On April 7, 2022, the 5th Circuit issued a decision vacating the S. District of Texas January 21st preliminary injunction of the Executive Order mandating vaccines for all federal employees. The 5th Circuit remanded the case with orders to dismiss.
This decision comes at a time where many agencies are beginning to return employees to the workplace, leaving many employees with questions about vaccination status, exemptions, and what they need to be doing now. Below, we break down the decision and what to expect next.
Background: January 2022 Decision Blocked Agencies from Enforcing Vaccine Mandate for Federal Employees
On September 9, 2021, President Biden issued Executive Order 14043, which mandates COVID-19 vaccination for all executive branch employees, subject to medical and religious exceptions. A group of federal employees filed suit in a Texas federal district court for a nationwide injunction that would prohibit agencies from enforcing the federal vaccine mandate. On January 21, 2022, the Texas court granted the injunction. Pursuant to the order, the Office of Personnel Management ordered all agencies to stop taking any actions under the Order, including processing vaccination exemption request and discipline for non-compliance.
Fifth Circuit’s Decision Reverses Injunction, Sets Path for Agencies to Resume the Mandate
On April 7, 2022, the 5th Circuit vacated the injunction and sent the case back to the Texas district court with orders to dismiss the claim, holding that the court did not have any jurisdiction over the suit.
Key to the holding: the Civil Service Reform Act (CSRA) deprived the courts of jurisdiction because it provides the exclusive avenue for federal employees to challenge employment actions. The CSRA does not allow for employees or organizations to file suit prior to enforcement of the vaccine policy and limits how and when employees can pursue claims.
Under the CSRA, employees have the right to appeal only after their agency has taken an adverse action against them (adverse actions are suspensions of 15 days or more, terminations, and other decision resulting in a loss of pay). Once an agency takes an adverse action, employees have the the right to appeal that action only to the Merit Systems Protection Board, and then to the U.S. Court of Appeals for the Federal Circuit.
The 5th Circuit also noted that employees also can also challenge any agency’s order to vaccinate by filing a “Prohibited Personnel Practice” complaint with the Office of Special Counsel (“OSC”). This type of complaint, which can be filed at any time, including before an employee get vaccinated or faces any proposed discipline, would have to argue that the agency’s vaccine mandate treats the employee “without . . . proper regard for their privacy and constitutional rights,” in violation of the CSRA. OSC could then investigate the complaint and, if it finds a prohibited personnel practice, could seek corrective action at the MSPB, which can then be appealed to the Federal Circuit. However, if OSC declines the complaint, an employee has no further pre-enforcement right of action.
On April 11, 2022, the Department of Justice asked the Fifth Circuit to allow the government to resume enforcement of the vaccine mandate. This request would move the timeline for the Court’s judgment to take effect, which is currently not set to occur until May 31, 2022. The court has not taken action to date.
The group of federal employees that filed the suit (Feds for Medical Freedom) have opposed the government’s request and have stated that they intend to request a rehearing from full panel of the Fifth Circuit.
What to Expect Next?
It is not clear when agencies will begin resuming enforcement of the vaccine, and OPM and the Administration’s Safer Federal Workforce Task Force have not issued any updated guidance.
Federal employees and agencies are still waiting upon guidance from OPM and the Administration’s Safer Federal Workforce Task Force regarding reimplementation of the mandate.
Absent action from the Fifth Circuit, the stay of the mandate will be lifted May 31, 2022. That date could be earlier or later, depending on whether the Court (a) grants the DOJ’s request for immediate reinstatement of the mandate; or (b) grants a motion for a rehearing and delays implementation.
Most federal employees have already received one shot (estimated around 93%), and about 4% sought exemptions before the January 2022 injunction. If you are a federal employee and are not fully vaccinated, now is a good time to get a plan in place for either completing the vaccination or seeking an exemption.
We have been hearing from many employees with questions about requesting exemptions from the vaccine requirement on medical or religious grounds, as well as many employees who are vaccinated, but have concerns about managing the risk of COVID exposure in the workplace. Federal laws, including the Rehabilitation Act and Title VII of the Civil Rights Act do provide protections for employees at either end of the spectrum.
If you have questions about this matter or another employment-related issue, please request a consultation with one of our experienced attorneys.
Find the full case here: Feds for Medical Freedom v. Biden
Published: April 19, 2022 | By: Michelle Bercovici, Partner, Alden Law Group