Vaccine Mandate FAQ as of 10/1/21

FAQs on the Vaccine Mandate

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 second week of October 2021. Already vaccinated? You will be required to show proof of your vaccination status. 

Vaccine Details

Johnson & Johnson’s Jansen COVID-19 vaccine Only one dose required.To receive the COVID-19
vaccination by Monday,
Nov. 22, an employee must receive:

Single dose no later than Monday, Nov. 8.
Pfizer-BioNTech COVID-19 vaccine (Pfizer) Requires two doses and should be given 3 weeks (21 days) apart.

First-dose: must be received by Monday, Oct. 18

Second dose: no later than Monday, Nov. 8
Moderna COVID-19
vaccine
Requires two doses and should be given 1 month (28 days) apart.

First-dose: must be received by Monday, Oct.11

Second dose: no later than Monday, Nov. 8

Aside from the CDC, where else can I go to discuss my concerns regarding the vaccine?
Your doctor or other trusted medical professional would be an excellent resource. Also, as part of bargaining the impact and implementation of the executive order, NTEU will be pushing agencies to offer additional options for employees to confidentially discuss their concerns about the vaccine with trusted experts.  

What happens if my agency initiates the disciplinary process, but I then take steps toward becoming fully vaccinated?
If, prior to a final decision being issued in the disciplinary process, you provide your agency with appropriate documentation that you are fully vaccinated, the disciplinary process should end. If you are already serving the suspension, but then provide your agency with appropriate documentation that you are fully vaccinated, the agency is permitted to end the suspension. The disciplinary process and suspensions may also be held in abeyance for brief periods if you show you have taken the first shot in a two-shot regimen.

I heard my supervisor will see my vaccination status. Doesn’t that violate HIPAA?
Privacy provisions contained in HIPAA – the “Health Insurance Portability and Accountability Act of 1996” – do not apply to federal government agencies because they are not “HIPAA-covered entities.” Instead, the collection of your vaccination status is governed by the Privacy Act, which permits the disclosure within your agency to employees “who have a need for the record in the performance of their duties.” 5 U.S.C. § 552a(b)(1). Therefore, your agency should only disseminate this information to agency officials who need to know your vaccination status to ensure the required safety protocols are followed. In many cases, this will include your supervisor.

If I was a participant in the Novavax vaccine trials, am I considered fully vaccinated?  
Yes.  If you received the full series of the “active” (not placebo) Novavax COVID-19 vaccine and it has been 2 weeks since completing the vaccine series.

What documentation is required to prove that I am vaccinated?Paper or digital copies of immunization records from a health care provider or pharmacy will be accepted, as well as copies of the COVID-19 Vaccination Record Card and other public health or state immunization records. The record must include the following: type of vaccine administered, date(s) received, and the name of the health care provider or clinic site. Employees must certify under penalty of perjury that the documentation they are submitting is true and correct. 

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. 

If I have previously tested positive for COVID-19, do I need to get vaccinated?
Yes. The administration is following CDC guidance on the issue of whether those who may have natural immunity from prior infection should still be vaccinated. According to the Task Force, there may be limited circumstances where an employee’s medical professional recommends a slight delay in receiving the vaccination if the employee recently had COVID-19 because the employee’s immune system may still be recovering from that infection. These instances would be handled through a reasonable accommodation request.

Can I provide antibodies test results instead of proof/documentation of being fully vaccinated?
No. The Task Force reiterated that the executive order requires employees to be fully vaccinated absent an approved reasonable accommodation for medical reasons or religious objections. The administration is following CDC guidance on the issue of whether those who have previously tested positive for COVID-19 should still be vaccinated. Currently, the CDC says they should.

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? 
Maybe. While the administration is not requiring the vaccine be available at the worksite, and agencies have not previously made vaccinations available at the worksite, NTEU will urge agencies to do so where possible to provide employees with that option.  

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

I am a seasonal employee who is not currently working for my agency under a seasonal appointment. When is the deadline for me to comply with the vaccination requirement?
Seasonal employees must submit the required proof/documentation showing they are fully vaccinated (or request a reasonable accommodation) prior to returning to duty.

Will I get paid time off to recover from any potential side effects of the vaccine? 
Yes. Employees will be granted up to two days of administrative time to recover. This is a change from the initial guidance that required employees to use sick leave. NTEU objected to the policy of requiring employees to use their own sick leave and after those discussions, the administration reverted back to allowing administrative leave in those situations. 

