BOP Union Reps. Challenge Vaccine Mandate, Task Force Releases New Guidance

On October 30, 2021, a federal employee union filed a lawsuit challenging President Biden's vaccine mandate for federal employees in the U.S. District Court for the Southern District of Florida. The case aims to invalidate the Executive Order and subsequent guidance from the Safer Federal Workforce Task Force (Task Force) and the Office of Personnel Management (OPM).

The lawsuit lists President Biden, Federal Bureau of Prisons (BOP) Director Michael Carvajal, Attorney General Merrick Garland, OPM Director Kiran Ahuja, White House COVID Coordinator Jeffrey Zients, and Miami Federal Detention Center Warden Eugene Carlton as the defendants. 

The American Federation of Government Employees (AFGE) Local 501, that represents Miami's federal prisons employees, and the AFGE Council of Prison Locals 33, the AFGE national division that represents BOP employees, filed following national picketing to draw attention to the agency's staffing crisis and call for collective bargaining on the vaccine mandate. 

“We don't necessarily agree with the mandate. We're not anti-vaccine, we’re just anti-mandate,” stated Brandy Moore, National Union Secretary Treasurer for Council of Prison Locals C-33, outside the Department of Justice (DOJ) on October 29, 2021.

The AFGE's filing alleges the federal government is infringing upon their Fourteenth Amendment right to due process and breaches the Equal Protection Clause, as well as "privacy, self-autonomy and personal identity, including the right to reject mandated procedures and treatment" as "corrections officers/bargaining unit employees and members of the putative class are subject to the vaccine mandate; however, prison inmates are not."

An additional count argues the mandate guidance failed to comply with the Administrative Procedure Act processes. As the count states, the White House failed to comply with the notice and comment provisions of the APA and made a decision that was "clearly arbitrary and capricious."

As of October 31, the Associated Press reported at least 19 states have also filed lawsuits challenging the government contractors' vaccine mandate.

Attorneys general from Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming filed a lawsuit in a federal district court in Missouri. A second lawsuit was filed by the attorneys general of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, in a federal district court in Georgia.

Florida Governor Ron DeSantis disclosed the state would sue the Biden administration over the mandate, citing economic dangers and federal overreach. In the same manner, Texas Attorney General Ken Paxton filed a solo lawsuit last week, challenging the Biden Administration’s alleged "unprecedented expansion of federal power.”

 "According to the U.S. Department of Labor, workers who are employed by a federal contractor make up one-fifth of the entire labor market. If the federal government attempts to unconstitutionally exert its will and force federal contractors to mandate vaccinations, the workforce and businesses could be decimated, further exacerbating the supply chain and workforce crises," stated Missouri Attorney General Eric Schmitt, "The federal government should not be mandating vaccinations, and that's why we filed suit today – to halt this illegal, unconstitutional action."

Despite the impending lawsuits, the Task Force has released new and updated guidance on the vaccine and leave.

The Task Force guidance states that employees who lose their vaccination documentation must contact their vaccination provider site or request access to their state or local health department's immunization information system (IIS).

Contractor employees who are not vaccinated must follow agency masking, physical distance, and testing procedures. Unless onsite contractors adhere to adequate safety protocols, they will be unable to perform the requisite work at the Federal workplace if they are unvaccinated. On November 4, 2021, however, the White House pushed the deadline for vaccination of federal contractors until January 2, 2022.    

Furthermore, leave-eligible employees must be granted up to four hours of administrative leave for any authorized COVID-19 vaccine booster shot. Since Federal employees are not required to receive a booster shot or additional dose of vaccine, granting duty time is not allowed in these cases. Prior to using administrative leave for an additional dose of a vaccine or booster shot, employees should obtain approval from their supervisor.

In terms of exemptions, the Task Force added a religion-specific request template on October 29, 2021.

On November 3, 2021, OPM announced federal employees are entitled to administrative leave to have their children receive vaccines – this includes biological, adopted, step or foster child; a legal ward; the employee stands as loco parentis; a person for whom the employee stands in loco parentis; a child of the employee’s spouse or partner.