Mandatory COVID Vaccinations

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We have resisted opining on mandatory COVID vaccinations for federal employees for a while now. This is primarily due to the simple fact guidance is still being promulgated by federal departments and agencies within those departments and the issue is still in doubt at non-federal levels of government employment. Therefore, we will briefly cover the situation for now as we are receiving many calls.

However, two key facts in relation to this issue must be acknowledged to provide context for any proper discussion. First, vaccinations have been empirically and unequivocally proven to be both effective and safe and only a fool would argue otherwise as a defense to not obtaining a required vaccination. Second, as an employer, the federal government has the legal authority to require vaccinations as a condition of employment of its employees. Anyone advising an employee otherwise, is putting the employment of that employee at significant risk. The standard union advice permeating federal sector of “just file for an exemption” is not acceptable because the exemptions being sought are predicated upon misrepresentation, and in some cases, outright fraud.

Current Enforcement Guidance

The Safer Federal Workforce has issued the following advice to agencies concerning enforcement of the vaccination requirement. At this time, federal agencies consider this advice controlling to the issue of enforcement.

If the individual continues to refuse to be vaccinated or provide proof of vaccination, the agency should pursue disciplinary measures, up to and including removal from Federal service. In pursuing any adverse action, the agency must provide the required procedural rights to an employee and follow normal processes, including any agency policies or collective bargaining agreement requirements concerning disciplinary matters. Employees should not be placed on administrative leave while pursuing an adverse action for refusal to be vaccinated, but will be required to follow safety protocols for employees who are not fully vaccinated when reporting to agency worksites.
An agency should follow a different process if the employee claims a legally required exception as the reason for not being vaccinated or providing proof of vaccination. In that case, an agency should follow its ordinary process to review and consider what, if any, reasonable accommodation it must offer. All agency personnel designated to receive requests for reasonable accommodations should know how to handle requests consistent with any Federal employment nondiscrimination laws that may apply. If the employee’s request for an accommodation is denied, and the employee does not comply with the vaccination requirement, the agency may pursue disciplinary action, up to and including removal from Federal service.

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Exceptions to Mandatory COVID Vaccinations

Of course, as noted above, there will be a different process for those claiming a legal and recognized exemption to the vaccination requirement as, in general, noted below.

Federal employees must be fully vaccinated other than in limited circumstances where the law requires an exception. In particular, an agency may be required to provide a reasonable accommodation to employees who communicate to the agency that they are not vaccinated against COVID-19 because of a disability or because of a sincerely held religious belief, practice, or observance. Determining whether an exception is legally required will include consideration of factors such as the basis for the claim; the nature of the employee’s job responsibilities; and the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19. Because such assessments will be fact- and context-dependent, agencies are encouraged to consult their offices of general counsel with questions related to assessing and implementing any such requested accommodations. Additional guidance on legally required exceptions will be forthcoming.
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However, it is not reasonable to assume an exemption will be approved. Employees should expect all such requests to be scrutinized in an unprecedented manner and at all levels of appeal.

The Current Bottom Line

Federal employees currently have little choice in reality (and practicality) concerning mandatory COVID vaccinations, despite all the union and special interest rhetoric opining otherwise. You can either comply with agency instructions or take your chances on appeal if you are removed from federal service or your probationary period is terminated. In the best case scenario if you are removed from federal service, you could face years waiting for your appeal to be heard as the Merit Systems Protection Board and Equal Employment Opportunity Commission will be swamped under an avalanche of claims, legitimate or not.

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