White House: Agencies shouldn't require vaccinations or ask for employees' vaccination status

Agencies “generally” should not require vaccination for federal employees or contractors to come back into the office, and they shouldn’t require those individuals to disclose their vaccination status, according to new guidance issued on Tuesday by the White House-led Safer Federal Workforce Task Force. The guidance does note that individuals can choose to voluntarily disclose that information

Agencies should, however, use any information agencies do receive about employees and contractors being unvaccinated – or declining to provide vaccination information – “to implement [Centers for Disease Control]-recommended mitigation measures, including masking and physical distancing,” the guidance says.

Last month, the Office of Management and Budget updated its guidance on mask wearing to reflect an update from the CDC that vaccinated people don’t need to mask or socially distance inside or outside in most settings.

Under this latest guidance, unvaccinated individuals, or those who chose not to disclose their vaccination status, will still have to abide by guidelines for masking and social distancing, said Ron Sanders, former chairman of the Federal Salary Council. The remaining question as feds head back to work is how enforcement will work under those two circumstances, which may be dependent on the agency and manager, he said.

The guidance also recommends that employees receive paid time off for vaccination and recovering from any potential side effects.

The news comes as agencies are in the midst of planning their return to the workplace. Last week, the White House set July 19 as a deadline for agencies to have final plans for reopening, as well as what policies will be in place when they do.

Vaccinations are a critical part of that, although some Americans don’t want them. Polls have also shown that the share of Americans saying they’ll get vaccinated only if required (7%) and those that say they “definitely will not” get vaccinated (13%) have stayed steady over the last several months.

Some agencies have reported that sizable portions of their agency workforces are refusing the vaccine when offered. At a hearing in March, the director of the Bureau of Prisons said half of his workforce had declined to be vaccinated. He said the agency would not be requiring vaccinations because they are still under emergency use authorization from the Food and Drug administration.

An Bureau of Prisons spokesperson told FCW that the agency “cannot require staff to take the vaccine,” but that the agency “is making every effort to encourage staff and inmate vaccination” via educational posters and promotional videos.

Others have taken to incentives.

The BlueCross BlueShield Association announced on Wednesday that its Federal Employee Program, a benefit plan that covers around 5.6 million federal employees and retirees, will launch a COVID-19 Vaccination Incentive Program starting on June 11. Eligible members who provide documentation of their vaccination will get $50 on their MyBlue Wellness cards for medical expenses.

The taskforce isn’t the only government agency issuing guidance on this topic.

The Equal Employment Opportunity Commission issued guidance on May 28 addressing whether employers have the ability to require vaccinations for their employees.

According to that guidance, federal equal employment opportunity law doesn’t prevent employers from requiring employees to be vaccinated to come back to the workplace. However, employers are still required to follow EEO laws.

That guidance also said that EEO law doesn’t limit employers’ ability to voluntarily provide documentation, or for employers administering vaccinations to their employees to offer incentives, so long as they aren’t “coercive. “

This new guidance from the Safer Federal Workforce suggests that agencies “should not” require vaccines, but they technically still have the option. It’s unclear if any will use it, said Stephanie Rapp-Tully, a partner at Tully Rinckey who specializes in federal employment law.

If they do, they’re entering an area of the law where precedent is currently being formed, she said.

“In recent history we have not had a situation like this,” she said. “We don’t have a lot of precedent.”