Fedweek

White House Press Secretary Jen Psaki removes a protective face mask before speaking to reporters during the daily press briefing in the Brady Press Briefing Room on September 28, 2021. The WH says the vaccine enforcement process is to begin with a period of education and counseling, with eventual removal an option.

Updated: Federal agencies have been told they can begin an “enforcement process” against federal employees under the Biden administration’s Coronavirus vaccination mandate as early as November 9.

Employees would need to have received either the one-dose vaccine or the second shot of a two-dose vaccine by the previous day to meet the mandate’s requirement to be “fully vaccinated” by the deadline of November 22, since that status isn’t reached until two weeks afterward, says new guidance from OPM and the Safer Federal Workforce Task Force.

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The guidance does continue to leave room for employees being excepted for religious or medical reasons, but it emphasizes that no other exceptions will be allowed for employees who don’t show proof of being vaccinated by November 8. (See related stories.)

“Employees covered by Executive Order 14043 who fail to comply with a requirement to be fully vaccinated or provide proof of vaccination and have neither received an exception nor have an exception request under consideration, are in violation of a lawful order. Employees who violate lawful orders are subject to discipline, up to and including termination or removal,” says the task force posting. “Consistent with the administration’s policy, agencies should initiate an enforcement process to work with employees to encourage their compliance.”

That process is to begin with a “brief period of education and counseling (5 days), including providing employees with information regarding the benefits of vaccination and ways to obtain the vaccine,” it says.

In its memo, OPM added that during that time agencies further should “remind the employee again of the vaccination requirement [and] emphasize that failure to comply will lead to discipline up to and including removal or termination.”

If the employee does not “demonstrate progress toward becoming fully vaccinated” by the end of that period, the task force said, “it should be followed by a short suspension (14 days or less). Continued noncompliance during the suspension can be followed by proposing removal.”

Both sets of guidance allow for some leeway, however. The OPM guidance says that agencies are “strongly encouraged,” but not required, to consider a suspension of 14 days or less before moving to fire an employee. The task force meanwhile said that “unique operational needs of agencies and the circumstances affecting a particular employee may warrant departure” from the counseling-suspension-firing progression. That statement arguably leaves room for agencies to be either more or less aggressive in dealing with non-compliant employees.

The OPM guidance meanwhile stressed consistency of penalties for similar situations, which is one of the factors considered in appeals of disciplinary actions.

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“Agencies should strive for similar penalties for similarly situated employees, where appropriate, within the same work unit. To facilitate this for larger organizations where actions may be necessary for multiple employees, an agency should consider designating one management official to be a proposing official and designating another management official to be a deciding official for all actions in the work unit,” it said.

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