Fifth Circuit to Reconsider Federal Employee Vaccine Requirement Challenge

The U.S. Court of Appeals for the Fifth Circuit has agreed to reconsider an April panel decision of the court that would have allowed President Biden’s executive order, requiring COVID-19 vaccinations for federal employees, to go into effect. After the April panel decision gave the Biden administration to implement the executive order starting in May, the challengers’ request for rehearing en banc, or before the full court, stalled the effective date. As a result, the executive order is on hold until at least mid-September, when the full court hears the case. 

Feds for Medical Freedom and a union representing Homeland Security employees filed a suit challenging the vaccine mandate in a Texas District Court, which initially enjoined enforcement of the mandate. The Biden administration appealed to the Fifth Circuit, and a three-judge panel of the court reversed the Texas federal judge’s decision in a 2-1 ruling. Most of the panel ruled that the plaintiffs had no standing in federal court to challenge the order. Instead, the plaintiffs must pursue their appeals through the Merit Systems Protection Board or Office of Special Counsel, as per the Civil Service Reform Act. The ruling rejected the lower court’s decision on jurisdictional grounds and did not address the case’s merits. 

The White House has instructed federal agencies to maintain the status quo during the pendency of the litigation. As of January, when the federal district court first issued an injunction concerning the executive order, 98% of federal employees were compliant with the executive order, with a 93% vaccination rate. Since then, federal agencies have been neither processing nor adjudicating requests for religious or medical exemptions nor disciplining non-compliant employees. The only exceptions have been for selected federal agencies, primarily those in healthcare settings. 

The vaccine mandate for federal workers is not the only one issued by the federal government that has led to litigation. In January, the U.S. Supreme Court invalidated the Occupational Health and Safety Administration (OSHA)’s emergency temporary standard (ETS), which required employers with one hundred or more employees to have all employees vaccinated or undergo weekly COVID-19 testing. OSHA withdrew its ETS to halt the ongoing litigation. OSHA withdrew the measure only as an enforceable ETS, not as a proposed rule. At the time of the ETS withdrawal, OSHA stated that it still intended to finalize a permanent COVID-19 Healthcare Standard. 


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