Fedweek

The start of the new year brings the end of the waiting period the Biden administration imposed on serious disciplinary actions against federal employees not in compliance with the vaccine mandate, although uncertainty remains regarding how soon such actions might begin and how widespread they might be.

While the administration initially had set a November 22 deadline for employees to be fully vaccinated or else face discipline—unless they have an approved or pending request for an exception—it later termed employees compliant if they had received at least one dose of a vaccine or had requested or received an exception for medical or religious reasons. It also told agencies to generally hold off on discipline more serious than counseling “until the new calendar year begins in January.”

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That did not specify a date, but now that the new year has begun, agencies are free to take additional steps against unvaccinated employees who never requested an exception or those whose request was denied. That is to begin with an unpaid suspension of under 14 days (not subject to an appeal), then potentially a longer unpaid suspension or an immediate notice of firing.

The latest accounting—now nearly a month old—showed 92.5 percent of federal employees had received at least one dose of vaccine and another 5 percent had requested exceptions. (The former number likely was somewhat overstated since the data included military personnel, whose vaccination rates are separately reported as in the 98 percent range.) In limited circumstances temporary delays for medical reasons may be allowed, as well.

There is no accounting of the outcome of requests for exceptions among federal employees. To the extent that the record with military personnel is an indicator, the prospects would seem poor: DoD has reported granting only a few requests for medical reasons and the Air Force, for example, has said it has allowed none for religious reasons.

Where a request is granted, the employee is to be subject to stricter safety requirements as well as regular testing when onsite. If a request is denied, employees are to be given two weeks to start a course of vaccination or else the disciplinary sequence is to begin.

For all employees deemed non-compliant, once a disciplinary process starts it is to be suspended if the employee begins a course of vaccination and it is to be canceled if the employee completes that course.

Meanwhile, numerous legal challenges have been filed against the mandate in general but in at least three cases federal judges have refused to block it on grounds that the plaintiffs—some of whom had asked for exceptions—had not yet suffered career harm. Once disciplinary actions are taken, though, courts likely would turn to the underlying arguments against the mandate.

Also, additional cases are expected in the form of challenges to denials of exceptions through the EEO channels, and challenges to longer suspensions or firing appealable through union grievance or MSPB appeals routes—also potentially leading into federal court.

A number of court rulings have been issued against the administration’s vaccine mandates affecting federal contractors and other private sector employers, an issue that the U.S. Supreme Court is to take up soon. However, those cases would not directly affect the mandate for federal employees since the actions were taken under different laws.

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