On September 9, 2021, President Joe Biden signed an executive order requiring all federal employees to obtain the COVID-19 vaccine. Federal workers must be fully vaccinated by November 22, or have received their final dose or a single Johnson & Johnson shot by November 8.
Although many federal agencies and organizations have attempted to challenge the legality of the federal vaccine mandate, so far, they have found that the government has a legal right to make vaccination a condition of employment. However, implementing the mandate can be quite complex.
It appears federal agencies are given flexibility to determine their own disciplinary actions since the executive order doesn’t provide specific steps that agencies must take to penalize employees for noncompliance. In most disciplinary cases, a disobeying employee’s supervisor will propose a potential adverse action and give the worker an opportunity to respond, then a “deciding official” (i.e., another manager or supervisor) issues a final decision, along with the punishment.
Federal supervisors generally consider the “Douglas factors” when deciding how to discipline an employee for most workplace offenses. Such factors include the nature and severity of the offense in relation to the worker’s job and duties, as well as the employee’s work performance records and past disciplinary actions.
When it comes to the nature and seriousness of an offense, for example, a frontline employee who regularly works with the public could put more people in potential harm if he/she refuses to get vaccinated compared to an office employee who does not interact with his/her coworkers or the public. Therefore, enforcing the vaccine mandate can result in inconsistencies across federal agencies.
On the other hand, the Department of Veterans Affairs (VA) plans to apply “progressive discipline” to healthcare workers who fail to comply with the vaccine mandate or secure reasonable accommodation by the October 8 deadline.
Progressive discipline is used by many agencies to correct employee behavior by first reprimanding a noncompliant worker or giving him/her a verbal warning. If the employee still refuses to comply, he/she could be suspended from the workplace. Continuous noncompliance can be viewed as insubordination, which can legally result in job termination.
While federal agencies have the tools to handle disciplinary situations, the overwhelming number of employees who refuse to get vaccinated may lead to a massive caseload. Additionally, the influx of reasonable accommodation cases may be too much for most agencies to handle.
If your employer has failed to provide you with reasonable accommodation related to COVID-19 vaccinations, contact our federal employment law attorneys at Pines Federal today at (800) 801-0598. Our legal team has more than 50 years of combined legal experience!
Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.
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