Follow-up guidance regarding the Biden administration’s announcement that federal employees will have to either attest that they are fully vaccinated or be subject to frequent testing and other workplace restrictions has left a number of questions unanswered for the present.
Unlike prior administration policies regarding federal workplace policies related to the pandemic, the policy did not issue as an executive order or even as a memo from OPM or OMB. Instead, the outlines were verbally announced by the President and other officials, followed by some further information being posted online.
Among the top issues for many employees is the effective date. The guidance says only that agencies “may take a reasonable period of time to establish a program for determining the vaccination status of employees and onsite contractors” and that they should follow prior policies for the meantime.
Further, agencies are to “satisfy applicable collective bargaining obligations” before carrying out the policy. As with those plans, the range—and therefore potential length—of those negotiations is uncertain.
The NTEU union for example said it “will work to ensure employees are treated fairly and this protocol does not create an undue burden on them.” The AFGE union similarly said that “we expect that the particulars of 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 guidance also does not specify what is meant by the requirement that employees “attest” that they are fully vaccinated or else be subject to the tighter restrictions for the unvaccinated (employees who refuse to respond will be treated as unvaccinated). For example, it does not mention a requirement that employees show proof from the vaccine provider. It also doesn’t address potential disciplinary actions if it is later discovered that employees falsely attested that they were fully vaccinated.
The guidance further does not mention any possible exception for employees working offsite full-time, as many continue to do—at least until that status may be changed by the reentry plans. For contractors, it applies only to employees working onsite at federal facilities but it makes no such distinction for federal employees.
The guidance gives agencies discretion to test employees who do not attest they are fully vaccinated “weekly or twice-weekly.” But it does not specify the type of test, when it would be performed—for example, on entry to the building—or who would perform it.
Regarding confidentiality and privacy, it says this: “All medical information collected from individuals, including vaccination information, test results, and any other information obtained as a result of testing and symptom monitoring, will be treated in accordance with applicable laws and policies on confidentiality and privacy, and will be accessible only to those with a need to know. Agencies should consult their senior agency officials for privacy on matters related to the handling of personally identifiable information and identify a point of contact for all questions relating to personal medical information.”