There is little or nothing outside of existing federal law (e.g., the ADA and Titles IV and VI of the Civil Rights Act of 1964) preventing a private employer for imposing a vaccine mandate on its employees, which is a matter that I discuss in my upcoming piece on State Police Power: Religious Freedom: Objections to State COVID 19 Vaccine Mandates
Federal Authority
by Christian civil trial attorney RL Johnson
So, let’s start with clarifying how the law defines a Sincerely Held Religious Belief, Practice, Or Observance?
“In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the [government defines] religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. This standard was developed in United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States, 398 U.S. 333 (1970).
With this definition in hand, the first thing that I want you to take away from this video is that all of the federal mandates discussed here are subject to certain federal laws protecting a sincerely held religious belief, practice, or observance.
Now let’s get into the meat of what’s been done thus far at the federal level.
Because Congress has not yet enacted a law mandating vaccinations, the mandates that have come out of the federal government have come from the executive branch. Primary among them are:
The President’s Federal Employee Mandate ENJOINED in PART
The President’s Federal Contractor Mandate ENJOINED Nationwide
The Occupational Safety and Health Administration’s (“OSHA”) Large-Employer Vaccination and Testing Mandate ENJOINED by SCOTUS & WITHDRAWN by OSHA
The Office of Head Start’s Head Start Mandate ENJOINED PENDING LITIGATION
The Centers for Medicare & Medicaid Services’ (“CMS”) Medicare/Medicaid Provider Mandate remains IN FULL EFFECT
Even though most of the federal mandates have been temporarily disabled, the courts’ reasoning for enjoining or limiting the power of the federal government is instructive as further attempted government overreach is inevitable.
Let’s look at these one at a time as they stand on the date that this peice was posted …
Federal Employee Mandate
On September 9, 2021, under the authority of 5 U.S.C. §§ 3301, 3302, 7301, President Biden issued Executive Order 14,043, which instructs each executive agency to implement a program to require COVID-19 vaccination for all federal employees, subject to exceptions required by law, including those based on a disability, medical condition, or a sincerely held religious belief.
All federal employees were to receive a one or two-dose vaccination by November 8, 2021; and, had to be fully vaccinated by November 22, 2021.
Challenged: Several federal employees and at least one employee union sued to challenge the federal employee mandate.[i] These suits raised an assortment of claims, including some common to challenges to state vaccination requirements.[ii] As I discuss in my State Police Powers video, both state and federal courts have generally rejected these claims.[iii]
CURRENT STATUS:
In Feds for Medical Freedom v. Biden, No. 3:21-cv-356, 2022 WL 188329, *7 (S.D. Tx. Jan. 21, 2022), a federal district court in Texas granted the plaintiffs’ request for preliminary injunction and suspended enforcement of the federal employee vaccination mandate nationwide. Among other determinations, the court concluded the mandate likely exceeded the President’s statutory authorities under 5 U.S.C. §§ 3301, 3302, and 7301, as well as his constitutional authority over the executive branch under Article II of the Constitution.
However, because the federal employee mandate was enjoined by the court on January 21, 2022, after the compliance deadline. Thus, the injunction suspends only enforcement of the mandate against employees who had not yet complied as of January 21, 2022.
Federal Contractor Mandate
On September 9, 2021 the Biden administration issues Executive Order 14,042 and under the authority of 40 U.S.C. § 101 et seq.; 3 U.S.C. § 301, this mandate required all federal contractors and subcontractors with a covered contract with an executive departments or agency of the federal government (including those working remotely) to be fully vaccinated, except in circumstances where an employee is legally entitled to an exemption based on a disability, medical condition, or a sincerely held religious belief.
The compliance deadline was January 18, 2022, for covered contractors to be fully vaccinated.
Challenged: Over 20 stated in filed at least four separate suits in different district courts to challenge the mandate on behalf of their state agencies and political subdivisions potentially with a contract subject to the federal contractor mandate.[iv]
CURRENT STATUS:
The federal employee mandate was enjoined by Kentucky v. Biden, No. 21- 6147), 2022 WL 43178 (6th Cir. Jan. 5, 2022) (declining to stay the district court’s preliminary injunction in KY, OH, and TN); and,
Georgia v. Biden, No. 1:21-cv- 00163 2021 WL 5779939 (S.D. Ga. Dec. 7, 2021) (which enjoined the vaccination requirement nationwide).
Indeed, the Supreme Court’s decisions in NFIB and Missouri may signal a more limited construction of presidential authority to mandate vaccination for federal contractor employees in the absence of clear statutory authorization.
As the Court noted in NFIB, a “lack of historical precedent” on similar prior use of an authority, coupled with a “breadth of authority” now claimed, is usually a “telling indication” to the Court that a mandate extends beyond the executive’s legitimate reach.
