In early April, a panel of judges from the United States Court of Appeals for the Fifth Circuit ruled 2-1 against the nationwide injunction that had suspended enforcement of the vaccination mandate for federal employees. However, even if the judgment overturned the lower court’s decision to discontinue the warrant, a grace period is still in place until the decision takes effect.
While this grace period only prevented federal employees who failed to comply with the federal employee vaccination mandate from being terminated, suspended, or subject to any other sort of punishment due to their vaccination or exemption status until May 31, a petition from those challenging the warrant pushed that date back further, as the court elected to hear the second appeal.
Plaintiff’s attorney for the appeal requested a rehearing of the full Fifth Circuit panel, commonly referred to as a bench hearing. When a bench hearing is granted, the court frequently postpones the execution of a previous decision of a panel of three judges. In this situation, it could mean keeping the injunction in place while the arguments are reconsidered.
However, this is far from a certainty. On the one hand, the court could grant the petition, keeping the injunction in place until the case is heard by the entire Fifth Circuit. Or, the court could postpone the imposition of suspensions and terminations for unvaccinated federal employees by delaying the withdrawal of the injunction until the plaintiffs have exhausted all of their appeal rights. Those who oppose the requirement have asked the Fifth Circuit to do just that if a bench the hearing is denied so they can take their case to the Supreme Court.
It is unlikely, however, that the Supreme Court will be favored to rule on these cases, as it has already ruled twice before on cases surrounding the mandate to vaccinate federal employees in January of this year. While they allowed the requirement to remain in place for healthcare workers, they invalidated the other requirement which only applied to large private sector employers.
What is the future of vaccination mandates in the federal workforce?
For now, the White House has ordered the agencies to maintain the status quo. The preliminary injunction is still in effect, an Office of Management and Budget official says, and agencies, including the federal workforce security task force, are taking no steps to prepare to the application.
The federal government also cannot process or decide requests for religious or medical exemptions at this time. The White House estimates that testing unvaccinated employees for COVID-19 will cost an additional $5 million each week while the injunction is in effect and enforcement is suspended.
According to White House data, prior to the initial injunction, approximately 98% of government employees were estimated to have complied with the vaccine mandate or had requested an exemption/reasonable accommodation. If the mandate is reinstated, nearly 40,000 employees, as well as any workers whose exemption requests are granted, could be suspended or fired.
That being said, many are cautious that the withdrawal of a significant portion of the federal workforce due to their refusal to comply could cause more harm than good, as more downturns would surely follow. Coupled with the struggle that many agencies face to get workers back into the office, this may be a reason why many agencies have made no preparations to follow through with the vaccination mandate enforcement unless they are told. explicitly say to do so.
While it’s hard to say exactly how the courts will rule when it comes to implementing the mandate or suspending its application, the Biden administration has urged agencies to prepare for the mandate’s implementation if its application was authorized. while other calls are in progress.
One of the strongest arguments for keeping the vaccine application on hold comes from the plaintiff’s attorney in that case, R. Trent McCotter. McCotter mentioned that if the application of the vaccine were allowed during the appeals process, if the courts ultimately decided against the mandate of the vaccine, there would be a considerable number of logistical problems since the agencies would have to cancel all the sanctions imposed during this period, causing “mass confusion and chaos” for federal agencies and employees.
Going forward, however, the longer the vaccine mandate remains in legal limbo, the more concerns about COVID-19 will continue to subside, which, if sufficiently contained, could result in the mandate vaccine becomes a non-issue, not requiring reasonable accommodations/exemptions. That being said, with midterm reviews coming up in November, it wouldn’t be surprising to see questions about COVID-19 vaccine mandates return to the national forefront. However, with the livelihoods of many federal employees at stake, it is reasonable to assume that more definitive instructions will be issued to agencies regarding the processing or cancellation of such requests by then.
Keep your eyes on the field
Most agencies began bringing staff back to work this spring and hoped that all non-exempt staff would be vaccinated at the same time. However, due to the waiting period we find ourselves in with respect to the application of the vaccination mandate, there are still a significant number of federal employees who either have reasonable accommodation requests pending, or who stay on the verge of facing some kind of discipline. For those in this situation, it will be important to keep an eye on the Fifth Circuit court and its action.
If you are a federal employee seeking additional guidance on the future of the vaccination mandate or are seeking assistance in requesting a medical or religious accommodation, our team of attorneys is available to assist you today.
© 2022 Mathew B. Tully, Esq.. All rights reserved. This article may not be reproduced without the express written consent of Mathew B. Tully, Esq..