Fedweek

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Federal agencies have been told that in light of a court injunction against the Coronavirus vaccination mandate, they are to suspend the processing of employees’ requests for exceptions as well as any disciplinary actions they have begun for non-compliance by those who do not have an approved or pending request for an exception.

There has been no accounting of compliance rates since early-December figures showing about 92 percent of federal and military personnel having received at least one dose and about 5 percent having requested an exception for religious or medical reasons. There has been no accounting of the outcome of those requests and it also is unclear how widely agencies have initiated disciplinary actions, in which counseling is to be followed by one or more unpaid suspensions and potentially progress to firing.

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A question and answer document from the Safer Federal Government Workforce Task Force says that so long as the injunction — which is being appealed — is in effect, agencies “should hold in abeyance all disciplinary actions related to enforcement” of the mandate, including “temporarily halting active suspensions as of January 21, 2022” and restoring those employees to paid status.

They further should “inform all employees who are subject to proposed or active disciplinary action” that enforcement has been halted and “should not continue to undertake preparatory work, such as drafting enforcement templates concerning disciplinary or adverse actions” toward possible future discipline.

However, any actions already taken—such as letters of education and counseling, letters of reprimand, or proposals of suspensions—need not be revoked and can remain in the employee’s personnel files. Further, agencies “do not need to reinstate employees who have been terminated because of non-compliance.”

Also, agencies with vaccination requirements separate from those under the enjoined executive order “can continue to implement and enforce those requirements. This includes proceeding with receiving, reviewing, and processing requests for exception to those requirements and enforcing the requirements through disciplinary actions consistent with agency policies.”

That caveat would appear to apply to the VA, which prior to the executive order had announced its own vaccination mandate for its Veterans Health Administration—whose 370,000 employees make up the large majority of that department. It also could apply to some 25,000 at HHS, which also previously had mandated vaccination for certain employees of the Indian Health Service, National Institutes of Health and Public Health Service Commissioned Corps. Those departments also allowed for exceptions on terms similar to those in the later government-wide order.

Further, agencies should not “continue to process requests they have already received” for exceptions or “ask employees for additional information that may be required to process previously submitted exception requests, or take any other steps related to adjudication of exception requests.”

Agencies are to inform employees with pending requests that an exception “is not necessary so long as the nationwide injunction is in place.” If an employee submits a new request, an agency is to “hold it in abeyance” and similarly inform that employee.

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