Updated: New guidance addresses the grounds and procedures for agencies to use if they move to fire a federal employee under President Biden’s executive order mandating they be fully vaccinated.
Before moving toward firing non-compliant employees (except those who have been excepted for religious or medical reasons or who have a request for such an exception under consideration by management—see related stories) agencies are first to counsel them about the vaccines and about the mandate, including possible disciplinary consequences.
The next step generally is to be a 14-day suspension, which is to stop if the employee shows proof of being fully vaccinated by that time; if the employee shows proof of receiving one dose of a two-dose vaccine, the agency is to temporarily stop the suspension pending proof that the employee received the second within the recommended time frame.
If employees do not move toward being vaccinated by the end of the suspension, though, agencies may move to fire them, under guidance from OPM and the Safer Federal Workforce Task Force.
The grounds would be, essentially, insubordination: those employees would be “in violation of a lawful order. Employees who violate lawful orders are subject to discipline, up to and including termination or removal,” the task force said.
Said OPM: “If an employee receives a direct order to receive a vaccine as required under EO 14043 and refuses, this is an act of misconduct. Any adverse actions for misconduct taken under 5 CFR Part 752 are taken for such cause as will promote the efficiency of the service . . . There is precedent for taking an adverse action against a federal employee for disobeying an order to be vaccinated.”
It adds: “In pursuing any disciplinary 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 generally should not be placed on administrative leave while the agency pursues disciplinary 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. Agencies may wish to consult with counsel as to any other mechanisms that might be available to address the situation.”
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