With the deadline for federal employees to be vaccinated against COVID-19 now behind, federal employees—and agencies—have moved into the unexplored territory of the potential consequences of non-compliance with a mandate unprecedented in its type and scope.
Employees who did not receive the only or second dose of one of the vaccines now are officially in violation of the mandate, given the two-week waiting period needed afterward to be considered “fully vaccinated” by November 22—unless they have an approved exception for medical or religious reasons or have one under active consideration by their agency.
It’s unknown how many employees did not meet Monday’s deadline and how many of those have sought exceptions (or still will). Just the VA and DoD regularly report on the numbers of vaccinated employees—numbers that have grown only slowly in the weeks since the mandate was announced in September. They indicate that many tens of thousands if not hundreds of thousands of employees at those two departments alone are unvaccinated.
Agencies have discretion to set deadlines for employees to request exceptions; DoD also is one of the few to publicly announce its deadline, which was Monday. Anecdotal reports are that large numbers of employees have submitted requests across the government and more could still do so, largely claiming religious rather than medical reasons.
How many of those will be granted also is unknown, but some indication has come from the Air Force, which like the other military services is using standards for requests from its active duty personnel similar to those applying to its civilian employees. Of the 330,000 airmen, it has granted some 1,600 medical exceptions but no religious exceptions—with more than 4,900 of the latter still pending.
Administration guidance allowed agencies to start a progressive disciplinary process as early as Tuesday—although how many will act that quickly also is still to be seen. That process is to begin with a five-day counseling period the first step, to generally be followed by an unpaid suspension of less than 14 days—making it generally not subject to MSPB appeals or negotiated grievance procedures—and then discipline up to and including firing.
The guidance gives agencies discretion in taking disciplinary actions, saying they “should consider relevant aggravating and mitigating factors.” How that discretion will play out in terms of potential lesser penalties also is uncertain. However, the guidance also tells agencies to be internally consistent. That’s a consideration if employees contest those actions—which is considered highly likely in many cases—by claiming disparate treatment in comparison with a similarly situated employee.
The potential for disparate treatment also is a consideration—and a possible grounds for a legal challenge—in agency decisions on requests for exceptions. Agencies are to follow standard policies under disabilities and civil rights laws in making those decisions, but those policies generally have been applied in more limited contexts—such as a request for a change in a work schedule or duties—and applying them to a widescale mandate is largely new legal ground.
Several legal challenges to the mandate in general already have been filed in federal court and others are being prepared. The administration argues that its authority is well-grounded, especially citing a 2002 federal appeals court case upholding the Navy’s firing of two civilian employees who refused take an anthrax vaccination on grounds of refusing to follow a lawful order of a superior. Federal employee organizations also have reached largely the same conclusion although they have taken a hands-off attitude toward such suits.
Meanwhile, the AFGE union has asked the administration to extend the deadline to be fully vaccinated until January 4, to match the deadline for federal contractor employees. That administration pushed back that deadline, which originally was December 8, to square it with the deadlines for private sector companies under a separate mandate announced last week.
The AFGE noted that many federal employees and contractor employees work side by side and said that having differing deadlines is confusing and “harmful to morale.”