Biden’s vaccine mandate for federal workers faces an uncertain future

A Texas federal district court ruling on Friday that denied the White House’s right to enforce its COVID-19 vaccine mandate for federal workers is set to be upheld on appeal, legal experts say.

The mandate is the latest in a series of vaccination orders from the Biden administration to be tested against legal limitations on executive power. The requirement, set out in a Sept. 9 executive order, stated that certain non-exempt executive agency workers should be fully vaccinated by Nov. 22 or risk losing their jobs.

The decision comes after the Supreme Court halted enforcement of a separate mandate for large private employers that would have been administered by the Occupational Safety and Health Administration.

“Given the makeup of the 5th Circuit Court of Appeals and the recent Supreme Court ruling banning OSHA’s Emergency Temporary Standard, it seems unlikely that an appeal of the injunction will ultimately be successful,” said Brian Akin Gump Strauss Hauer & Feld. Patterson told Yahoo Finance, referring to the conservative appeals court composition that handles appeals from district court rulings in Texas, Louisiana and Mississippi. “Absent congressional action, I don’t believe the mandate will survive.”

Protesters gather for a rally against COVID-19 vaccination mandates outside the Lincoln Memorial in Washington, Sunday, Jan. 23, 2022. (AP Photo/Patrick Semansky)

Protesters gather for a rally against COVID-19 vaccination mandates outside the Lincoln Memorial in Washington, Sunday, Jan. 23, 2022. (AP Photo/Patrick Semansky)

On January 13, the United States Supreme Court blocked the White House from enforcing the other mandate targeting large private employers and their workers. The mandate, originally slated to take effect Jan. 4, directed OSHA to enforce a vaccination or testing rule for employers, which in turn was expected to affect about 84 million U.S. workers. Conversely, the Court ruled that another administrative mandate requiring healthcare workers to be vaccinated could be enforced based on the authority Congress granted to the Centers for Medicare and Medicaid through the Department. of Health and Social Services.

The Texas decision, Patterson said, “aligns closely with the Supreme Court’s rationale for outlawing OSHA’s emergency rule” in that the decision to get vaccinated does not constitute on-the-scene conduct. work that the President or OSHA has the authority to regulate. Similarly, he said, the Texas court ruled that the president can regulate the workplace conduct of executive employees, but not their conduct in general.

Lawyers Benjamin Noren, associate chair of Davidoff Hutcher & Citron’s labor and employment group, and Leigh Nason, co-chair of Ogletree Deakins’ federal contract compliance programs group, agreed that the 5th Circuit is a place unlikely for the Biden administration to win his appeal. .

However, according to Noren, neither the Supreme Court’s rationale for denying the application of the large employers’ mandate, nor its reasoning for applying the green light to the health care workers’ mandate, should affect the 5th Circuit’s findings.

“That’s a completely different legal issue,” Noren said of the federal workers’ mandate controversy.

He also argues that District Court Judge Jeffrey Brown expanded a statute on which his ruling was based by adding the word “workplace” to its wording which specifically states that the president may “prescribe regulations for the conduct executive employees.

Nason points to another distinction separating the legal analysis in the mandate of federal workers from the mandates of private employers. The government, she explains, is responsible for ensuring due process considerations for its employees that are not imposed on private employers. “It’s a different set of rules,” she said. Public employees, for example, have the right to a hearing when faced with a potential dismissal.

It remains unclear whether the administration’s appeal to the 5th Circuit will be expedited and whether the case will eventually end up in the Supreme Court.

One factor that could prevent the case from receiving the expedited processing that OSHA and CMS cases have received is that with approximately 3.5 million federal workers, it affects fewer US employees. Another is that its initial deadline, met by 95% of federal workers, although extended, has already passed.

“I doubt the appeal is moving as quickly as the OSHA case,” Noren said. “The OSHA case involved a fast approaching deadline for requiring vaccinations, whereas here federal workers were already required to get vaccinated by Nov. 22, 2021.”

Patterson said it wouldn’t be surprising to see similar cases filed in more liberal circuits. A split between the courts on the issue could also help it to be dealt with by the High Court.

“Who knows if the Supreme Court would take it up in an emergency,” Nason said.

Otherwise, she explained, the court would tend to take up the case only if there was a division of rulings between the lower courts or if a federal issue was at stake.

Any cases challenging the administration’s mandates will take time to resolve their fundamental issues. Cases so far have only dealt with the likelihood of each warrant’s success once all of the merits of each case have been decided by a judge or jury.

“It’s going to take a long time to get to trial,” Patterson said.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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