Some Agencies Are Keeping a Vaccine Mandate in Place and Enforcing It

While a federal court has paused enforcement of President Biden’s COVID-19 vaccine mandate, some agencies are moving forward with enforcement of their own requirements. 

The U.S. district court in Texas issued a nationwide injunction on Biden's September executive order that had required all federal employees to either receive a COVID-19 vaccination or a religious or medical exemption. Some agencies predated that mandate with policies of their own, however, and are therefore moving forward with their requirements. 

The Health and Human Services Department issued its mandate for 25,000 employees. HHS’ Indian Health Service instituted its vaccine requirement in August and it remains in effect. Less than 1% of impacted workers remain non-compliant, according to Jen Buschick, an Indian Health Service spokeswoman.

National Institutes of Health staffers serving at federal health care facilities or clinical research sites were also part of the HHS requirement, though a spokesperson declined to say whether it was still in effect. The requirement applied to those who regularly interact with patients, or have the potential to come into contact with them. That includes contractors and volunteers, as well as members of the U.S. Public Health Service Commissioned Corps, which did not respond to a request for comment. 

The Defense Department will continue to enforce its vaccine mandate for members of the military, which it announced in August. 

“This injunction does not extend to military members or to the department's other force health protection measures such as masking, testing, physical distancing and travel limitations,” Pentagon spokesman John Kirby said last week. 

Enforcement of the order is still on hold for the Defense Department's civilian employees following the court ruling, said Maj. Charlie Dietz, another Pentagon spokesman. This is true even those who work in a health care setting. 

That is not the case at the Veterans Affairs Department, which is keeping its vaccine mandate in place for the vast majority of its workers. All employees of the Veterans Health Administration—about 380,000 workers—will still be subject to a vaccine requirement. VA issued its own mandate for those employees in July, prior to Biden's executive order for the rest of the federal workforce. 

In an email to staff last week, VA Secretary Denis McDonough said the injunction does not impact its authority regarding health care personnel. While the Supreme Court recently struck down an Occupational Safety and Health Administration rule aimed at large employers, it upheld a Centers for Medicare and Medicaid Services vaccine mandate for private sector health care workers. 

"As I have said throughout the pandemic, ensuring the health and safety of our workforce and the veterans we serve is my highest priority," McDonough said. "The best way to protect you, your families, your colleagues and veterans from all variants of COVID-19—including Omicron—is to get the vaccine and any recommended additional doses and booster shots, which provide strong protection against infection, hospitalization and death." 

While 98% of the VA workforce was already in compliance with Biden's order prior to the pandemic, only 89% had been vaccinated—one of the lowest rates of any large federal agency. McDonough had warned in certain medical settings the department would reject exemption requests, meaning those employees would have to get their shots or face discipline. VA is still sorting through those requests for Veterans Health Administration personnel.

The U.S. Postal Service never issued a vaccine mandate for employees, but was temporarily subject to the OSHA rule. While the Supreme Court has struck down that requirement, postal management has not yet ruled out the possibility of requiring the shots for its more than 600,000 workers. 

“The Postal Service continues to review and evaluate OSHA’s ongoing rulemaking process, and will wait until that process is concluded before determining the appropriate next steps,” said Darlene Casey, a USPS spokeswoman. 

While punishments for non-compliant feds in the rest of the workforce and assessments of exemption requests are paused, the administration said any disciplinary action taken prior to the injunction will not be rescinded. Most agencies had only sent out counseling letters warning employees of future actions, but some had issued notices of suspension. The judge who issued the injunction noted he did so on the day the first handful of suspensions were scheduled to take place. 

Overall, about 98% of the federal workforce was already in compliance with Biden’s order at the time of the injunction, while about 93% was vaccinated. More than a dozen cases seeking to overturn the federal employee mandate are pending in court, though several have already denied separate requests for a nationwide pause. The Biden administration has appealed the ruling in Texas to the Fifth Circuit and requested a stay on the injunction while it awaits action from the appellate level.  

Agencies can still collect vaccination information to determine who must wear a mask and maintain a physical distance in the office, the Biden administration’s Safer Federal Workforce Task Force said in guidance following the injunction. Agencies should note on job postings and inform recent hires the vaccine requirement is not currently being enforced, the task force said. Discipline related to refusal to comply with COVID-19 safety protocols, such as mask wearing, can move forward.