President Biden Mandates COVID-19 Vaccination for Federal Employees
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
On September 9, 2021, President Biden issued an “Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,” an executive order “requir[ing] COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.”
The EO lays out the administration’s rationale for the vaccine requirement: (1) it is the “policy of [Biden’s] Administration to halt the spread” of COVID-19 by “relying on the best available data and science-based public health measures;” (2) the Delta variant is highly contagious and “has led to a rapid rise in cases and hospitalizations; (3) a national emergency was declared by the Secretary of Health and Human Services (HHS) in January 2020, and remains in effect; and (4) HHS (via the CDC) determined the best way to slow the spread of COVID-19 (including the Delta variant) is vaccination.
The EO also notes that “COVID-19 vaccines are widely available in the United States,” at least one of the vaccines has already been approved by the FDA, and that the vaccines “protect people from getting infected and severely ill, and they significantly reduce the likelihood of hospitalization and death.” Moreover, the EO states, the “FDA has determined that all three vaccines meet its rigorous standards for safety, effectiveness, and manufacturing quality.”
President Biden’s EO states that the “health and safety of the Federal workforce, and the health and safety of members of the public with whom they interact, are foundational to the efficiency of the civil service.” (emphasis added). This sentence in the EO accords with the condition for removal of federal employees in Chapter 75 of Title 5 of the U.S. Code, where employees can be terminated if their termination will “promote the efficiency of the service.”
In the past, the Federal Circuit Court of Appeals (the appellate court for most federal employment disputes) has affirmed that refusal to comply with an order to get vaccinated was a firing offense. In Mazares v. Navy, a 2002 opinion issued on the one-year anniversary of the terrorist attack on September 11, 2001, the Federal Circuit affirmed the termination (for insubordination) of two civilian seamen employed aboard a naval vessel after they disobeyed an order to be vaccinated against anthrax.
According to the Federal Circuit in Mazares, the Navy had “broad authority and discretion in dealing with its personnel, both military and civilian, including the protection of their health,” and that the Navy “did not exceed its authority or otherwise abuse its discretion” by ordering the seamen to be vaccinated against anthrax, a requirement for all “deployable Naval Forces” at that time.
And the Federal Circuit found that termination was a reasonable penalty, given that “insubordination is a serious offense that disrupts the work place and interferes with and threatens the ability of the work force to perform its duties.” According to the Federal Circuit, “there was a clear and unjustified refusal to obey the lawful order of a superior.” As such, “[t]here can be no question that the removal…was “for such cause as will promote the efficiency of the service.”
Although the two employees in Mazares petitioned the Supreme Court for certiorari after the Federal Circuit’s opinion, the Supreme Court declined to hear the case.
Agencies are required by the EO to implement a program to require COVID-19 vaccination for all of its Federal employees, and OPM plans to issue guidance to the agencies in the coming days.
Read the Executive Order and Mazares v. Navy.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.