Federal employee organizations are focusing their attention regarding the vaccine mandate for the federal workforce to detailing and negotiating over the potential for exceptions, and the possible accommodations for those who would qualify for one.
Unions and professional associations, which typically are in general agreement on issues affecting federal workers, have taken a mix of stances regarding the mandate, reflecting the mixed viewpoints of their members regarding it. But to date, none have expressed an intent to mount a legal challenge to the policy itself — even as numerous suits have been filed against similar mandates by state and local governments, universities, corporations and other employers.
The Federal Law Enforcement Officers Association, which has been among those most critical of the mandate, for example has posted an analysis saying that while the law regarding COVID vaccination mandates “is still evolving,” courts have upheld such mandates. “General objections to the vaccine are not a lawful basis to refuse,” it says.
Several unions previously said much the same, adding that they will hold agencies to their responsibility to fulfill bargaining obligations over procedures for employees seeking exceptions and other matters, and discipline of employees who do not meet either the standards for exceptions or the November 22 deadline to be fully vaccinated.
The administration’s guidance on exceptions contains little detail, mainly telling agencies to follow standard law procedures under EEO law requiring agencies to make “reasonable accommodations” for qualifying disabilities or a “sincerely held religious belief, practice, or observance.”
However, applying those procedures to a vaccine mandate is largely unexplored territory. Disability accommodation typically applies where an employees’ medical or physical condition limit their ability to perform their duties under standard work arrangements, while religious accommodation typically applies when an employee asks to change a work schedule for a religious holiday or to wear a certain item in the workplace.
The guidance similarly says that agencies should follow well-established practices in taking discipline, which could be “up to and including removal from federal service” without detail, leaving those decisions largely in agency discretion.
Most recently, NFFE issued sample proposals for its locals to raise to agencies that likely would reflect the approach of federal unions in general. Those positions include for example that the agency would have to provide onsite vaccinations (which the administration guidance does not anticipate), that a union representative would have to be present at any discussion with an employee regarding the mandate, and that the agency “will assume responsibility for any harm or injury to an employee caused by the vaccine.”
Other model proposals include that in weighing a claim for a religious exemption, an agency could only consider past behavior that is inconsistent with the professed belief; whether the accommodation sought is likely to be sought for secular reasons; and timing if employee made an earlier request for the same benefit for secular reasons.”
The union also is seeking to have agencies consent that “100% telework is an appropriate reasonable accommodation” where an employee qualifies for an exception, and to consent that employees who do not qualify and who remain unvaccinated will be subject to progressive discipline that will not take into account any prior misconduct since “failure to comply with a vaccine mandate is a unique form of misconduct.”
It’s uncertain to what extent agencies will agree to such proposals, though, raising the prospect of bargaining continuing past the November 22 effective date of the mandate. The administration’s guidance anticipates that possibility, saying that “any bargaining that has not been completed by the time implementation must begin will have to be finished post-implementation.”