Biden’s vaccine mandate for federal workers faces an uncertain future

·4 min read

A federal district court ruling in Texas on Friday that shot down the White House’s right to enforce its COVID-19 vaccine mandate for federal workers is likely to be upheld on appeal, legal experts say.

The mandate is the latest in a string of the Biden administration’s vaccination orders to be tested against legal limitations on executive power. The requirement, laid out in a Sept. 9 executive order, said certain non-exempt executive agency workers would need to get fully vaccinated by Nov. 22, or risk losing their jobs.

The ruling comes after the Supreme Court halted the enforcement of a separate mandate for larger private employers that would have been administered by the Occupational Safety and Health Administration.

“Given the makeup of the 5th Circuit Court of Appeals and the Supreme Court’s recent ruling enjoining the OSHA emergency temporary standard, it seems unlikely that an appeal of the injunction would ultimately be successful,” Akin Gump Strauss Hauer & Feld labor and employment partner Brian Patterson told Yahoo Finance, referencing the conservative makeup of the appellate court that handles appeals from district court decisions in Texas, Louisiana, and Mississippi. “Absent Congressional action, I don't believe the mandate is going to survive.”

Protesters gather for a rally against COVID-19 vaccine mandates in front of the Lincoln Memorial in Washington, Sunday, Jan. 23, 2022. (AP Photo/Patrick Semansky)
Protesters gather for a rally against COVID-19 vaccine mandates in front of the Lincoln Memorial in Washington, Sunday, Jan. 23, 2022. (AP Photo/Patrick Semansky)

The U.S. Supreme Court on Jan. 13 blocked the White House from enforcing the other mandate targeting large private employers and their workers. The mandate, originally slated to go into effect Jan. 4, ordered OSHA to enforce a vaccination-or-testing rule on employers, that in turn, was slated to impact roughly 84 million U.S. workers. Conversely, the Court ruled that another administration mandate imposing vaccination on health care workers could be enforced based on authority that Congress granted to the Centers for Medicare and Medicaid through the Department of Health and Human Services.

The Texas ruling, Patterson said, “closely aligns with the Supreme Court's rationale for enjoining the OSHA” emergency rule in that the decision to become vaccinated doesn't constitute workplace conduct that the president or OSHA has the authority to regulate. Similarly, he said, the Texas court ruled that the president can regulate the workplace conduct of executive branch employees, but not their conduct in general.

Attorneys Benjamin Noren, associate chair of Davidoff Hutcher & Citron’s labor & employment group, and Leigh Nason, co-chair of Ogletree Deakins’ federal contract compliance programs group, agreed that the 5th Circuit is an unlikely place for the Biden administration to win its appeal.

However, in Noren’s view, neither the Supreme Court’s rationale for denying enforcement of the large employer mandate, nor its reasoning for green lighting enforcement of the health care worker mandate, should affect the 5th Circuit’s findings.

“It is a completely different legal question,” Noren said of the controversy over the federal worker mandate.

He also argues that district court Judge Jeffrey Brown stretched a statute relied upon in his decision by adding the word “workplace” into its language that specifically states the president may “prescribe regulations for the conduct of executive branch employees.”

Nason points out another distinction separating the legal analysis in the federal worker mandate from the private employer mandates. The government, she explains, is tasked with guaranteeing to its employees due process considerations that are not imposed upon private employers. “It's a different set of rules,” she said. Public employees, for example, are entitled to a hearing when faced with potential termination.

It remains unknown whether the administration’s appeal to the 5th Circuit will be expedited, and whether the matter will ultimately end up before the Supreme Court.

One factor that could keep the case from receiving the fast track treatment that the OSHA and CMS cases received is that with approximately 3.5 million federal workers it impacts fewer U.S. employees. Another is that its original deadline, complied with by 95% of federal workers, although extended, has already passed.

“I doubt the appeal will move as quickly as the OSHA case,” Noren said. “The OSHA case involved a fast-approaching deadline to require vaccinations, whereas here, federal workers were already required to get vaccinated by November 22, 2021.”

Patterson said it would come as no surprise to see similar cases filed in more liberal circuits. A split among courts on the issue could also help it get addressed by the high court.

“Who knows whether the Supreme Court would take it up under some emergency,” Nason said.

If not, she explained, the court would tend to take up the matter only if there were a split in decisions among the lower courts, or if a federal issue were at stake.

All of the cases challenging the administration's mandates will take time to have their core issues resolved. So far, the cases have dealt only with each mandate's likelihood of success once the full merits of each case are decided by a judge or jury.

“It's going to take a long period of time to get to trial,” Patterson said.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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