In August, the Centers for Disease Control and Prevention announced new guidance changing Covid-19 safety protocols for federal employees and agencies. The Safer Federal Workforce Task Force says that federal agencies should pause requiring or requesting that current or potential federal employees provide their vaccination status.
This news shortly followed with more guidance from the task force on the federal government’s intent to take no action on, or enforce Executive Order 14042, which dealt with Covid safety protocols for federal contractors. In a rapidly changing post-pandemic environment, what does this all mean for federal employees and contractors?
Most importantly, new guidelines mostly pertain to testing and isolation requirements for both unvaccinated and vaccinated employees.
Following the release of this updated guidance, the Biden administration instructed agencies to stop their testing programs for their unvaccinated employees against Covid-19. However, despite the Aug. 22 deadline, many agencies, especially the Department of Defense, are still sorting out how best to stop these testing programs.
With the blend of military, civilian, and contract personnel, it’s an ongoing process to craft a one-size-fits-all solution to protect the department and its workers while remaining in compliance with the new testing policy.
There are certain exceptions to stopping testing for unvaccinated employees in certain federal workplaces, including nursing homes and homeless shelters. Furthermore, the White House guidance also stated that any ongoing testing, regardless of vaccination status, should be completed as well.
Paused implementation and enforcement of the federal contractor vaccine mandate follows the Aug. 28, 2022 decision from the US Court of Appeals for the Eleventh Circuit that narrowed the scope of the original vaccine mandate for certain federal contractors.
The injunction in this case only prohibits the enforcement of the vaccine mandate across seven plaintiff states—Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia—along with contractors and subcontractors from certain plaintiff construction trade groups.
By eliminating the nationwide injunction in these states, it thrusts the issue back into the national spotlight, as the US Court of Appeals for the Fifth Circuit is still grappling with the original lawsuit filed in December 2021 over Biden’s vaccine mandate for federal employees.
After vacating the original three-judge panel’s decision to keep the injunction in place on June 27, the court agreed to hold an en banc hearing with the full panel of 17 judges. While the judges have not stated when they would issue a ruling, it is anticipated that a decision on this matter will come soon as matters surrounding Covid-19 are given the national spotlight again.
Because of this, many contractors again find themselves closely following these legal developments as they try to navigate the patchwork enforcement of the vaccine mandate across the country. To assist with this, the Task Force recently published an FAQ on federal contractors and their responsibilities when it comes to symptom reporting and on-site safety protocols.
Legislation and Litigation Impact
Another popular question in response to this new guidance was how it would impact current legislation regarding the legality of the vaccine mandate. It is anticipated that this won’t have much of any bearing on the legal side of the vaccine issue unless the mandate is completely revoked.
At present, this guidance appears to only address the issue of agency testing for their unvaccinated employees or those displaying Covid-19 symptoms. If anything, it appears as if this is the first step towards bringing back the federal workforce rather than separating vaccinated and unvaccinated employees.
It’s unclear if this guidance will retroactively apply to employees who were punished for non-compliance with testing and reporting requirements, as it depends mostly on the reason for the punishment. Generally, whatever guidelines were in place at the time dictate each case, so without the complete reversal of the vaccine mandate as a whole, there is little room for legal recourse for a federal employee who was punished for refusing to test or vaccinate.
Despite the past August deadline for agencies to stop their Covid-19 testing requirements, it appears that many agencies are still shifting their approaches to match the administration’s new testing and reporting policies. Considering that the virus threat has started to decrease—in part due to higher vaccination rates and better medical care—it would not be much of a surprise to see the CDC and Task Force issue more guidance on Covid-19 self-care along with agencies adopting their pre-Covid employment policies as well.
Regardless, the best piece of advice for federal employees and contractors right now is to stay in contact with their managers and stay updated on any further legal developments to best protect both their careers and overall health.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Stephanie Rapp-Tully is a partner at Tully Rinckey, where she concentrates her practice on federal labor and employment law, routinely representing employees before United States District Courts, Appeals Courts, the Equal Employment Opportunity Commission, and the Merit Systems Protection Board.