President Biden and his administration announced on July 29 that, in light of the increasing concern over the delta Covid-19 variant, all federal employees would be required to get a vaccination or submit to regular Covid-19 testing. Although a mandate has yet to be implemented, a release from the White House specifies what the administration has in mind for federal employees when it comes to strengthening safety protocols in the workplace.
While the decision to require vaccinations or participate in weekly or, perhaps, semi-weekly testing was heavily foreshadowed, many who are concerned about taking the vaccine or have not yet been able to receive one are curious as to how this will affect them.
Q: Can agencies establish different safety protocols for fully vaccinated, unvaccinated, and not-fully vaccinated employees?
A: Yes, agencies can—and some already have begun to—implement different protocols for fully vaccinated, unvaccinated or less-than- fully vaccinated individuals.
We have seen this with different teleworking policies being put into place to keep those who cannot receive vaccinations safe, or by allowing those who have submitted proof of vaccination to forgo wearing a mask in areas where other employees are present.
This approach is consistent with the White House’s announcement that “anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel.”
Q: Can agencies inquire about an individual’s vaccination status?
A: One of the more controversial topics regarding the vaccine and mandatory testing is how the information will be obtained.
An agency can ask certain limited health-related questions when it comes to employees’ vaccination status, especially if they are asking for an accommodation. Under the Rehabilitation Act, however, which applies the standards of the Americans with Disabilities Act (ADA) to federal employees, the agency must be careful when collecting and disclosing any of this information.
Many individuals confuse the Rehabilitation Act/ADA with the Health Insurance Portability and Accountability Act (HIPAA) when trying to avoid giving or having their medical history disclosed. HIPAA prohibits medical and other related institutions only from disclosing personal health history without an individual’s consent. It does not prevent a federal agency from inquiring as to an employee’s vaccination status.
Employees are being asked only to attest to their vaccination status. An employee can attest that they have received the vaccine, that they have not received the vaccine, or refuse to attest.
The latter two options would then require the employee to submit to regular testing and other safety protocols.
Q: How will agencies respond if an employee is medically or religiously exempt from the Covid-19 vaccine?
A: If an employee has a properly documented religious or medical exemption from receiving a vaccine, they should contact their employer as to how they are to proceed with work going forward. When asking for an exemption, employees and their agencies should have a discussion as to what impact potential exposure to Covid could have on the employee’s work environment and how the agency should go about providing reasonable accommodation.
Unless an agency can prove that any requested accommodation would prove an “undue hardship,” they would have no right to deny an employee’s request for one. That being said, agencies are not required to give the employee their requested accommodation, just one that solves the problem.
One such alternative has already been contemplated by the Biden administration by allowing employees who do not want to attest to their vaccination status to undergo regular testing and wear a mask. Those returning to the workplace with a proper exemption/accommodation, likely would be required to follow standard social distancing practices and continue to wear a mask.
Q: What penalties could federal employees face if they lie about their vaccination status?
A: With the Biden administration taking this firm stance on employees getting vaccinated, the consequences for an employee lying about their vaccination status may be severe. First, by ignoring their agency’s policies, the employee could face disciplinary action based on conduct unbecoming a federal employee ranging from reprimands to suspensions, demotions, or even termination. They could also be criminally charged, as it is a federal crime to provide false information on any attestation forms.
Outside of the impacts a criminal charge would have on their well-being, a criminal charge can impact their future employment opportunities as well. Having a criminal charge can impact some employees’ eligibility for access to classified information or disqualify them from employment in national security positions. If convicted, an employee could be looking at a substantial fine and/or a prison sentence of up to five years.
While there are still concerns about the vaccines, and the issue is sure to be challenged in court, it is important for any employee to be aware of their rights and to be in communication with their agency so that they can best protect themselves while also maintaining their personal right, including the right to privacy.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Stephanie Rapp-Tully is a partner at Tully Rinckey PLLC. She concentrates on federal labor and employment law, including cases involving violations of Title VII of the Civil Rights Act, the ADA, and the Age Discrimination in Employment Act. She represents employees before federal district and circuit courts, and the Equal Employment Opportunity Commission.