When President Biden revoked the federal employee vaccine mandate effective on May 12, 2023, the Safer Federal Workforce Task Force (Task Force) issued updated guidance shortly thereafter in which it rescinded all of its prior guidance regarding the vaccine mandate.
The Task Force states:
On May 9, 2023, President Biden signed an Executive Order revoking Executive Order 14043, which had required vaccination for Federal civilian employees. Effective May 12, 2023, all prior guidance from the Safer Federal Workforce Task Force (“Task Force”) implementing the requirements of Executive Order 14043 has also been revoked. Task Force guidance on other Federal agency safety protocols remains in effect.
So what are some of the other safety protocols it is referring to?
While most federal employees are no longer under a COVID vaccine mandate, there are some agencies that still impose one.
Additionally, the vaccination status of federal employees is still being tracked. Most of the information now published by the Task Force on vaccinations is regarding vaccination status. There are now only five questions and answers regarding COVID vaccinations on the Task Force website as of the time of this writing:
Q: Should agencies require or request employees and potential employees to provide information about their vaccination status?
Consistent with CDC’s guidance, for most Federal workplaces, COVID-19 workplace safety protocols currently do not vary based on vaccination status or otherwise depend on vaccination information, regardless of the COVID-19 hospital admission level for the county where the Federal workplace is located. Where this is the case, agencies should pause any efforts to require, request, or collect vaccination status information for the purposes of implementing agency COVID-19 workplace safety protocols.
Agencies with employee COVID-19 vaccination requirements pursuant to agency-specific authorities—i.e., requirements that are not premised on Executive Order 14043—may continue to require that employees provide information about their vaccination status, including documentation of proof of vaccination from employees and potential employees subject to those requirements, as can agencies with other setting-specific dependencies on collecting vaccination information from employees in those settings. Such agencies should consult with the agency’s General Counsel and the agency’s Senior Agency Official for Privacy on such requirements, including related to information collection.
When agencies pause requiring, requesting, and collecting vaccination status information, such agencies must continue to preserve their vaccination information collection systems and the information collected to date from employees in accordance with the Federal Records Act and other records requirements.
Q: If agencies require that employees provide information about their vaccination status because of an agency-specific vaccination requirement or an approved setting-specific dependency on collecting vaccination information, may agencies require documentation from employees to prove vaccination status?
A: Yes. If agencies require that employees provide information about their vaccination status because of an agency-specific vaccination requirement or approved setting-specific dependency on collecting vaccination information, agencies may require documentation from employees to prove vaccination, subject to those authorities or requirements, even if an employee has previously attested to their vaccination status. In requesting such information, agencies must comply with any applicable Federal laws, including requirements under the Privacy Act and Rehabilitation Act of 1973.
Q: How should agencies maintain any documentation provided by employees regarding vaccination?
A: Agencies must continue to preserve their vaccination information collection systems and information collected to date from employees in accordance with the Federal Records Act and other records requirements.
If an agency requires that employees provide information about their vaccination status because of an agency-specific vaccination requirement or approved setting-specific dependency on collecting vaccination information, the agency may develop its own processes, systems, tools, and applications, related to those requirements or dependencies, to both collect and maintain the required information, in compliance with all applicable laws and in accordance with its agency record management policies.
The collection and use of this information for many agencies is subject to the OPM/GOVT-10 Employee Medical File system of records notice (SORN) and OPM regulations (5 C.F.R. part 293, subpart E). Under those rules, each agency should have written instructions for its Employee Medical Folder (EMF) system with appropriate safeguards. Employees should be provided with a Privacy Act statement at the point of collection of this information. Agencies that are not subject to OPM’s regulations (or who employ categories of employees not covered by OPM/GOVT-10) should give their employees an alternative Privacy Act or comparable statement, as applicable. As a general rule, this information should not be maintained in the Official Personnel Folder.
Agencies are encouraged to take steps to promote employee privacy and agency IT security, while also providing the relevant information to those in the agency who need to know in order to implement the safety protocols. Agencies should consult with their Agency Records Officer, Chief Information Officer, Senior Agency Official for Privacy, and General Counsel to determine the best means to maintain this information to meet the agency’s needs.
Q: Which individuals within an agency should have access to information on employees’ vaccination status?
A: The Privacy Act permits disclosure within the agency to employees “who have a need for the record in the performance of their duties.” 5 U.S.C. 552a(b)(1). Agencies should only disseminate information to the appropriate agency officials who have a need to know to ensure effective implementation of the safety protocols, which, in many cases, will include the supervisor level. Agencies must comply with the requirements of the Privacy Act at all times. Agencies should consult with their Senior Agency Official for Privacy on any questions related to Privacy Act requirements.
Q: Is onsite verification of vaccination status for Federal employees required as a condition of entry to GSA-controlled facilities?
A: No, onsite verification of a Federal employee’s COVID-19 vaccination status is not required as a condition to enter GSA-controlled facilities. Security officers at GSA-controlled facilities will admit any Federal employee with a valid PIV card to the facility without requiring onsite proof of vaccination.
