FEDERAL EMPLOYEE COVID VACCINE UPDATES

By Tully Rinckey PLLC

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Federal Employee Vaccine Requirement

In September 2020, President Biden signed Executive Orders that required federal employees (Executive Order 14043) and federal contractors (Executive Order 14042), to be fully vaccinated against COVID-19. There has been no court ruling thus far, including the current federal injunction, that has found that the Executive Orders on vaccine mandates to be unconstitutional. While federal law does not prohibit requiring vaccines, it is important to know your rights, the current status of the requirements, and what options you have to challenge vaccine related COVID-19 mandates.

Current Impact on the Federal Workforce

With the injunction in place, the Safer Federal Workforce Task Force has provided guidance to agencies that they should not continue to process pending accommodations or exemption requests, meaning they have been submitted but no decision on their request has been made and they are still going through the interactive process with their respective agency. The new guidance also indicates that agencies should not ask for additional information on an employee’s accommodation or exemption request while the injunction is in place. Further, any enforcement (i.e., disciplinary or unfavorable measures) of the vaccination requirement for an employee’s refusal to comply will be put on hold.

Agencies can still ask employees or newly hired employees for proof of vaccination, so long as they do not face any sort of punishment or preferential treatment. Agencies may use this information to implement safety protocols such as social distancing, masking, testing, travel protocols, etc. Employees must continue to follow their agency’s unique COVID safety requirements even while the federal injunction is in effect. Discipline may be imposed if certain safety measures are not followed.

Further, the Task Force recommendation advises agencies that they do not need to repeal, rescind, or withdraw proposals for letters of education, counseling, reprimand, or suspension if an employee received disciplinary action prior to the injunction regarding the execution of EO 14043. However, as of January 21st, agencies should temporarily cease any ongoing suspensions and restore those employees to pay status.
If you believe you have suffered due to the vaccine mandate or if you have any further questions about how the injunction will impact your case for accommodations, you should reach out to our team of federal employment attorneys today. Our team has the knowledge and experience to make sure your rights are fully protected.

Should the injunction be overturned, please refer to the guidance below on your rights and how to fight against the vaccine mandate.

This page will continue to be updated as new information continues to come in.

What Options do Federal Employees Have?

Due to the concerns of the continued spread of COVID-19, there are not as many options for federal employees to outright refuse the Executive mandate. That being said, there are different protections and exclusions acknowledged by the federal government for employees whose health or well-being would be directly threatened by receiving a COVID-19 vaccine. However, even with these protections in place, you may still find yourself being denied your rights to certain accommodations or exclusions.

If you have suffered due to your refusal to participate in the governmentwide vaccine mandate due to a preexisting protected condition, we are here to help. There are plenty of ways to build a case around your protected rights and knowing what your rights are is crucial for finding success.

Religious Exclusion

Federal employees shouldn’t be thrust into the uncomfortable position of choosing their job over their personal beliefs. Under Title VII of the Civil Rights Act of 1964, an employee with a “sincerely held religious belief” has the right to be free from workplace discrimination. As part of their beliefs, they are allowed to object to a vaccine.

Should an employer acknowledge the sincerely held beliefs, they will have no choice but to work with the employee in question to develop a reasonable solution. This can extend to the modification of some work duties, allowing the employee to work from home, or implementing certain social distancing policies. While it is encouraged to have an open dialog about any accommodations and exclusions, as long as an employer offers a solution that successfully solves the issues presented, the employee would have no right to pick and choose what is being offered.

The only right an employer would have to deny such a request would be if they could prove that the beliefs were not sincerely held or if offering any such accommodation would be to be too costly or difficult. This is commonly referred to as proving an “undue hardship.”

Disability Exclusions

With over 61 million Americans having a registered disability, the federal sector has many protections in place to help those with disabilities continue to work. Under the Rehabilitation Act of 1973, if an employee notifies their employer of a preexisting disability that prevents them from safely receiving a COVID-19 vaccination, the burden shift to the agency to provide an accommodation and/or safe alternative for them while they continue to work. Unless the agency can prove that any accommodations would prove an “undue hardship” or pose a “direct threat” to its employees or general public, they would have no right to deny a disability-based vaccine exemption.

