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Vaccine mandates few and far between in federal judiciary

4 minute read

REUTERS/Marko Djurica

(Reuters) - As the Biden administration steps up pressure on executive branch employees to get vaccinated against COVID-19, another set of government workers – those in the judiciary – are facing diverging, regional rules on whether they need to get jabbed.

So far, federal district courts in only three of the 10 largest U.S. cities have announced they are requiring employees to get vaccinated amid a surge in hospitalizations and deaths, largely among unvaccinated people, prompted by the spread of the highly contagious Delta variant of the coronavirus.

Even in the country's largest city, New York, divisions exist: The Manhattan-based Southern District of New York imposed a vaccine mandate on Monday, while no such rule exists in Brooklyn's Eastern District of New York.

The lack of a national judicial vaccine policy contrasts with President Joe Biden's executive order this month requiring federal employees in the executive branch to be fully vaccinated with certain exceptions.

Federal regulators are separately drafting an emergency temporary standard covering more than 80 million private sector employees who work for businesses with more than 100 workers.

The Administrative Office of the U.S. Courts (AOC), the judiciary's administrative agency, has issued memos explaining how factors including the Biden administration's actions could inform courts' decisions to adopt vaccine mandates.

But no national mandate has been issued for district, circuit and bankruptcy courts. "We are a resource body, not a command-and-control headquarters for the courts," said Charles Hall, an agency spokesman.

Even the AOC's 1,100 employees face no vaccine requirement, though this week were told to report their vaccination status.

A list the AOC maintains of courts with vaccine mandates shows requirements "remain the exception," Hall said. The list counts three circuits, nine district courts and two bankruptcy courts that have them. The list may be an undercount, since it is self-reported.

The judiciary overall has more than 31,000 employees and judges.

W. West Allen, the Federal Bar Association's president, said that while district court chief judges can issue orders to safeguard personnel and witnesses by requiring vaccinations, they have tended to take their health cues from others.

"I think most of them have tried to give deference to local authorities because it's not a judge's job ultimately (to) decide public policy," said Allen, an intellectual property litigator at Howard & Howard in Nevada.

One district that has diverged from local guidance was the Southern District of Texas, whose chief courthouse in Houston is situated in a county where school officials have clashed with Republican Texas Governor Greg Abbott over mask mandates.

Abbott has barred local governments from enacting their own vaccine mandates, but he has no jurisdiction over the federal courts. "Life tenure and dual sovereignty are beautiful things," Chief U.S. District Judge Lee Rosenthal said in an interview.

Rosenthal, an appointee of former Republican President George H.W. Bush, said the court's decision to adopt a vaccine requirement in mid-August led to an increase in employees getting a shot, and now nearly 90% are vaccinated.

"We made that decision in part because we were experiencing significant rates of transmission and needed to break that cycle," she said.

Anyone who chooses not to get vaccinated must undergo twice-weekly testing, and unvaccinated employees may not work with the public and juries. Only one employee has been fired for not complying with the requirements, she said.

Other districts with vaccine rules with varying exceptions or testing requirements include Connecticut, New Jersey, the Northern District of Illinois, Rhode Island, Maryland, the Eastern District of Virginia, and the Southern District of Florida, the AOC said.

In Arizona, which is not on the AOC's list, court employees must certify they are vaccinated, but non-vaccinated employees can continue to work under certain restrictions.

At the appellate level, the AOC counted only the Chicago-based 7th Circuit, the Denver-based 10th Circuit and the Atlanta-based 11th Circuit as having issued orders imposing vaccine requirements on employees and visitors.

Gabe Roth, the executive director of the court reform group Fix the Court, said that list should be even longer.

"Vaccine mandates save lives, and like any national policy during a pandemic that would keep people safe, the judiciary should be leading, not following – which in this case means mandates for court staff, jurors and visitors," he said.

Related stories:

SDNY courthouses adopt vaccine requirement for employees, judges

U.S. says federal employees must be vaccinated by Nov. 22

Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.

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