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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
