On August 25, Judge Maurice A. Ross of the Superior Court for the District of Columbia granted a Summary Judgement and ruled that D.C. Mayor Muriel Bowser did not have the legal authority to impose a COVID-19 vaccine mandate for city employees. The case opposing the mandates was brought by the Fraternal Order of Police (FOP) along with the police union and four individual law enforcement personnel.

Mayor Bowser

Mayor Bowser declared a public emergency due to the COVID-19 pandemic on March 11, 2020. Then on May 27, 2020, the D.C. Council granted the Mayor “additional powers regarding executive branch subordinate agencies in response to the COVID-19 pandemic.” On August 10, 2021, Bowser issued Order 2021-099, which required all District employees to offer proof of vaccination by September 19, 2021. That order allowed exemptions on religious and medical grounds and also for employees who agree to weekly testing.

Mayor Tried to Remove Testing Option

Next, the FOP negotiated with the city regarding the implementation of Order 2021-099. On September 17, 2021, the Metropolitan Police Department (MPD) issued Executive Order 21-022, “which allowed unvaccinated MPD members to undergo weekly COVID-19 testing in lieu of receiving COVID-19 vaccinations.” On December 20, 2021, Bowser issued Order 2021-147, “which, among other measures, directed the City Administrator to formulate a plan to remove the test-out option identified in MO 2021-99 and imposed a mandatory vaccine requirement for all District employees.” The D.C. Council did not extend 2021-147, so it expired on January 4, 2022.

D.C. Council Rejects Mayor’s Request for Authority

On January 24, 2022, the D.C. Human Resources department enacted Issuance I-2022-03, “Covid-19 Vaccination and Booster Requirement,” mandating that government workers, “receive a complete course of vaccination against COVID-19, including a booster shot when eligible and providing proof of vaccination status no later than February 15, 2022.” On January 27^th and 31^st, 2022, the Mayor requested that the D.C. Council pass legislation to give her the authority to, “implement vaccine, testing, and masking requirements for District employees.” The Council rejected this request.   

Emergency Expired

Judge Ross noted that under the Jacobson case, upholding a vaccine mandate back in 1904, “When a public health emergency exists, governmental entities, including local authorities possess a recognized right to require vaccinations when authorized by the law.” The judge also said that the primary question before him is whether the Mayor had legal authority to impose the vaccine mandate; he found that, “Even construing all of the facts in the light most favorable to the Mayor, it is clear the Mayor did not.” Under D.C. law, while Bowser was allowed to issue emergency executive orders to protect public health and safety, such orders can only be effective for 15 days with a possible 15 extension.

Council Fails to Act on Bowser’s Proposal

On January 27, 2022, Bowser asked the Council to extend the effect of the statute allowing her to declare emergencies and impose emergency legislation. The D.C. Council took no action. On January 31, 2022, the Mayor yet again proposed legislation to extend these powers. The Mayor additionally submitted an “alternative request” for the Council to grant her authority to “implement vaccine, testing, and masking requirements for District employees.” The Council again took no action. Thus, any desire to enforce a vaccine mandate under emergency powers “was invalid beyond February 4, 2022.”

Supreme Court OSHA Case: Vaccines Not a Normal Work Rule

Additional mayoral powers, “expressly empowered the Mayor to modify employee tours and places of duty and assign additional duties to employees,” and the District argued that this allowed for a vaccine mandate. The court disagreed, noting that, “A vaccine mandate is not an everyday exercise of power—-It is instead a significant encroachment into the life—and health—of an employee.” Under the US Supreme Court’s decision to overturn OSHA’s large employer vaccine mandate, this “regulation” is totally unlike those usually imposed, as it “cannot be undone at the end of the workday.” Judge Ross said, “Thus, there is an expectation that a vaccine mandate must come from a legislative body.” Jacobson discussed a legislatively created rule, and here the Council has passed numerous COVID-19 statutes, “but no statute explicitly requires COVID-19 vaccinations for District employees.” Ross went on to reject Bowser’s claim that other statutes allowed for her mandate.

Judge Ross Orders Dismissal of Disciplinary Actions

In making his ruling, Ross ordered that the Mayor may not enforce the mandate against the plaintiffs, that all disciplinary actions related to the vaccine mandate, “shall immediately cease and be dismissed, with full reimbursement to be provided to all FOP members for any loss of benefits, pay, or rights and all related disciplinary proceedings to be expunged from their records….” And while the ruling in this case focused on the police plaintiffs, and the trial court level decision is not legal precedent, the judge’s analysis should apply equally to all D.C. employees moving forward.