Gilbert Employment Law, P.C.

Gilbert Employment Law, P.C.

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OPM Issues Guidance on Disciplining Federal Employees for not Complying with COVID Vaccine Mandate

October 3, 2021

By Kevin Owen

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:

  1. 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.
  2. Agencies are encouraged to send out frequent reminders of upcoming vaccination deadlines.
  3. 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.
  4. 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.
  5. 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.
  6. OPM recommends agencies first suspend employees without pay to encourage compliance with the policy, and then resort to termination if the employee remains unvaccinated.
  7. 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.
  8. Agencies must follow required legal due process and any applicable union contract procedures in disciplining any employees.
  9. OPM instructed agencies to not place non-complying employees on administrative leave.
  10. Employees whose disability or religious based accommodation request is denied will be afforded two-weeks to begin the vaccination process.
  11. 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.
  12. 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.
  13. 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.
  14. 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.

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New Federal Employee COVID Vaccine Rules Issued

By Kevin Owen

On Thursday, September 9, 2021, President Biden issued an Executive Order 14043 which set mandatory COVID vaccination requirements for federal civil service employees and contractors.  On September 16, 2021, the Safer Federal Workforce Taskforce issued guidance setting forth guidelines for agency implementation of the Executive Order.  These guidelines provide policy guidance on seven topics for implementing the vaccine mandate, as follows:

  1. Vaccine Requirements:

Federal employees must be fully vaccinated by November 22, 2021.  However, to be considered “fully vaccinated” employees must have had their full dosage of vaccine two weeks prior to the deadline.  Therefore, federal employees must have their second dose of the Pfizer or Moderna vaccine or the single dose of the Johnson & Johnson vaccine no later than Monday, November 8, 2021.  The Taskforce is recommending federal employees begin any 2-dose vaccine regimen no later than October 18, 2021, to meet this deadline.

Federal employees hired after the November 22, 2021 deadline will be required to be fully vaccinated before their start date unless a reasonable accommodation for religious or disability related reasons must be legally granted.  Federal agencies may waive this requirement for new hires if the agency is able to show the hiring is “mission critical” and the new employee becomes fully vaccinated within 60-days of their start date. 

The COVID vaccine mandate applies to all federal employees, regardless of whether they are reporting to a worksite or full-time telework.  The guidance notes that “[e]mployees who are on maximum telework or working remotely are not excused from this requirement” because they may still interact with the public or be recalled to the office for mission related reasons.

  1. Vaccine Documentation and Information:

The Taskforce guidance requires agencies to collect and maintain documentation proving each employee complies with the vaccine mandate.  The guidance notes that employees who previously provided an attestation that they were vaccinated will now be required to provide a copy of their immunization record.  Employees will be required to certify that the copy of the record is true and correct. 

Agencies will be required to maintain a copy of these records in accordance with the Privacy Act as well as the Americans with Disabilities Act and Rehabilitation Act.

  1. Exceptions to the Vaccine Requirement:

Federal employees must follow the COVID vaccination requirements unless they obtain an exception because of a disability or religious accommodation.  This exception requires an individual legal assessment based on the facts particular to the employee, the type and nature of work, and availability of accommodations.

  1. Enforcement of the Vaccine Requirement:

Taskforce guidance indicates that agencies should take appropriate adverse action against employees who refuse to be vaccinated unless the employee is excepted from the requirement because of a disability or religious based accommodation.  Adverse actions range from reprimand, suspension without pay, demotion, and up to termination from employment.

  1. Rules for Contractors and Visitors:

Visitors to federal facilities who are seeking federal benefits (e.g., claimants visiting their local Social Security Administration office) are not required to provide information regarding their vaccination status.  Visitors to federal facilities for reasons other than seeking benefits will be required to sign a document certifying they are vaccinated.

Government contractors who are providing services containing a new vaccine mandate clause will be required to provide proof of vaccination.  Government contractors on contracts issued before September 9, 2021, must provide a Certification of Vaccination Form.

Any on-site contractor or visitor who is not fully vaccinated must provide proof of a negative FDA approved COVID test taken within 3 calendar days prior to entry at the federal facility.

  1. Union and Bargaining Unit Employee Rights:

Agencies are instructed to begin negotiations as soon as possible with federal employee unions as to impact and implementation issues affecting bargaining unit employees.  The Taskforce guidance indicates that the union may not bargain over any term specifically outlined in the Executive Order or guidelines.  Therefore, federal employee unions are not permitted to seek further exceptions, different deadlines, or an exemption from the vaccine mandate for its members.

