COVID-19 Vaccine Required for Federal Employees
On Friday, October 1, 2021, the U.S. Office of Personnel Management (“OPM”) issued guidance to all federal executive departments and agencies regarding the requirement that federal employees be “fully vaccinated” no later than November 22, 2021. (See OPM’s guidance linked here and here.) Employees are considered fully vaccinated two (2) weeks after their second shot in a two-dose series of the COVID-19 vaccine, or two (2) weeks after a single-shot vaccine.
The Vaccination Requirement
The vaccination requirement stems from Executive Order (“EO”) 14,043, which President Joseph Biden issued on September 9, 2021. (See EO 14,043 linked here.) Under the EO, President Biden ordered covered federal agencies to implement programs requiring COVID-19 vaccination for their employees. President Biden also ordered the Safer Federal Workforce Task Force (“Task Force”), created in January this year, to issue guidance to federal agencies on the implementation of their vaccination programs.
On September 16, 2021, the Task Force issued guidance and, as mentioned above, OPM issued guidance on October 1st. (See the Task Force’s guidance linked here.) The Task Force and OPM guidance establish deadlines for agencies to require employee vaccination, explain how agencies should enforce the vaccination requirement, and describe potential legal exceptions to the requirement.
Applicable Deadlines
Under the Task Force and OPM guidance, federal employees of covered agencies must comply with the following deadlines:
October 11, 2021: Employees receiving the Moderna vaccine must receive their first shot of the two-dose series.
October 18, 2021: Employees receiving the Pfizer vaccine must receive their first shot of the two-dose series.
November 8, 2021: Employees receiving the Johnson & Johnson (“J&J”) vaccine must receive their single-shot series. Employees receiving the Pfizer-BioNTech (“Pfizer”) or Moderna vaccines must receive their second shot of the two-dose series.
November 9, 2021: Covered agencies are permitted to begin enforcement of the President’s vaccination requirement.
November 22, 2021: Deadline to be fully vaccinated.
Enforcement and Legal Exceptions
As mentioned above, covered agencies may initiate enforcement of the vaccination requirement as soon as November 9, 2021 — the day after the November 8th deadline to receive either the J&J vaccine shot, or the second shot of the Pfizer or Moderna vaccines.
The Task Force and OPM guidance recommend that agencies “initiate the enforcement process” with “counseling” and “education” before moving to discipline, such as suspension or removal from federal service. Specifically, OPM’s guidance states:
Agencies should use the counseling period to remind the employee again of the vaccination requirement, emphasize that failure to comply will lead to discipline up to and including removal or termination, address any questions, and inform the employee that they will have a short period of time (e.g., 5 days) to submit documentation establishing either the initiation or completion of vaccination, as applicable, or request an exception.
Further, according to OPM’s guidance, “[a]n agency should not initiate discipline if the employee claims a legally required exception as the reason proffered for not being vaccinated or providing proof of vaccination.” Here, OPM’s guidance speaks more broadly of a “legally required exception,” while the Task Force’s guidance speaks more narrowly of exceptions “because of a disability or because of a sincerely held religious belief, practice, or observance.”
In response to a request for a legally required exception to the vaccination requirement, agencies must engage in their standard interactive process for considering legal accommodations. If the request is denied, then the employee should expect to be required to receive their first shot of the Pfizer or Moderna vaccines (or only shot of the J&J vaccine) within two (2) weeks and the second shot within six (6) weeks of the denial.
Significant Takeaways for Federal Employees
There are at least three (3) significant takeaways for federal employees relating to the vaccination requirement.
First, the President’s vaccination requirement applies only to employees of agencies subject to EO 14,043. In other words, the requirement applies to employees within the executive departments, employees of government corporations (for example, the Pension Benefit Guaranty Corporation), and employees of independent establishments of the government (for example, the Federal Reserve Banks). But, for example, the President’s vaccination requirement does not apply to employees of the U.S. Postal Service (“USPS”), due the statutory definition of “Executive agency,” under 5 U.S.C. § 105, which is cited by EO 14,043. Instead, as the USPS acknowledged in a statement on its website, the USPS is essentially treated as a private employer for these purposes, and it will be subject to the forthcoming emergency regulations of the Occupational Safety and Health Administration. (See the USPS Statement linked here.)
Second, there is still time to comply. Employees who plan to receive the single-shot J&J vaccine have until November 8, 2021 to do so. For those planning to receive either the Pfizer or Moderna vaccine, there is less time to act. The first Pfizer shot would need to be received by October 18, 2021, while the first Moderna shot would need to be received by October 11, 2021, which is just a few days away as of this blog post.
Third, employees should expect to face counseling—and ultimately discipline—if they do not adhere to the applicable vaccination deadlines. While there are legally defined exceptions to the vaccination requirement, based on disability and religion, employees should expect significant scrutiny of such requests. Also, employees should seek the assistance of an experienced attorney when considering applying for a potential legal exception to the vaccination requirement, due to strict deadlines and the looming risk of discipline.
Questions
Shehan Legal closely monitors legal developments affecting employers, employees, and federal government employees. For more information visit www.shehanlegal.com. Or, to speak with attorney Kevin Shehan, please call 917-740-7805, email kevin@shehanlegal.com, or send a message using Shehan Legal’s Contact page (linked here).
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