Federal courts have blocked three of the Biden administration’s forced vaccination requirements for employees, and the President himself seriously weakened a fourth aimed at federal employees.
When this was written a week ago, none of the administration’s vaccine mandates was proceeding as planned. Please keep in mind as you read this that there are new developments taking place every day across the country that impact these policies, both in the courts and administratively.
Biden retreated from his hard stance regarding threatening federal employees with losing their jobs if they remained unvaccinated. At the end of November, he removed this threat for the rest of the holiday season and told agencies to withhold disciplining employees until early next year.
It’s still not clear whether the administration will go back to threatening the loss of employment for the 3.5% of the 2.1 million federal employees who are believed to be unvaccinated.
Some observers see this as Biden caving in to the federal civil service union, the American Federation of Government Employees, which for years has been a strong financial supporter of the Democrat Party, including during the last national campaign.
Federal contractors also got a break, this time from federal courts that have granted preliminary injunctions blocking enforcement of their mandate.
A U.S. District Court judge the Southern District of Georgia issued a preliminary injunction on Jan. 7 that prevents enforcement of the contractor requirement nationwide. At the end of November, another federal district court judge also had imposed an injunction blocking the mandate, but that was limited to the states of Ohio, Kentucky, and Tennessee.
The Georgia and Kentucky and Georgia-based judges came to the same conclusion that those who are opposing the order are likely to succeed in their argument that the Biden administration had exceeded its authority over the federal procurement of goods and services when it issued the executive order.
Around the same time, other courts enjoined a requirement issued by the Center for Medicare and Medicaid Services (CMS) that applied to the estimated 10.3 million healthcare workers at Medicare- and Medicaid-certified medical facilities
The skepticism with which these courts have greeted the administration’s mandates echoes opinions expressed earlier about the OSHA Emergency Temporary Standard when it was enjoined by a federal appeals court.
Although Congress granted the President authority to promote economy and efficiency in contracting, one judge wrote, “this power has its limits.”
In regard to the CMS order, another judge said, “If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency. During a pandemic such as this one, it is even more important to safeguard the separation of powers set forth in our Constitution to avoid erosion of our liberties.”
The multiple legal challenges to the OSHA ETS have been consolidated and moved to the Sixth Circuit U.S. Court of Appeals, where lawyers are jockeying for advantage.
So far, the Sixth Circuit has refused the Biden administration’s request to lift the preliminary injunction staying the ETS that was issued earlier by the Fifth Circuit Appeals Court. It also declined to move the case to another circuit.
Some parties asked that the case heard by the court’s full 20-member complement of judges currently active on the Sixth Circuit, instead of an initial review by a three-judge panel, which is the normal procedure in a federal appeals court.
Those seeking this full court proceeding (called an “en banc review”) believe that it will help speed up the inevitable appeal of the court’s decision to the U.S. Supreme Court, which certain to be sought regardless of which way the Sixth Circuit rules.
If a decision is delayed, the challenges could become moot if the six-month expiration date for the ETS passes on June 8, 2022.
State governments also have continued to take actions promoting or opposing vaccine mandate in their own jurisdictions.
Joining states like California, Connecticut, Massachusetts, New Jersey, New York, and Oregon, on Nov. 24 the state of Washington required that employees, on-site volunteers or on-site contractors be able to provide proof of vaccination if they work for state agencies and operators of any educational or healthcare setting, including healthcare providers.
Meanwhile, other states like Florida, Texas and Mississippi continue to battle the mandates and have passed laws and issued directives banning private employers from requiring employers to be vaccinated, even where courts have said it is legal for them to do so. Other state legislatures also are mulling legislation banning such mandates.