Update: Although a court has issued an injunction blocking the federal government from enforcing President Biden’s federal employee vaccine mandate, the Safer Federal Workforce Task Force has made it clear that other COVID-19 safety protocols will remain in place. This means that the screening testing requirements outlined in this article are still in effect per the Task Force.
Starting on February 15, 2022, federal employees who are considered to not be “fully vaccinated” will need to submit to COVID testing on at least a weekly basis according to new guidance from the Biden administration.
The testing would be required during any week in which the employees are working on site at their agency offices or interacting with members of the public. Agencies are allowed to require more frequent testing as well.
Federal employees who are working remotely or on telework would not be subject to the regular testing guidelines.
The updated testing guidelines would be for federal employees who are not fully vaccinated, which includes having a pending or approved request for exception or extension to the vaccine requirement for federal employees.
According to the Task Force, federal employees are considered “fully vaccinated” under these conditions:
Employees will be considered fully vaccinated for COVID-19 2 weeks after they have received the requisite number of doses of a COVID-19 vaccine approved or authorized for emergency use by the U.S. Food and Drug Administration or that has been listed for emergency use by the World Health Organization. For Pfizer-BioNTech, Moderna, or AstraZeneca/Oxford, that is 2 weeks after an employee has received the second dose in a 2-dose series. For Johnson and Johnson (J&J)/Janssen, that is 2 weeks after an employee has received a single-dose.
Screening Testing vs. Diagnostic Testing
The new Task Force guidelines differentiate between screening testing and diagnostic testing.
Screening testing is “intended to identify infection with SARS-CoV-2, the virus that causes COVID-19, in unvaccinated people who are asymptomatic and do not have known, suspected, or reported exposure to SARS-CoV-2.”
Agencies are directed to establish a screening testing program for unvaccinated federal employees by February 15, 2022. This includes federal employees who have a pending or approved request for exception or extension to the vaccine mandate.
Diagnostic testing is “intended to identify current infection in individuals and should be performed on anyone that has signs and symptoms consistent with COVID-19 and/or following recent known or suspected exposure to SARS-CoV-2.”
The Task Force guidelines state that federal employees “who have been exposed to persons with COVID-19 at work should receive diagnostic testing at no cost to the employee. Agencies that have in-house capabilities can provide diagnostic testing at the worksite; if an agency does not provide testing at the worksite, it should determine a process for employee diagnostic testing.”
Employees are entitled to reimbursement for the costs of diagnostic testing if required for official travel.
What Happens to Federal Employees Who Refuse Testing?
Any federal employees who refuse to take the required COVID tests will be subject to disciplinary action. This could ultimately included being fired.
There is a different process for federal employees seeking an accommodation from the regular testing requirement versus outright refusal.
The Task Force states:
Q: What steps may an agency take if a Federal employee refuses to take a COVID-19 test required pursuant to that program?
A: Refusals to take a required test or to provide the results of the test may result in disciplinary measures. In addition to pursuing any disciplinary action, an agency may separately elect to bar the employee from the agency workplace for the safety of others pending resolution of any disciplinary or other action the agency may pursue. Any decision to bar the employee should occur in consultation with the agency’s onsite security authority, agency’s human resources office, and agency’s legal counsel. If the agency bars the employee from the workplace, and the nature of the employee’s work does not allow for it to be performed outside of the workplace, the employee must be placed on paid administrative leave until the question of disciplinary action is resolved. In pursuing an adverse action, the agency must also follow normal processes to provide the required notice to the employee.
An agency follows a different process if the employee seeks an accommodation from the requirement to be regularly tested. In that case, an agency should follow its ordinary process to review and consider what, if any, accommodation should be offered in accordance with Federal employment nondiscrimination laws. All agency personnel designated to receive requests for disability accommodations should also know how to handle requests consistent with other Federal employment nondiscrimination laws that may apply. While the request is being resolved, the agency may bar the employee from official worksites. During that temporary period, the agency may direct the employee to work from home. If the employee’s duties cannot be performed via telework, the employee should be granted administrative leave for the temporary period of time while the request is being resolved.
If the employee’s request for an accommodation to a testing requirement is denied, and the employee does not comply with the testing requirement, the agency may pursue disciplinary action up to and including removal.
Although the Biden administration is not currently enforcing the federal employee vaccine mandate, the situation could change if the court injunction is lifted and/or as the litigation process continues to play out in the courts.