Early next month, federal agencies can start enforcing President Joe Biden’s vaccine mandates on federal employees who resist the order without an exemption, the administration said Friday.
The process, which can start as early as Nov. 9, would begin with agencies counseling such employees. Those who still refuse the vaccines in most cases would then be suspended briefly before potentially being fired, according to an Office of Personnel Management memo and a posting by an administration task force overseeing the mandate.
The deadline for federal workers to be fully vaccinated is Nov. 22, but given the waiting period after receiving the sole or second shot – depending on the vaccine – the latest date to receive that shot would be Nov. 8, the administration said.
President Joe Biden speaks about the COVID-19 response and vaccinations in the State Dining Room of the White House, Friday, Sept. 24, 2021, in Washington. AP Photo/Patrick Semansky
“Employees who refuse to be vaccinated or provide proof of vaccination are subject to disciplinary measures, up to and including removal or termination from federal service. The only exception is for individuals who receive a legally required exception pursuant to established agency processes,” OPM director Kiran Ahuja wrote in the memo.
The memos were released as a group including Air Force officers and a Secret Service agent filed a lawsuit seeking to block the vaccine mandates. The lawsuit, filed last month in U.S. District Court in Washington, seeks an injunction to halt the requirement that millions of federal workers and military personnel get the vaccines.
Neither the memo nor the posting released Friday add detail to how requests for exceptions, on religious or medical grounds, will be considered; they repeat prior statements that agencies are to use established practices for making workplace accommodations under civil rights and disabilities laws. However, the OPM did specify that agencies are not to start the enforcement process while they are considering a request from an employee.
The guidance is the latest in a series, all of which have raised the prospect of firing for refusal unless the agency grants an exception. However, Friday’s guidance puts the administration’s justification for the mandate and the potential for firing in the strongest terms to date.
An attachment to OPM memo repeatedly states that Biden’s order was issued to promote the “efficiency of the service”- a term with weight in the federal employment realm because that is the legal basis for disciplining employees for misconduct. “If an employee receives a direct order to receive a vaccine as required under EO 14043 [Biden’s order] and refuses, this is an act of misconduct,” it says.
The task force’s posting similarly emphasizes that employees who do not comply “are in violation of a lawful order. Employees who violate lawful orders are subject to discipline, up to and including termination or removal. Consistent with the administration’s policy, agencies should initiate an enforcement process to work with employees to encourage their compliance.”
The process for addressing holdouts will begin with a five-day period during which employees will be provided “information regarding the benefits of vaccination and ways to obtain the vaccine” and are to be reminded of the mandate and the potential consequences for not complying.
“If the employee does not demonstrate progress toward becoming fully vaccinated through completion of a required vaccination dose or provision of required documentation by the end of the counseling and education period, it should be followed by a short suspension (14 days or less). Continued noncompliance during the suspension can be followed by proposing removal,” says the task force posting.
The OPM was less definitive regarding a suspension as a next step before possible firing, saying it is “strongly encouraged.”
“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 vaccination requirement except as required by law,” it said.
Both repeat prior statements that agencies should follow standard procedures if they move to fire an employee – which typically requires a 30-day notice and a requirement to consider the employee’s reply – as well as any union contract terms. They also repeat that employees generally should not be placed on paid leave while that process is underway but that they should instead be kept at work subject to stricter safety rules.
However, the OPM memo does provide extensive instructions on a variety of situations, including that agencies should set aside pending discipline if employees begin a course of vaccination afterward and set deadlines for them to complete it.
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