The United States Office of Personal Management (OPM) established the guidance that Tuesday, November 9, is the first day federal employees are subject to disciplinary actions for failing to meet the government’s vaccine requirement. This means not receiving at least one dose of the COVID-19 vaccination or single dose of the Johnson & Johnson vaccine. OPM guidance has indicated that disciplinary actions can be up to, and including, removal or termination from federal service.
President Biden’s Executive Order (EO) 14043 requires federal employees to be fully vaccinated by November 22 which takes into account the recommended waiting period for each vaccine established by the CDC for someone to be defined as “fully vaccinated”. Those recommendations and timelines are below.
- Pfizer-BioNTech COVID-19 Vaccine: It is recommended that individuals who are looking to receive this vaccine should get their second shot three weeks after their first one. What this means is that in order to meet the EO deadline, employees should have received their first shot no later than October 18, with their second being no later than November 8.
- Moderna COVID-19 Vaccine: Individuals looking to receive this vaccine are recommended to get their second shot four weeks after their first. This made October 11 the target date for the first shot, with the second coming no later than November 8 as well.
- Johnson & Johnson Vaccine: Since this vaccine is only a single shot, federal employees must get their dose before November 8 to meet the EO deadline of November 22 deadline for being fully vaccinated.
Vaccine Exemption Requests
Employees can still submit a reasonable accommodation request to their agency if they are unable to take the vaccine based on a medical condition or because of a sincerely held belief that is based on a traditional religion or held in the same regard as a traditional religious belief or practice.
The Safer Federal Workforce Task Force (Task Force) provided templates for medical and religious accommodation requests which employees can complete and submit to their agencies. Employees should be prepared to provide supporting documentation and/or details regarding the request, if required, during a review of the accommodation request from their agency. Those granted accommodations will then be required to follow testing protocols, applicable masking requirements, physical distancing, and applicable travel guidance.
Disciplinary Consequences for Federal Employees Not Fully Vaccinated
Those who are not fully vaccinated and have not received an accommodation or have an exemption request under consideration from their agency will be in violation of the EO as of November 9.
The Task Force currently provides guidance that agencies should work with employees to encourage compliance even after this date. This would include an education and counseling period (listed as 5 days) by the agencies. If an employee does not demonstrate that they are starting the process to become vaccinated after the counseling period, short suspensions and removals may occur according to the Task Force.
However, during the counseling period, if an employee shows proof of progress to becoming vaccinated, the disciplinary process should be placed on hold to allow the employee a reasonable time to become fully vaccinated. Employees will also be able to submit legal accommodation requests during this period, but if denied and the employee is not complying with vaccine requirements, the agency may continue to pursue disciplinary actions.
If an employee does receive a denial of their medical or religious reasonable accommodation request, they are able to file a disability or religious discrimination complaint with the agency’s EEO office. If an employee does file a complaint, they should keep track of any comments or negative actions taken against them by their agency as they could become a part of the discrimination complaint.
Legal Challenges to the Vaccine Requirement
When it comes to lawsuits regarding denied reasonable accommodation requests, these suits are often successful or not depending on how the request was made and if there was any reason for the government under law or EEOC regulation to deny such a request.
Considering how we haven’t had similar court cases revolving around a mandatory vaccination since the early 1900s, I wouldn’t expect quick rulings from the courts on this issue. With the November 8 deadline approaching, it seems very unlikely that any last minute unlawful or unconstitutional ruling would occur regarding the EO. However, it wouldn’t be a surprise to see one of these cases make it to the Supreme Court on appeals.
With that said, there may be injunctive relief for those who have filed a suit over a denial of a religious or medical exemption. It wouldn’t apply to all federal employees, only those who file, and may prevent removal while the suit is pending. However, the likelihood of injunctive relief might depend on with what court the suit is filed and the Judge assigned.
If you are a federal employee that is seeking additional guidance on the vaccine mandate or looking for assistance in requesting a medical or religious accommodation, our team of attorneys are available to assist.