A vaccine requirement for feds could get complicated

The White House is considering a COVID-19 vaccine requirement for federal employees, but any such move will create complications with workforce groups and in the area of labor-management relations, experts said.

President Joe Biden told reporters Tuesday that a vaccination requirement for feds "is under consideration right now." He added: "If you're not vaccinated, you're not nearly as smart as I thought you were."

A source familiar with the matter told FCW that "no decision has been finalized," but "attestation of vaccination, which means confirming vaccination status or abiding by stringent COVID-19 protocols like mandatory mask wearing – even in communities not with high or substantial spread - and regular testing, for federal employees is one option under strong consideration."

The White House "is expected to share more details after completing policy review later this week," the source said.

The Washington Post, CNN and other news outlets have reported Tuesday evening that a vaccine requirement for federal employees and contractors will be released Thursday.

The Office of Management and Budget has already released guidance to agencies changing masking requirements for vaccinated federal workers, contractors and visitors in federal buildings, OMB confirmed with FCW. In areas with significant or high community spread, everyone needs to wear a mask. That currently involves the Washington, D.C. area -- and more guidance is forthcoming, OMB stated.

Nationwide, 69.1% of American adults have had at least one shot, according to the CDC. A mandate for federal employees would affect a large cohort: the Office of Personnel Management estimates there are 2.1 million civilian federal employees.

The news comes as the number of cases of and deaths from COVID-19 have been climbing. There is also growing concern about the Delta variant of the virus. On Tuesday, the Centers for Disease Control issued guidance recommending that in areas with significant or high spread, fully vaccinated people mask indoors, reversing previous guidance.

Guidance for federal employees, released June 8, states that "COVID-19 vaccination should generally not be a pre-condition for employees or contractors at executive departments and agencies to work in-person in federal buildings, on federal lands, and in other settings as required by their job duties." That guidance also notes that "agencies should not require federal employees or contractors to disclose such information."

The rapid spread of the Delta variant of COVID-19 and the slow pace of vaccination is having an impact on the "risk analysis" the government has to do about how to protect the health and wellbeing of employees, and how big of a risk feds are at in the office with coworkers with or without vaccinations or testing, said Stephanie Rapp-Tully, a partner at Tully Rinckey who specializes in federal employment law.

The Department of Veterans Affairs announced Monday that it will require clinical staff to be vaccinated within eight weeks, citing the spread of the Delta variant. Those employees, fall under Title 38, a different categorization from most federal workers, Rapp-Tully noted.

The potential of a governmentwide requirement also follows the Monday release of a July 6 opinion from the Justice Department Office of Legal Counsel that states that federal law "does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to [Emergency Use Authorizations."

Currently, the Pfizer, Moderna and Johnson & Johnson vaccines are operating under emergency use authorization from the Food and Drug Administration.

Vaccine requirements could violate existing collective bargaining agreements with federal employee unions, Rapp-Tully said. Agreements often have provisions about testing requirements regarding drug testing, as well as sections about how feds can be removed from employment, that a mandate could contradict.

Unions also have statutory rights to bargain implementation and impact, which could involve how a vaccine mandate works, including who it covers and how it is enforced, said Ron Sanders, former chairman of the Federal Salary Council.

National president of the National Treasury Employees Union, Tony Reardon, told FCW in a statement that "should the federal government make a vaccination a condition of employment, our union will work to ensure that employees have adequate time to obtain the vaccine or, in some cases, provide the necessary medical or religious information about why they cannot."

Larry Cosme, president of the Federal Law Enforcement Officers Association, which represents 30,000 federal law enforcement officers and agents, released a statement Wednesday saying the association is "concerned by any move that would mandate the COVID-19 vaccine among federal employees."

"Forcing people to undertake a medical procedure is not the American way and is a clear civil rights violation no matter how proponents may seek to justify it. We would therefore encourage the administration to work collaboratively with FLEOA and other federal employee groups to incentivize all federal employees to be vaccinated, rather than penalize those who do not," he said.

Regular testing as an alternative could also raise privacy questions, Rapp-Tully said. Depending on how often testing would be required and other specifics, there could be a question of how "burdensome" the requirement is for employees, and whether another less burdensome avenue exists to accommodate feds.

One potential: telework for unvaccinated feds who need accommodations.

"The federal government is going to have a hard time demonstrating that telework is not a reasonable accommodation for someone who cannot or does not want to be for religious reasons be vaccinated or submit to regular testing," Rapp-Tully said. She expects litigation on any potential mandate or directive and told FCW she's already fielding calls on the subject.