An executive order issued in late 2021 made employees subject to discipline including firing starting in January 2022 if they did not receive the vaccine, unless they qualified for an exception. Image: CL Shebley/Shutterstock.com
By: FEDweek StaffOPM has told agencies to delete by September 8 all information in federal employees’ personnel records regarding whether they complied with the Biden administration’s COVID vaccination mandate, refused to comply, or requested an exemption on medical or religious grounds.
“Effective immediately, federal agencies may not use an individual’s COVID-19 vaccine status, history of noncompliance with prior COVID-19 vaccine mandates, or requests for exemptions from such mandates in any employment-related decisions, including but not limited to hiring, promotion, discipline, or termination,” says a memo on chcoc.gov.
In addition, subject to document preservation requirements related to litigation obligations, such information “must be expunged from any employee’s Official Personnel Folder (“OPF”) and electronic Official Personnel Folder (“eOPF”)—unless, within 90 days of this memorandum, the individual affirmatively opts out of this removal. If an individual opts out, he or she can still request and obtain such expungement at any subsequent time,” it says.
That “reiterates and expands upon” guidance issued in May 2023 after the Biden White House lifted that mandate; in that guidance OPM had said the mandate should no longer be enforced and that federal job vacancy announcements should no longer include references to it.
An executive order issued in late 2021 made employees subject to discipline including firing starting in January 2022 if they did not receive the vaccine, unless they qualified for an exception. However, just as agencies started preparing to take actions against some employees, beginning with letters of warning, a federal court issued an injunction against the order in a case brought by a group called Feds for Medical Freedom.
That proved to be only the first of many steps through the federal court system. A panel of the Fifth Circuit U.S. Court of Appeals later lifted the injunction but it remained in effect while the full court considered the case. That resulted in a decision leaving the injunction in place, a ruling that the Biden Justice Department then appealed to the U.S. Supreme Court. After Biden revoked the vaccination mandate, the high court granted his administration’s request to dismiss the case as moot.
Through that process, the focus was on procedural issues of whether the case should first have been brought through the MSPB process rather than directly into federal court. The outcome left unresolved the underlying issue of the extent of a President’s powers to set policies affecting federal employees outside the workplace by citing a work-related justification.
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