FAQs on the Vaccine Mandate

FAQs on the Vaccine Mandate

Executive Order on COVID-19 Vaccine Mandates for Federal Employees
On Sept. 9, 2021, President Biden issued an executive order requiring federal employees be vaccinated against COVID-19. The information below will be regularly updated.  

Does this vaccine mandate apply to all federal employees, including management? 
Yes, all Title 5 federal employees in the executive branch are subject to the mandate. 

What is the deadline for being fully vaccinated? 
The deadline for employees to be fully vaccinated is Nov. 22. Fully vaccinated means the employee has received all the required doses of the vaccine and is two weeks past the final dose. To meet that deadline, employees getting a two-dose regimen should have the first shot by no later than the first week of October 2021.

When do I need to begin the vaccination process?

The timing of the vaccination process depends on which vaccine you get. Here is some guidance:  

Johnson & Johnson’s Jansen COVID-19 vaccine

  • Johnson & Johnson’s Jansen COVID-19 vaccine requires only one dose.
  • To receive the full course of the COVID-19 vaccinations by Monday, Nov. 22, an employee must receive the single dose no later than Monday, Nov. 8.

Pfizer-BioNTech COVID-19 vaccine (Pfizer)

  • Pfizer vaccine requires two doses and should be given 3 weeks (21 days) apart.
  • To receive the full course of the COVID-19 vaccinations by Monday, Nov. 22, an employee must receive:
  • Second dose no later than Monday, Nov. 8.

Moderna COVID-19 vaccine

  • Moderna vaccine requires two doses and should be given 1 month (28 days) apart.
  • To receive the full course of the COVID-19 vaccinations by Monday, Nov. 22, an employee must receive their:
    • Second dose no later than Monday, Nov. 8.

If I’m already vaccinated, how does this impact me? 
You will be required to show proof of your vaccination status but the details about that process are not complete. Other than that, there is no impact on those who are already vaccinated. 

Can I still choose frequent COVID-19 testing instead of the vaccine? 
No. The executive order requires the vaccination absent an approved reasonable accommodation for medical reasons or religious objections. 

Do I have to pay for the vaccine?
No. Vaccines are free to everyone. You can find a location to get a vaccine at www.vaccines.gov.  

Will the vaccine be available at my place of work? 
Providing vaccines at the workplace is something that is being considered and will be up to individual agencies.

Do I have to get vaccinated even if I am teleworking full-time? 
Yes. The executive order states that all coveredfederal employees must be vaccinated without regard to their place of work. 

Will I get paid time off to receive the vaccine? 
Yes, the administration has already granted agencies the ability to provide administrative time to receive the vaccine. Current authority also provides for administrative time for appointments to take a family member to get vaccinated. 

Once I’m vaccinated, will I still have to wear a mask at the workplace? 
Yes. In areas of high transmission rates, which is the vast majority of the country, masks will still be required inside federal buildings regardless of vaccination status. When transmission rates decrease, it is possible mask requirements will be lifted. The administration will continue to follow CDC guidance in making these determinations.

If I have a religious or medical reason not to get vaccinated, will that be honored? 
Employees with medical and religious reasons for not being vaccinated may request a reasonable accommodation as an exception to the vaccine mandate. The process for employees to request such exemptions, according to the Safer Federal Workforce Task Force, will follow an agency’s existing process for reasonable accommodation.

What is the legal authority for the mandate?

NTEU’s attorneys have been researching the legality of the executive order from every angle. Vaccine mandates have been held up by the courts, the EEOC and the FLRA.  Potential arguments that the mandate violates employees’ constitutional or statutory rights have been rejected in litigation over vaccine mandates going back more than 100 years.   When it comes to the government’s interest in protecting public health through a vaccine mandate, courts have consistently sided with the government, provided medical and religious accommodations must be granted.

Here is a short primer on vaccine mandate cases:

Federal courts have rejected constitutional challenges, based on the 14th Amendment due process clause and 1st Amendment Free Exercise clause to vaccine mandates.

Jacobson vs. Massachusetts, 197 U.S. 11 (1905), upholding state compulsory vaccination law against 14th amendment challenge. See also,Employment Division v Smith, 494 US 872 (1990), rejecting Free Exercise challenge to denial of unemployment compensation to individuals terminated for religiously mandated use of peyote. There are many other lower court decisions following Jacobson.

The lead case on COVID 19 vaccine mandates is Klaassen.

