Enforcement of Biden's federal employee COVID-19 vaccine mandate is delayed—again

Enforcement of President Biden’s mandate that all federal employees receive the COVID-19 vaccine is once again delayed after an appeals court on Monday agreed to rehear the case, at least temporarily reversing a decision reached by a panel of the same court in April. 

The U.S. Court of Appeals for the 5th Circuit granted an en banc hearing before all of its judges. While the case is being heard, the court has stayed the mandate. The Biden administration has not enforced the requirement since January when a district judge in Texas first paused the policy with a nationwide injunction. 

The three-judge panel of the 5th Circuit reversed that judge’s decision in a 2-1 ruling in April, but enforcement was stalled due to a standard buffer period. The mandate was set to go back into effect in May, but a petition from those challenging the mandate for a rehearing from the entire 5th Circuit further delayed the Biden administration from taking action on employees out of compliance with the requirement. Now, the mandate is stayed until at least mid-September when the full court rehears the case. 

The White House has instructed agencies to maintain the status quo while all of this has played out. They are not processing or adjudicating requests for religious or medical exemptions, nor can they make any preparations for doling out disciplinary actions. Many agencies were on the precipice of beginning suspensions when the nationwide injunction went into effect.

At the time of the January injunction, the Biden administration said 98% of federal employees were in compliance with Biden’s executive order, with 93% vaccinated. A select few agencies have continued enforcement—primarily those with workers in a health care setting—though initial evidence showed it led to the dismissal of a select few employees.  

In the panel's April decision, the majority said the plaintiffs did not have standing in the federal circuit and must instead pursue their appeals through the Merit Systems Protection Board or Office of Special Counsel as laid out in the Civil Service Reform Act. The Biden administration argued in its first appearance before the 5th Circuit that previous presidents had implemented orders impacting conditions of work such as drug and ethics policies. It also said the president is the CEO of the executive branch and therefore has the authority to issue mandates for its workforce and market forces would prevent him from abusing that power. The judges never ruled on the merits of the case, however, saying instead their court was not the proper jurisdiction for federal employees to bring their complaints. 

Those challenging the mandate—the group Feds for Medical Freedom and a union representing some Homeland Security Department employees—had said they would take their appeal to the Supreme Court if the 5th Circuit had rejected its request for an en banc hearing.

“A policy that threatens to derail or end the careers of dedicated public servants who do not consent to take a COVID vaccine is both unconstitutional and immoral,” said Marcus Thornton, president of Feds for Medical Freedom. “The decision to hear that argument in front of the full 5th Circuit is a major victory for Feds for Medical Freedom and the rule of law.” 

Most agencies began bringing employees back to their offices in April or May and had hoped to ensure all non-exempted workers were vaccinated as they did so. The White House has estimated it will spend up to an extra $5 million per week the injunction is in place on testing unvaccinated employees for COVID-19.

Efforts by opponents of Biden’s mandate for federal workers seeking to strike down the order have been rejected in more than a dozen other cases.