On September 9, 2021, the White House announced that federal employees and contractors would be required to be fully vaccinated against COVID-19 in the wake of the ongoing pandemic, with exceptions only as required by federal law. President Biden signed an Executive Order requiring each Executive Branch agency to implement a program requiring “COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.” The full Executive Order can be found here: Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees | The White House. White House Press Secretary, Jen Psaki, indicated that “federal employees will have about 75 days to be fully vaccinated,” in order to afford time for currently unvaccinated employees to get vaccinated.
The Equal Employment Opportunity Commission (EEOC) has already weighed in on the permissibility of employers mandating that employees be vaccinated against COVID-19. In it updated COVID-19 pandemic guidance (issued earlier this year), the EEOC stated that EEO laws do not prohibit employers from requiring employees to be vaccinated, so long as employers comply with reasonable accommodation provisions of the Americans with Disabilities Act and Title VII.
Under the Americans with Disabilities Act, employing agencies are permitted to require that employees meet a qualification standard that is job-related and consistent with business necessity. A qualification standard requiring that employees be vaccinated against COVID-19 would be considered job-related and consistent with business necessity due to its safety-related purpose. However, such a qualification standard would still be subject to reasonable accommodation requirements if an employee is unable to receive the vaccine due to a disability or a sincerely held religious belief, practice, or observance. If an employee is unable to be vaccinated due to one of these reasons, the employee should make a request for reasonable accommodation to their employer and start collecting as much supporting documentation as possible. In particular, if the reason the employee cannot be vaccinated is based on a disability, they should speak with their treating medical provider and request from their provider a written explanation of the employee’s disability and the reason the employee cannot be vaccinated, so that the employee can turn in the medical provider’s explanation to the employing agency in support of the employee’s reasonable accommodation request.
Until employing agencies start rolling out their vaccination-requirement programs pursuant to the Executive Order, it will be difficult to determine exactly how employing agencies will go about implementing the requirement for employees to be vaccinated. It is also expected that many federal Unions will request to bargain over those aspects of the programs’ implementation that would be subject to bargaining.
Every situation is unique, and nothing in this blog post is meant to constitute legal advice or to establish any sort of attorney-client relationship. If you are a federal government employee with a disability or sincerely held religious belief, practice, or observance that prevents you from being able to receive the COVID-19 vaccine, and if you would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, O’Reilly, & Eddy, P.C. to set up an initial consultation with one of our attorneys.