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Agencies are wading into uncertain and potentially rocky territory as they debate how to implement the Biden administration’s recent vaccine executive order for federal employees.
The entire federal workforce has never been subject to a vaccine mandate before, and the new policies are prompting questions about how agencies will enforce the policy and grant reasonable accommodations to those who have a religious or medical objection.
One aspect of the debate over the federal vaccine mandate is coming into clearer focus. Employees counting on a challenge — perhaps from their union — over the legality of the executive order may be disappointed.
In a message to its membership last week, the American Federation of Government Employees said it evaluated the executive order and legal arguments both for and against it.
“Based on the order’s express provision for exceptions required by law, along with a long line of Supreme Court and other federal cases upholding vaccinations in the interest of public health, as well as other cases foreclosing primary court jurisdiction over a federal union’s challenge to an employment-related executive order, a direct legal challenge or lawsuit over the order is unavailable,” the union wrote.
AFGE said it continues to believe agencies must bargain with the union over the executive order, but it acknowledged the scope of the negotiations will be limited. It continued to encourage its members to get vaccinated.
The National Border Patrol Council is continuing to search for a viable legal path to challenge the order. But so far it’s come up empty-handed, the union said in a statement on its website.
“From the moment the EO was issued, the National Border Patrol Council (NBPC) instructed its seven attorneys to drop all other matters to study the issue and develop strategies to attack the EO,” the union said. “After spending several days reviewing all pertinent laws, to include all relevant case law, our attorneys determined the EO was legal and that there was no viable avenue of challenge.”
The NBPC also sought the counsel of outside attorneys who specialize in suing the government, the union said. So far it hasn’t found a viable legal opinion or firm.
“Until we are 100% convinced that no legal remedy is available, we will continue working on the issue,” the union said.
The National Treasury Employees Union said the government had a legal right to make the vaccine a condition of employment, a statement it made when the president first signed the executive order two weeks ago.
The union said it will instead focus its attention on monitoring the EO’s implementation.
Agencies could implement range of disciplinary options
Implementation, however, is where things could get dicey, attorneys and employee groups say, particularly in how agencies apply standard disciplinary policies on those who fail to comply with the federal vaccine mandate.
It’s not because there’s no framework for how agencies should discipline employees who don’t comply with a workplace rule. They do, federal employment attorneys say, but the outcomes of the disciplinary process might frustrate some.
Under the executive order, employees must be fully vaccinated by Nov. 22. Agencies should pursue disciplinary action against those who fail to comply and continue to refuse vaccination, the Biden administration has said. Those actions may include removal from federal service.
That guidance is quite broad, said Deb Hopkins, an attorney and president of the Federal Employment Law Training Group, which trains agencies on employee discipline, misconduct, accommodations and other topics.
The guidance doesn’t detail specific steps agencies might take to discipline employees who refuse to comply, presumably to give individual federal organizations the flexibility to determine their own procedures based on individual circumstances.
What’s still unclear, Hopkins said, is whether agencies will issue some sort of guidance detailing how it, as an organization, will handle cases where employees refuse to comply with the federal vaccine mandate — or whether they will leave potential disciplinary decisions up to individual supervisors.
In most federal disciplinary cases, supervisors in an employee’s chain of command propose a potential adverse action. They’re supposed to give the employee a chance to respond, and then a “deciding official,” usually another supervisor or manager, issues a final decision with some sort of penalty.
In choosing how to discipline an employee for most other offenses in the federal workforce, supervisors usually consider a variety of circumstances, known as the Douglas factors, to determine the severity of the punishment.
Those factors include the nature and seriousness of the offense in relation to the employee’s job and duties, as well as the employee’s past disciplinary and work records, as just some examples.
Those factors will apply to the federal vaccine mandate, attorneys said, and they raise even more questions about the kinds of discipline employees might expect.
“Potentially, inconsistency could raise concerns among employees. But on the agency’s side, they have a pretty good argument when applying the Douglas factors, especially the nature and seriousness of the offense,” Hopkins said. “A frontline employee who refuses to be vaccinated or who works with the public regularly, arguably, could put more people in potential harm than a teleworker who doesn’t interact at all with any members of the public or co-workers.”
Jim Eisenmman, a partner at Alden Law Group and a former general counsel and executive director at the Merit Systems Protection Board, agreed.
“You could have different agencies and even different pockets of agencies with similar issues coming up with different decisions, firing somebody, suspending some other person… and those appeals being heard at [the Merit Systems Protection Board],” he said.
Chad Hooper, executive director of the Professional Managers Association, said supervisors are taught to issue discipline that’s commensurate with the infraction. But the infraction could mean different things to different workplaces.
