Biden Vaccine Mandate Paused for Federal Contractors; Amtrak, Class I’s Respond (UPDATED)

Written by Marybeth Luczak, Executive Editor
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A U.S. District Court judge in Georgia has issued a nationwide stay of President Joe Biden’s Executive Order requiring government contractors to adopt COVID-19 vaccine mandates; BNSF, Norfolk Southern, Union Pacific (UP) and Amtrak respond.

The Dec. 7 order follows a lawsuit from several contractors and seven states, according to the Associated Press, and applies across the U.S. “because one of those challenging the order is the trade group Associated Builders and Contractors Inc., whose members do business nationwide.”

U.S. District Court Judge R. Stan Baker found that the states—Alabama, Georgia, Idaho, Kansas, South Carolina, Utah and West Virginia—“are likely to succeed in their claim that Biden exceeded authorization from Congress when he issued the requirement in September.”

Biden’s Executive Order 14042 requires “federal contractors and subcontractors to comply with workplace safety guidelines developed by a federal task force,” AP explained. “That task force subsequently issued guidelines that new, renewed or extended contracts include a clause requiring employees to be fully vaccinated by Jan. 18. That meant those receiving a two-dose vaccine must get their second shot by Jan. 4.

“Limited exceptions were allowed for medical or religious reasons.”

The Executive Order applies to millions of federal contractors, including some freight railroads, Amtrak, defense companies and airlines. Amtrak, BNSF, NS and UP were among those following the order and requiring employees to be vaccinated; they have also been in court battles with unions over implementation. (See: “NS Requiring COVID-19 Vaccinations for All Employees (UPDATED)” ; “BLET, SMART-TD Challenge Amtrak on Vaccine Policy.”)

With the recent court ruling, however, BNSF, NS and UP have halted their vaccine mandates; Amtrak has not.

BNSF told Railway Age:

“We have continued to monitor the legal process to determine the appropriate response for BNSF as circumstances evolve. On December 7, a federal judge for the United States District Court in Georgia issued a nationwide injunction blocking the enforcement of the President’s COVID-19 vaccine mandate for federal contractors for the time being while legal challenges continue through the court process.

“With this ruling impacting all BNSF locations—and considering BNSF’s stance remains that the decision to be vaccinated is a personal one—we cannot continue the current path without more certainty about the timing and enforcement of the federal contractor mandate.

“Effective December 8, 2021, BNSF has paused its implementation of the COVID-19 vaccine mandate. However, while the ruling by the District Court in Georgia granted a preliminary injunction, the ultimate outcome of the federal contractor vaccine mandate is yet to be determined. It is still possible that the mandate, as it applies to BNSF, could be upheld in court in the near future.”

In a statement released to Railway Age, NS said: “From the start of the pandemic, we have put the health and safety of our people at the center of our decision-making and have encouraged them to follow the guidance of public health experts. We also have worked to comply with all legal requirements, including the Biden administration’s vaccine mandate for covered federal contractors. While a recent court ruling in Georgia temporarily suspended the mandate nationwide, we are still encouraging our employees to get vaccinated. However, pending resolution of legal challenges to the mandate, Norfolk Southern will not pursue disciplinary action against employees at this time who do not comply with the government’s deadline to be vaccinated or request an accommodation.”

UP told Railway Age: “After reviewing the Georgia District Court’s Dec. 7 ruling, Union Pacific is still encouraging employees to report their vaccination status and get vaccinated. Given this ruling, Union Pacific is complying with the temporary suspension of the federal contractor vaccine mandate. As of Dec. 8, 73% of employees are fully vaccinated and another 7% are in progress.”

In a Dec. 9 memo to employees, Amtrak said its vaccine mandate will remain in effect, and it expects service impacts. The railroad issued the memo to Railway Age, which reproduces it here:

Amtrak COVID-19 Vaccination Mandate: Update  

To All Amtrak Employees,

We want to provide everyone with an update on Amtrak’s COVID-19 Vaccination Mandate.

Current Vaccination Rate – 95% Fully Vaccinated or with Form of Accommodation, 97% with at Least One Vaccine Dose  

Amtrak has made significant progress in getting 100% of our workforce vaccinated. As of today, 95% of our active employees are fully vaccinated or have received a form of accommodation. This number rises to 97% when we include employees who have received at least one vaccine dose. We are grateful to everyone who has chosen to comply with our mandate in a timely manner.  

Amtrak Vaccination Mandate Deadline Remains Jan. 4, 2022 – Regardless of Federal Court Decisions  

Earlier this week, the U.S. District Court for the Southern District in Georgia instructed the Biden administration to halt enforcement of its federal contractor vaccine mandate. While Amtrak acknowledges this decision, the company also affirms its right to have its own policy in place. As a reminder, Amtrak first announced its vaccine mandate on Aug. 11, which pre-dates the administration’s executive order for federal contractors. Accordingly, Amtrak’s vaccination mandate deadline remains Jan. 4, 2022.  

Next Steps – Unvaccinated Employees and Service Impacts  

For employees:
• The deadline for submitting proof of at least one vaccine shot was yesterday, Dec. 8.
• Amtrak is sending counseling letters today to all employees for whom Amtrak does not have proof of having received at least one vaccine shot. This letter will advise that the employee is not in compliance with the vaccine mandate – and will provide a directive to submit proof of having received all required vaccine shots by Jan. 4, 2022.
• Employees who fail to submit proof of having received their final vaccine shot prior to Jan. 4, 2022, will be considered insubordinate (in violation of Amtrak policy) – with the termination process to begin immediately.  

Regarding service impacts:
• We anticipate we will initially not have enough employees to operate all the trains we are currently operating after our mandate deadline of Jan. 4.
• As a result, we will have to implement temporary frequency reductions, primarily for our Long Distance services. Our Long Distance service line is most impacted because of the relatively small crew bases at intermediate points along multi-day Long Distance routes where conductors and engineers report to work. At some of these crew bases across our network, we have a relatively high percentage of unvaccinated employees.
• We are currently assessing which routes will be impacted by these service reductions. We plan to announce these impacts later this month.  

We appreciate everyone’s continued support in keeping ourselves and everyone around us safe. … Thank you.

White House Response

During a White House press briefing after the Dec. 7 court decision, Press Secretary Jen Psaki told reporters:

“Well, the reason that we proposed these—these requirements is that we know they work, and we are confident in our ability legally to make these happen across the country.

“As you know, the federal government—the largest employer in the country—we have successfully implemented these requirements in a way that has not only boosted vaccinations in the federal government with more than 92% of people vaccinated but also helps avoid disruptions and operations.

“And our implementation sends a clear message to businesses, including federal contractors, that similar measures will protect their workforce, protect their customers and protect our communities. …

“So, I would just note, of course, the Department of Justice will vigorously defend this in court, but we know it works. That’s why President and the administration will continue pressing forward.”

On Dec. 3, a federal judge in Kentucky also “issued a preliminary injunction against the mandate,” the AP reported, “but it applied only to contractors in three states that had sued together—Kentucky, Ohio and Tennessee.”

“With Tuesday’s ruling, all three of Biden’s broad vaccine mandates affecting the private sector have been put on hold by courts,” the AP reported. “Judges already issued a stay regarding one that applies to businesses with 100 or more employees and another for health care workers across the U.S.”

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