Federal employees and on-site contractors will have to confirm their vaccination status with their agencies, as part of President Joe Biden’s new actions announced July 29 to cut the spread of COVID-19 in the U.S.
“Anyone who does not attest or is not vaccinated will be required to mask no matter where they work, test one or two times a week to see if they’ve acquired COVID, socially distance and generally will not be allowed to travel for work,” Biden said.
This directive comes just days after Biden acknowledged that his administration was considering a vaccine mandate for feds.
The order falls short of directly requiring feds to get the vaccine, though as Biden said, “the Justice Department has made it clear that it is legal for employers to require vaccines.”
Visitors to federal buildings will also have to sign off on the fact that they have received a vaccine or supply a negative COVID-19 test from the three days preceding their visit.
Michael Fallings, a federal labor attorney at Tully and Rinckey, told Federal Times that an all-out vaccine mandate for federal workers could potentially run afoul of the Rehabilitation Act, Title 7 of the Civil Rights Act, the Health Insurance Portability and Accountability Act or federal collective bargaining agreements.
“I do think that there is a likelihood that it could be legally challenged,” said Fallings.
According to the Equal Opportunity Employment Commission, HIPPA does not prevent employers from asking their employees about their medical information, such as their vaccination status, but those employers cannot ask for that information from the employees’ health insurance provider.
Federal disability and discrimination law prohibits an employer from firing or taking adverse action against an employee for their race, color, religion, sex or national origin, but it is not certain whether the masking, distancing and travel restrictions for unvaccinated employees would meet that standard.
And individual agencies or subcomponents may be restricted in what actions they can take, based on the collective bargaining agreements they have with their employee unions.
“We expect that the particulars of any changes to working conditions, including those related to COVID-19 vaccines and associated protocols, be properly negotiated with our bargaining units prior to implementation,” American Federation of Government Employees National President Everett Kelley said in a statement.
“Based on today’s announcement, it is our understanding that under President Biden’s proposal the vast majority of federal employees would not have to be vaccinated as a condition of employment, but that those who choose not to receive the vaccine may face certain restrictions.”
Opinions about a vaccination mandate have varied among federal employee unions, with the International Federation of Professional and Technical Engineers supporting the idea, while the president of the Federal Law Enforcement Officers Association expressed concern about being forced into a medical decision.
The National Treasury Employees Union National President Tony Reardon said that his union has “a lot of questions” about how the policy will be implemented and employee privacy protected, but he also encouraged agencies to maximize policies that have helped keep employees safe:
“Telework has helped keep them safe and on the job. We believe that the dangerous surge of the delta variant of the coronavirus that prompted this new vaccine policy should also delay the end of the maximum telework policy that has been so successful these last 16 months. Although agencies continue to work on their plans for returning employees to federal workplaces, the effective date of that re-entry should be delayed.”
Federal agencies have already been instructed to provide their employees with time off to get the COVID vaccine, and Thursday’s announcement instructed agencies to allow employees time off to help family members get vaccinated.
Biden said he plans to work on enforcing a similar proof-of-vaccination plan for federal contractors who do not have to be on-site at agencies.
“If you want to do business with the federal government, get your workers vaccinated,” said Biden.
Meanwhile the Department of Defense has been instructed to look into adding the COVID-19 vaccine to the list of vaccines that members of the armed forces must get.
Biden also affirmed that the recent change to federal mask policy at government workplaces stemmed from his directive. Employees, contractors and visitors soon must wear masks in those offices regardless of vaccination status.
Jessie Bur covered the federal workforce and the changes most likely to impact government employees for Federal Times.