Discipline for unvaccinated federal employees can start on Nov. 9, OPM says

The Office of Personnel Management on Friday offered up more details on how agencies might approach disciplinary action against employees who fail to comply with the Biden administration’s recent federal vaccine mandate.

Because employees aren’t considered fully vaccinated until two weeks after receiving a single-shot series or the second dose of a two-shot series, they must get the vaccine by Nov. 8 to comply with the federal mandate.

Therefore, agencies can begin the disciplinary process for employees who are unvaccinated by Nov. 8 on the following day, Nov. 9, OPM Director Kiran Ahuja said Friday in a new memo.

Failing to comply with the federal vaccine mandate is an act of misconduct, and there is legal precedent for punishing federal employees over failing to comply with a vaccine mandate, OPM said.

The agency pointed to Mazares v. Department of Navy, where the U.S. Court of Appeals for the Federal Circuit upheld the Navy’s decision to fire two civilian employees who refused the anthrax vaccine before a deployment on a naval ship to Korea.

Removal wasn’t excessive, the court said, and the employees were fired because they failed to obey a direct order from a supervisor.

To help agencies enforce the administration’s new federal vaccine mandate, OPM developed this new guidance with several broad goals in mind, an agency official told Federal News Network Friday.

Vaccines are the best way out of the pandemic, the official said, and the new policies are meant to drive vaccinations, not terminate federal employment.

“We want to be fair to employees while also laying out an efficient process that shows that we’re serious about this and that compliance is mandatory,” the OPM official said.

The guidance is also meant to drive consistency among agencies in enforcing the federal vaccine mandate among its employees — and give them the discretion to tweak the process so that it best suits their individual needs, the OPM official said.

Agencies could take on three broad steps to discipline employees who fail to comply with the federal vaccine mandate, OPM said.

If an employee hasn’t shown proof of vaccination, hasn’t received an exception or the agency isn’t actively considering a reasonable accommodation request for that individual by Nov. 8, OPM recommended agencies start by providing counseling and education to those federal workers.

“Agencies should use the counseling period to remind the employee again of the vaccination requirement, emphasize that failure to comply will lead to discipline up to and including removal or 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,” the OPM guidance reads.

If an employee doesn’t begin the vaccination process in that time, OPM recommends agencies begin to pursue disciplinary action, which, as the Biden administration has stated previously, can include removal or termination from federal service.

Agencies don’t have to use a concept known as “progressive discipline,” but OPM recommends it.

“One approach we could have taken is to advise agencies that as soon they know about unvaccinated employees by the deadline… they could have moved directly to proposing removal,” the OPM official said. “We don’t think that’s in the best interest of the government, the American people or the employee.”

On the other hand, a protracted disciplinary process doesn’t meet the administration’s intended health and safety goals for the federal workforce and isn’t the right approach either, the official added.

At least one agency, the Department of Veterans Affairs, has publicly committed to using the progressive discipline approach on health care workers subject to their own unique vaccine mandate.

“While the law and OPM adverse action regulations do not require progressive discipline, this is the preferred approach in the instance of non-compliance with the requirement to be vaccinated,” the guidance reads. “With this in mind, agencies are strongly encouraged to consider whether lesser disciplinary penalties are adequate, as an initial matter, to encourage an employee to be vaccinated, such as a short suspension of 14 days or less under procedures established [under law].”

If a short, unpaid suspension doesn’t compel an employee to get vaccinated, agencies should consider greater disciplinary measures, which, again, could include removal from the agency or federal service.

Agencies should consider a variety of circumstances when setting the penalty, OPM said.

“Agencies should strive for similar penalties for similarly situated employees, where appropriate, within the same work unit,” OPM said. “To facilitate this for larger organizations where actions may be necessary for multiple employees, an agency should consider designating one management official to be a proposing official and designating another management official to be a deciding official for all actions in the work unit.”

But the agency official stressed OPM does want to see agencies act with some consistency when disciplining unvaccinated federal employees. An unvaccinated teleworker wouldn’t necessarily receive different treatment from another employee who must work in-person at his or her agency, the official said.

Agencies can pause discipline if employees start complying

Unvaccinated federal workers can demonstrate they’re taking steps to comply with the mandate at any point during the disciplinary process, including while the employee is serving out an unpaid suspension or is in the middle of the removal process.

Agencies should effectively pause the disciplinary action in that case and give the employee a deadline for receiving final vaccine doses and providing proof of vaccination to their supervisors, OPM said. Once they’ve provided that proof, agencies should formally close the disciplinary process.

As the Biden administration has previously indicated, federal employees can request an exception from the vaccine mandate for a disability or valid religious reason.

Agencies shouldn’t discipline these employees who have a legal exception, OPM said, and they should consider what accommodations, if any, they might offer.

If an agency denies an employee a reasonable accommodation, that individual will have two weeks from the date of the final decision to receive the first vaccine dose, OPM said.

OPM is working with agencies to ensure they have the capacity and the tools to process these requests, the official said.

“Evidence shows these mandates work,” the official added. “Although people might say that they’ll leave their job over it when asked about it, that’s not actually what the data shows.”

Federal employees on some form of extended leave, like paid parental leave or worker’s compensation as examples, don’t have to be fully vaccinated by the Nov. 22 deadline if they’re planning to return to work after that date.

They must, however, provide proof of vaccination prior to returning to work, OPM said.

That same general policy applies to seasonal workers, interns, volunteers and others on an extended break in service, OPM said. Those employees must comply with the federal vaccine mandate prior to returning to work — if their anticipated return date is after Nov. 22.

Employees who have indicated their plans to leave their position in the executive branch and are on leave until that time do not have to comply with the federal vaccine mandate.

To inform employees about the federal vaccine mandate, OPM suggested agencies send periodic reminders to the workforce about the requirements and the upcoming deadline. They might consider holding town halls, sending emails and talking about the vaccine in other meetings.

Under the Biden administration’s previous vaccine policy, agencies asked their employees to attest to their vaccination status. But that process was voluntary, and OPM is still collecting vaccination data about the federal workforce, the agency’s official said.

In a Thursday hearing before the House Homeland Security Committee, the Department of Homeland Security said 64% of its workforce is vaccinated.

“I have to expect that the vaccination rates of the federal workforce probably mirror those of society overall,” the OPM official said. “And I have to expect it’s been moving in a positive direction, but this is the kind of thing that will really move it forward.”

New hires should be vaccinated before joining federal service

OPM also urged agencies to require vaccinations for new hires before entering duty, “subject to such exceptions as required by law.”

New hires joining federal service after Nov. 22 should be fully vaccinated before their start date, the OPM official said.

“When advertising vacancies, agencies should clearly describe in their job opportunity announcements the COVID-19 vaccination requirement and, for positions with a duty location having an official government worksite, information about the agency’s reentry plan, to the extent that plan has been finalized,” separate OPM guidance reads.

Agencies should make job offers contingent on tentative new hires submitting appropriate materials documenting their compliance with the federal vaccine mandates, OPM said.

If new hires fail to meet these vaccination requirements, an agency might consider rescinding tentative job offers.

Agencies who have “urgent, mission-critical hiring needs” can delay the vaccination requirements for certain job applicants. These individuals won’t have to submit proof of vaccination prior to a final appointment or onboarding with the agency, OPM said.

Instead, agencies should require these new hires to be fully vaccinated within 60 days of their start date, OPM said.

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