Coinciding with the official end of the COVID public health emergency, several vaccine mandates, including those for federal employees and contractors, ended in May 2023. From the time such mandates were issued, they have been the subject of controversy and, in turn, litigation. And, while data suggests the vast majority of those working for or in contract with the federal government were either vaccinated or in the process of seeking an exemption, government requirements regarding these immunizations raised inevitable questions over government overreach even when in the role of employer.
Notably, enforcement of these mandates was largely suspended because of legal challenges. The 5th Circuit Court of Appeals upheld a lower court’s decision enjoining the vaccine mandate that was applicable to more than 3.5 million federal workers.[i] One of the points of contention with the mandate was the lack of a testing option as an alternative. Such an option was only available to those workers who received an approved religious or medical exemption. Critics of the mandate argue that workers were forced to choose between vaccinations and their jobs. The Biden-Harris administration contended, in part, the executive branch of the federal government was acting as any other employer that may elect to require immunizations for its workforce.
While enforcement of the mandates for federal workers became somewhat of a non-issue due to injunctive relief granted in litigation, there will undoubtedly be lingering questions regarding the ability of the federal government to institute such mandates and, in effect, its ability to be treated like other employers. While it varies by state, many private employers can and do require their employees to be vaccinated against COVID, although the changed circumstances of the COVID-19 pandemic have caused some employers, large and small, to revisit their policies in this regard.
Going forward, the federal government’s decision to end vaccine mandates for its contractors and employees certainly may indeed influence private employers’ policies regarding vaccines, which considerations inevitably spill over into often controversial issues associated with exemptions and accommodations (religious, medical, disability) from vaccine requirements.
Set to be decided this term in the US Supreme Court is the case of Groff v. DeJoy,[ii] which involves a United States Postal Service employee’s claim of a violation of Title VII associated with a religious accommodation for Sunday work. And, while not directly related to the vaccine mandate, the decision in that case may nonetheless provide further clarity on the availability of religious accommodations and exemptions to workers. One of the issues in the Groff case is the “undue hardship” defense regularly utilized by employers in Title VII discrimination cases. A claimed hardship can serve to justify an employer’s denial of an accommodation request, and the high court is poised to weigh in on that which constitutes an undue hardship. Should the Court change the standards in this regard, employers may need to revisit their own policies and procedures associated with accommodation requests, including those associated with any COVID-19 vaccination requirements.
It also bears mentioning that in addition to the lifting of the mandate for federal workers, the federal government also eliminated the mandate for international travelers entering the U.S. and in settings certified by the Centers for Medicare & Medicaid Services (“CMS”). The requirement for CMS facilities applies to some 10 million workers in the United States and it is anticipated the COVID-19 mandate will end in August 2023. Some of these facilities contend the vaccine requirement has created additional challenges in filling open jobs. And, unlike the vaccine requirement as applied to federal workers, the CMS mandate was upheld by the Supreme Court in a January 2022 decision in Biden v. Missouri.[iii] Separately, the vaccine mandate applicable to the military was repealed upon the passage of the 2023 National Defense Authorization Act.
As COVID-19 emergency measures wind down, legal developments and varied public opinion will most certainly persist. This will undoubtedly include differing views on the government’s ability to issue mandates, particularly as they relate to medical intervention. For employers, it remains vital to monitor the oft-changing landscape of the laws applicable to every aspect of the employment relationship.
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[i] Feds for Medical Freedom v. Biden, No. 22-40043 (5th Cir. 2022)
[ii] Groff v. DeJoy, No. 22-174 (OT 2022) [Civil Action No. 19-1879 (E.D. Pa. Apr. 6, 2021), aff’d, Groff v. Dejoy, 35 F.4th 162 (3d Cir. 2022).]
[iii] Biden v. Missouri, 142 S.Ct. 647 (2022).