On September 9, 2021, President Biden imposed a federal vaccine mandate for U.S. government employees. In his Executive Order, Biden ordered federal agencies to implement programs for mandatory COVID-19 vaccination for their employees. In other words, federal employees must receive the last dose of the COVID-19 vaccine no later than November 8, 2021, unless they receive an exception or have a pending exception request.
Are there exceptions to the federal vaccine mandate?
Currently, there are two limited exceptions to the federal vaccine mandate:
- Disability: The Rehabilitation Act requires the government to provide reasonable accommodations to qualifying individuals with a disability.
- Religion: Title VII of the Civil Rights Act similarly requires reasonable accommodations based on a sincerely held religious belief, practice, or observance.
In other words, anti-discrimination laws may require federal agencies to grant exceptions to the COVID-19 vaccine mandate as a reasonable accommodation for employees who do not or cannot receive COVID-19 vaccines based on either disability or religion.
What is a qualifying religious belief?
Under existing law, employees can only get a reasonable accommodation based on a sincerely held religious belief, practice, or observance. According to the U.S. Equal Employment Opportunity Commission (EEOC) guidance: “An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.” Protected religious beliefs include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” However, Title VII does not protect social, political, or economic philosophies, or mere personal preferences.
What is a qualifying disability?
The Rehabilitation Act requires federal government employers to provide reasonable accommodations for qualified individuals with disabilities. A medical condition, such as anaphylaxis, that may make it dangerous for an employee to receive a COVID-19 vaccine may be a disability that requires accommodation. Depending on your disability and your job duties, a reasonable accommodation may include a “medical exemption” from the vaccine mandate.
Is an exemption a “reasonable accommodation”?
The second step for the religious and medical exemptions will be to determine whether the agency can provide a “reasonable accommodation” that does not place an “undue hardship” on the agency. The EEOC gives the example of “jeopardizing security or health; or costing the employer more than a minimal amount” as an example of religious accommodations that require an undue burden upon the workplace. As defined by the EEOC in disability accommodations, “undue hardship” means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.
Whether an exemption from the vaccine mandate is reasonable may depend on the employee’s job duties. In other words, an agency should evaluate accommodation requests on a position-by-position basis.
Can the government fire me for not being vaccinated?
Yes. Newly released guidance from the U.S. Office of Personnel Management (OPM) provides that agencies may initiate discipline for non-compliance as soon as November 9, 2021, unless the employee has received an exception or the agency is considering an exception request from the employee. OPM recommends that agencies consider significant penalties, including removal from federal service, if lesser discipline fails to encourage a non-exempt federal employee to get the vaccine.
Most federal employees have the right to advanced notice of proposed discipline, an opportunity to respond. And employees may have the right to appeal removals, demotions, and significant suspensions to the Merit Systems Protection Board (MSPB). Based on the specific facts of the case, the MSPB will determine whether the disciplinary penalty was too harsh. The MSPB will also consider whether the agency wrongfully denied an exception request.
Will courts uphold the federal vaccine mandate?
So far, federal courts have upheld vaccine mandates issued by state governments. For example, in August 2021, a group of Indiana University students petitioned the U.S. Supreme Court to halt the public university’s vaccine mandate. Supreme Court Justice Amy Coney Barrett denied the appeal without any other justice authoring a dissent. Similarly, in September 2021, a three-judge panel of the U.S. District Court for the Second Circuit restored New York City’s vaccination mandate for public school teachers.
Have there been cases involving other vaccine mandates?
In Mazares v. Department of Navy, 102 LRP 22199, 302 F.3d 1382 (Fed. Cir. 2002), the U.S. Navy removed a civilian employee who refused to be vaccinated against anthrax. A lengthy service record free of disciplinary actions was insufficient to reverse or mitigate the removal.
The employee had worked for the federal government for 14 years; he had no prior discipline and received successful performance reviews. He worked on an ammunition ship that was supporting the Navy’s 7th Fleet in the western Pacific Ocean. The ship was ordered to proceed to a port in Korea, and all crewmembers were required to receive anthrax vaccines. The employee refused to get the vaccines, and the Navy removed him for insubordination.
The MSPB upheld the removal, and on appeal, the U.S. Court of Appeals for the Federal Circuit affirmed. The Federal Circuit noted that the agency had “broad authority in dealing with its personnel, both military and civilian, including the protection of their health.”
The decision in Mazares indicates that the MSPB and the Federal Circuit would similarly uphold discipline for failure to comply with the COVID-19 vaccine mandate.
How can an employment attorney help me?
If you have questions about how the federal vaccine mandate may affect your federal employment, it may be helpful to consult with an attorney. An employment lawyer can help you respond to proposed discipline or provide advice about vaccine exemptions. Alan Lescht and Associates represents federal government employees around the world, and state and local government and private sector employees in DC, Maryland, and northern Virginia.