Today we continue our post about President Joe Biden’s September 2021 Executive Order 14043 that mandates federal employees (and contractors) to become fully vaccinated against the novel coronavirus by Nov. 22, 2021. As we explained in part 1, some exceptions to the mandate exist, but termination from federal employment is possible for noncompliance, since disobeying a lawful order is considered misconduct.
Mandate exceptions for reasonable accommodation
Federal anti-discrimination laws require reasonable accommodation in the workplace of an employee’s disability or sincerely held religious belief, observation or practice. When disability or religion prevents an employee from taking the vaccine, their federal employer must provide reasonable accommodation according to the law.
A federal agency or department may not take enforcement action against an employee with an approved accommodation request or if an accommodation request is under consideration, during which time the employee must “follow safety protocols” for unvaccinated employees, explains the U.S. Office of Personnel Management (OPM) in its Oct. 1 guidance for agencies.
The Safer Federal Workforce Task Force (Task Force) notes that determining whether accommodation is required is a complicated, fact-intensive analysis. Agencies should consult with their offices of general counsel for guidance, but generally should consider the reasons for the request, the job duties, the impact of an accommodation on the agency and workplace safety.
The Task Force guidance implies that there may be reasonable accommodation if an agency or department can implement sufficient safety protocols, including heightened protocols if necessary. Sometimes, the “nature of the employee’s job may be such that an agency determines that no safety protocol other than vaccination is adequate,” so no reasonable accommodation is available. In this situation, it is unclear whether the employee could be eligible for OPM disability retirement.
Finally, even if an employee does not qualify for an accommodation for disability, a medical condition may justify an extension. The Task Force gives the example of a person who should be allowed to wait because of medical treatment requiring a delay before they can safely receive the vaccine.
Potential legal issues
Other legal issues may arise during the mandate’s rollout. To answer questions, government agencies may release further guidance or courts may interpret provisions of the executive order. In the meantime, federal employees with questions or problems would benefit from seeking legal advice.
Possible areas of confusion and what we know from the order and the Task Force and OPM guidance:
- Who does the mandate apply to? A covered “employee” is as defined in 5 USC 2105. The OPM explains that employees on approved leaves (like FMLA, parental, sick, workers’ compensation and others) do not need to meet the Nov. 22 deadline if they will return to work later, but they must show proof of full vaccination at that time. Seasonal employees and others temporarily not working such as student volunteers or interns who work during the summer only need to show proof upon reemployment. The question is outstanding whether retirees receiving federal retirement benefits would be subject to the vaccine mandate, but it seems unlikely. For example, the Federal News Network describes speculation that some may retire to avoid the mandate.
- How does an employee make an accommodation request? The task force explains that each agency should set a date by which employees should request accommodations for the mandate, including developing a form for this purpose. Employees may still make accommodation requests after that date.
- What if agencies treat their employees differently within the same agency or among different agencies? An employee who believes this may be the case should seek legal advice. For example, a worker may not get due process during disciplinary or termination processes and a lawyer can assess whether legal options are available. Similarly, if a federal employer launches an investigation into an employee related to vaccine or safety protocol compliance, the worker should enlist an attorney as early as possible to help navigate potentially treacherous waters.
The rollout of the vaccination requirement is a chaotic situation in which federal employees must take precautions to protect their employment rights and benefits. Legal issues and government positions will become clearer over time and we will continue to provide updates.
Read part 1 about the COVID-19 vaccination mandate for federal workers