The legal spotlight on the Biden administration’s COVID-19 vaccine mandates shifted on Jan. 21 to federal employees, when a US district court judge in Galveston, Texas, issued a nationwide injunction to President Joe Biden’s order, which the government immediately asked the appellate court in New Orleans to review. That Sept. 9 vaccine order affects up to 3.5 million federal employees. 

Judge Jeffrey Brown, appointed in 2019 by President Donald Trump, said in his ruling that he supports vaccination but questioned whether the President can require federal workers to undergo a medical procedure as a condition of employment without congressional input. “That, under the current state of the law as just recently expressed by the [U.S.] Supreme Court, is a bridge too far,” he said.

The US Justice Dept. argued that the President “possesses independent constitutional authority to act as CEO of the executive branch, even absent confirming statutory authority from Congress.” White House Press Secretary Jan Psaki said Jan. 21 that the administration “is confident in our legal authority here.”

'Workplace Conduct' Debated

Brown did not decide if the federal worker mandate is legal but enjoined the order based on his claim its potential to succeed on its merits in further court action. Feds for Medical Freedom, which claims to have 6,000 federal employee and  contractor members, filed suit on Dec. 21 against the Biden vaccination order for workers without a medical or religious exemption. AFGE Local 918, a union that represents U.S. security employees, also joined the federal employee suit  in Texas. Another plaintiff is Highland Engineers, a small U.S. Defense Dept. contractor. Media reported that actions against unvaccinated federal employees were set to start as soon as Jan.  21. 

Like the separate contractor worker mandate issued at the same time and now under review by an Atlanta appeals court due to suits by states and the Associated Builders and Contractors, among others, the federal employee order did not have an option for testing. Judge Brown did not address the claim made on behalf of contractor employees due to the appellate review.

The argument centers on whether getting vaccinated is “workplace conduct,” which Brown agreed the President does have authority to regulate. But any broader reading of the law to include vaccines would allow the President to “prescribe, or proscribe, certain private behaviors by civilian federal workers outside the context of their employment,” he said. “Neither the plain language of [the law] nor any traditional notion of personal liberty would tolerate such a sweeping grant of power.”

Brown relied on the Supreme Court’s Jan. 13 decision to halt implementation of the US Occupational Safety and Health Administration temporary emergency rule  mandating that employers with more than 100 employees require vaccinations. The high court said the federal agency could set workplace safety standards but not broad public health measures.

“The Supreme Court specifically held that COVID-19 is not a workplace risk, but rather a universal risk that is no different from the day-to-day dangers that all face from crime, air pollution or any number of communicable diseases,” Brown said, using plaintiffs’ similar language. The court held that a COVID-19 vaccine mandate is not an employment regulation.

Texas Judge: Mandate Is 'Overbroad'

Brown pointed to the government’s “undeniable interest” in protecting the public against the virus but said the overwhelming majority of federal workers are already vaccinated. Admiinistration spokeswoman Psaki said on Jan. 21 that 98% of federal workers have been vaccinated.

“Any harm to the public interest by allowing federal employees to remain unvaccinated must be balanced against the harm sure to come by terminating unvaccinated workers who provide vital services to the nation,” he said. “Stopping the spread of COVID-19 will not be achieved by overbroad policies like the federal-worker mandate.”

The now enjoined federal employee vaccine order does not apply to uniformed U.S. military personnel, who are covered under separate mandate. Justice Dept. attorneys on Jan. 21 also filed a motion in U.S. District Court in Pensacola, Fla., seeking to dismiss a suit against that mandate filed last October by military personnel.

James Hodge, a law professor and director of the Center for Public Health Law and Policy at Arizona State University, told online publication Government Executive that if the federal employee vaccine dispute reaches the Supreme court, justices have previously found employers are entitled to require vaccinations for their own employees. He said the mandate may not be “bullet proof, but it’s pretty solid.”

But Hodge also speculated that the high court would more likely allow rulings to stand that are set to come from appellate courts on the federal employee and federal contractor mandates.