At the IRS, where PMA represents supervisors and managers, field offices vary in size across the country, potentially raising the stakes for an unvaccinated employee who works with a large number of people compared to a similarly obstinate employee who interacts with fewer people.
“If someone’s in Brattleboro, Vermont in an office with five people, does that person get less discipline than Chad Hooper in Kansas City, Missouri in an office of 5,000 people? These are my concerns,” Hooper said. “When that discipline applied inconsistently across government is when we’re going to get claims of disparate treatment, and that’s where this is all going to fall apart.”
That approach will likely lead to apparent inconsistencies both across the federal workforce and inside individual agencies, Hopkins said.
“They could justify a range of penalties,” she said. “On the management side that’s not a concern. But on the employee side I can just imagine a lot of employees wanting to challenge actions based on that consistency. They have before, and they will again. But this is just such a broad mandate we don’t have anything to compare it to.”
VA says it’ll apply progressive discipline to those who fail to comply
With its own vaccine mandate for health care workers, the Department of Veterans Affairs has given some indication of how it will handle instances of noncompliance.
Supervisors will be responsible for applying “progressive discipline” to those who fail to get vaccinated or secure a valid accommodation by the agency’s Oct. 8 deadline, VA Secretary Denis McDonough told reporters last week.
“The goal of that discipline is to get people vaccinated,” McDonough said. “The last thing we want to do is have to fire trained personnel.”
Agencies typically use progressive discipline as a way for employees to correct behavior, Eisenmann said.
Agencies could, for example, start by giving an employee who doesn’t comply with the federal vaccine mandate a verbal warning or a reprimand. If they still refuse to comply, the agency could suspend the employee, Eisenmann suggested.
But he wondered whether that approach will ultimately be successful, particularly if an employee is dead set on not receiving the vaccine and doesn’t have an approved medical or religious exemption.
“Assuming that it’s a valid executive order — and it seems that it is — it’s just not going to get someone out of not getting vaccinated,” he said. “At some point even if you have an agency or a deciding official who extends a long rope to someone to keep giving them chances — a reprimand, then a suspension — at some point they’re going to get to removal. It’s insubordination. They’re failing to perform a lawful order.”
As he did with the administration’s previous vaccine policy, Hooper worries federal managers aren’t equipped to handle potentially contentious conversations and decisions with employees who refuse vaccination.
“There are also going to be populations of managers who don’t want to be in the crosshairs of this,” he said. “I don’t want to have a team where half of them are upset with me because these staff won’t get vaccinated and the other half are mad at me because I’m forcing them to get vaccinated.”
“We’re certainly not opposed in any way to this mandate,” Hooper added. “We’re just hoping that the centers of government provide managers sufficient tools, sufficient cover and a sufficient process.”
Hopkins, who trains individuals on the federal disciplinary process, said managers have a framework for responding to instances where employees don’t comply with a workplace rule.
“They have the tools to handle these cases the same way that they have the tools to handle any other disciplinary scenario,” Hopkins said. “What could be overwhelming could be the number of employees who refuse the vaccine. The caseload could be incredible.”
An influx of reasonable accommodation requests?
Hopkins, Hooper and Eisenmann all said they envisioned a scenario where agency’s reasonable accommodation offices are overwhelmed with all the work.
The federal vaccine mandate applies to everyone, though the administration has said there will be limited circumstances where agencies will grant reasonable accommodation requests to employees who have valid medical or religious reasons for not getting vaccinated.
“That process is bureaucratic, as it is with many large employers,” said Hooper, whose organization represents managers at the IRS. “The capacity of the Internal Revenue Service to adjudicate such an influx of reasonable accommodation requests, be they valid or not… I worry as to whether those can be reviewed and handled expeditiously without very clear guidance.”
“There’s only so many people assigned to work reasonable accommodation cases,” he added.
Most agencies have a designated office that handles disability requests, and managers and supervisors often handle the occasional religious accommodation response on their own, Hopkins said. But requests for a religious accommodation over a federal vaccine mandate will be more complex.
“A supervisor doesn’t necessarily need legal advice if an employee requests to leave work early so they can be home by sundown. That’s a pretty straightforward request,” she said. “But a request for an exemption because of a sincerely-held religious belief is something that could potentially be more complicated.”
The Biden administration has given employees until Nov. 22 to be fully vaccinated, with Nov. 8 as the deadline for receiving the final dose or the single Johnson and Johnson shot.
“What happens to employees who have requested a reasonable accommodation, either for a disability or religion, and haven’t received an answer by that point?” Hopkins said. “Agencies are going to need to plan how to handle employee who are waiting for a decision about their reasonable accommodation, and I do think the reasonable accommodation offices are going to be inundated with exemption requests.”
In its last round of guidance, the Safer Federal Workforce Task Force said more guidance on the legally required exceptions to the vaccine mandate is forthcoming.