Fedweek

President Joe Biden speaks about COVID-19 vaccine requirements for federal workers in the East Room of the White House in Washington on July 29. A Justice Department legal opinion was issued this week in support of employers - public and private - on imposing vaccine mandates.

President Biden stopped short of calling for a vaccination mandate throughout the federal workforce, and instead announced that all federal employees and contractors would have to attest to their vaccination status, and if unvaccinated, face stricter protocols.

Unvaccinated employees will have to wear a mask on the job, physically distance from other employees and visitors, and comply with weekly or twice weekly screenings. Additional restrictions on official travel also will be imposed, according to the White House.

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It’s a sharp change of direction. Until now federal employees have not been required to even disclose vaccination status–although those who answer in the negative or who decline to say have been subject to stricter mask-wearing requirements. Growing concerns about the recent nationwide increase in infections, particularly related to the “delta variant,” concentrated among unvaccinated people are driving a shift in policy.

The American Federation of Government Employees issued a statement calling for “any changes to working conditions, including those related to COVID-19 vaccines and associated protocols, be properly negotiated with our bargaining units prior to implementation.”

The Federal Law Enforcement Officers Association also issued a statement saying that it “fully supports individuals who voluntarily choose to be vaccinated, agree that it is safe and the most effective means of combatting the pandemic, and encourage our members to be vaccinated.” It continued, “However, forcing people to undertake a medical procedure is not the American way and is a clear civil rights violation no matter how proponents may seek to justify it.”

Biden’s remarks closely followed two other significant steps within the federal government: the VA’s announcement that it will require medical care personnel to be vaccinated; and a Justice Department legal opinion supporting employers on imposing such mandates.

The VA mandate applies to “Title 38” personnel including physicians, dentists, podiatrists, optometrists, registered nurses, physician assistants, expanded-function dental auxiliaries and chiropractors who work in Veterans Health Administration facilities, visit VHA facilities or provide direct care to those VA serves. Those employees will have until September 22 to be fully vaccinated and will be eligible for four hours of administrative leave per dose.

VA data show that just over 300,000 of its 420,000 employees currently are fully vaccinated. The VHA accounts for the large majority of the VA total although the figures do not specify vaccinations by component. The VA has said that employees who refuse vaccination would be subject to discipline up to firing unless they are excepted on medical or religious grounds.

The White House is also now directing DoD to look into how and when they can add a COVID-19 vaccination to the list of required vaccinations for members of the military. (See also, Can President Biden Lawfully Order Members of the Military to Take a COVID-19 Vaccine?)

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Meanwhile, a Justice Department legal opinion, dated July 6 but only just released, goes beyond prior interpretations of rights at stake in mandatory vaccination from the EEOC, which focused on discrimination and disability considerations. It says the law “does not prohibit public or private entities from imposing vaccination requirements, even when the only vaccines available are those authorized” under an emergency FDA authorization, as is the case with the three Coronavirus vaccines.

The law requires that individuals be given certain information including information about their right to refuse, but there also can be “sometimes-severe adverse consequences for exercising that option,” it says.

Increasing numbers of private sector employers and state and local governments have been announcing vaccination mandates in recent days, although the terms vary widely. One approach has been to give employees a choice of vaccination or being subject to frequent testing—an option now being taken up as federal government-wide policy, although that would differ somewhat from the approach the VA already has taken.

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2021 Federal Employees Handbook