As Federal Agencies Disclose Vaccine Enforcement Actions, the Disciplinary Process Begins

As the vaccine mandate deadline looms for federal employees, agencies are beginning to plan and initiate their enforcement plans.

On October 18, 2021, the Department of Defense (DOD) announced in a memo “progressive enforcement actions” regarding vaccine mandates for civilian employees, contractors, and visitors. Those who are unvaccinated and don’t have a valid exemption will enter five days of counseling and education. Following guidelines include suspension without pay for up to 14 days (only members of the Senior Executive Service can be suspended for more than 14 days) and then removal.

As previously reported in FEDmanager, the Office of Personnel Management’s (OPM) guidance allows agencies to begin the disciplinary process for unvaccinated employees on November 9, 2021 – the day following the second dose deadline.

As Shaw Bransford & Roth attorney Conor D. Dirks stated in a Case Law Update, OPM cited Mazares v. Department of Navy which the Court of Appeals for the Federal Circuit upheld the Navy’s dismissal of two civilian employees who refused the anthrax vaccine during a deployment to a high-threat region. The Federal Circuit ruled the termination was a reasonable penalty for failure to obey a supervisor’s direct order to be vaccinated.

CNN shared on October 13, 2021 that nearly 40 percent of the Transportation Security Administration (TSA) remains unvaccinated. However, GovExec’s COVID-19 Roundup on October 22, 2021, quoted an unnamed spokesperson saying “…the current percentage reflects employees TSA doesn’t yet have vaccination information on and is not an accurate reflection of its vaccination rate.”

Rep. Carlos Gimenez (R-FL) raised concerns of the TSA’s capacity for the upcoming holiday season, with the vaccine mandate deadline days before Thanksgiving.  “I am concerned that the heavy-handed vaccine mandate the Biden administration has insisted upon could result in the discipline, attrition, or even termination of tens of thousands of TSA employees,” stated Rep. Gimenez in a letter to TSA Administrator David Pekoske.

“We are building contingency plans, for if we do have some staffing shortages as a result of this, but I hope to avoid that,” stated TSA Administrator David Pekoske in response.

As for the Department of Veterans Affairs (VA), roughly 70% of the workforce has submitted their vaccination status and continues to accept accommodation requests. The discipline process for employees who did not report is already under way as the deadline for the Veterans Health Administration (VHA) workforce was October 8, 2021 – the department issued an independent mandate set before President Bidens; they are now acting as a test for enforcement. VA Secretary Denis McDonough noted the disciplinary process may take two to three months, which includes the counseling and suspension periods.

“We will of course try to accommodate the religious exception for an employee who has sought the religious exception from being vaccinated, but if we’re not able to operate certain health care capabilities or provide certain services, this would present an undue hardship... So, in that case when we’re faced with an undue hardship by a lack of a vaccinated employee, my intention is to deny that employee the religious exception,” stated Secretary McDonough in a press conference.

As for Catholics, accommodations may be denied following the Vatican’s Congregation for the Doctrine of Faith endorsement of the vaccine’s morality, citing a moral duty to protect one’s own health, as well as a “duty to pursue the common good.” Similarly, the Pope has made repeated statements in favor of the vaccine, promoting vaccination as “an act of love.”

OPM instructed agencies not to discipline those that claim legal exception until the claim has been adjudicated through the “ordinary [agency] process” to “review the claim and consider what, if any, accommodation it must offer.”

If the accommodation is denied, the employee must be vaccinated within two weeks of the decision, or the disciplinary process may begin.