Thursday, March 30, 2023

Unvaccinated Federal Employees Who Refuse Testing Could Also Face Disciplinary Action

Unvaccinated Federal Employees Who Refuse Testing Could Also Face Disciplinary Action

Agencies may take disciplinary action against unvaccinated employees who refuse COVID-19 testing in accordance with the new federal vaccine policy, the Biden administration said in a new round of frequently asked questions released Wednesday.

Testing is mandatory for all federal employees and contractors who are unvaccinated or decline to provide their vaccination status at least once a week, though agencies may consider a twice-weekly regime for others depending on their job responsibilities.

“In addition to pursuing any disciplinary action, an agency may separately elect to bar the employee from the agency workplace for the safety of others pending resolution of any disciplinary or other action the agency may pursue,” FAQs from the Safer Federal Workforce Task Force read. “Any decision to bar the employee should occur in consultation with the agency’s onsite security authority, agency’s human resources office, and agency’s legal counsel.”

If an agency bars an employee from the workplace, but the individual’s job doesn’t allow for it to be performed remotely, the employee will receive paid administrative leave until disciplinary actions are resolved, the administration said.

Employees must receive proper notice of any proposed disciplinary action, just as they would ahead of receiving any other adverse action.

The new policies perhaps are not surprising, considering the Biden administration said earlier this month that employees who lie about their vaccination status could face criminal penalties, as well as disciplinary action from their own agencies.

For federal employees who raise a disability or religious issue as the reason for refusing a COVID-19 test, agencies should review whether they should make a reasonable accommodation. Agencies can bar an employee from the workplace while the reasonable accommodation process is underway, the administration said.

Only unvaccinated federal employees and contractors who are required to regularly work on site are subject to weekly COVID-19 testing, the Biden administration said.

In other words, unvaccinated employees and contractors who are teleworking do not need to travel to their work sites for the explicit purpose of getting tested. Unvaccinated employees and contractors who otherwise would work in-person but are teleworking or are on leave for a week don’t need to be tested, the administration added.

Notably, agencies can’t require telework for unvaccinated employees or contractors solely based on their inoculation status — or to avoid placing them in a regular testing program, the Biden administration said.

Agencies are required to pay for COVID-19 testing, but not for tests taken by employees who believe they were potentially exposed outside of the workplace.

The Safer Federal Workforce Task Force published COVID-19 testing guidelines back in April, but it’s unclear how many agencies have actually developed their own programs.

Agencies can develop their own testing capabilities in-house, contract with an outside testing provider or sign an interagency agreement with another federal entity that has its own program, the administration said.

Unvaccinated federal employees and contractors should be tested for COVID-19 on-duty time, the task force said.

“When a federal employee is required to be tested pursuant to an agency’s testing program, the time the employee spends obtaining the test (including travel time) from a site preapproved by the agency is duty time,” the FAQs read. “Thus, there is no need for the employee to take administrative leave for such time during the employee’s basic tour of duty. An agency should only authorize an employee to spend time obtaining a test during the employee’s basic tour of duty hours and only for the amount of time necessary to obtain the test.”

If travel is required for testing, agencies should generally allow employees up to an hour, the administration said.

When it comes to storing COVID-19 test results, agencies should keep the Privacy and Rehabilitation Acts in mind. They should only share the results with agency officials on a need-to-know basis for the purposes of making safety decisions, the administration said.

The latest FAQs do not set specific timelines for when agencies should implement a testing program. But in advising them on collective bargaining obligations, the Biden administration said agencies “need to act quickly” and should engage with federal employee unions at their “earliest opportunity” as they develop COVID-19 testing programs.