Judge Jeffrey Brown of the U.S. Court for the Southern District of Texas issued an injunction against President Biden’s COVID-19 vaccine mandate last Friday. The injunction puts a pause to President Biden’s Executive Order that was issued back in September.
Judge Brown’s injunction comes as a response to the Supreme Court ruling that put an end to Biden’s order that would have made private sector employers with more than 100 workers test or have their employees vaccinated. This standard was introduced by the Occupational Safety and Health Administration (OSHA) which was found to have lacked clear statutory authority for its rule being focused on the private sector. The US Postal Service would have also been impacted by the OSHA order.
The mandate that was upheld by the Supreme Court was that of the Center for Medicare and Medicaid Services, which requires health care workers at facilities that receive Medicare and Medicaid federal funding to be fully vaccinated. The court’s decision stems from the focus of the mandate being much narrower.
Judge Brown cited his reasoning for the injunction was that it would meet the legal standard for federal employees facing irreparable harm if they must, “choose between violating a mandate of doubtful validity or consenting to an unwanted medical procedure that cannot be undone.” He went on to elaborate that while things like lost wages aren’t necessarily enough to prove irreparable harm, the significant loss in employment opportunity in an individual’s chosen field could prove so.
Judge Brown mentioned that the President should not have the authority to—with the stroke of a pen and without Congressional input—force federal employees to undergo a medical procedure as a condition of their employment. Judge Brown cites that in NFIB v. OSHA, “the Supreme Court specifically held that COVID-19 is not a workplace risk, but rather a ‘universal risk’ that is ‘no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”
What’s to Come?
The Justice Department has already filed an appeal on the injunction to the Fifth Circuit Court. Currently in the 11th Circuit Court of Appeals, the Justice Department is looking to appeal Georgia’s court injunction of the contractor mandate.
Currently, Judge Brown’s nationwide injunction will hold until reviewed upon appeal and reversed if the Fifth Circuit Court sees fit. This decision should affect more of those employees who did not qualify for reasonable accommodations or exemptions, did not file requests for exemptions or have already been denied. This will stay any enforcement (i.e., disciplinary or adverse actions associated) of the vaccine mandate for an employee’s failure to comply. The Safer Federal Workforce Task Force also provided guidance that agencies should not continue to process pending accommodations or exemption requests, meaning they have been submitted but no decision on their request has been made and are still going through the interactive process with their respective agency. The new guidance also indicates that agencies should not ask for additional information on an employee’s accommodation or exemption request while the injunction is in place. Essentially, the Task Force’s recent guidance means going back to business as “usual” while the injunction is in place until it might be overturned on appeal or final decision on the legality. To be clear on the law prior to this injunction, no federal agency could take disciplinary action for a failure to comply with any direction so long as the employee has a pending accommodation request.
In the situation that an employee received disciplinary action prior to the injunction with regards to the enforcement of EO 14043, the Task Force guidance directs agencies that they do not need to repeal, rescind or revoke letters of education, counseling, reprimand, or proposals of suspensions. However, agencies should temporarily halt any active suspensions as of January 21st and restore those employees to pay status.
Also of note, the guidance states that transfers and new hires are not required to have the vaccine to start in their position if they receive entry on duty during the injunction.
The injunction also does not mean that the executive order has been declared unconstitutional or overturned; that has yet to be decided.
If you have additional questions about how the injunction will affect your career or case for accommodations, our team of attorneys are available to assist you today.