Federal employee organizations are focusing their attention on the vaccine mandate for the federal workforce on the details and negotiation of the potential for exceptions and possible accommodations for those who might benefit.
Unions and professional associations, which generally agree on issues affecting federal workers, have taken a mix of positions regarding the mandate, reflecting their members’ mixed views on it. But to date, none have expressed an intention to challenge the policy itself in court, although numerous lawsuits have been filed against similar mandates by state and local governments, universities, businesses, and others. other employers.
The Federal Law Enforcement Officers Association, which has been among the most critical of the mandate, for example released an analysis indicating that while the law regarding COVID vaccination mandates “is still evolving,” the courts have upheld those mandates. “General objections to the vaccine are not a legal basis for refusing,” he says.
Several unions have said much the same, adding that they will hold agencies accountable to meet their bargaining obligations regarding procedures for employees requesting exceptions and other matters, and employee discipline. who do not meet the exception standards or the November 22 deadline to be fully vaccinated.
Administration guidelines on exceptions contain few details, primarily directing agencies to follow standard legal procedures under the EEO Act requiring agencies to make “reasonable accommodations” for qualifying disabilities or “belief, practice”. or sincere religious observance ”.
However, the application of these procedures to a vaccination warrant is largely unexplored territory. Accommodation for persons with disabilities generally applies when the health or physical condition of an employee limits their ability to perform their duties under normal work arrangements, while religious accommodation takes place. Usually applies when an employee requests to change a work schedule for a religious holiday or to wear a certain item in the workplace.
The guidelines also state that agencies should follow well-established disciplinary practices, which could go “up to and including dismissal from federal service” without details, leaving these decisions largely to the discretion of the agency. .
More recently, the NFFE published examples of proposals its locals submit to agencies that would likely reflect the approach of federal unions in general. These positions include, for example, that the agency should provide on-site vaccinations (which administration guidelines do not anticipate), that a union representative should be present at any discussion with an employee regarding the mandate, and that the agency “will assume responsibility for any harm or injury caused to an employee by the vaccine.
Other model proposals include that in assessing a request for religious exemption, an agency could only consider past behavior that is inconsistent with the professed belief; whether the accommodation sought is likely to be sought for secular reasons; and when if the employee made a previous claim for the same benefit for secular reasons.
The union also wants agencies to agree that “100% telework is reasonable appropriate accommodation” when an employee qualifies for an exception, and to consent to employees who do not meet the conditions and who are not vaccinated are subject to progressive discipline that does not take into account any previous misconduct because “failure to comply with a vaccination mandate is a unique form of misconduct”.
It is unclear to what extent the agencies will accept such proposals, raising the possibility that negotiations will continue beyond the November 22 mandate date. Administration guidelines provide for this possibility, stating that “any negotiations which have not been completed by the time implementation is due to begin must be terminated after implementation”.