WTH is even left to enjoin anyway?
Oh, right, the September 2021 Executive Order 14043 requiring COVID-19 vaccinations for federal workers.
As of last Friday, Executive Order 14043 is stayed nationwide — thanks to a Texas federal judge. You can read a copy of his opinion here. Or skip it, and I’ll give you the abbreviated version below.
Executive Order 14043 requires federal employees to be fully vaccinated against COVID-19 (with exemptions available for health or religious reasons) or lose their jobs. The government was supposed to start enforcing Executive Order 14043 at the end of November but pushed the enforcement deadline into 2022.
There have been prior lawsuits to stop the mandate. However, for one reason or another, none succeeded — until now.
The plaintiffs in Texas filed their lawsuit on December 21. Following the Supreme Court’s decisions in the OSHA ETS and CMS Mandate cases, the Texas federal judge decided to stay Executive Order 14043 nationwide pending adjudication of the lawsuit.
First, the plaintiffs would suffer irreparable harm because “no legal remedy protects the liberty interests of employees who must choose between violating a mandate of doubtful validity or consenting to an unwanted medical procedure that cannot be undone.” Plus, enforcement of the Executive Order would deprive the plaintiffs of significant employment opportunities in their chosen profession.
Second, the plaintiffs are likely to succeed on the merits of their lawsuit; the President lacked the authority to issue such a broad mandate. Among other things, it would regulate conduct outside the workplace. The judge likened it to the OSHA ETS, i.e., a broad public health measure rather than a workplace safety standard, and there is no precedent for a President imposing medical procedures on civilian federal employees in general.
Third, the balance of equities favors the plaintiffs. While the government has a strong interest in slowing the spread of COVID-19, the overwhelming majority of the federal workforce has already received at least one COVID-19 vaccine dose. So, not vaccinating a small proportion of government workers won’t cause much harm, reasoned the judge. Plus, there is more harm in having federal workers who provide vital services to the nation lose their jobs than forcing them to get vaccinated — especially when other options are available (e.g., masking, social distancing, remote work, etc.).
Finally, the injunction must be nationwide because the plaintiffs comprise about 600 people across the country. Limiting relief to one state would only create confusion.
(This decision does not impact private sector employers. Court shave consistently upheld private-sector COVID-19 vaccine mandates. However, your mileage may vary depending on the state(s) and city(ies) in which you conduct business. Some may have laws precluding vaccine mandates.)
What’s next for the parties in the Texas case? An appeal to the Fifth Circuit, no doubt.
In the meantime, I’m sure we’ll have plenty of other COVID-19 stuff to discuss, as we did on Friday during The Employer Handbook Zoom Office Hour. If you missed it, you can catch the replay here.
Come back tomorrow when I discuss the Mysterious Case of The Disappearing DOL Fact Sheet No. 84.