  1. Safety Procedures:

Fully vaccinated federal employees will no longer be required to engage in social distancing in the workplace nor will they be subject to restrictions on official travel (except when otherwise mandated by local or state law). 

Fully vaccinated federal employees will not be required to wear face masks when they are in areas designated as “low or moderate risk of transmission,” but will still be required to wear face masks in “areas of substantial or high risk of transmission,” other otherwise mandated by local or state law.

Federal employees who provide proof of vaccination to their employing agencies will still be required to complete a Certification of Vaccination Form when visiting a different federal agency.

If you are a federal civil service employee or federal contractor 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.

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New Executive Orders on COVID Vaccination

By Andrew J. Perlmutter

On Thursday, September 9, 2021, President Biden issued two new Executive Orders which set new COVID vaccination requirements for federal civil service employees and federal contract employees.

Executive Order 14043 applies to federal civil service employees in the executive branch.  Under E.O. 14043, federal agencies are required to set up program requiring vaccination of civil service employees.  The exact parameters of those programs are not specified in the E.O., which instead cites to forthcoming guidance from the Safer Federal Workforce Task Force, which was then later issued on September 13, 2021.  The Executive Order itself did not set an implementation timeframe, but the White House Press Secretary at a press conference indicated the deadline for covered federal employees to either be vaccinated or to apply for an exemption would be 75 calendar days.   A White House announcement indicated that this vaccination requirement will dovetail with preexisting vaccination requirement at “the Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institute of Health”.  The Executive Order states that the vaccine requirement will be “subject to such exceptions as required by law”.  The White House Press Secretary indicated that employees could request medical or religious accommodations to exempt them from the vaccination requirement—and that covered employees that did not get vaccinated and were not qualified for an exemption could be subject to adverse actions including removal. 

The Safer Federal Workforce Task Force issued “Agency Model Safety Principles” on September 13, 2021, citing E.O. 14042 and 14043.  Under the Agency Model Safety Principles, federal civil service employees are required to be fully vaccinated by November 22, 2021, unless they are legally entitled to a reasonable accommodation.  Employees being vaccinated or recovering from the effects of vaccination are listed in duty status (including possibly earning overtime), including for related travel.  Employees are to be granted paid time off to recover from side effects, and to accompany family members being vaccinated. 

E.O. 14043 only covers executive branch employees, but does explicitly extend to nonappropriated fund employees.  E.O. 14043 does not apply to Postal Service employees, as they fall outside the definition of covered employees used in the Executive Order.  However, at the same time that the Executive Order was being issued, the White House also announced that the Department of Labor was preparing a proposed Emergency Temporary Standard (ETS) rulemaking under the Occupational Safety and Health Act (OSHA) which would apply to all employers with more than 100 employees, and which “will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.”. Under 29 U.S.C. § 652(5), the Postal Service is covered by OSHA regulations, and so coverage for Postal Service employees will derive from the DOL OSHA ETS once issued, not E.O. 14043.  According to the White House announcement, this ETS will also require employers to provide paid time off for employees to get vaccinated and to recover from the side effects of the vaccination.

Legislative branch employees are also excluded from E.O. 14043 because they do not work for executive branch agencies.  However, under § 1341 of the Congressional Accountability Act, legislative branch employees are covered by OSHA regulations, and so the ETS once issued should apply to some legislative branch employees as well, although the exact scope of coverage will depend on the precise terms of the ETS once issued.

Executive Order 14042 applies to federal contract employees. New government contracts and contract extensions are to include new contract language consistent with forthcoming guidelines from the Safer Federal Workforce Task Force, which will be issued on September 24, 2021, subject to approval by the Director of the Office of Management and Budget.  The Executive Order itself does not specify what those guidelines will require, but the White House announcement indicated that the standard for government contractors will be similar to that for civil service employees.  The Executive Order also does not state the precise effective date of these requirements. 

Under the Agency Model Safety Principles, contractors not yet contractually required to be vaccinated must either provide proof of vaccination or must prove a negative COVID-19 test less than 3 days old to be allowed entry to federal buildings, unless they are regularly tested under an agency testing program; this restriction also applies if the individual refuses to disclose their vaccination status.  Similar restrictions apply to visitors to federal buildings, unless they are “members of the public entering a Federal building or Federal land to obtain a public service or benefit.” 

The Agency Model Safe Principles state that unvaccinated individuals must wear masks indoors under most circumstances and socially distance; fully vaccinated individuals must mask indoors in areas of high or substantial transmission according to CDC data.  The Agency Model Safe Principles also set limitations on federal employee travel for unvaccinated employees, and set procedures for approval of in-person conferences hosted by agencies.  The Agency Model Safe Principles required self-reporting and departure from the workplace of anyone who develops COVID symptoms during the workday. The Agency Model Safe Principles also set monitoring and quarantine requirements for vaccinated employees later exposed to COVID. 

