Understanding the federal employee COVID-19 vaccine mandate, part 1

On Behalf of | Oct 8, 2021 | Employee Rights, Federal Employment Law, Reasonable Accommodation

To comply with President Joe Biden’s vaccination mandate, federal employees need to sear four dates into their memories: Oct. 11, Oct. 18, Nov. 8 and Nov. 22, 2021. On Nov. 22, all federal employees (and federal contractors) must be fully vaccinated against the novel coronavirus, even those who work remotely or telework, with narrow exception.

Federal employees must immediately plan for vaccination or other responses to the mandate. According to the Safer Federal Workforce Task Force (Task Force), a committee the president created in January, for full vaccination by Nov. 22, here are the latest possible first-dose dates:

  1. Oct. 11 for the Moderna vaccine, then four weeks until dose two and two weeks more for full vaccination by Nov. 22
  2. Oct. 18 for the Pfizer-BioNTech vaccine, then three weeks until dose two and two weeks more for full vaccination by Nov. 22
  3. Nov. 8 for the single-dose Johnson & Johnson vaccine, plus two weeks more for full vaccination by Nov. 22

Employees must provide physical or digital vaccination documentation.

Federal employee vaccination requirements evolved in 2021

This summer, we posted an article explaining that the Department of Veterans Affairs (VA) mandated that its health care workers get fully vaccinated or face job loss. President Biden then ordered all federal employees to become fully vaccinated or follow a scheme of masking, distancing and testing, plus travel restrictions.

But this changed in September when he issued new Executive Order 14043 mandating vaccination as a condition of federal employment, with some exceptions. Employee noncompliance could now result in discharge.

Current vaccine mandate is firm

For a federal employee without a “legally required exception,” refusal to vaccinate or show proof of vaccination is considered misconduct for violating a lawful order. Such an employee is “subject to disciplinary measures, up to and including removal or termination from federal service,” according to the U.S. Office of Personnel Management (OPM) in an Oct. 1 memo to agency and executive department heads.

OPM cautions that agencies and departments must also comply with any collective bargaining agreement in effect during the disciplinary process.

Enforcement of the mandate against nonconforming employees

OPM clarifies that agencies may begin to enforce the mandate on Nov. 9 against any employee who did not receive one of the required doses by Nov. 8, the last day to get a dose and still comply with the Nov. 22 deadline.

(This OPM memorandum (linked to above) contains two links to more important information. The first link is at the bottom of the memo, linking to an attached PDF of a guidance document containing OPM FAQs. The second link is in the memo’s second paragraph, linking to Task Force guidance.)

These guidance documents contain direction for agencies and departments when enforcing the vaccination mandate, including detailed suggestions about disciplinary measures and procedures in different scenarios. Some employees may be concerned that expectations, procedures and enforcement could vary among the various agencies or within the same agency. An employee in this situation may have claims and should discuss potential legal remedies with an attorney.

In part 2 of this post, we will explain legal exceptions to the federal employee COVID-19 vaccination mandate, as well as some other legal issues likely to arise.

Read part 2 of the vaccination mandate for federal workers

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