September 09, 2021
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
IN RE:
COURT OPERATIONS UNDER )
THE EXIGENT CIRCUMSTANCES )
CREATED BY THE OUTBREAK ) Standing Order 2021-17
OF COVID-19: )
COVID-19 TESTING ORDER )
The United States District Court for the Western District of Virginia has
continued to closely monitor the outbreak of Coronavirus Disease 2019 (COVID-19),
as well as the developing guidance from the Centers for Disease Control and Prevention
(CDC) and state and local health authorities. The staggering surge of the Delta variant
this summer has caused the COVID-19 community transmission rate to be at the
HIGH level throughout the Western District of Virginia.1 The dramatic spike in
COVID-19 cases has caused an increase in hospitalizations across the United States,
Virginia, and this District. The COVID-19 surge caused by the highly contagious Delta
variant requires the court to take additional steps to safely fulfill its constitutional duties.
Notwithstanding an unprecedented COVID-19 vaccination effort, a significant
percentage of adult Americans eligible for vaccination remains unvaccinated, including
nearly 20% of the court and probation staff of the Western District of Virginia. The
public health risk posed by the rapid spread of the Delta variant supports the adoption
1 See https://covid.cdc.gov/covid-data-tracker/#county-view (last visited September 8, 2021).
of this COVID-19 Testing Order requiring employees of the U.S. District Court, U.S.
Bankruptcy Court, and U.S. Probation Office who are not fully vaccinated to be
regularly tested for COVID-19.
On July 29, 2021, President Biden announced that all qualifying federal
employees, as well as federal contractors, are required to be vaccinated against COVID-
19 or be subject to certain health and safety requirements. Similarly, on August 5, 2021,
the Governor of Virginia issued an Executive Directive indicating that all Virginia
executive branch employees and state contractors are required to be vaccinated against
COVID-19 or be subject to certain health and safety requirements. See
https://www.governor.virginia.gov/media/governorvirginiagov/executive-
actions/ED-18-Ensuring-a-Safe-Work-Place.pdf (last visited September 7, 2021). Both
the federal policy and Virginia policy require individuals that are not fully vaccinated to:
(1) undergo routine COVID-19 testing; and (2) wear a mask while indoors and
conducting public business.
The safety of court employees, judges, litigants, counsel, and members of the
public that enter the court facilities in the Western District is a critical priority. See
Federal Judiciary COVID-19 Recovery Guidelines, at 2 (“The health and welfare of
each Judiciary employee, contractor, and member of the public that enters our facilities
should be paramount in the decisions that are made as these [COVID-19 recovery]
2
guidelines are implemented.”).2 Many court employees interact directly with the public
on a daily basis, and the importance of creating an environment that allows the court
to satisfy its constitutional mission, while at the same time avoiding danger to those
individuals ordered to appear in our court, cannot be overstated. In addition to
members of the public coming to the courthouse, the court’s probation officers interact
directly with members of the public in a variety of community settings. As such, to
protect the health of the court’s employees and the broader public, the court enters this
COVID-19 Testing Order consistent with the policy adopted by the President, the
Governor of Virginia, and at least five other federal district courts, multiple federal
bankruptcy courts, and at least one federal appellate court.3
Accordingly, it is ORDERED that employees of the U.S. District Court and
U.S. Bankruptcy Court, including judges, chambers staff, and staff of the Clerk’s Office
and Probation Office, who are not fully vaccinated against the COVID-19 virus are
required to: (1) be tested for COVID-19 by means of a PCR test every seven days,4 and
2 Similar to the instant Standing Order, as pandemic conditions have evolved, the court has issued multiple prior
Standing Orders aimed at protecting the safety of employees and other individuals working in or visiting our court
facilities, drawing on guidance from the CDC, the Governor of Virginia, and state and local health officials. See,
e.g., Standing Orders posted on the court’s public website at XVII. COVID-19:
http://www.vawd.uscourts.gov/court-information/local-rules-standing-orders/standing-orders.aspx.
3 Multiple public universities in Virginia have also recently adopted COVID-19 vaccination policies, subject to
qualifying exemptions.
4 The test results must be provided to the applicable court’s Human Resources Director or designee, except for
chambers’ staff, who shall provide their results to their appointing judge. To the extent that an employee does not
have an insurance plan that covers all costs associated with COVID-19 testing, no-cost testing may be available
through that individual’s local health department and/or through the partnership between the Virginia Department
of Health and Walgreens pharmacy. See, e.g., https://www.vdh.virginia.gov/coronavirus/covid-19-
testing/walgreens-partnership/ (last visited September 7, 2021).
3
(2) wear a mask while indoors in our court facilities, except when alone inside a private
enclosed office space which consists of a door, ceiling, and walls.5 Anyone with a
positive test result must quarantine at home for an appropriate period before returning
to our court facilities.
To implement the instant vaccination and testing policy, all Western District of
Virginia District and Bankruptcy Court employees, including judges and chambers staff,
Probation employees, and Clerk’s Office staff, are required to complete a vaccination
attestation form, a copy of which is attached to this Order, no later than Wednesday,
September 15, 2021. The attestation form may be submitted in paper format or by
email. 6 Clerk’s Office and Probation Office employees should return such form to the
Director of Human Resources or the Human Resource Assistant for their respective
court. Chambers staff should return their attestation form directly to their appointing
Judge. Individuals indicating on the attestation form that they are in the vaccination
process but are not yet “fully vaccinated” (defined as two weeks after receiving the
second dose of a two-dose vaccine (Pfizer or Moderna) or the single-dose vaccine
(Johnson & Johnson)) will be required to follow the health and safety protocols for
unvaccinated individuals until they are fully vaccinated.