Finally, the Agency Model Safe Practices reminded agencies to meet collective bargaining requirements when implementing safety plans (including on a post-implementation basis if necessary). 

If you are a federal civil service employee or federal contractor and wish to discuss your rights and obligations under these Executive Orders, please consider contacting Gilbert Employment Law, P.C. to request an initial consultation.

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GEL Clients Awarded $400,000 in Punitive Damages

On July 30, 2021, Judge Amy Berman Jackson from the District Court for the District of Columbia awarded Gilbert Employment Law, P.C. clients Ms. Lilian Martinez and Ms. Carmen Recinos $894,245.00 and $782,650.00, respectively, for their discrimination and tort claims against their former employer Gali Services Industries Inc., et al.  ​On October 2, 2020, Judge Jackson found Gali Services Industries Inc., the GSI Group, Francisco J. Gali, Jr., and Francisco Gali, Sr., liable for subjecting Ms. Martinez and Ms. Recinos to sexual harassment and retaliation, and failing to take effective corrective action despite being aware of their supervisor’s egregious behavior. In the Court’s decision on liability, Judge Jackson also found the employer liable for negligent supervision, finding that, given that the Plaintiffs had reported harassment to their second-line supervisor, “defendants were on notice that [he] was dangerous and posed a threat to plaintiffs’ safety, and they therefore had a duty to adequately supervise him” and failed to do so. 

Accordingly, the Court awarded Ms. Martinez and Ms. Recinos  damages ​recognizing the serious harm inflicted by Defendants​, including $400,000 in punitive damages for each Plaintiff. ​In awarding significant punitive damages, the Court noted “​[a]ll of this was entirely preventable and directly attributable to defendants’ actions because the attacks occurred after plaintiffs placed their employer on notice of the predator on its payroll. Defendants chose to do nothing, which resulted in considerable harm to the plaintiffs.”  ​The Court continued, “punitive damages are warranted in this case, especially “in light of [the supervisor’s] callous and intentional enabling of [the harasser’s] unacceptable and tortious behavior.”   Jillian Moo-Young and Nicole Diaz represented Ms. Martinez and Ms. Recinos and are both thankful for the opportunity to support these courageous women in standing up for themselves and asserting their rights.  The Court’s decision on liability and the decision on damages can be found below.  

Martinez-Lilian-1-2021.07.30-31.-Memorandum-Opinion-re-Order-granting-default-judgmentDownload
Martinez-Lilian-1-2020.10.02-24.-Memorandum-Opinion-OrderDownload

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Gary Gilbert & Deryn Sumner Author New Edition of Compensatory Damages Book

President and Partner Gary Gilbert and Managing Partner Deryn Sumner have authored the 13th edition of their textbook Compensatory Damages and Other Remedies in Federal Sector Employment Discrimination Cases. The book provides an examination on the subject of damages available before the Equal Employment Opportunity Commission, Merit Systems Protection Board and federal courts as they relate to discrimination cases.  This new edition includes case summaries through mid-2021 and it reviews and analyzes significant developments and recent trends that affect damages awards. The book is published by Dewey Publications and can be purchased here.

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In Tribute to Michael Spekter

Gilbert Employment Law, P.C. is saddened to share the news of the passing of Michael Spekter, who served as Of Counsel with the Firm. Michael specialized in representing federal employees in employment and retirement related matters. He practiced extensively before the U.S. Merit Systems Protection Board and the Equal Employment Opportunity Commission, as well as both the local and federal Courts of the District of Columbia and Maryland, and especially at the Court of Appeals for the Federal Circuit, where he was responsible for a number of federal seminal retirement cases which protect the rights of part time federal employees.

He was a graduate of Villanova University, BA cum laude, Honors Program, and received his JD degree from Temple University Beasley School of Law where he was a dean’s list student. 

Prior to entering private practice, Michael was one of the original senior prosecuting  attorneys for the U.S. Office of Special Counsel, and litigated numerous seminal federal whistleblower retaliation and Hatch Act cases in the federal government. He also successfully litigated numerous DC Whistleblower cases. 

In addition to practicing law, Michael was an adjunct professor at both the University of Baltimore School of Law and American University Washington College of Law where he taught courses on Law Practice Management. He also coached the ABA employment law moot court team from The University of Baltimore Law School.

Michael was generous with his time to all of his colleagues, and will be greatly missed.