OPM Issues Vaccine Requirement Enforcement Guidelines for Federal Agencies
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
On September 9, 2021, President Biden signed Executive Order 14043, “Requiring Coronavirus Disease 2019 Vaccination for Federal Employees.” As we previously reported, this Executive Order requires COVID-19 vaccination for all Federal employees, “subject to such exceptions as required by law.” The deadline for full vaccination set by the Executive Order is November 22, 2021.
On October 5, 2021, OPM issued guidance regarding the “enforcement” of COVID-19 vaccine requirements in federal agencies. OPM’s guidance also explained the differing deadlines for vaccination, based on which vaccine employees elect to take.
For the Pfizer-BioNTech vaccine, in order to meet the November 22 deadline, employees should receive their first vaccination dose no later than October 18, and the second dose no later than November 8.
For the Moderna vaccine, individuals should get their first dose no later than October 11, and their second dose no later than November 8.
For the Johnson & Johnson vaccine, employees must get their single-dose vaccination no later than November 8.
According to the OPM guidance, employees who do not meet the above deadlines will be subject to disciplinary action, including removal. Rather than waiting until November 22, OPM recommends that agencies begin the disciplinary process as soon as November 9, 2021, the first day after the deadline for a second dose of Pfizer or Moderna vaccine, or a sole dose of the Johnson & Johnson vaccine.
OPM recommends that agencies begin the “enforcement” process with a brief, five-day “counseling and education” period, reminding employees of the vaccination requirement, emphasizing that failure to comply will result in disciplinary action, and addressing any questions the employee has. If the employee refuses to comply after the “counseling and education period,” OPM recommends disciplinary measures, up to and including termination.
OPM reiterated that it prefers “progressive” discipline, meaning that agencies can (though are not required to) begin the disciplinary process with an unpaid suspension to “encourage an employee to be vaccinated” and ensure that the employee’s refusal to be vaccinated does not interfere with the efficiency of the service. If the employee does not comply with the vaccine requirement at the conclusion of the suspension, OPM recommends that agencies “consider a greater disciplinary penalty, such as removal or termination.”
If an employee provides proof of full vaccination during the disciplinary process, but before the issuance of a decision on a proposed action, OPM instructs agencies to end the disciplinary process. According to OPM, if the employee only provides proof of a first dose in a 2-dose vaccine, agencies should hold the proposed disciplinary action in abeyance (meaning that it will not be effected unless the employee fails to get the second dose).
If the employee becomes fully vaccinated during a suspension for refusing the vaccine, OPM states that agencies may end the suspension early. If an employee is in the middle of serving a suspension when they begin the vaccination process, OPM informed agencies that they may hold the remainder of the suspension balance in abeyance.
For those employees that timely claim a legal exception to the vaccine (for either disability or religious accommodation), agencies are instructed by OPM to not initiate discipline until the exception claim has been adjudicated through the “ordinary [agency] process” to “review the claim and consider what, if any, accommodation it must offer.”
Given that the purpose of the vaccine requirement, per the Executive Order, is to protect the “health and safety of the Federal workforce,” and “members of the public with whom they interact,” any claim of a religious exception or a claim for an accommodation based on disability will likely be scrutinized with some rigor.
For religious exceptions, federal agencies may look for evidence that the claimed exception is in fact based on the employee’s religious (rather than personal or political) beliefs. Religious leaders in the United States and elsewhere have encouraged adherents of their respective faiths to be vaccinated, which may be a legal obstacle to demonstrating that an employee’s claimed exception is based on a sincerely held religious belief.
For example, the Vatican’s Congregation for the Doctrine of Faith endorsed the morality of COVID-19 vaccine use despite concerns about cell line tissue use in research during the development of the vaccines, finding that Catholics have a moral duty to protect one’s own health, as well as a “duty to pursue the common good.” The Pope has made repeated statements in favor of the vaccine, calling it “an act of love,” and a “simple but profound way of promoting the common good and caring for each other, especially the most vulnerable.”
The federal employer may also look to whether employees have registered religious exceptions about past vaccines, or widely-used medicines that went through similar research and development cycles to the vaccines.
OPM’s guidance states that when an employee’s request for religious or disability accommodation is denied, the employee must be vaccinated within two weeks of the decision to deny the accommodation, or the disciplinary process may begin.
In our previous reporting, we noted that previous vaccine requirements for federal employees mean that the COVID-19 vaccine requirement is not a new phenomenon. In Mazares v. Navy, a 2002 case, two civilian federal employees refused an order to take the anthrax vaccine. The Department of the Navy terminated the employment of both employees for refusing a lawful order to take the vaccine. The employees then appealed their terminations. Their appeals were denied by the MSPB and the Federal Circuit, while the Supreme Court of the United States declined to hear the case.
OPM’s guidance cited the Mazares case, noting that there was existing precedent for the termination of employees for disobeying a lawful order to be vaccinated. As a result, it is likely that the government will argue that Mazares controls, and employees challenging their termination for refusing the vaccine will have to contend with the Mazares precedent.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.