Biden Administration Outlines Process for Disciplining, Removing Unvaccinated Feds

The Biden administration on Friday issued guidance to agencies outlining the process for disciplining and, if necessary, firing federal employees who refuse to comply with President Biden’s requirement that all federal workers are vaccinated against COVID-19, urging “consistency” across the federal government in its enforcement of the rule.

An update from the White House Safer Workforce Task Force states that the Nov. 22 deadline for federal workers to be fully vaccinated means that agencies can begin the disciplinary process for employees who refuse to comply on Nov. 9, since it takes two weeks from the second Pfizer or Moderna shot—and the single-dose Johnson & Johnson vaccine—for the vaccine to provide full protection.

Federal workers who fail to get vaccinated or provide proof of vaccination by Nov. 8 will be deemed to be in “violation of a lawful order,” at which point agencies should begin the “enforcement process.” That process begins with a five-day counseling period, in which agencies should provide the noncompliant employee with information on the benefits of vaccination and how to get the vaccine.

If an employee continues to refuse to get vaccinated after that five-day period, managers should issue a short suspension of 14 days or fewer, the task force said.

“Continued noncompliance during the suspension can be followed by proposing removal,” the task force wrote. “Unique operational needs of agencies and the circumstances affecting a particular employee may warrant departure from these guidelines if necessary, but consistency across government in enforcement of this government-wide vaccine policy is desired, and the executive order does not permit exceptions from the vaccine requirement except as required by law.”

The Office of Personnel Management provided additional details in the form of an FAQ, and noted that agencies should not move forward to enforce the vaccine mandate on anyone who has been granted a religious or medical exception or on anyone who has requested an exception that is still under review. OPM also stressed that agencies should abide by employees’ procedural rights, as well as any union contract provisions governing disciplinary procedures, as they move to enforce the vaccine mandate.

If an employee receives the first dose of the Pfizer or Moderna vaccine after an agency has begun the disciplinary process, the agency should put the process on hold to give that employee the opportunity to prove he or she has received a second shot, OPM wrote. If that occurs during a suspension, the remainder of the suspension should also be put on hold until the employee provides documentation of a second shot, at which point the suspension should be ended.

“If an employee provides an agency with appropriate documentation after Nov. 8, 2021, that the employee has received the first dose in a two-dose series vaccine, an agency may hold any disciplinary action in abeyance pending receipt of appropriate documentation that the employee has received the second dose within the designated three- or four-week interval depending on the vaccine received by the employee, even if this means the employee will not be fully vaccinated until after Nov. 22, 2021,” OPM wrote. “In these instances, the employee will be required to follow all appropriate safety protocols if reporting to an agency worksite. The employee should be provided a deadline for receiving the final dose of the vaccine and providing appropriate documentation.”

In cases where an employee is denied a medical or religious exemption, the employee will have two weeks to get the first dose of a vaccine before they are deemed to be noncompliant with the mandate, and six weeks after that to get the second shot of a two-dose vaccine.

“If the employee received a first dose of a two-dose series prior to seeking an accommodation, and their request for an accommodation is denied, they should receive their second dose within two weeks of the final determination to deny the accommodation or within a week of the earliest day by which they can receive their second dose, whichever is later,” OPM wrote. “If the employee does not comply with the requirement to become fully vaccinated, and has not been granted an exception and does not have a request under consideration, the agency may pursue disciplinary action, up to and including removal or termination from federal service.”

Employees who will be on an extended leave of absence by the Nov. 22 deadline should not enter enforcement proceedings, but must provide proof of vaccination before they return to work. And agencies should not enforce the vaccine mandate at all on employees who are using leave in anticipation of retiring or otherwise leaving federal service, OPM wrote.

Impact on New Hires

The task force also stressed that, for the most part, new hires should be required to prove they are fully vaccinated before they report for the first day on the job, although some exceptions exist for some mission critical positions.

“Agencies should require that individuals who start their government service prior to Nov. 22, 2021, be fully vaccinated by Nov. 22, 2021, except in limited circumstances where an accommodation is legally required,” the task force wrote. “Should an agency have an urgent, mission-critical hiring need to onboard new staff who cannot be fully vaccinated by Nov. 22, 2021, the agency may delay the vaccination requirement—in the case of such limited delays, agencies should require new hires to be fully vaccinated within 60 days of their start date and to follow safety protocols for not fully vaccinated individuals until they are fully vaccinated.”

OPM published additional guidance Friday highlighting how agencies should enforce the vaccine mandate on new hires, stating that agencies should include the requirement in job advertisements and consider rescinding job offers from those who refuse to get vaccinated.

“When an individual fails to meet a requirement stated in the job opportunity announcement, the agency may take action up to and including rescinding the offer for an applicant or termination from service of a new employee (or removal for an employee who has accrued adverse action rights),” OPM wrote. “[Agencies] should make offers of employment contingent on submission of documentation demonstrating compliance with the vaccination requirement.”