More Guidance Released on Vaccine Mandate Injunction

New guidance tells agencies how to handle enforcing the vaccine mandate after a court issued an injunction blocking its enforcement.

The Biden administration has released additional information for federal employees and agencies regarding the court injunction that was issued which blocks enforcement of President Biden’s vaccine mandate for federal employees.

The Safer Federal Workforce Task Force has posted a series of questions and answers to help guide agencies in how they respond with their enforcement and data collection practices to the court injunction that is blocking enforcement of the federal employee vaccine mandate.

The Task Force notes up front that the federal government has stopped enforcing the vaccine mandate, but that the injunction could be “supplemented, modified, or vacated” at any time. Also, it notes that other COVID protocols based on a federal employee’s vaccination status remain in place.

Enforcing the Federal Employee Vaccine Mandate

The Task Force has instructed agencies to stop all prep work for enforcing the vaccine mandate as well as hold in abeyance all disciplinary actions related to enforcing the mandate.

However, agencies are instructed to enforce disciplinary action against federal employees who violate other COVID safety protocols based on their vaccination status such as wearing masks or keeping their distance from co-workers.

Q: Can agencies continue to undertake preparatory work associated with enforcement of the COVID- 19 vaccination requirement pursuant to E.O. 14043 while the applicable preliminary nationwide injunction is in place?

A: No, agencies should not continue to undertake preparatory work, such as drafting enforcement templates concerning disciplinary or adverse actions, associated with enforcement of the COVID-19 vaccination requirement pursuant to E.O. 14043.

Q: What should agencies do regarding disciplinary actions already in progress associated with enforcement of the COVID-19 vaccination requirement pursuant to E.O. 14043 while the applicable preliminary nationwide injunction is in place?

A: Agencies should hold in abeyance all disciplinary actions related to enforcement of the COVID-19 vaccination requirement pursuant to E.O. 14043. This includes temporarily halting active suspensions as of January 21, 2022, and holding proposals to suspend or terminate non-compliant employees in abeyance.

Agencies should inform all employees who are subject to proposed or active disciplinary action that the implementation or enforcement of the COVID-19 vaccination requirement pursuant to E.O. 14043 is currently enjoined and that the disciplinary action is being held in abeyance so long as the nationwide injunction is in place.

Q: Can agencies take disciplinary action to enforce other COVID-19 workplace safety protocols?

A: Agencies should continue processing disciplinary actions for other performance or compliance issues unrelated to enforcement of the vaccination requirement pursuant to E.O. 14043. This includes, for example, taking disciplinary actions associated with failure to comply with other COVID-19 workplace safety protocols, such as masking, physical distancing, or testing.

Q: Do disciplinary actions associated with enforcement of the COVID-19 vaccination requirement pursuant to E.O. 14043 that were already completed prior to the nationwide injunction need to be repealed, revoked, or rescinded?

A: No, at this time agencies do not need to revoke or rescind disciplinary actions associated with enforcement of the COVID-19 vaccination requirement pursuant to E.O. 14043 that were already effectuated prior to the nationwide injunction. For example, agencies do not need to repeal, rescind, or revoke letters of education and counseling, letters of reprimand, or proposals of suspensions, which may be stored in employee Official Personnel Folders or other agency files. In addition, agencies do not need to reinstate employees who have been terminated because of non-compliance with the COVID-19 vaccination requirement pursuant to E.O. 14043. Agencies should temporarily halt any active suspensions as of January 21, 2022, and should restore those employees to pay status.

Agencies should not use prior disciplinary actions taken pursuant to E.O. 14043 as predicates for further discipline.

Religious or Disability Exemption Requests

Agencies are instructed not to continue processing requests for religious or disability exemptions to the vaccine mandate. If an agency gets one, the Task Force says it should be held in abeyance and not used as long as the court’s injunction is in place.

Q: Can agencies continue to process requests for disability or religious exceptions to the COVID-19 vaccination requirement pursuant to E.O. 14043 while the applicable preliminary nationwide injunction is in place?

A: No, agencies should not continue to process requests they have already received for disability or religious exceptions to the COVID-19 vaccination requirement pursuant to E.O. 14043. They also should not ask employees for additional information that may be required to process previously submitted exception requests, or take any other steps related to adjudication of exception requests.

