October 3, 2021
On Friday, October 1, 2021, the Office of Personnel Management issued guidance to federal agency heads regarding the implementation of the Executive Order requiring mandatory COVID vaccinations for federal employees. These instructions are the first clear indication that federal agencies are expected to take disciplinary action against employees who are not in compliance with the vaccine mandate. These guidelines include the following:
- Agencies are expected to begin taking action against non-complying employees as early as November 9, 2021, unless the employee is applying for or has received an exception on the basis of a religious or disability reasonable accommodation.
- Agencies are encouraged to send out frequent reminders of upcoming vaccination deadlines.
- As a first step, agencies are encouraged to provide education and training to unvaccinated employees regarding the safety and benefits of the COVID-19 vaccine.
- Agencies were instructed to inform employees that they only have 5-days after receiving education about the COVID-19 vaccine to submit evidence that they have begun the vaccination process.
- After the counseling and education period expires, OPM encourages agencies to begin disciplinary proceedings against non-complying employees, including suspensions without pay or termination from employment.
- OPM recommends agencies first suspend employees without pay to encourage compliance with the policy, and then resort to termination if the employee remains unvaccinated.
- OPM encourages agencies to cut-short a suspension that has been initiated or hold any disciplinary action in abeyance if the employee demonstrates they have started the vaccination process after an adverse action is proposed.
- Agencies must follow required legal due process and any applicable union contract procedures in disciplining any employees.
- OPM instructed agencies to not place non-complying employees on administrative leave.
- Employees whose disability or religious based accommodation request is denied will be afforded two-weeks to begin the vaccination process.
- Employees currently on an extended absence for medical reasons or on paid parental leave will be required to show proof of vaccination prior to returning to duty, but not by November 22, 2021 if their return date is beyond the deadline.
- Off-duty seasonal employees will not need to show proof of vaccination by the November 22, 2021 deadline, but will be required to show proof of full vaccination before starting work for the next season.
- Employees currently on an inter-agency detail or an Intergovernmental Personnel Act assignment (IPA) will be required to provide proof of vaccination to their employing agency.
- OPM advises agencies to not enforce the vaccine mandate for employees who are on terminal leave (i.e., drawing down annual leave prior to retirement) so long as they do not report to duty before leaving the rolls.
If you are a federal civil service employee and require legal guidance or representation for requesting a reasonable accommodation for a disability or based on religious beliefs, believe you may be facing disciplinary action for choosing to not obtain a COVID vaccine, or otherwise have questions regarding your legal rights, please consider contacting Gilbert Employment Law, P.C. to request an initial consultation.