OFCCP Week in Review: January 2022 #4 | Direct Employers Association


Friday, Jan. 21, 2022: Biden administration’s vaccination efforts limited to sole mandate for healthcare workers as court orders executive order requiring federal employees to be vaccinated

In the latest losing streak for the Biden administration’s efforts to vaccinate the American workforce, the U.S. District Court for the Southern District of Texas on Friday Published a nationwide injunction against President Biden’s executive order requiring all federal workers to consent to vaccination or risk firing. Feds for Medical Freedom, et al. vs. Biden, et al., Case No. 3:21-cv-00356 (SD Tex. January 21, 2022). Sitting in Texas, unsurprisingly, Judge Jeffrey V. Brown’s opinion relied heavily on the Fifth Circuit Court of Appeals’ decision against OSHA ETS in BST Holdings, LLC v OSHA, 17 F.4e 604, 618 (5th Cir. 2021). The substantial effect of Judge Brown’s decision means that the federal government has fewer rights than a private employer to require its employees to be vaccinated.

The backdrop: President Biden Published Executive Order 14043 (the “Executive Order”) requiring civilian federal government employees to be vaccinated against COVID-19 or terminate their employment, with exceptions only as required by law. While noting that individuals should get vaccinated against COVID-19, Judge Brown determined that EO 14043, without congressional input, was “a bridge too far.”

Judge Brown began by rejecting the Biden administration’s procedural defenses alleging the court lacked jurisdiction to hear the claims. First, the Biden administration has argued that the Civil Service Reform Act of 1978 (the “Act”) excluded plaintiffs’ claims in the case were unfounded. Specifically, the government argued that the plaintiffs could not bring their action to court because the statute provided the exclusive avenue of redress for employees objecting to any material change in duties, responsibilities or terms of employment. work of their job. However, Judge Brown determined that “working conditions” generally only concerned the day-to-day, concrete parameters of a job, such as hours of work, discrete assignments, and the provision of necessary equipment and resources. As such, the compulsory vaccination did not constitute the “working conditions” of the plaintiffs’ employment. [Well, that is a bit of a stretch for Judge Brown.] Moreover, requiring plaintiffs to wait until they are terminated to challenge the warrant would create irreparable harm to plaintiffs.

Second, the court also rejected the Biden administration’s claim that the court lacked jurisdiction to hear the case because none of the plaintiffs’ demands were “ripe.” However, Judge Brown found that because many complainants had already received letters suggesting that suspension or termination was imminent, received letters of reprimand, or faced other negative consequences, the threat to complainants was “real and imminent, and not conjectural or hypothetical. ”

Determining that the court had jurisdiction to hear the claims, Judge Brown then ruled that the plaintiffs were entitled to an injunction staying the executive order. First, Judge Brown found that allowing the executive order to be implemented would cause irreparable harm to the plaintiffs by forcing them to face a decision between their job or the vaccination. Further, the court found that the effect of the executive order to deny the plaintiffs meaningful employment opportunities in their chosen profession also constituted irreparable harm. The tribunal did not provide any public policy arguments regarding an employer’s ability to set terms and conditions of employment. Nor did the tribunal explain how the loss of a job could constitute irreparable harm given that nothing prevented plaintiffs from seeking alternative employment with one of the thousands of other employers that exist throughout the country.

Second, once Brown J. found irreparable harm, he went on to determine that the plaintiffs were likely to succeed on the merits of their claims. Judge Brown found that none of the legal bases relied on by the Biden administration to issue the vaccination warrant authorized the president’s action, finding that: (1) 5 USC § 3301 did not apply only to candidates for public office; (2) 5 USC § 3302 was limited in scope and did not allow the president to prescribe a mandate for vaccination; and (3) 5 USC § 7301 only authorized the regulation of conduct in the workplace, whereas vaccinating a person was tantamount to their “status” and constituted conduct that occurred outside the workplace. . Additionally, Judge Brown found that Article II of the Constitution does not grant the President the power to impose medical procedures on civilian federal employees.

Finally, Judge Brown determined that the interests of the plaintiffs outweighed the public interest in vaccinating the workforce given that more than 88% of the federal workforce had received at least one dose of vaccine. Thus, Judge Brown felt that imposing the injunction would not have a serious adverse effect on the fight to stop COVID-19 since the federal workforce was already largely vaccinated. Additionally, laying off unvaccinated employees would result in the loss of vital services needed to serve the public, Judge Brown found.

This case is all the more remarkable because with this vaccination mandate, President Biden was operating at the zenith of his delegated powers to order a vaccination mandate. Article II, Section 1 of the United States Constitution grants the President, among other things, the ability to manage and operate the federal government: “Executive power shall be vested in a President of the United States of America”. Boom. This is how Section 1 begins. Once sworn in as President, federal employees are his employees. So this decision is a bit of a surprise, except government-imposed vaccination mandates are so unpopular and this decision comes from the sovereign state of Texas (formerly the “Republic of Texas”).

This latest move follows a long string of defeats for the Biden administration in its efforts to increase vaccination against COVID-19. However, this case is unique in that it speaks to the substantial ability of the federal government to manage its own workforce. While this ruling only applies to the federal workforce, private employers should be aware of the reasoning behind this ruling as it provides a “road map” for employees looking to take action to end vaccination mandates from private employers. This case decision also alerts employers to the arguments a potential litigant might make and prepares them to craft their vaccination mandates carefully to potentially avoid the pitfalls of the Biden mandate.

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