According to new guidance from the Office of Personnel Management, federal employees who refuse to get vaccinated under the new COVID-19 vaccine mandate may be subjected to disciplinary procedures starting in November.
OPM said in its new guidance that federal agencies can begin enforcing President Biden’s vaccine mandate for federal employees as soon as November 9, 2021. OPM said that date is the earliest start date for enforcement because of the timeframes required to get a full dose of one of the COVID vaccines by the government’s November 22, 2021 deadline.
OPM presented the following scheduling considerations for each of the three vaccines that agencies should provide to their employees so that they can meet the November 22 deadline:
- For Pfizer-BioNTech COVID-19 vaccine, individuals should get their second shot 3 weeks (or 21 days) after the first. This means that in order for Federal employees to meet a November 22 deadline, they should receive their first vaccination no later than October 18, and their second dose no later than November 8.
- For Moderna COVID-19 vaccine, individuals should get their second shot 4 weeks (or 28 days) after their first. This means that in order for Federal employees to meet a November 22 deadline, they should receive their first vaccination dose no later than October 11, and their second dose no later than November 8.
- Because the Johnson & Johnson/Janssen vaccine only has one shot, Federal employees must get that dose by November 8, in order to meet a November 22, 2021 deadline to be fully vaccinated.
“Given this timeline, agencies may initiate the enforcement process as soon as November 9, 2021, for employees who have not completed their vaccination dose(s) by November 8,” states the OPM guidance.
Disciplinary Process for Refusing Vaccination
OPM provided guidance for agencies on how to go about disciplining federal employees who refuse to get the COVID vaccine or show proof of vaccination:
Is there a recommended approach to enforcement?
Agencies must comply with all statutory, regulatory, and collective bargaining agreement requirements (where applicable). If the employee has not provided proof of vaccination by November 8, 2021, and has not received an exception and the agency is not considering an exception request from the employee, OPM recommends agencies initiate the enforcement process with counseling and education. Agencies should use the counseling period to remind the employee again of the vaccination requirement, emphasize that failure to comply will lead to discipline up to and including removal or termination, address any questions, and inform the employee that they will have a short period of time (e.g., 5 days) to submit documentation establishing either the initiation or completion of vaccination, as applicable, or request an exception.
If, after the recommended counseling and education period ends, the individual continues to refuse to comply, the agency should pursue disciplinary measures, up to and including removal or termination from Federal service. In pursuing any disciplinary 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 generally should not be placed on administrative leave while the agency pursues disciplinary 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. Agencies may wish to consult with counsel as to any other mechanisms that might be available to address the situation.
Agencies are reminded that generally the objective of discipline is to correct deficiencies in employee conduct. Discipline can deter misconduct and correct situations interfering with the efficiency of civil service. While the law and OPM adverse action regulations do not require progressive discipline, this is the preferred approach in the instance of non-compliance with the requirement to be vaccinated. With this in mind, agencies are strongly encouraged to consider whether lesser disciplinary penalties are adequate, as an initial matter, to encourage an employee to be vaccinated, such as a short suspension of 14 days or less under procedures established under 5 CFR 752.2031 (or procedures for similar matters which arise under other personnel systems). If a short suspension proves inadequate in encouraging an employee to become vaccinated, agencies should then consider a greater disciplinary penalty, such as removal or termination from the Federal service, under procedures established under 5 CFR 752.404,2 5 CFR part 315, subpart H (for probationers), or procedures for similar matters which arise under other personnel systems.
Agencies should strive for similar penalties for similarly situated employees, where appropriate, within the same work unit. To facilitate this for larger organizations where actions may be necessary for multiple employees, an agency should consider designating one management official to be a proposing official and designating another management official to be a deciding official for all actions in the work unit.
Legal Exceptions to the Vaccine Mandate
What about exceptions federal employees may claim to the vaccine mandate? OPM states:
What should an agency do if the employee claims they are legally entitled to be excepted from the vaccination requirement?
An agency should not initiate discipline if the employee claims a legally required exception as the reason proffered for not being vaccinated or providing proof of vaccination. If an employee claims a legally required exception, an agency should follow its ordinary process to review and consider what, if any, accommodation it must offer. All agency personnel designated to receive requests for accommodations should know how to handle requests consistent with any Federal employment nondiscrimination laws that may apply.
An employee whose request for an accommodation is denied should receive their first (or, if a one-dose series, only) dose within two weeks of the final determination to deny the accommodation. If receiving a two-dose series, the employee should receive the second dose within 6 weeks of receiving the first dose.
If the employee received a first dose of a two-dose series prior to seeking an accommodation, and their request for an accommodation is denied, they should receive their second dose within two weeks of the final determination to deny the accommodation or within a week of the earliest day by which they can receive their second dose, whichever is later.
If the employee does not comply with the requirement to become fully vaccinated, and has not been granted an exception and does not have a request under consideration, the agency may pursue disciplinary action, up to and including removal or termination from Federal service. If the accommodation request is denied, employees should be reminded again of the benefits of getting a COVID-19 vaccine and reminded that failure to comply with the vaccination requirement will result in disciplinary action, up to and including removal or termination from Federal service.
Additional details are provided in OPM’s memo on enforcing the COVID vaccine mandate.