From the C100 Attorney (COVID-19)

CLICK HERE for the OPM guidance on President Biden’s vaccination mandate. There are 3 PDFs: 1) guidance for new hires; 2) enforcement policies generally; and 3) enforcement guidance FAQs. Assuming TSA applies it as its policy, which seems like a safe assumption but an assumption nonetheless, I have included a summary below of what this means for TSOs. All three are to be read in conjunction with the guidance already issued by the Safer Federal Workforce Task Force, which can be found here: https://www.saferfederalworkforce.gov/faq/vaccinations/. This summary is meant for convenience, and officers and employees should consult the attached and linked guidance for complete information. Please note that this is guidance, particularly regarding enforcement mechanisms. TSA will still need to announce its intended policy approach for discipline.

New Hires

• Agencies are urged to require all new employees to be fully vaccinated prior to entering on duty, subject to such exceptions as required by law. P. 2.
• Agencies should clearly describe in their job opportunity announcements the vaccination requirement. Id.
• Individuals who fail to meet a requirement stated in the job announcement, including the vaccination requirement, are subject to action up to and including rescinding the offer for an applicant or termination from service of a new employee (or removal if the new employee has adverse action appeal rights). Id.
• Agencies have the discretion, based on “urgent, mission-critical hiring need[s]” to onboard new staff prior to them becoming fully vaccinated, but such delays should be limited to 60 days. Id.
• Employment offers should be continent on the applicant’s submission of documentation proving compliance with the vaccination requirement, and the vaccination requirement should be included in tentative and final offer letters. Id. at 3.

Guidance on Vaccination Requirement for Federal Employees

• People are considered fully vaccinated two weeks after the last shot of the vaccination series (i.e., 2^nd shot of Pfizer or Moderna, or 1^st shot of Johnson & Johnson). P. 1.
  • To meet the November 22 deadline, this means that a Federal employee must receive either: 1) the first shot of Pfizer no later than October 18; 2) the first shot of Moderna no later than October 11; or 3) the Johnson & Johnson shot no later than November 8.
• Employees who refuse to be vaccinated or provide proof of vaccination are subject to discipline, up to and including removal/termination. The only exception is for individuals who are legally excepted pursuant to established agency processes. Id. at 1-2.
• Given the above timeline, agencies may initiate the enforcement (i.e., counseling and disciplinary) process as soon as November 9, 2021, for employees who have not completed their vaccination dose(s) by November 8, unless the employee has received an exception or their request for one is pending. Id. at 2.

Guidance on Enforcement of the Vaccination Requirement for Federal Employees

• Agencies must comply with all statutory, regulatory, and CBA requirements (where applicable). If the employee has not provided proof of vaccination by November 8, 2021, and does not have an approved or pending exemption request, OPM recommends that agencies do the following:
  • Initiate enforcement with counseling and education. Remind the employee of the vaccination requirement, emphasize that failure to comply will lead to discipline up to and including removal/termination, address any questions, and inform the employee that they will have a short period of time (e.g., 5 days) to submit documentation establishing either the initiation or completion of vaccination, as applicable, or request an exception. Id. at 2
  • If the individual continues to refuse to comply, the agency should pursue disciplinary measures. The agency must provide the required procedural rights to an employee and follow normal processes. Employees generally should not be placed on administrative leave while disciplinary action is being pursued. Instead, employees should be required to follow safety protocols while reporting to duty.Id.
  • While law and OPM adverse action regulations do not require progressive discipline, this is the preferred approach and agencies are “strongly encouraged” to consider lesser disciplinary penalties before moving to removal/termination. Id.
  • To apply the process equally to all employees, agencies should consider designating a management official to be a proposing official and designating another management official to be a deciding official for all actions in the work unit. Id. at 3.
  • If an employee begins to comply with the vaccination requirement after the disciplinary process has begun, an agency may hold any disciplinary action in abeyance pending receipt of appropriate documentation that the employee has received the full vaccination. Id.
  • Similarly, if the employee is serving a suspension based on their prior refusal to comply and subsequently provides vaccination documentation during their suspension, the agency may end the suspension. Id.
• Because OPM suggests that refusal to comply should be treated as misconduct, agencies should consider whether an adverse action promotes the efficiency of the service and should consider relevant Douglas factors. See, e.g., Mazares v. Department of Navy, 302 F.3d 1382 (2002) (removal of two civilian Navy employees upheld based on their refusal to receive an anthrax vaccination). Id. at 4.
• Exceptions: An agency should not initiate discipline if the employee claims a legally required exception as the reason for not being vaccinated. If an employee claims an exception, an agency should follow its ordinary process to review and consider what, if any, accommodation it must offer. Id.
  • An employee whose request is denied should receive their first dose within two weeks of the final determination to deny the accommodation. If the employee received a first dose of a two-dose series prior to seeking the accommodation, and the request 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 earlier. Id.
  • If the request for an exception is denied and the employee does not comply, the agency may pursue enforcement actions described above. Id.
• Extended leaves of absence and planned retirements/resignations: Agencies should require employees on extended leaves of absence to submit documentation establishing full vaccination (or a request to be excepted) prior to the employee returning to duty. Agencies should not require such employees to be vaccinated by a November 22, 2021 deadline if the employee is on an extended leave of absence and will not return to work until a later date. The same applies to employees on an extended leave of absence due to receiving workers compensation. Employees who have announced their intention to leave their position and are on leave until they depart should not be required to comply with the mandate. Id.