In October 2021, Amtrak introduced a companywide COVID-19 vaccine mandate to comply with President Biden’s executive order requiring vaccinations for all federal employees (the “Executive Order”). Amtrak believed it needed to comply with the Executive Order because it receives public subsidies.

In November 2021, two rail worker unions filed separate suits against National Railroad Passenger Corp., which runs Amtrak, challenging the vaccine mandate. The unions, the International Association of Sheet Metal, Air, Rail and Transportation Workers: Transportation Division (“SMART-TD”) and Brotherhood of Locomotive Engineers and Trainmen (“BLET”), allege Amtrak violated Section 2 and Section 6 of the Railway Labor Act (45 U.S.C § 151) by unilaterally implementing the vaccine mandate without bargaining with the unions first.

The Railway Labor Act

Section 2 of the Railway Labor Act (45 U.S.C. § 152) provides that:

No carrier, its officers, or agents shall change the rate of pay, rules, or working conditions of its employees, as a class, as embodied in agreements except in the manner prescribed in such agreements or in section 156 of this title.

Section 6 of the Railway Labor Act (45 U.S.C.§ 156) provides that:

Carriers and representatives of the employees shall give at least thirty days’ written notice of an intended change in agreements affecting rates of pay, rules, or working conditions, and the time and place for the beginning of conference between the representatives of the parties interested in such intended changes shall be agreed upon within ten days after the receipt of said notice, and said time shall be within the thirty days provided in the notice. In every case where such notice of intended change has been given, or conferences are being held with reference thereto, or the services of the Mediation Board have been requested by either party, or said Board has proffered its services, rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon, as required by section 155 of this title, by the Mediation Board, unless a period of ten days has elapsed after termination of conferences without request for or proffer of the services of the Mediation Board.

Recent Developments

In December 2021, a Georgia federal judge held the Biden Administration likely exceeded its lawful authority under the Federal Property and Administrative Services Act when issuing a different executive order, which mandated vaccines for federal contractors. The Georgia judge issued a nationwide injunction, blocking the vaccine mandate for federal contractors from taking effect. See “Ga. Judge Blocks Contractor Vaccine Mandate Nationwide” for more details regarding this decision.

Days after the Georgia holding, Amtrak announced its decision to temporarily suspend its vaccine mandate policy. Under the new policy, unvaccinated Amtrak workers are permitted to continue working so long as they submit weekly negative COVID-19 tests.

Amtrak’s decision also followed its announcement that the vaccine mandate would lead to service cuts in January 2022. Due to the new policy, Amtrak no longer expects to cut service rides.

In response, counsel for SMART-TD and BLET filed joint motions that their two pending motions for preliminary injunction be “held in abeyance unless or until Amtrak reinstates its mandatory vaccination policy.” Thus, the future course of their suit is uncertain.

White House spokeswoman Jen Psaki responded that Amtrak is “trying to work to ensure that there are adequate employees on the job,” and commented that the administration was not concerned about the suspension.

Looking Ahead

Amtrak’s response to the Georgia ruling is not isolated. Several other major transport companies, including Boeing, Union Pacific, and BNSF Railway, also suspended their vaccine mandates, all citing the Georgia court order.

How the Biden Administration will respond, as well as whether these decisions will face litigation at the US Supreme Court, remains to be seen.

Special thanks to law clerk Lindsay Weinstein for assisting in the preparation of this content.

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