Fedweek

New York - August 25: Demonstrators rally near City Hall against state and city mandates requiring them to get vaccinated in order to keep their jobs. People from several unions including health care workers, firefighters, teachers, police, sanitation, federal workers and others fall within the government prescribed medical mandate.

The latest guidance from the administration on its vaccine mandate for federal employees gives individual agencies discretion over many aspects of the program, including how they will deal with requests for exceptions and potential disciplinary actions against employees who are not eligible for an exception and who still remain unvaccinated.

Those are two of the main issues that have arisen regarding the mandate but as with several sets of prior guidance on the mandate, a September 16 posting from the Safer Federal Workplace Task Force still leaves questions unanswered while saying that yet more guidance lies ahead.

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Regarding possible exceptions, it repeats prior statements that an agency may be required to provide a reasonable accommodation to employees “who communicate to the agency that they are not vaccinated against COVID-19 because of a disability or because of a sincerely held religious belief, practice, or observance.”

However, it does not specify a set of considerations to be weighed, saying only that an agency “should follow its ordinary process to review and consider what, if any, reasonable accommodation it must offer. All agency personnel designated to receive requests for reasonable accommodations should know how to handle requests consistent with any federal employment nondiscrimination laws that may apply.”

Further, “Determining whether an exception is legally required will include consideration of factors such as the basis for the claim; the nature of the employee’s job responsibilities; and the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19. Because such assessments will be fact- and context-dependent, agencies are encouraged to consult their offices of general counsel with questions related to assessing and implementing any such requested accommodations.”

The guidance however does not list potential accommodations for those who qualify. Earlier guidance regarding the former “attestation” policy suggested that such employees would continue their normal work arrangements but subject to tighter requirements regarding mask wearing, distancing and more when working onsite.

Regarding possible disciplinary actions, it says that “as an initial matter, an agency should provide employees with information regarding the benefits of vaccination and ways to obtain the vaccine.” That would be consistent with the administration’s prior statements that agencies would use progressive disciplinary steps, although it does not specify that counseling is the first step agencies should take for employees who are unvaccinated after the November 22 deadline.

“If the individual continues to refuse to be vaccinated or provide proof of vaccination, the agency should pursue disciplinary measures, up to and including removal from federal service,” it says, adding that the same applies if an employee was denied a request for an exception. However, it does not specify the steps for an agency to take or how much time might pass before ordering a firing.

It adds this: “In pursuing any adverse action, the agency must provide the required procedural rights to an employee and follow normal processes, including any agency policies or collective bargaining agreement requirements concerning disciplinary matters. Employees should not be placed on administrative leave while pursuing an adverse action for refusal to be vaccinated, but will be required to follow safety protocols for employees who are not fully vaccinated when reporting to agency worksites.”

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2021 Federal Employees Handbook