It is unclear when the agencies might begin enforcing the mandate, which subjects unvaccinated federal employees to disciplinary action up to and including termination – unless they qualify for an exemption for medical or religious reasons or such a request is contemplated.
The administration’s most recent tally, from early December, showed about 93% of employees had been vaccinated and an additional 4% had waiver requests approved or pending.
The White House message came after a decision by a split panel of the United States Court of Appeals for the 5th Circuit to restore President Biden’s executive order. The majority of the court ruled that the Civil Service Reform Act, the set of laws governing the 2.1 million workers in the executive branch, requires any challenge to the order to go through appeals internal to the government, not directly before the courts.
Under this law, the Merit Systems Protection Board – which acts much like an internal court system for federal employees – “may order reinstatement and retroactive reimbursement to any non-exempt complainant who is disciplined for refused to receive a COVID-19 vaccine”. Employees could also ask a separate agency, the Office of Special Counsel, to take a case to the merit committee arguing that the order violates public service protections, he added.
Administration officials welcomed the decision.
“The court’s decision is welcome news,” a spokesperson for the Office of Management and Budget said Friday. “Based on prior implementation of the requirement for the largest and most professionally diverse workforce in the country, we know that vaccination requirements save lives, protect our workforce and strengthen our ability to serve the American people.”
The earlier injunction, part of a lawsuit filed by a group called Feds for Medical Freedom, had barred the agencies from taking disciplinary action against vaccine holders. and continue to process waiver requests.
The injunction has been applied nationwide, although it does not apply to mandates that individual agencies put in place for their own employees before Biden’s executive order last September – including one for medical personnel. of the Department of Veterans Affairs.
The lower court’s decision in late January came just as the agencies were preparing to take disciplinary action against non-compliant employees.
In February, another chamber of the Court of Appeal, also in a split opinion, rejected the administration’s request to lift the injunction as a matter of urgency.
Dissenting from Thursday’s ruling, Circuit Judge Rhesa Hawkins Barksdale wrote that employee appeal rights under the Civil Service Reform Act, or CSRA, only apply after a agency took disciplinary action, and noted, “Here, there is no agency action. On the contrary, the president is trying to impose a broad mandate on the federal civilian workforce. … [T]he president seeks to demand that an entire class of employees be vaccinated or face adverse action.
“Simply put, CSRA does not cover pre-enforcement employment measures, particularly relating to 2.1 million federal civilian employees,” he added.