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Blowback Builds with the Vaccine Mandate on the Horizon

By Drake Birnbaum

In an attempt to end the COVID-19 pandemic, President Biden delivered Executive Orders 14042 and 14043 which require federal contractors and federal employees to receive the COVID-19 vaccine, unless they are eligible for an exception. Federal employees must be fully vaccinated by November 22, 2021. Therefore, employees must receive the vaccine before November 8th, as they will not become “fully vaccinated” until two weeks after their final dose. Meanwhile, contractors have until December 8th to comply with vaccine requirements.

With deadlines rapidly approaching, there has been a defiant response on multiple fronts. Members of Congress such as Senator Jim Inhofe (R-OK) claim that the vaccine mandates are unclear and could needlessly harm the tens of thousands of troops who are unable to comply with the mandates. Legal suits have already been filed by federal employees at the state district level in Colorado and Florida and in the United States Court of Appeals for the Fifth Circuit. Plaintiffs claim that the vaccine mandate violates their rights under the Religious Freedom Restoration Act.

Plaintiffs explain that they refuse to take the vaccine since medical research required the use of aborted fetal cell lines, which goes against their religious beliefs that all life is sacred. The cell lines that were used to test or manufacture the COVID-19 vaccine are related to two sources: HEK-293, a kidney cell line from a possibly aborted fetus in 1973, and PER.C6, a retinal cell line that was isolated from an aborted fetus in 1985. However, Pfizer and Moderna do not require the use of any fetal cell cultures to manufacture the vaccine. Both vaccines have been termed ethically uncontroversial by the pro-life organization, the Charlotte Lozier Institute and the United States Conference of Catholic Bishops. However, Johnson & Johnson does require the use of fetal cell culture PER.C6 to manufacture the vaccine. The United States Conference of Catholic Bishops explained that it would be morally acceptable to receive a vaccine that uses the abortion-derived cell lines if there are not available vaccines comparable in safety and efficacy.

Plaintiffs allege that the Religious Freedom Restoration Act of 1993 states that the government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability. In Burwell v. Hobby Lobby Stores Inc., the U.S. Supreme Court asserted that the exercise of religion involves beliefs and the performance of physical acts. The government must satisfy a compelling interest test by demonstrating that the application of the burden is in furtherance of a compelling government interest and that the burden is the least restrictive means of furthering that compelling government interest. Plaintiffs argue that the US government does not have a compelling government interest to require them to violate their religious beliefs. Plaintiffs also argue that less restrictive methods to mitigate the spread of the virus exist through masking, teleworking, and frequent testing. Answers to these complaints have not yet been filed.

In order to brace for the blowback, the United States Office Of Personnel Management issued guidance to assist federal agencies in implementing the vaccine mandate. Where an employee fails to provide proof of vaccination by November 8, 2021, the employee has not received an exception, and the agency is not considering an exception request, OPM suggests that agencies begin enforcement through counseling and education. During this time, OPM should remind employees of the vaccine requirement and clarify that failure to comply can lead to discipline in the form of removal or termination. Employees should be told they have a limited period of time to submit documentation that they are initiating with a vaccine or applying for an exception. OPM encourages agencies to begin with minor penalties before considering more severe options such as termination. If an employee receives the vaccination after the disciplinary process has begun, then the disciplinary process should immediately end.

The response from contractors has been even more pronounced with nineteen states filing suit, arguing that the vaccine mandate violates federal procurement law and is an overreach of federal power. The Fifth Circuit is fast-tracking a case against the Occupational Safety and Health Administration for their regulations on private employers to meet COVID-19 vaccine requirements. The three-judge panel found that OSHA’s requirements raised constitutional issues, which is possibly because these workers are not directly employed by the government and yet are still being required to comply with the vaccine mandate. The Fifth Circuit decided that until these issues are resolved, the Department of Labor cannot enforce its vaccine mandate. The States argue that large numbers of federal contract workers will quit, which means that contractors will be forced to choose between failing to meet their contracts because of a reduced labor force or violating the vaccine mandate by retaining unvaccinated employees to meet their contractual obligations.

As United States agencies prepare to respond to these cases, our courts are tasked with the challenge of prioritizing our national security. However, when the health of our citizens is put at odds with the performance of government duties, the path forward seems far from clear.

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