5 The currently in-force mask policy for vaccinated individuals is set forth in General Order No. 2021-11.
6 Employees currently on approved leave extending past September 15, 2021, should submit the attestation form
prior to returning to work. Employees that begin work after September 15, 2021, should complete the attestation
form on or before their start date. Employees beginning employment after such date may submit their exemption
request at the same time they submit their attestation form.
4
It is important to emphasize that this COVID-19 Testing Order does not compel
anyone to be vaccinated.7 Rather, this COVID-19 Testing Order requires court
employees who are not fully vaccinated to be PCR tested for COVID-19 every seven
days and to wear a mask except when inside a private enclosed office space, which
consists of a door, ceiling, and walls.
By entering this COVID-19 Testing Order, the court has determined to take the
next step to protect the health of court employees and the public so that the courts may
continue to function. Depending on the trajectory of the current health crisis, additional
steps may be required, and the court will continue to evaluate such measures in the
public interest. In this regard, the court notes that vaccine mandates, even broad
statewide mandates applicable to all adults, have been long deemed constitutional by
the United States Supreme Court, Jacobson v. Massachusetts, 197 U.S. 11 (1905),8 with
the history of mandated inoculation dating back to the founding of our nation. At this
time, the court is not mandating a vaccine for all of its employees, but is instead entering
7 The court acknowledges that some employees may have concerns about the safety of the available COVID-19
vaccines, and such individuals are encouraged to consult their doctor/medical provider to discuss the safety of the
vaccines and the risks to themselves, their family members, and the public should they remain unvaccinated,
particularly in the context of the Delta variant and potential future variants of concern. Other employees may choose
not to be vaccinated for other reasons, including persons with medical conditions preventing them from being
vaccinated and those with sincerely held religious beliefs. See Klaassen v. Trustees of Indiana Univ., No. 21-2326, -
- F.4th --, 2021 WL 3281209, at *1 (7th Cir. Aug. 2, 2021) (noting “exceptions for persons who declare vaccination
incompatible with their religious beliefs and persons for whom vaccination is medically contraindicated.”).
8 In Jacobson, the United States Supreme Court rejected the claim that “a compulsory vaccination law is
unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his
own body and health in such way as to him seems best,” explaining that “the liberty secured by the Constitution of
the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all
times and in all circumstances, wholly freed from restraint” and that there “are manifold restraints to which every
person is necessarily subject for the common good.” Jacobson, 197 U.S. at 26 (emphasis added).
5
this COVID-19 Testing Order requiring court employees who are not fully vaccinated
to be PCR tested every seven days to protect the health and welfare of everyone who
enters our court facilities and the community. Such an order, consistent with the
policies adopted by the President and the Governor of Virginia, is a reasonable and
lawful response during a nationwide state of emergency and will promote safety in our
court facilities during the resurgence of the deadly COVID-19 virus. See
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-
rehabilitation-act-and-other-eeo-laws (last visited September 7, 2021) (discussing the
lawfulness of COVID-19 vaccine and testing requirements for individuals physically
entering the workplace “because an individual with the virus will pose a direct threat to
the health of others”).
This COVID-19 Testing Order will take effect September 15, 2021, and will
remain in place until further order of the court. The Director of Human Resources and
Human Resources Assistant for their respective courts are directed to collect and
monitor the attestation forms and the seven day PCR COVID-19 test results. 9
It is SO ORDERED.
ENTER: This 9th day of September, 2021.
Michael F. Urbanski
Chief U.S. District Judge
2021.09.09 09:02:21
-04'00'
__________________________
Michael F. Urbanski
Chief United States District Judge
9 These records are to be kept confidential pending further order of the court.
6
Western District of Virginia
COVID-19 Vaccination Status Attestation
Please complete and sign this self-attestation concerning your COVID-19 vaccination
status. You do not need to provide any medical information on this form, nor any
explanation concerning your decision to receive or not to receive a COVID-19 vaccine. For
purposes of this form, being “fully vaccinated” means that two weeks have passed after
receiving the second dose of a two-dose vaccine (Pfizer or Moderna) or
after receiving the single-dose vaccine (Johnson & Johnson). Once completed, this
form must be returned to the designated Court representative (chambers staff
should return this form to their appointing judge).
Name:
Classification: Clerk's Office Probation Chambers
Please choose one of the following options:
1. I am fully vaccinated.
2. I received my second dose of the Pfizer or Moderna vaccine or my single
dose of the Johnson & Johnson vaccine less than two weeks ago on .
3. I received my first dose of the Pfizer or Moderna vaccine, and my second
appointment is scheduled for .
4. I have not yet been vaccinated, but I have scheduled an appointment to
receive my first dose of vaccine on .
5. I have not been vaccinated.
6. I decline to disclose my vaccination status.
I understand that I am required to provide accurate information on this form. I hereby affirm
that I have accurately and truthfully answered the above question. I also understand that if I
stated that I am fully or partially vaccinated, the Court may request documentation of my
vaccination status (e.g., a copy of my vaccine card or other similar official document
confirming vaccination status).
__________________________ ________
Electronic or Ink Signature Date
