Agencies Must Set Up COVID-19 Testing for Unvaccinated Feds In-House or Through a Contractor

The Biden administration is instructing agencies to establish their own COVID-19 testing programs, either at their offices, in partnership with other federal entities or through contracted services. 

The Safer Federal Workforce Task Force—created by President Biden via executive order and led by the White House, General Services Administration and the Office of Personnel Management—previously announced that all federal employees and on-site contractors who are not vaccinated against COVID-19, or who declined to state their vaccination status, would face at least weekly testing. That created many unanswered questions and caused delays for agencies getting the initiative off the ground, with uncertainty over who would administer the tests and where they would be conducted. 

The task force sought to address those questions in its update, saying the mandatory testing could take place through "in house-capabilities," in partnership with another agency that has such capabilities or by contracting with a third-party provider. The administration noted that agencies could team up to establish those contracts, while on-site testing can occur through an occupational health clinic.

The guidance did not spell out a deadline for establishing the programs. however, an OMB official said, “Agencies are working expeditiously to implement the new safety protocols.” As the White House previously announced, agencies will pay for the testing out of their own funds. 

As the administration also previously stated, employees could face discipline if they refuse testing. Those workers may face a prohibition on going to the office. If those employees cannot work remotely, they would be placed on paid administrative leave pending resolution of any pending disciplinary action. Employees can raise a religious or disability objection to testing, but the agency would have final discretion on granting it. If an objection is accepted, agencies can still deny those workers access to their workspace. 

The testing is considered part of employees' work duties and therefore they are not entitled to any extra leave to get one. They should get the test during their normal work hours, the task force said, and the process should not take more than one hour. Workers who cannot take a test during the workday and must do so afterwards may be entitled to overtime. 

The task force previously suggested employees would be able to "provide proof of a timely negative COVID-19 test” acquired through their own means, but that appears to no longer be an option. 

Staff still not reporting to their worksite do not have to be tested. Those who only go to their duty stations occasionally have to get tested any week they appear on site. While employees must be tested at least once per week, the task force suggested agencies consider workplace characteristics, cost, level of community transmission and other factors to determine whether more frequent testing should be required. 

While it did not set up a deadline for the testing programs, the administration told agencies they “need to act quickly.” Agencies should engage with employee unions and satisfy collective bargaining obligations "at the earliest opportunity," but that can take place after implementation if necessary. Several unions have indicated they plan to demand bargaining over vaccine and testing policies, though the Biden administration has made clear that governmentwide policies are not subject to negotiations. 

Biden last month announced federal workers would soon be required to either “attest” that they have been vaccinated or wear a mask, practice social distancing in the office and be subject to at least weekly testing. To date, just the departments of Veterans Affairs, Health and Human Services and Defense have announced vaccine mandates, applicable to health care providers and members of the military.