A federal judge in Texas has blocked another of the Biden administration’s vaccine requirements as the political war over coronavirus prevention measures shows no sign of abating.
“What is that limit? As the court has already noted, Congress appears … to have limited the President’s authority in this field to workplace conduct,” Brown wrote in his opinion, adding, “For its part, this court will say only this: however extensive that power is, the federal-worker mandate exceeds it.”
The ruling amounted to another blow to the administration’s most ambitious public health measures — its work to corral the pandemic through vaccinations — and it is only the latest measure to be invalidated by the actions of appointees of Trump and other Republicans. But it is probably not the final word. The Justice Department filed an appeal to the ruling, and the case could be heard by the Supreme Court.
The requirement was expected to apply to more than 3 million federal employees and at least 4 million federal contractors. It included the military but not Postal Service workers.
White House press secretary Jen Psaki told reporters Friday that 98 percent of federal workers were already vaccinated. “Obviously, we are confident in our legal authority here,” she said.
Federal workers faced discipline including potential termination for not complying, while contractors faced the potential of losing their government contracts. But the disciplinary process was still being hashed out into the new year.
The administration paused any discipline for noncompliance with the mandate over the year-end holidays, and at this point few if any employees have been suspended or fired. Tens of thousands of federal workers have, however, requested religious waivers, and many agencies say they are still reviewing those requests.
In the meantime, those who had been awaiting decisions on waiver requests were permitted to work alongside unvaccinated employees as long as they wore a mask, stayed socially distant and were tested regularly.
Vaccination rates are lower in conservative areas of the country, leaving relatively high percentages unprotected at agencies such as the Agriculture Department (11.8 percent), the Department of Veterans Affairs (11.5 percent), the Department of Homeland Security (10.5 percent), the Energy Department (9 percent), the Bureau of Prisons (17.5 percent) and the Social Security Administration (9.7 percent).
A supervisor at Federal Correctional Institution Herlong, a prison in Northern California, who spoke on the condition of anonymity because he was not authorized to comment to the media, described a disorganized vaccination effort at his facility, saying that many of his co-workers were holding out on getting vaccinated as the deadlines for enforcement kept getting pushed back.
He had a religious-exemption request approved in December and gets tested at work every Friday. But he said he has heard chatter from co-workers who felt compelled to get vaccinated that lawsuits could be forthcoming if the mandates get thrown out.
“It’s all getting really blurry, and it’s making no sense,” he said. If the day ever came that the vaccine requirement was better enforced, he said he envisioned unvaccinated people finding ways to prolong their holdouts, with the prison short-staffed and many supervisors not supportive of the requirement. His own weekly testing, he said, was a “pencil-whipping” exercise by a sympathetic supervisor — a formality that could be fudged if needed.
The Biden administration said last fall that it would discipline and potentially dismiss holdouts. It offered the possibility of medical exceptions and waivers based on religious beliefs against vaccinations. But there has been a lot of confusion across the government about testing requirements.
The administration’s first attempt to set up a testing program last summer failed to get off the ground as managers struggled to sign contracts with testing companies on- or off-site. The Office of Personnel Management last week announced another testing requirement to take effect in February.
Friday’s ruling is likely to cause further turmoil inside the government over how agencies should deal with unvaccinated employees as they try to protect the safety of the public and employees who are vaccinated.
Attorneys who represent federal employees said the case and the confusion it is likely to cause underscore the pitfalls of relying more and more on executive orders to shape the federal workforce, as Presidents Biden and Donald Trump have done.
“This decision hit just as many agencies were pressing go on disciplinary actions against unvaccinated federal employees,” said Debra D’Agostino, a founding partner of the Federal Practice Group in Washington. “I’m sure those folks are breathing a sigh of relief now, but it seems likely the Supreme Court will have to resolve the extent of the president’s authority with regard to the mandate.”
U.S. vaccination rates lag behind those of peer nations despite public health campaigns and attempts to increase those numbers. And recent surges of new cases appear to have done little to persuade large numbers of vaccine skeptics to get their shots, despite data showing that unvaccinated individuals are exponentially more likely to face serious health consequences from the coronavirus, including hospitalization and death.
Vaccine requirements have proved controversial in the United States as measures meant to control the pandemic have been politicized. Conservative legal activists and Republican state attorneys general recently marshaled a successful legal case against another of the administration’s vaccine proposals, a requirement that businesses of 100 or more employees require vaccinations, or testing and masking by their unvaccinated employees.
In a 6-to-3 ruling, the Supreme Court recently stopped the rule temporarily, indicating that it would probably be blocked permanently if the administration chooses to continue fighting the litigation. The court did allow, however, a vaccine mandate for the millions of health-care workers at facilities that receive Medicaid or Medicare funding.
Yet another source of confusion for the federal government has been new hires. Many agencies have imposed the mandate as a condition of employment, requiring people who receive job offers to show proof of vaccination.
“At the beginning of filing season, our members are not helped by this conflicting message by an unelected judge who lacks medical and organizational management expertise of the executive branch,” said Chad Hooper, an IRS manager who leads the nonprofit Professional Managers Association, which represents agency managers.
About 2,000 IRS employees have requested religious or medical waivers, he said.
John Wagner contributed to this report.