The VA’s Vaccine Mandate: What It Means for You as a Title 38 Medical Professional

We are living in unprecedented times: the Federal Government is now mandating that a group of its employees must receive a vaccination or else they can be fired.

Of course, the big question is whether this is legal. The short answer is yes but it is not as simple as yes or no.
See https://www.cdc.gov/vaccines/imz-managers/guides-pubs/downloads/vacc_mandates_chptr13.pdf at page 273 for an more in depth discussion of the legal issues involved. Most courts hold that no constitutional right exists to either religious or philosophic exemptions. So, does that mean that the federal government has a right to demand that you be vaccinated? The Supreme Court stated the following on the issue:

The first state law mandating vaccination was enacted in Massachusetts in 1809; in 1855, Massachusetts became the first state to enact a school vaccination re­quirement. The constitutional basis of vaccination requirements rests in the po­lice power of the state. Nearly 100 years ago, the U.S. Supreme Court issued its landmark ruling in Jacobson v. Massachusetts,33 upholding the right of states to compel vaccination. The Court held that a health regulation requiring small­ pox vaccination was a reasonable exercise of the state’s police power that did not violate the liberty rights of individuals under the Fourteenth Amendment to the U.S. Constitution. The police power is the authority reserved to the states by the Constitution and embraces “such reasonable regulations established di­rectly by legislative enactment as will protect the public health and the public safety” (197 U.S. at 25, 25 S.Ct. at 361).

Now that we know that the state and federal governments have a right to do this type of mandate, the question arises as to whether a government Agency like the Department of Veteran Affairs can make such a mandate on its employees. The VA made such a mandate in a new directive: VHA Directive 1193 that was released on July 27, 2021. Here is a summary of the main points in that Directive:

  1. The Directive is broad and includes most Title 38 employees, the main exception being those who have 100% telework.
  1. There is a medical exemption process wherein you can fill out the COVID-19 VA Form 10-263 which is Appendix B of the Directive Box 2. You need to show that there is a medical reason like a history of severe allergic reaction to a component of the vaccine…
  1. There is religious exemption on the same form.
  1. If you do get one of the above 2 exemptions, you must always wear a face mask according to the VA Standards (with some exceptions like eating).

If you feel that you qualify for one of the above two exemptions or are not sure and would like to speak with an attorney about assistance, please reach out to us at Pines Federal and we will be happy to set up a consultation.

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