What obligations/liability does the government have if I suffer an injury from a COVID-19 vaccine? 
According to the Health Resources & Services Administration (HRSA), COVID-19 vaccines are covered under the Countermeasures Injury Compensation Program (CICP). See: https://www.hrsa.gov/cicp/faq for more details concerning claim and eligibility requirements. After NTEU has requested further information on this program from the Task Force, OPM confirmed that federal employees covered by the executive order may file a claim under the CICP. NTEU has and  also reached out to the Department of Labor for information regarding eligibility criteria for any workers’ compensation issues that could potentially arise from taking the vaccine. We will update this FAQ once we have that information.

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.

Who will have access to my medical information about immunization status? 
Only those who need to know in order to implement safety protocols will have access to your information, which in some cases will be the supervisor level. The collection and use of your information is subject to OPM regulations that state each agency have written instructions for its employee medical file system and appropriate safeguards. Employees must be provided with a Privacy Act statement when their information is collected, and the medical information should not be maintained in the Official Personnel Folder. 

Do I have to get vaccinated if I am planning to retire or otherwise separate from the service soon after the deadline?
Yes. NTEU posed this question to the Task Force to see if those employees planning to retire or leave for other reasons shortly after the Nov. 22 deadline for vaccination still had to meet the deadline. The Task Force said there would be no exceptions to the deadline other than the legally required reasonable accommodation exceptions. 

Why are members of the military potentially eligible for a waiver if they are planning to retire soon?
By regulation, civilian employees have the right to rescind a retirement application prior to it going into effect. In contrast, members of the armed services are only allowed to rescind their retirement applications in very narrow circumstances and the withdrawal must be approved through several levels of command. The regulations governing this narrow administrative waiver process for military members were in place prior to the pandemic and apply to all dozen-plus vaccines they are required to receive. Because civilian employees have the right to rescind their planned retirement or separation, the Task Force would view such an exception as a potential loophole for federal employees to use to delay getting vaccinated, which would violate the intent of the executive order. 

Is NTEU fighting for early retirement as an option?
A federal agency must apply to the Office of Personnel Management for approval to offer voluntary early retirement. Under the regulations, agencies need an operational reason in support of the request, such as a reduction in force, reorganization, restructuring or major transfer of function. No such operational purpose exists as a result of the vaccine mandate. 

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.

If I refuse the vaccine and the agency proposes a disciplinary action, will I be placed on administrative leave? 
No. Employees who have pending proposed disciplinary action against them will not be placed on administrative leave. Instead, they will continue to work and, if reporting to a worksite, be required to follow safety protocols for employees who are not fully vaccinated. 

What level of discipline should I expect if I do not meet the Nov. 22 deadline to become fully vaccinated and do not have an approved reasonable accommodation or a request for one that is still in progress?
According to OPM and OMB and based on current information, the Task Force will advise agencies to take a progressive discipline approach. With the caveat that several other individualized factors would come into play for every situation, the Task Force is providing agencies with the following guidelines:

-Failure to become fully vaccinated by the Nov. 22 deadline without an approved reasonable accommodation or a request in progress would be considered a “failure to comply with a lawful order.”
-Agencies may begin this process at any time after Nov. 8 if the employee has not provided proof of vaccination by Nov. 8 and does not have an approved reasonable accommodation or a request for one that is still in progress.
-As a first step, an employee should be counseled on the failure to meet the vaccination requirement and agencies should educate employees on matters concerning the vaccine. There would be an approximate 5-day period for the employee to take steps toward complying with the vaccination requirement (i.e., getting the first shot of a two-shot vaccination or the only shot of a single-shot vaccination).
-If the employee continues to refuse to take the initial steps toward becoming fully vaccinated, agencies should propose a suspension of 14 days or fewer. If the employee takes steps toward complying with the vaccination requirement prior to a final agency decision on that suspension, the disciplinary action should be held in abeyance pending the employee’s completion of the requirement to become fully vaccinated.
-If, after all the above, the employee continues to refuse to become fully vaccinated, agencies should propose removal of that employee.
-Employees will not be placed on administrative leave while the agency pursues disciplinary action but will instead be required to follow safety protocols if reporting to the workplace.

Reasonable Accommodation 

If I have a religious or medical reason not to get vaccinated, will that be honored? 
There are limited exceptions to the mandate that federal employees must be fully vaccinated. Employees may be entitled to a reasonable accommodation because of a health reason or because of a sincerely held religious belief, practice or observance, assuming it does not present an undue hardship. The Safer Federal Workforce Task Force will be putting out additional guidance on this soon. NTEU has pressed the administration for a consistent approach that eases the burden on employees in these processes and has advocated that the administration provide clear guidance to answer the many questions we have raised on our members’ behalf.

