A requirement for federal workers to be vaccinated against the coronavirus was recently upheld by a federal appeals court panel. The groups that challenged the vaccination directive, however, could ask the full appeals court or the U.S. Supreme Court to review the matter.
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Pursuing Administrative Remedies
The vaccine requirement for federal employees was put on hold after a district judge in Texas blocked the directive in January. In a 2-1 order on April 7, the 5th U.S. Circuit Court of Appeals reversed the district judge’s ruling and dismissed the lawsuit against the vaccination directive. The appeals court said the district judge did not have jurisdiction in the case. Instead, the employees who challenged the requirement could have pursued administrative remedies through the Merit Systems Protection Board or Office of Special Counsel in accordance with the Civil Service Reform Act.
Directive Applies to Executive Branch Workers
Biden issued the executive order in September 2021 requiring vaccinations for all executive branch agency employees, unless they qualified for an exemption based on a medical or religious objection.
The Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees applies to employees of the executive branch of the federal government. Employees in the judicial and legislative branches are not covered by the order. The Safer Federal Workforce Taskforce has issued guidance on the vaccination requirement for federal agencies.
Most Covered Employees Vaccinated
Federal agencies had mostly not been enforcing the directive after the district court issued the injunction in January—though some agencies did continue to enforce their own vaccination requirements and process requests for medical and religious exemptions. At the time the injunction was issued, about 98 percent of federal employees were following the executive order and 93 percent of employees were vaccinated.
Supreme Court Nixed OSHA Directive for Private Employers
Other vaccination directives have also been challenged. The Occupational Safety and Health Administration (OSHA) withdrew its COVID-19 vaccination-or-testing Emergency Temporary Standard (ETS) in light of a Supreme Court ruling that halted the directive. The ETS would have applied to private-sector employers with at least 100 employees. However, the high court allowed the Centers for Medicare & Medicaid Services (CMS) to proceed with a vaccine directive that applies to health care workers at Medicare- and Medicaid-certified providers and suppliers.
What to Do When Workers Refuse a COVID-19 Vaccination
Employers should note that—even though some federal directives have been blocked by courts—judges have generally sided with the employer in lawsuits challenging a private company’s vaccination requirements. Many businesses continue to review and revise their COVID-19 vaccination policies as the pandemic persists—and employers may be asking what they can do if workers refuse to get the jab. Some employers are firing workers or putting them on unpaid leave. Others are requiring unvaccinated employees to submit to weekly testing and take other safety precautions.
Managing Changing COVID-19 Workplace Safety Obligations
Employers may be tempted to lift their pandemic-related safety requirements as federal and state authorities ease masking and other COVID-19 rules. But employers should note that they have ongoing obligations to protect the health and safety of their workers. Employment law attorneys recommend that employers designate a point person to provide periodic updates to their leadership team and work with experienced employment counsel to keep informed of any new safety rules. The point person should check the Centers for Disease Control and Prevention, OSHA and state health department websites for new guidelines and rules on a daily or weekly basis.