handful of employees who aren’t vaccinated.

While vaccines are undoubtedly the best way to avoid serious illness from COVID19, there is no reason to believe that the public interest cannot be served via less restrictive measures than the mandate, such as masking, social distancing, or part or fulltime remote work,” he wrote. “The plaintiffs note, interestingly, that even fulltime remote federal workers are not exempt from the mandate. Stopping the spread of COVID19 will not be achieved by overbroad policies like the federalworker mandate.”

 

 

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