The two largest departments, the DoD and the VA, have separately started rolling out details on how they will enforce the Biden administration’s Coronavirus vaccine mandate for federal employees, both stressing that those who do not comply and are not eligible for an exception ultimately will face firing.
Those two departments account for about half of the federal workforce outside the Postal Service; while the DoD is the larger of the two, the VA has been the most closely watched since most of its workforce was subject to an earlier deadline to be fully vaccinated under a mandate for its Veterans Health Administration that predated the general one.
In a briefing for reporters last week, VA Secretary Denis McDonough said that the department does not have vaccination status disclosures in its system from 30 percent the VHA workforce of 380,000, even though the deadline for them to be fully vaccinated already has passed. The 40,000 employees in other VA branches are subject to the general mandate to be fully vaccinated by November 22.
The VA separately has said that about nine-tenths of VHA employees are fully vaccinated, based on records of vaccinations done in-house and previous self-reporting by employees. McDonough said that while some of the difference in the numbers is a matter of delays in processing the new form employees now are to submit, many employees are “going to be getting a visit,” presumably from their supervisors.
He characterized that as the start of the “counseling” phase of the disciplinary process for those not in compliance unless they have been granted an exception on medical or religious grounds or have one under consideration. Under the government-wide guidance, counseling typically is to last about a week, followed by a suspension of less than two weeks and then discipline up to firing.
McDonough said he expected that going through the full progressive disciplinary process could consume as much as two or three months, while several times referencing firing as the last step—even though the general guidance leaves some room for lesser penalties. He further said the department has started making contingency plans in case it ultimately fires large numbers of employees.
He further said the VA has no accounting of how many employees have requested exceptions, although he said the number is much above those who requested exceptions from earlier mandates to be vaccinated against seasonal flu. He said that while those requests will be considered as required, he noted that the law also allows an agency to deny requests on grounds that an accommodation would be too burdensome on the employer.
Meanwhile, DoD has issued department-wide guidance for its 750,000 civilian employees that largely reflects the administration’s guidance. One difference is that it tells DoD components they may begin the disciplinary process as of November 22 for employees who are not fully vaccinated and who do not have an exception or one under consideration. Under the general guidance, agencies may begin as soon as November 9 since employees would need to receive the single or second dose by then, depending on the vaccine, to meet the November 22 deadline.
The DoD guidance also states that:
• The suspension phase of progressive discipline is to be unpaid time, not paid time—a policy generally assumed to be the case under the general guidance but not explicit there. Firing of employees still not in compliance afterward will be on grounds of “failing to follow a direct order.”
• Components are to designate officials “to handle the disciplinary process to ensure consistent application of disciplinary measures”—likely meaning that discretion to order a penalty other than firing will be limited.
• During the period to reply to a notice of proposed firing, employees are to be required to continue working, and if onsite they will be subject to the stricter safety protocols for unvaccinated persons in the federal workplace such as mask wearing, distancing, travel restrictions and weekly testing.
• Exceptions will be granted “only where legally required” and components “should take no action” on any requests they receive pending further guidance.
• Employees who receive exceptions will be subject to the stricter restrictions for unvaccinated persons when in the workplace. Those who telework full-time will not be subject to weekly testing but if they go to the workplace they would have to provide a negative test result from within the prior 72 hours.