By: Stephanie Rapp-Tully, Esq.
In August, the Centers for Disease Control (“CDC”) announced new guidance that will change COVID-19 testing, reporting, and safety protocols for federal employees and agencies. According to the Safer Federal Workforce Task Force (“Task Force”), federal agencies should no longer require or request that current or prospective federal employees provide their COVID-19 immunization status.
This news was shortly followed by updated Safer Federal Workforce Task Force guidance regarding the federal government’s intent to take no action on or enforce Executive Order 14042, which dealt with COVID safety protocols for federal contractors.
While this guidance signals to many that this may be the beginning of the end of the pandemic’s influence over the federal employment sector, many current and potential federal employees remain curious as to how or if this new guidance will impact their employment status. Furthermore, with these new parameters in place for COVID-19 testing, many agencies are still scrambling to get into compliance and stop testing for COVID-19.
While this situation will continue to develop and change—likely in the same unpredictable fashion since when the pandemic first started—it remains as important as ever to be up to date with your agency’s COVID-19 policies and remain in contact with your superiors so that you can best keep both your career and overall wellbeing in good health.
How Does the New CDC Guidance Affect Federal Employees?
When analyzing the effects of these new regulations, it’s crucial to realize that they primarily concern the testing and isolation requirements for both vaccinated and unvaccinated workers. Some of the high points listed in the prior linked updated CDC guidelines state that:
· Individuals exposed to COVID-19 should wear a mask for 10 days following and get tested 5 days following exposure;
· Individuals should continue to self-isolate should they test positive or possess COVID-19 symptoms (for at least 5 days depending on an individual’s risk category and at least 10 days for those who are immunocompromised or have had a severe reaction to their COVID-19 illness); and
· “Recommending screening testing of asymptomatic people without known exposures will no longer be recommended in most community settings.”
Following the introduction of these updated recommendations, the Biden administration directed agencies to halt their COVID-19 testing programs for unvaccinated employees. Despite the August 22 deadline, many agencies are still figuring out how to suspend these testing operations, none more so than the Department of Defense (DOD). The combination of military, civilian, and contract staff makes it difficult to create a universally applicable solution to safeguard the department and its employees while still adhering to the new testing policy of the Biden administration.
There are a few exceptions to the limitation of COVID-19 testing for unvaccinated personnel in some government workplaces, including nursing homes and homeless shelters. Furthermore, regardless of immunization status, the White House guidelines say that any ongoing testing should be completed.
What Does the Updated Safer Federal Workforce Guidance Mean for Federal Contractors?
As previously stated, the federal government will halt the implementation and enforcement of the federal contractor vaccine mandate, according to the new Task Force recommendations. This new instruction reflects the Eleventh Circuit Court of Appeals’ judgment on August 28, 2022, which limited the scope of the initial immunization mandate for certain federal contractors.
The injunction at issue in this case only prevents the vaccine mandate from being enforced in seven plaintiff states—Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia—as well as contractors and subcontractors from specific plaintiff construction trade groups.
By lifting the nationwide injunction in these states, the issue returns to the national spotlight, as the 5th U.S. Circuit Court of Appeals is still wrestling with the initial lawsuit filed in December 2021 against Biden’s vaccine mandate for federal employees. On June 27, the court agreed to convene an en banc hearing with the full panel of 17 judges after vacating the initial three-judge panel’s decision to maintain the injunction in place. While the judges have not said when they will deliver a ruling, it is expected that one will be issued soon as the COVID-19 case returns to national attention.
Will This Have Any Impact on the Current Vaccine Legislation/Legal Battles?
Another common question in response to this new guideline was how it would affect current legislation addressing the validity of the vaccine requirement. It is expected that this will have little impact on the legal side of the vaccine debate unless the requirement is totally overturned.
At the moment, it appears that this guidance solely addresses the problem of agency testing for unvaccinated personnel or those exhibiting COVID-19 symptoms. If anything, it seems like this is the first step toward reuniting the government workforce rather than maintaining it divided into those who have had vaccinations and those who have not.
Will This Guidance Retroactively Apply to Employees Who Were Punished for not Complying with Testing/Reporting Requirements?
This is a difficult question to answer definitively because it is mostly determined by the reason for the punishment. In general, whatever guidelines were in place at the time govern each case, so there is little potential for legal recourse for a government employee who was punished for refusing to test or be vaccinated, barring a complete reversal of the vaccine mandate as a whole.
It appears that many agencies are still changing their strategies to comply with the administration’s new testing and reporting standards, despite the deadline for agencies to halt requiring COVID-19 testing having passed in August. It would not come as much of a surprise to see the CDC and Task Force issue more guidance on COVID-19 self-care in addition to agencies adopting their pre-COVID employment policies given that the threat posed by COVID-19 has started to diminish—partially because of higher vaccination rates and better medical care.
In any case, the best advice at this time for federal employees and contractors is to stay in touch with their superiors and keep abreast of any new legislative developments in order to best safeguard their careers and general well-being.
Dedicated to fighting discrimination in the workplace, Stephanie Rapp-Tully has spent her entire career helping public and private sector employees overcome unlawful personnel actions based on factors such as their race, sex, national origin, disability, military service, and age. As a Partner at Tully Rinckey PLLC, she concentrates her practice on federal labor and employment law, routinely representing employees before United States District Courts, Appeals Courts, the Equal Employment Opportunity Commission (EEOC), and Merit Systems Protection Board (MSPB). She can be reached at (888)-529-4543 or at firstname.lastname@example.org.