A group of federal workers from several states have sued the Biden Administration over President Joe Biden’s Covid-19 vaccine mandates for federal workers and federal contractors.
The Federal Practice Group, a Washington, D.C. law firm, filed the complaint against President Joe Biden and numerous members of his cabinet on Oct. 19.
Biden issued Executive Orders 14042 and 14043 on Sept. 9, demanding federal employees and contractors provide proof of having been vaccinated with an “unlicensed Covid-19 vaccine,” or they would face consequences in their jobs.
The lawsuit distinguishes between the vaccine that has been approved — Comirnaty — and the vaccine that is actually being used in the United States. The FDA considers them interchangeable, while others, including the plaintiffs, do not.
“On August 23, 2021, the FDA licensed a COVID-19 vaccine originally developed by BioNTech Manufacturing GmbH, a German company, to be jointly manufactured with Pfizer. The companies were authorized to market the vaccine under the name ‘COMIRNATY.’ Although co-manufactured by Pfizer, COMIRNATY is legally distinct from the Pfizer-BioNTech COVID-19 vaccine that was, and is, available in the United States; the Pfizer-BioNTech COVID-19, which is the only Pfizer vaccine available in the United States, remains under emergency use authorization,” the lawsuit says.
“In rushing to force COVID-19 vaccinations on the federal workforce, the President’s edicts violate longstanding statutory prohibitions against inoculations with unlicensed vaccines, as well as the individual rights of government employees and contractors under the Rehabilitation Act and the Americans with Disabilities Act,” the lawsuit says. “Accordingly, plaintiffs who are representative of nearly every Federal Agency respectfully request relief from this Court in the form of injunctive relief stopping this illegal and unnecessarily broad and wide-ranging program.”
The majority of the 50 federal workers who are plaintiffs work at the Department of Homeland Security. Others work at the Departments of Defense, State, Energy, Commerce, Agriculture, U.S.A.I.D., and other federal agencies.
Their lawsuit points out that vaccine mandate violates federal workers’ rights because it’s a blanket termination penalty for those who don’t comply, rather than allowing for an individual review of each employee’s case and required legal accommodations. It also is unlawful for a federal employer to demand the details of employees’ medical history.
The lawsuit says the firing of those who have a disease, like Covid-19, is prohibited by federal law because it is in the category of a disability. The lawsuit says that many employees have indeed been infected with Covid-19, have recovered, and have some level of natural immunity, citing a study from the Cleveland Clinic, which found that individuals previously infected with Covid-19 did not suffer reinfection, and that “ultimately, Individuals who have had SARS-CoV-2 infection are unlikely to benefit from COVID-19 vaccination.”
“Both the Rehabilitation Act and the ADA preclude employers from discriminating against federal employees and federal government contractors on the basis of an actual or perceived disability. The Acts further preclude employers from conducting disability-related inquiries of employees that are not shown to be job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). An inquiry is determined to be job related and consistent with business necessity when the employer has a reasonable belief, based on objective evidence that employee will pose a direct threat due to a medical condition,” the complaint says.
“The determination that an employee poses a direct threat must be based on an individualized assessment of the employee’s present ability to safely perform the essential functions of the job,” it continues.
The lawsuit says that Biden’s order violates the” informed consent” regulations of the Food, Drug, and Cosmetic Act.
Plaintiffs further explain that the federal Safer Federal Workforce Task Force has set a deadline of Nov. 22, for all to comply with the vaccine mandate. Employees who are on maximum telework or working remotely are not excused from this requirement. All federal employees, regardless if they have previously contracted Covid-19, are required to receive the vaccination or they will be considered “in violation of a lawful order,” and subject to discipline or termination.
But the task force permits agencies to initiate the enforcement process as soon as Nov. 9, 2021, for employees who fail to submit documentation to show that they have completed receiving required vaccination dose(s) by Nov. 8.
While the Safer Federal Workforce Task Force said that employees are permitted to request exceptions, it provides nothing further outside of an admonishment that, “All agency personnel designated to receive requests for accommodations should know how to handle requests consistent with the Federal employment nondiscrimination laws that may apply. If the employee’s request for an exception is denied, and the employee does not comply with the vaccination requirement, the agency may pursue disciplinary action, up to and including removal from Federal service,” the task force states.
The federal lawsuit also points to the evolving science of Covid.
“At the time the Executive Orders were issued, it was presumed that the unvaccinated, not the vaccinated, were the sole source of COVID-19 spread. Recent studies suggest otherwise. On September 29, 2021, a preliminary report from a study conducted by the Genome Center, University of California, Davis, stated that a review of both vaccinated and unvaccinated individuals resulted in the following:
“A total of 869 samples, 500 from HYT and 369 from UeS, were included in the analysis. All analyzed samples from HYT were asymptomatic at the time of collection and 75% of the positive samples were from unvaccinated individuals (N=375). Positive samples from UeS were from both symptomatic (N=237) and asymptomatic individuals (N=132). The frequency of vaccine breakthroughs among the UeS samples (171 fully vaccinated, 198 unvaccinated) was greater than among the HYT samples reflecting the different types of populations sampled. The Delta variant was the predominant variant detected in both populations (Supplementary Table 1).
“There were no statistically significant differences in mean [cycle threshold] Ct-values of vaccinated (UeS: 23.1; HYT: 25.5) vs. unvaccinated (UeS: 23.4; HYT: 25.4) samples. In both vaccinated and unvaccinated, there was great variation among individuals, with Ct-values of 30 in both UeS and HYT data (Fig. 1A, 1B). Similarly, no statistically significant differences were found in the mean Ct-values of asymptomatic (UeS: 24.3; HYT: 25.4) vs. symptomatic (UeS: 22.7) samples, overall or stratified by vaccine status (Fig. 1B). Similar Ct-values were also found among different age groups, between genders, and vaccine types (Supplemental Figure 1).
“In all groups, there were individuals with low Ct-values indicative of high viral loads. A total of 69 fully vaccinated individuals had Ct-values <20. Of these, 24 were asymptomatic at the time of testing.
The study went on to say that “A substantial proportion of asymptomatic, fully vaccinated individuals in our study had low Ct-values, indicative of high viral loads. Given that low Ct-values are indicative of high levels of virus, culture positivity, and increased transmission , our detection of low Ct-values in asymptomatic, fully vaccinated individuals is consistent with the potential for transmission from breakthrough infections prior to any emergence of symptoms.”
The plaintiffs say this is consistent with other studies now coming to light from Massachusetts and Singapore. It also points to credible studies showing the benefit of natural immunity.
Read the lawsuit: