Will Federal Employee Unions Challenge Biden’s Vaccine Mandate in Court?

While several major federal employee unions said they won’t challenge the Biden administration’s vaccine mandate in court, some are leaving open the possibility. 

On September 9, President Biden announced a vaccine mandate for federal employees and contractors, unless they request an exemption. Further guidance issued on September 16 says that employees must show proof of vaccination or could be subject to disciplinary measures. The reaction to the mandate from lawmakers was along party lines, with Democrats coming out in favor of it and Republicans contesting it. From unions it was a little more mixed, and that holds true especially when it comes to a possible legal challenge. 

The National Federation of Federal Employees “understands and respects the differing perspectives of its individual members on matters regarding vaccines, mask mandates and social distancing,” said the union in a statement on September 14. “We have considered the likelihood of success on a legal challenge to the mandates contained within the EO. More than 100 years of legal precedent exists confirming the authority of employer-required mandates and vaccines, and the courts at all levels have consistently rejected challenges to this type of mandate. Therefore, NFFE has determined it will not legally challenge the executive order requiring federal employees to be vaccinated against COVID-19.” 

The union––which represents about 110,000 federal employees––added it is talking with the Biden administration about the “progressive discipline” for those who do not get vaccinated as “NFFE believes no employee should be fired in connection with this mandate.”

National Treasury Employees Union “members, like American society at large, will have differing reactions to the new policy,” said NTEU National President Tony Reardon in a statement on September 3. “Either way, the law is clear that employers, including the federal government, may implement a vaccination requirement for employees.” The union has 150,000 federal employee members.

“We have thoroughly evaluated the text of the executive order and any potential legal arguments for and against it. No potential arguments or avenues were ignored,” said the American Federation of Government Employees, which represents about 700,000 federal and D.C. government workers, to members in an email on September 16, obtained by Government Executive. “However, based on the order’s express provision for exceptions required by law, along with a long line of Supreme Court and other federal cases upholding vaccinations in the interest of public health, as well as other cases foreclosing primary court jurisdiction over a federal union’s challenge to an employment-related executive order, a direct legal challenge or lawsuit over the order is unavailable.”

Additionally, “While the scope of bargaining is likely to be limited, our union will make sure that workers have a voice in all those areas that are negotiable.” 

However, the division of AFGE that represents Federal Bureau of Prisons employees has a different take. 

"Our position has not changed, as Mr. [Shane] Fausey indicated in his email dated September 10, ‘We are actively pursuing the legal landscape and any and all options that have the potential to protect our members,’ ” said an email from Council of Prison Locals C-33 leadership to members on September 17, obtained by Government Executive. “Furthermore, ‘We will exhaust all legal options to protect our members.’ With that in mind, as with all other executive orders that have been thrusted upon us, everything takes time. We are working every avenue we can." 

When asked about the difference of opinions, AFGE directed Government Executive to a “frequently asked questions” page on its website that explains its legal stance, among other things. The BOP union declined to comment further on the difference. 

Attorneys for the National Border Patrol Council spent several days looking into possible legal challenges to the mandate and they “determined the EO was legal and that there was no viable avenue of challenge,” said a statement on September 18. “We, the NBPC executive committee, felt it would be better to seek other opinions from law firms specializing in suing the government prior to drawing a final conclusion. To date, we have not found a reputable firm, nor any other firm, or legal opinion that provides us a legitimate path forward. Notwithstanding the legal opinions to date, and unlike other entities such as the National Treasury Employees Union, we continue searching for an avenue of reprieve.”

The union added: “Until we are 100% convinced that no legal remedy is available, we will continue working on the issue.” 

In regard to the mandate overall, the American Postal Workers Union is in a “wait and see mode to learn what the [Occupational Safety and Health Administration] requirements will be” as it is a “rare government union” that is subject to private sector regulations, said a union spokesperson. 

Postal Service employees are not covered by the mandate, but they will be subject to the upcoming emergency temporary standard from the Occupational Safety and Health Administration that will require vaccines for companies with 100 or more employees or require weekly negative COVID-19 tests.

The International Federation of Professional and Technical Engineers was broadly supportive of the mandate, while the Federal Law Enforcement Officers Association (not a union, but a professional association) was against it.