Agencies also should notify employees with pending exception requests that implementation or enforcement of the COVID-19 vaccination requirement pursuant to E.O. 14043 is currently enjoined and that an exception therefore is not necessary so long as the nationwide injunction is in place.

If an agency receives a request for an exception from the COVID-19 vaccination requirement pursuant to E.O. 14043, the agency should accept the request, hold it in abeyance, and notify the employee who submitted the request that implementation or enforcement of the COVID-19 vaccination requirement pursuant to E.O. 14043 is currently enjoined and that an exception therefore is not necessary so long as the nationwide injunction is in place.

Granting Leave

With respect to granting leave for getting vaccinated, the Task Force states that federal employees can no longer use duty time to get their vaccines:

…effective January 21, 2022, while the preliminary injunction is in place, employees who are not otherwise required to be vaccinated against COVID-19 by their agency and who seek any authorized dose of a COVID-19 vaccination during work hours (including primary series doses, authorized boosters, and authorized additional doses) should be granted administrative leave and not use duty time. Agencies should grant up to four hours administrative leave for any non-required primary series COVID-19 vaccination dose consistent with the guidance below for boosters and authorized additional doses.

Collecting Vaccination Information from Federal Employees

The Task Force states that agencies can continue to require and receive submission of vaccination information and documentation from federal employees:

Q: Can agencies continue to require and receive submission of vaccination information and documentation (including proof of primary series vaccination, additional doses, and booster shots) from employees and potential employees who have received an offer of employment, and maintain, review, and use that information and documentation for the purposes of implementing safety protocols based on vaccination status such as masking, distancing, testing, travel, and quarantine?

A: Yes, agencies can continue to require and receive submission of vaccination information and documentation (including proof of primary series vaccination, additional doses, and booster shots) from employees and potential employees who have received an offer of employment, and maintain, review, and use that information and documentation for the purposes of implementing safety protocols based on vaccination status such as masking, distancing, testing, travel, and quarantine. This includes reviewing vaccination documentation and information that was submitted to the agency during implementation of E.O. 14043 prior to issuance of the injunction, for the purposes of using that information to implement other safety protocols that are based on vaccination status. If an employee does not submit their vaccination information and documentation, they should be treated as not fully vaccinated for the purposes of implementing safety protocols that are based on vaccination status.

The Task Force also instructs agencies on how to collect and maintain information about whether federal employees are up to date on their COVID shots (including booster doses):

Q: Should agencies request and maintain information about whether employees are up to date with COVID-19 vaccines, including collection of documentation of additional primary series doses and booster shots from employees?

A: Safety protocols related to quarantine are contingent in part on whether one is up to date with COVID-19 vaccines, including recommended additional primary series doses and booster shots. To facilitate implementation of safety protocols, agencies should take steps to maintain information about whether employees are up to date with COVID-19 vaccines, including information about whether they have had recommended additional primary series doses or booster shots, including collection of documentation of proof, as part of broader agency processes and systems for maintaining information on employee vaccination status. In requesting this information, agencies should comply with any applicable Federal laws, including requirements under the Privacy Act and Rehabilitation Act of 1973. Agencies should consult with their legal counsel and labor relations staff to determine any collective bargaining obligations.

Job Vacancy Announcements

Agencies are also instructed to clearly state in job vacancy announcements that the vaccine mandate is not currently being enforced. This was the suggested template for agencies to use on federal government websites with job vacancy announcements:

To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation, the Federal Government will take no action to implement or enforce the COVID-19 vaccination requirement pursuant to Executive Order 14043 on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. Therefore, to the extent a Federal job announcement includes the requirement that applicants must be fully vaccinated against COVID-19 pursuant to Executive Order 14043, that requirement does not currently apply. Federal agencies may request information regarding the vaccination status of selected applicants for the purposes of implementing other workplace safety protocols, such as protocols related to masking, physical distancing, testing, travel, and quarantine.

About the Author

Ian Smith is one of the co-founders of FedSmith.com. He enjoys writing about current topics that affect the federal workforce.