Biden Administration Details Who Is Covered By the Federal Employee Vaccine Mandate, Exemptions and Discipline

The Biden administration released new guidance on Thursday about implementing the COVID-19 vaccine mandate for federal employees, which says even those on telework or remote work must get vaccinated. 

The guidance implements an executive order President Biden issued on September 9 requiring federal employees to get vaccinated against the novel coronavirus, unless they request an exemption. The Safer Federal Workforce Task Force said on Monday that November 22 is the deadline for employees to get fully vaccinated or possibly be subject to progressive discipline. It also said that agencies no longer have to give administrative leave for employees to get the vaccine, but instead will be using "duty time" to get the vaccine. Employees do administrative leave for recovery from any side effects, and/or to go with a family members to get vaccinated, however. 

Thursday’s guidance, shared exclusively with Government Executive ahead of publication, says that all federal employees covered by the executive order “and without a legally required exception need to be fully vaccinated by November 22, 2021, regardless of where they are working,” meaning those in maximum telework status or working remotely must still comply. 

“An agency may be required to provide a reasonable accommodation to employees who communicate to the agency that they are not vaccinated against COVID-19 because of a disability or because of a sincerely held religious belief, practice or observance,” said the guidance. “Determining whether an exception is legally required will include consideration of factors such as the basis for the claim; the nature of the employee’s job responsibilities; and the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19.”

Since this will be “fact- and context-dependent, agencies are encouraged to consult their offices of general counsel with questions related to assessing and implementing any such requested accommodations,” said the task force. “Additional guidance on legally required exceptions will be forthcoming.” 

For employees who refuse to get vaccinated or show proof of vaccination and do not receive an exemption, agencies “should pursue disciplinary measures, up to and including removal from federal service,” says the guidance. “In pursuing any adverse action, the agency must provide the required procedural rights to an employee and follow normal processes, including any agency policies or collective bargaining agreement requirements concerning disciplinary matters.” During this process, employees should not be put on administrative leave, but rather will have to follow the same public health procedures as others who are not fully vaccinated while at the worksite. 

A senior administration official told Government Executive on Thursday that this disciplinary process is different from other situations, such as what happens if an individual refuses to wear a mask. The task force told agencies back in February that they should consider banning employees who do not wear masks and placing them on paid administrative leave until their punishment is issued. 

Meanwhile, there is a different process for employees who claim to have a legally required exception.

“All agency personnel designated to receive requests for reasonable accommodations should know how to handle requests consistent with any federal employment nondiscrimination laws that may apply,” says the guidance. “If the employee’s request for an accommodation is denied, and the employee does not comply with the vaccination requirement, the agency may pursue disciplinary action, up to and including removal from federal service.”

The executive order generally covers all federal employees, but those who “interact with the federal government on a regular basis...would not necessarily be covered and that depends a lot on the nature of the relationship,” the senior administration officials said. Examples of those who interact with the government regularly could include interns and volunteers. Even though this category of people is not necessarily covered, part of the new guidance says that “agencies are strongly encouraged to require vaccinations” for this group as well.  

Postal Service employees are not covered by the mandate, but they will be subject to the forthcoming emergency temporary standard from the Occupational Safety and Health Administration that will require vaccines for companies with 100 or more employees or require weekly negative COVID-19 tests otherwise, the senior administration official pointed out. That was another coronavirus measure the president unveiled last week. 

“Our workplaces are subject to regulations from the Occupational Safety and Health Administration,” USPS said in a statement on Thursday. “Therefore, we are working closely with our union leadership so that once OSHA’s COVID-19 Vaccination Emergency Temporary Standard is issued we can move quickly to determine its applicability to our employees and how best to implement [it].”

The task force said agencies should ensure their employees are aware of vaccine opportunities, but do not necessarily have to provide them onsite.  

Other topics covered in the update are: who is considered fully vaccinated and the timeline for getting fully vaccinated (depending on which vaccine individuals receive); vaccination dates for those who are starting government service after November 22; what protocols employees should follow before becoming fully vaccinated; and how agencies should collect and maintain documentation of vaccination for employees. Agencies must collection documentation even if employees previously attested to being vaccinated. 

Biden also issued a vaccine mandate for federal contractors and the text of the executive order outlines who is and is not covered. 

“Agencies are strongly encouraged to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042, consistent with applicable law,” says the new guidance. “This might include, for example, incorporating vaccination requirements into contracts in advance of when they are otherwise required by the executive order or incorporating requirements into contracts that are not covered by the executive order, such as contracts under the Simplified Acquisition Threshold.”

David Berteau, president and CEO of the Professional Services Council, which represents over 400 companies that contract with the federal government, previously told Government Executive that the simplified acquisition threshold says that “anything under $250,000 as a contract is exempt from a lot of the rules.” 

While more guidelines for federal contractors are expected by September 24, Thursday’s new guidance does touch on the attestation process for them ahead of being contractually obligated to get vaccinated and what happens if agencies have reasonable suspicion that contractors lied on their attestation forms. Government Executive reported earlier this week about the lingering questions experts have and hope to see answered by September 24. 

The reaction from lawmakers to the mandate was mostly along party lines with Democrats in favor of it and Republicans against it. The sentiment from federal unions was a little more nuanced.

“Since the vaccines first became widely available, we have strongly encouraged all our members to take one of the several safe, effective vaccines against COVID-19,” said Everett Kelley, president of the American Federation of Government Employees, in a statement last week. However, since July, “we have said that changes like this should be negotiated with our bargaining units where appropriate. Put simply, workers deserve a voice in their working conditions.” 

The International Federation of Professional and Technical Engineers commended the administration’s plan, while the Federal Law Enforcement Officers Association called it “ill conceived.” 

The senior administration official said that the administration has “repeatedly emphasized” in its various iterations of guidance and updates that agencies should adhere to their collective bargaining obligations.

Another senior administration official added that “from a process point the Safer Federal Workforce Task Force has regular engagement with national federal employees’ unions to provide information about its guidance and listen to feedback and input.” Also, it has “emphasized throughout the duration of these safety protocols the importance of early and frequent engagement with unions.” In some situations, “post-implementation bargaining is required,” due to health and safety concerns. 

This article has been updated with additional comment and to reflect the guidance’s release.