OSHA’s Large-Employer Vaccination and Testing Mandate
On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) under the authority of 29 U.S.C. § 655(c) enacted an emergency temporary standard (“EST”), which required that private employers in every state in the Republic and Puerto Rico, and the U.S. Virgin Islands to with 100 or more employees to establish and enforce a policy that either
Ensures that all non-remote-working employees are fully vaccinated, except in circumstances where
a vaccine is medically contraindicated;
medical necessity requires a delay in vaccination; and,
the employee is legally entitled to a reasonable accommodation pursuant to federal civil rights laws due to
a disability or
sincerely held religious belief, practice, or observance that conflicts with the vaccination requirement
Requires employees to be fully vaccinated or provide proof of regular COVID-19 testing and wear a face covering when indoors
The compliance deadline was January 10, 2022, for covered employers to establish and begin to implement the vaccination policies; and, February 9, 2022, for covered employees to receive either a one or two-dose vaccine series or begin regular testing.
Challenged: The same day that OSHA issued the ETS, several petitioners—including covered employers, states, and religious groups in several federal courts of appeals—moved to stay the ETS and permanently enjoin the mandate.[v]
CURRENT STATUS:
The federal employee mandate was stayed by the U.S. Supreme Court on January 13, 2022 in Nat’l Fed. of Indep. Bus. v. Dep’t of Labor, No. 21A244, ---S. Ct.---, 2022 WL 120952 (Jan. 13, 2022))
The Court concluded a stay was warranted because the applicants were likely to succeed on the merits of their claim that the ETS exceeded OSHA’s statutory authority. Id. at 664–65. According to the Court, because the ETS applies to roughly 84 million workers across industries, it undoubtedly qualifies as an exercise of authority “of vast economic and political significance[, which] would only be permissible, the Court found, if ‘“plainly authorize[d]”’ by the OSH Act.” Id. at 665.
Then, on January 25, 2022, OSHA announced that the agency was withdrawing the ETS as an enforceable emergency temporary standard. See COVID-19 Vaccinationa nd Testing ETS, OCCUPATIONAL SAFETY & HEALTH ADMIN., https://www.osha.gov/coronavirus/ets2 (last accessed Feb. 4, 2022).
Head Start Mandate
On November 30, 2021, Office of Head Start within HHS’s Administration for Children and Families issued an Interim Final Rule under the authority of 42 U.S.C. § 9836a(a)(1)(C), (D), (E) requiring all Head Start staff to be fully vaccinated by January 31, 2022, unless granted a legally required exception based on a disability/medical condition or a sincerely held religious belief. This Rule included a masking requirement for individuals two years of age or older when indoors.
Challenged: 25 states, in two separate lawsuits, sued to challenge the Head Start mandate. In each case, plaintiff states filed a motion for preliminary injunction to block the mandate while litigation is pending.
CURRENT STATUS:
Enjoined by courts in 25 states:
Texas v. Becerra, No. 5:21-cv-300, 2021 WL 6198109 (N.D. Tex. Dec. 31, 2021) (enjoining the mandate in TX);
Louisiana v. Becerra, No. 3:21-cv-4370, 2022 WL 16571 (W.D. La. Jan. 1, 2022) (enjoining the mandate in AL, AK, AZ AR, FL, GA, IN, IA. KS, KY, LA, MI, MO, MT, NE, ND, OH, OK, SC, SD, TN, UT, WV, WY)
Both courts concluded that the plaintiff states are likely to succeed on their claim that the mandate exceeds the Secretary’s statutory authority.
See also Livingston Educ. Serv. Agency v. Secretary of Health & Human Servs., No. 22-cv-10127 (E.D. Mich. 2022) granting, in part, Plaintiffs' Motion for Temporary Restraining Order:
“The Motion is GRANTED in that the Court hereby temporarily enjoins Defendants from implementing and enforcing the vaccination provision of the Interim Final Rule with Comment Period, Vaccine and Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs, 86 Fed.Reg. 68, 052 (Nov. 30, 2021), on the up to 56 unvaccinated individuals identified in Plaintiffs' Complaint along with the number of unvaccinated individuals that are currently employed in Head Start programs in Walled Lake Consolidated School District;
Plaintiffs' Motion is DENIED to the extent they request any other relief and as to any other staff members or volunteers, including new staff members who begin work after entry of this Order;...” Id.
CMS’s Medicare/Medicaid Provider Mandate
On November 4, 2021, the Centers for Medicare & Medicaid Services (“CMS”) Interim Final Rule devised mainly under the authority 42 U.S.C. §§ 1302, 1395hh, requires specified providers and suppliers that participate in Medicare and Medicaid to ensure that covered staff who directly provide facility and patient care or other services (exempting 100% remote workers) to be are fully vaccinated by March 21, 2022—depending on the worker’s state—at the latest.