In general, whether an employee will be entitled to a reasonable accommodation turns on factors such as:

-the basis for the claim;
-the nature of the employee’s duties; and
-the reasonably foreseeable impact on agency operations when considering the need to protect other employees and the public from COVID-19.

The assessments of whether an employee is entitled to a reasonable accommodation are fact-specific and require individualized determinations. With that said, there are some basic things to know when it comes to these two types of reasonable accommodations.

For health reasons, the threshold question is whether the employee has a health reason that prevents them from receiving the vaccine. For religious reasons, the threshold question is whether the employee has a sincerely held religious belief, practice, or observance that prevents them from receiving the vaccine. The law differentiates religious beliefs from personal beliefs that are political, sociological or philosophical. If an employee has a health reason or sincerely held religious belief that prevents them from being vaccinated, the agency and the employee must engage in “the interactive process” to determine what reasonable accommodation, if any, will be suitable for that employee. Keep in mind that employees are not necessarily entitled to the specific accommodation they requested if there is an effective alternative.

What can employees seeking a reasonable accommodation do now to get that process started?
If an employee plans to request a reasonable accommodation for health reasons, they will need to obtain a medical statement from their health care provider. They should work on doing this now. As with any supporting statement for any reasonable accommodation request, the statement should identify the nature of the underlying medical condition (i.e., disability) and explain how that condition/disability prevents them from being safely vaccinated. The statement should also identify potential accommodations (e.g., masking wearing; regular testing; social distancing whenever possible; alternative duties that keep the individual from coming in close contact with others) that would permit them to safely perform the essential functions of their job without posing a significant risk of infection to themselves or others. If the employee needs more time to get a medical statement, they can ask for interim accommodations (such as those listed above) until they can get the medical documentation.

If an employee intends to request a reasonable accommodation for religious reasons, they will generally need documentation/corroboration that they are a member of a particular faith and that the tenets of that faith forbid vaccination. The employee’s religious belief must be sincerely held. Requested accommodations would be similar to those for medical exemptions.

If I haven’t received a decision on my reasonable accommodation request by the Nov. 22 deadline to be fully vaccinated, what will happen?
According to OPM and OMB and based on current information, employees will continue to work in their regular paid duty status pending a decision on that reasonable accommodation request. If employees are working in-person at the workplace, they will need to follow the protocols for “not fully vaccinated employees”; i.e., they must wear masks regardless of community transmission level, physically distance, and comply with travel restrictions for not fully vaccinated individuals. This and other reasonable accommodation-related matters are topics that we are further addressing in bargaining.

If my agency denies my request for a reasonable accommodation and I challenge/appeal that decision, can the agency begin disciplinary steps while the challenge/appeal is pending?
If you challenge the denial, you can expect to be directed to get vaccinated while your challenge is pending. If you don’t follow that directive, you will likely face disciplinary action.

Bargaining

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? 
Yes, federal agencies are required to bargain the impact and implementation of this mandate with federal employee unions. The Task Force has instructed agencies to consult with federal employee unions “at their earliest opportunity.” NTEU has already requested briefings from agencies and issued demands to bargain. However, agencies are required to implement this government-wide mandate by the Nov. 22 deadline, meaning that some bargaining may necessarily take place on a post-implementation basis. 

Why can’t NTEU delay the vaccine mandate deadline until impact and implementation bargaining has been completed?
The EO mandating vaccines cites the COVID-19 health emergency as its justification. The Safer Federal Workforce Task Force has instructed agencies to “act quickly due to the COVID-19 emergency” and to comply with the requirement of the November 22 deadline. Under 5 U.S.C. § 7106(a)(2)(D), agencies taking certain actions that are “necessary to carry out the agency mission during emergencies” are not required to complete bargaining prior to implementation. Instead, they are only required to complete any impact and implementation bargaining on a post-implementation basis. NTEU is bargaining as much of the implementation procedures and arrangements as possible before November 22.  As a practical matter, much of what we are bargaining concerns what happens to unvaccinated employees after that date and we will ensure that those negotiated protections are in place when they need to be. 

Legal Authority 

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 a 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

Other Questions of Note

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. 

Does the mandate apply to Congress? 
No. Both the legislative and judicial branches of government set their own personnel policies and regulations and therefore are not covered under the executive order.

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. 


Updated Oct.1, 2021


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