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Unvaccinated federal employees will face discipline for refusing coronavirus testing at work

August 19, 2021

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Federal employees who are not fully vaccinated will face discipline if they refuse to be tested for the coronavirus when reporting to work in person, the Biden administration warned on Wednesday.

The latest guidance from an interagency task force says agencies will have discretion regarding how to administer those tests, including in-house, at another agency or through a contractor. Testing will apply only to employees who are not fully vaccinated and who are working on-site, will be done during working hours, and will be at the agency’s expense.

“Refusals to take a test may result in disciplinary measures. In addition to pursuing any disciplinary action, an agency may separately elect to bar the employee from the agency workplace for the safety of others,” the new guidance says.

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Last month, President Biden announced that federal employees would have to attest to their vaccine status or else face regular tests and requirements to wear masks, among other restrictions. Employees also face discipline that could include firing if they falsely say they’re fully vaccinated on a new form that is now being distributed among the 2.1 million civilian federal workers.

For several hundred thousand federal employees for whom inoculation is mandatory, a refusal to get vaccinated could also result in firing.

National Treasury Employees Union President Tony Reardon noted that the latest guidance does not set a deadline for coronavirus testing to start and said the union “believes that the required discussions between agencies and unions about the testing protocols should occur before the testing program is implemented.”

He added in an emailed comment, “As with any discipline, discipline for refusing to be tested would need to follow the disciplinary process established by law and our contracts.”

Employees won’t be disciplined for stating that they are not fully vaccinated — or for refusing to fill out the form — although they will face tighter restrictions. Those who cite religious or medical reasons for declining to be vaccinated or to be tested may be eligible for accommodations under workplace laws.

While teleworkers must fill out the certification form, they only have to take tests if they are not fully vaccinated and report to work on-site. Teleworking among federal employees is down from last year but still historically high. Further, many agency return-to-office plans anticipate continued high rates of telework — although the recent surge in infections has left the timing of those plans up in the air.

Stephanie Rapp-Tully, a partner with the Tully Rinckey law firm, said that it’s well established that a federal employee making a false statement on an official form can be disciplined, potentially including firing for a first offense.

However, she noted that the guidance regarding testing does not specifically mention firing. “It looks like an agency will follow practices of progressive discipline,” in which penalties become more severe for each instance and can ultimately lead to firing, she said in a phone interview.

An accommodation for an employee eligible for a medical or religious exception might include telework if the position allows for it, but “if an employee is required to be in the office, absent some sort of accommodation, there’s not a lot of wiggle room in this,” she said.

Meanwhile, the number of federal employees required to get vaccinated is growing. The Veterans Affairs Department initially imposed such a requirement on more than 100,000 employees involved with direct medical care; it more recently expanded that requirement to include potentially about three times as many employees who interact with patients.

The Department of Health and Human Services recently announced a similar mandate for some 25,000 of its employees.

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