The CMS mandate is silent on vaccine exemptions due to disability or sincerely held religious belief, practice, or observance that conflicts with the vaccination requirement, the federal protections found in the ADA and in Civil Rights legislation would also apply to the CMS mandate.
CURRENT STATUS:
Still in effect as a result of the U.S. Supreme Court’s holding in Biden v Missouri and Becerra v Louisiana, 595 US ___( Per Curiam on January 13, 2022) ….
The Court concluded that the IFR “fits neatly” within the Secretary’s statutory authority to impose necessary conditions to protect the “health and safety” of patients served by the relevant providers and suppliers, as well as the Secretary’s general authority to issue necessary regulations to support the “efficient administration” of Medicare and Medicaid. Id. at 652.
The Court acknowledged that not all statutory provisions invoked by CMS contain the “health and safety” statutory language. See id. at n.*. It explained, however, that facilities not subject to the statutory language represent less than 3% of the workers covered by the rule, and that the pertinent statutory language “may be read as incorporating the ‘health and safety’ authorities applicable to the other 97%.” Id. The Court thus saw no reason to let the 3% “wag the . . . dog.” Id.
(1) The District Court for the Eastern District of Missouri’s
November 29, 2021, order granting a preliminary injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Eighth Circuit and the disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought.
(2) The District Court for the Western District of Louisiana’s November 30, 2021, order granting a preliminary injunc- tion is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Fifth Circuit and the disposition of the Government’s petition for a writ of certiorari
With all of this being said and—for the most part—done there is little or nothing outside of existing federal law (e.g., the ADA and Civil Rights legislation) preventing a private employer for imposing a vaccine mandate on its employees, which is a matter that I discuss in my upcoming peice on State Police Power.
That said …
Christians would do well to remember that: “The Lord has established his throne in the heavens, and his kingdom rules over all.” Psalm 103:19 (ESV)
Nonetheless, we should continue to pray for our judges because—as it is written in John 19:10-11—they would have no power if it were not given from above.[vi]
ENDNOTES
[i] See, e.g., Brnovich v. Biden, No. 2:21-cv-01568, Second Amended Complaint, ECF No. 70 (D. Ariz. filed Nov. 19, 2021) [hereinafter Brnovich Second Amended Complaint]; Church v. Biden, No. 1:21-cv02815, Complaint, ECF No. 1 (D.D.C. filed Oct. 24, 2021); Am. Fed. of Gov’t Emp. v. Biden, No. 1:21-cv-23828, Complaint, ECF No. 1 (D. Fla. filed Oct. 30, 2021).
[ii] See, e.g., Brnovich Second Amended Complaint, supra note 225, ¶¶ 47, 55–57.
[iii] See, e.g., Klaasen, 7 F.4th at 592–94; Norris, 2021 WL 4738827, at *2-4; Dixon, 2021 WL 5740187, at *4–6, *8–9; Valdez, 2021 WL 4145746, at *5–9. In addition to these claims, another common claim raised by plaintiffs challenging COVID-19 vaccination requirements—particularly before FDA fully approved a COVID-19 vaccine—is a claim asserting that the vaccination requirements in question violate the EUA provision of the FD&C Act. See infra “Emergency Use Authorization and Vaccination Mandates” for additional discussion.
[iv] See, e.g., Florida v. Nelson, No. 8:21-cv-2524 (M.D. Fla. filed Oct. 28, 2021); Kentucky v. Biden, No. 3:21-cv- 00055, 2021 WL 5587446 (E.D. Ky. Nov. 30, 2021); Georgia v. Biden, No. 1:21-cv-00163 2021 WL 5779939 (S.D. Ga. Dec. 7, 2021).
[v] See BST Holdings, LLC v. Occupational Safety & Health Admin., 17 F. 4th 604, 610 (5th Cir. 2021).
[vi] See John 19:10-11 (ESV) where it is written that Pilate questioned and the Master answered thus:
"Do you refuse to speak to me?" Pilate said. "Don't you realize I have power either to free you or to crucify you?" Jesus answered, "You would have no power over me if it were not given to you from above. Therefore the one who handed me over to you is guilty of a greater sin."
Helpful Links:
• Christian Legal Society
https://www.christianlegalsociety.org
• The Library of Congress’ website:
https://www.loc.gov/law/help/guide/states.php
• Civil Pro Se Forms
https://www.uscourts.gov/forms/civil-pro-se-forms
• Federal Rules of Civil Procedure
https://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure
• Public Access to Court Electronic Records (“PACER”) system
Disclaimer: The information contained in this article is offered for educational purposes only and is not intended to substitute for legal advice and is not customized to your particular needs. Before undertaking self-representation, we urge you to consult with an attorney licensed to practice in your state.