Appeals Court Restores Biden’s Federal Employee Vaccine Mandate

Topline

The 5th Circuit Court of Appeals on Thursday removed a lower court injunction that halted President Joe Biden’s nationwide Covid-19 vaccine mandate for federal employees, empowering the government to penalize or terminate workers who fail to get vaccinated.

Key Facts

The appellate court voted 2-1 to remove Texas-based district court Judge Jeffrey Vincent Brown’s preliminary injunction issued January 21, in which Brown found that Biden had gone too far by enacting the policy without congressional approval.

The appeals court found that Brown did not have proper jurisdiction to decide the case, and said the plaintiffs—several groups of federal employees—should have challenged Biden’s mandate under the 1978 Civil Service Reform Act, which allows federal workers who have been disciplined to appeal to the Merit Systems Protections Board.

Federal employees who successfully appeal to the Merit Systems Protection Board may be reinstated to their jobs and receive back-pay or other applicable compensation, and those whose appeals are rejected can request a judicial review of their case, the court wrote.

In a dissenting opinion, appellate Judge Rhesa Hawkins Barksdale argued the Civil Service Reform Act only applies to employees who have been subject to adverse action by their employer, whereas the plaintiffs in this case mounted a challenge to the mandate before it was enforced.

Key Background

Biden announced a vaccine mandate for federal employees in September, following the emergence of the coronavirus’ delta variant, emulating mandates put in place by many private employers. If the mandate remains in place, roughly 3.5 million federal employees will be required to fully vaccinate against Covid-19 or face the possibility of discipline or termination. However, workers who do not vaccinate due to a disability such as an autoimmune disorder or due to a “sincerely held religious, belief, practice or observance” may be eligible for an exemption from the mandate. Under the mandate, employees who neither vaccinate nor obtain an exemption will face a series of disciplinary measures, including counseling, suspension and dismissal. In September, Biden set a November 22 deadline for the mandate, though this was later pushed back to early 2022.

Big Number

97.2%. That’s the share of federal employees who had already complied with the vaccine mandate by December, according to the White House. The number included vaccinated workers and people who applied for exemptions.

Tangent

Both judges in the majority in Thursday’s ruling were nominated by former President Bill Clinton, and Barksdale—the one dissenter—was nominated to the appellate bench by former President George H. W. Bush.

Surprising Fact

A panel of judges for the 5th Circuit Court of Appeals chose not to immediately put Brown’s injunction on hold in a February 9 ruling. Judge Stephen Higginson wrote in a dissenting opinion that “the public interest is not served by a single Article III district judge, lacking public health expertise and made unaccountable through life tenure, telling the President of the United States, in his capacity as CEO of the federal workforce, that he cannot take the same lifesaving workplace safety measures as these private sector CEOs.”

Further Reading

“Judge Blocks Biden’s Federal Employee Vaccine Mandate Nationwide” (Forbes)