Enforcement of applicable workplace safety protocols, including any required testing for Federal employees with approved or pending exceptions, is the responsibility of occupant agencies.
Other restrictions have been loosened considerably as well. For instance, there are no longer any Government-wide limits on official travel for federal employees, and agencies are instructed not to limit official travel for individuals who have had known close contact with someone with COVID-19.
As far as COVID testing goes for official travel, the Task Force says that agencies have to follow Centers for Disease Control and Prevention guidelines:
When CDC recommends that travelers consider COVID-19 testing for current SARS-CoV-2 infection with a viral test prior to or following travel, agencies should recommend to employees traveling on official business that they consider being tested consistent with such CDC guidance. When CDC otherwise recommends or requires COVID-19 testing prior to or following travel, agencies must require employees traveling on official business be tested consistent with such CDC guidance, pursuant to Executive Order 13991. Agencies should provide for any recommended testing and must provide for any required testing associated with official travel at no cost to the employee, such as through the agency’s screening testing program, the agency’s in-house capabilities for diagnostic testing at the worksite, or through an alternative process determined by the agency. The cost of such testing recommended or required for official travel, and not available through a Federal dispensary or not covered (or reimbursable) through travel insurance, can be claimed in a travel voucher as a Miscellaneous Expense under agency travel policies.
What Are the Legal Implications of Dropping the COVID Vaccine Mandate?
The Health Freedom Defense Fund published a blog post about the Fifth Circuit Court of Appeals ruling in one of its cases that discussed the implications of that ruling and the Biden administration dropping the vaccine mandate.
It states:
…The Fifth Circuit observed in what looked like a throwaway line, that shortly there will be the lifting of all declarations of emergency and that the parties will have to deal with that.
What does that mean? It means that when the emergency declaration expires, the government will likely move for dismissal on the basis that the case is moot since federal employees are no longer subject to discipline for failing to get vaccinated. And it means that there will be no final answer, if the courts dismiss on that basis, which means that the federal government could always do it again the next time there is an epidemic. So, there would be no permanent answer on which federal employees could rely in refusing the next order that comes down the pike.
In other words, if the courts do not fully resolve the debate over whether the president can mandate a vaccine requirement for the federal workforce, it could always come up again in the future. Whether or not the courts answer this question remains to be seen.
What About the Databases Tracking Federal Employees’ Religious Information?
Some federal employees were challenging the COVID vaccine mandate on the basis of religious discrimination.
Feds for Medical Freedom President Marcus Thornton released a statement on May 10 in response to the end of the vaccine mandate:
While the end of the COVID vaccine mandates is something to celebrate, the fact is that there are many federal employees and contractors who were fired, chased out of their workplace by hostile supervisors, or endured harassment for almost two years. Those men and women deserve justice and compensation, and we will continue to fight for them. New databases were created to document those who, often for religious reasons, did not comply. Until those databases are dismantled, they will continue to be used to discriminate against employees of faith. Furthermore, there are bad actors within the federal government who have perpetrated other policies rooted in discrimination and a disregard for civil liberties, and we will relentlessly pursue accountability for them.
His reference to the religious databases refers to the fact that various federal agencies set up databases to track the personal and religious information of federal employees who had sought exemptions to the vaccine mandate when it was in effect.
That led to some lawmakers in Congress introducing legislation to ban such databases. The Preventing Abusive Government Efforts (PAGE) Act was introduced by Congresswoman Lisa McClain (R-MI). It not only would ban such databases but would also require the Biden administration to destroy any database that has already been established.
A group of House Republicans also sent a letter to President Biden telling him to direct his administration to stop collecting data on the personal religious information of federal employees who have requested exemptions to the vaccine mandate on the basis of their religion.
It seems unlikely that these databases will be destroyed, at least in the short term, despite the end of the vaccine mandate since the Task Force said in one of its FAQ’s, “When agencies pause requiring, requesting, and collecting vaccination status information, such agencies must continue to preserve their vaccination information collection systems and the information collected to date from employees in accordance with the Federal Records Act and other records requirements.” What ultimately happens with the databases remains to be seen.
Feds for Medical Freedom filed another lawsuit against the State Department for religious discrimination against federal employees who refused the vaccine mandate. One of the complaints in the lawsuit states that State Department federal employees “with religious objections to the vaccines have endured various forms of physical invasion, lack of acknowledgement and accommodation, professional and interpersonal humiliation, privacy breaches, ostracism, harassment, and countless other instances of discriminatory behavior as a direct result of their sincerely held religious beliefs.”
Cases against the vaccine mandate on religious grounds do not appear to bode well after a ruling just issued this week. A case (Donovan v. Vance) in which federal employees who had challenged the Biden administration’s vaccine mandate on the grounds that it violated their religious freedom was dismissed as a moot issue by the U.S. District Court for the Eastern District of Washington since the vaccine mandates for federal employees and contractors were rescinded on May 12, 2023.
