Fedweek

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The Justice Department has issued a new workplace safety plan that anticipates both a “reentry” program of more onsite work by currently teleworking employees and the reimposition of the administration’s vaccine mandate.

The former of those is under the department’s control and would apply only there but the latter depends on how successful it is in court, and would apply government-wide.

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The policy makes the Justice Department one of the few that have publicly addressed the reentry issue as infections from the latest surge recede and many pandemic-related restrictions are being eased. However, unlike the SSA and Agriculture Departments—which have said they will begin a general recall late in March—that guidance does not set a date.

It says affected employees will be given 30 days of notice of changes to their work arrangements and that those notices “must be sufficiently flexible to account for the evolving pandemic, including changing levels of community transmission of COVID-19.”

“Components are urged to continue to build on their successful experiences during the department’s ‘maximum telework’ posture during the pandemic to provide broader access to telework and other worksite and scheduling flexibilities to employees, as balanced against mission requirements, in developing and implementing their reentry plans,” it says.

Further, while an earlier OMB-imposed limit on building occupancy—which in some case is effectively a requirement for a certain percentage of employees to work offsite—is no longer in effect, “limitations on workplace occupancy or a return to maximum telework may be reinstated on an ad hoc basis by component leadership or as may be required in future department or OMB guidance in response to emergent conditions.”

Meanwhile, mirroring language in previous government-wide guidance, the policy states that the department will not enforce the vaccine mandate or its provisions for disciplining those not in compliance due to the court injunction against the underlying executive order.

However, the policy refers repeatedly to policies to be in effect under the mandate “when enforceable.” Those would include the vaccination-or-exemption requirement, with those not in compliance “subject to discipline, up to and including termination or removal. Components may also consider additional charges as appropriate under applicable policies and procedures.”

On behalf of the administration, the Justice Department is challenging the nationwide injunction against the mandate issued by a federal district court in Texas. The Fifth Circuit appeals court recently refused to lift that injunction on an emergency basis, with the department’s request now to go through the regular consideration process, although on an expedited basis. Meanwhile the basic dispute remains before the district judge, in one of about a dozen similar cases nationwide.

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The Justice Department policy adds that even with the injunction in place, other pandemic-related federal workplace policies “including guidance on protocols related to masking, distancing, travel, testing, and quarantine” remain in effect. That includes testing of unvaccinated employees—regardless of whether they have a granted or pending exemption request—who travel or perform work anywhere other than a telework site.

“Refusal or failure to take required tests for COVID-19 may result in disciplinary measures and the employee may be barred from entering the workplace for the safety of others, pending resolution of any disciplinary or other action the component may pursue,” it says in language similar to that of previous government-wide guidance.

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