Klaassen v. Trustees of the University of Indiana, (USDC/ND, 7/18/21), relying upon Jacobson in rejecting request for preliminary injunction against Indiana University’s vaccine mandate for students and finding no fundamental right or liberty interest against vaccinations, and therefore applying a rational basis analysis. 

Klaassen v. Trustees of the University of Indiana, (7th Cir., 8/2/21), denying motion for injunction pending appeal of lower court’s rejection of injunction request.

Klaassen v. Trustees of the University of Indiana, 21A15 (8/12/21), application for injunctive relief (denied by Justice Barrett).

FLRA  – Agencies right to determine internal security practices include the right to mandate testing and vaccinations if reasonably related to employee security. 

AFGE Local 1345 and Army Med. Dept. Agency, 64 FLRA 949, 950-61 (2010) 

The Agency required all medical personnel who have direct patient contact to get a flu vaccination, except those with a medical excuse or religious objection.  It reasoned that doing so would reduce potential outbreaks of flu.  The Union proposed that employees also have the right to refuse the vaccination for personal reasons.  The FLRA found the proposal non-negotiable because it interfered with the Agency’s right to determine internal security practices under 7106(a)(1), as the Agency established a reasonable link between its policy and safeguarding personnel.

AFGE Local 221 and U.S. Dept. of Veterans Affairs, 64 F.L.R.A. 1153 (F.L.R.A. July 30, 2010):

The Agency proposed a policy that required employees to be tested annually for tuberculosis (TB).  Several patients in Agency facilities had tested positive for TB, and one patient died from it.  The FLRA noted, “The parties do not dispute that tuberculosis is an ‘infectious disease’ that ‘can be asymptomatic’ for periods of time and can, ultimately, lead to death if untreated.  The Union proposed voluntary, rather than mandatory, testing.  The FLRA found that the Agency’s proposal fell under its authority to determine internal security and that it established the requisite link between its policy and safeguarding personnel.   

EEOC Guidance– Employers may lawfully mandate vaccines under laws administered by the EEOC (e.g., Title VII; ADA) but must accommodate those with “disabilities” and sincerely held religious beliefs that preclude vaccination.

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

Mandating vaccines is a change in working conditions. Why can’t NTEU bargain whether vaccines may be mandated for employees it represents?

The executive order mandating vaccines for federal employees is a government-wide rule that does not conflict with collective bargaining agreements. Further, the decision to mandate vaccines falls under the statutory definition of “internal security practices.” For both reasons, there is no duty for agencies to bargain the substantive decision to mandate vaccines. See, e.g., AFGE Local 221 and U.S. Dept. of Veterans Affairs, 64 FLRA 1153.

Does any part of the mandate have to be bargained with the union? 
Federal agencies are required to bargain certain aspects of the implementation of this mandate with federal employee unions. The scope of that bargaining will be determined, in part, by the specifics of the government-wide guidance that is expected to be issued by the Safer Federal Workforce Task Force the week of Sept. 13, 2021.  

What happens if I refuse to get vaccinated? 
Absent an approved reasonable accommodation, you may face disciplinary action, up to and including removal from federal service. Any such action must follow federal law, due process procedures and comply with the relevant provisions of NTEU contracts.

Why are US Postal Service employees exempt from the executive order? 
The Postal Service is a quasi-independent agency run by an independent Board of Governors and is under a separate statutory authority in the executive branch (i.e., not Title 5 as NTEU-represented employees are). Instead, the Postal Service is covered under another part of the president’s plan where employers with more than 100 employees will need to require workers to either be vaccinated or tested weekly under a forthcoming OSHA rule. 

Will contractors have to be vaccinated, too? 
Ultimately yes, but not on the same timeframe as federal employees. The executive order on contractors states that new and renewing contracts must include a vaccine mandate for employees working under the contract. Current on-site federal contractors must either be vaccinated or provide regular proof of a negative COVID-19 test. 

A few of the outstanding questions:

  • What happens next? 
  • I am pregnant/nursing mom. Do I have to get vaccinated?
  • I have had COVID and have an immunity already. Do I have to get vaccinated? 
  • Do I get to choose which vaccine to receive? 
  • What documentation is required to prove that I am vaccinated? 
  • If my coworker has a religious or medical exemption and remains unvaccinated, will he be allowed to telework but I won’t, because I’m vaccinated?
  • What if I lost my vaccine card?

Updated on Sept. 14, 2021


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