Examples of certain accommodations could be allowing them to work from home, setting new masking requirements, or adjusting an employee’s schedule. As long as the accommodations would offer a safe alternative to continue working, an employee would have no right to pick and choose what accommodations they would receive.

Tully Rinckey attorneys have extensive experience representing both private and public sector clients who have been subjected to or are accused of unlawful employment discrimination based on their disability status.

Medical Exclusions

Choosing personal health over their career is a choice no federal employee should ever have to face. However, following the vaccine mandate, many federal employees with conditions that may worsen upon taking the vaccine have been forced to make this decision. Some common examples that might justify a medical exemption may include having an allergic reaction to the vaccine components or having some sort of weakened immune system.

While not every medical condition qualifies as a disability, employees may still be protected under the ADA when requesting an exemption on a medical basis. Employers may ask for limited health information (such as a doctor’s note) when establishing if your reasoning qualifies. Should they qualify, employers would be prompted to have a discussion with the individual about what accommodations they can offer them so that they can continue to work safely. This may include offering remote work, initiating a transfer, or modifying social distancing policies.

Legal Ramifications

Many employees, unions, and organizations across the country have spoken out against the vaccine mandate and have expressed their concerns with choosing their career over their personal health. Even unions that have Collective Bargaining Agreements (CBAs) established around receiving a vaccine will most likely have to renegotiate to include the provision. However, it is entirely dependent on the specific union and how the CBA is drafted. This issue will certainly be challenged in court, and expect that your policies and procedures may change at any given notice.

That being said, it is even more crucial that you know what your rights are and how your agency and/or unions are going to handle their policies surrounding the vaccine going forward to avoid facing any unexpected consequences. The consequences for disobeying your agency’s policies can range from simple fines to demotion or termination. So, to best protect your career and well-being, consider consulting with an experienced legal counsel today to discuss your options.

Recent Appeal on Injunction of the Federal Employee Vaccine Mandate

A federal appeals court recently ruled to uphold President Biden’s federal worker vaccine mandate, issuing that the preliminary injunction against the requirements be eliminated. The case focused primarily on whether federal workers could seek relief from discipline through the Civil Service Reform Act (CSRA), which protects employees from unfair practices. Without the injunction in place, however, enforcement (i.e., disciplinary or unfavorable measures) of the vaccination requirement for an employee’s refusal to comply will resume.

Furthermore, following this recent ruling, it is expected that agencies will resume the processing of pending accommodation and exemption requests. Currently, unvaccinated employees must either get vaccinated or submit for either a religious or medical exemption or risk facing disciplinary actions from their agency.

Our Recent Webinars:

The Federal Injunction on the COVID-19 Vaccination Requirement: What Federal Employees Need to Know

In this webinar, Tully Rinckey Partner Stephanie Rapp-Tully will provide an overview of the recent Federal Injunction on the COVID-19 vaccine mandate for the federal workforce.

Topics include:

  • Recent Supreme Court Ruling on OSHA’s Emergency Temporary Standard
  • U.S. Court for the Southern District of Texas Injunction
  • How do Agency policies change while the injunction is in place?
  • What happens next and how does the injunction impact you?

The COVID Disciplinary Action Window For Federal Employees: What You Need To Know

With President Biden’s executive order mandating federal employees to receive COVID vaccinations, many federal employees are left wondering what options they have when it comes to submitting accommodation requests to their agency and not receiving the vaccine, and what disciplinary actions might occur for those who remain unvaccinated.

Watch our recent webinar to learn about the details of the executive order, what exemption options are currently available for federal employees, what your appeal rights are if your request is denied, and more.

Recent Developments

Since the vaccine mandate announcement, Tully Rinckey’ federal employment law attorneys have been providing commentary to news and media outlets across the country. Please see the news stories and articles below featuring our attorneys:

Federal Employee Vaccine News

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Ready to speak with a Federal Employment Attorney?

As one of the nation’s largest federal sector labor and employment law firms, Tully Rinckey attorneys have decades of experience assisting federal employees with their legal issues, and protecting the rights of employees in their fight against the federal government. 

If you have issues taking the mandatory COVID-19 vaccine, you do have options, and our team of Federal Employment Law attorneys is here to assist you every step of the way.