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Federal agencies won’t seriously discipline vaccine holdouts until next year, White House tells unions

President Biden discusses the omicron variant at the White House on Nov. 29. (Oliver Contreras/EPA-EFE/Shutterstock)

Federal employees who have not complied with the coronavirus vaccine mandate will not face aggressive discipline, including unpaid suspensions or firing, until at least early next year, according to guidance the White House sent to unions.

The American Federation of Government Employees said Monday that administration officials have told the union that agencies for now will continue offering counseling and education to the roughly 3.5 percent of workers who have yet to receive a vaccination or request an exemption.

Agencies will pursue only “education and counseling efforts through this holiday season as the first step in an enforcement process” and take no further actions beyond a possible letter of reprimand “for most employees who have not yet complied with the vaccination requirement until the new calendar year begins in January,” according to the White House message to agencies.

The guidance comes as concerns over the globally spreading omicron variant led President Biden on Monday to again urge Americans to get vaccinations and boosters. As of last week, 92 percent of the roughly 3.5 million people in the federal workforce and the military had received at least one shot, while an additional 4.5 percent had requested exemptions.

More than 9 in 10 federal workers and military personnel are vaccinated, with only a small percentage seeking exemptions, White House says

The White House disputed that the guidance represents a change in when employees could face more-serious consequences for ignoring the mandate. Federal workers faced an initial deadline last week to show that they had gotten at least one shot or had requested an exemption.

“Nothing has changed on our deadline or our approach to the federal employee vaccine requirement,” White House press secretary Jen Psaki told reporters Monday, noting that counseling has “long been our approach and our policy.”

Union leaders said they supported giving unvaccinated workers leeway to get shots.

“The administration has done the right thing by listening to federal workers,” AFGE President Everett Kelley said in a statement, suggesting that the guidance would “give those who haven’t yet gotten vaccinated some peace of mind this holiday season.”

Attorneys who represent federal employees said it is common for agencies to hold off on disciplinary actions of all kinds around the holidays. They also said that the administration, having said all along that it hoped to avoid firing people for failure to comply with the mandate, would probably keep incentivizing vaccinations rather than punishing employees who resist.

“I’m not going to be surprised if agencies slow-roll this process, if only to slow-roll the associated headaches that come with it,” said Debra D’Agostino, a founding partner at the Federal Practice Group in Washington. She said that even early next year, supervisors of unvaccinated employees are not likely to impose harsh discipline in every case.

“Setting aside the issue of the legality of the mandate itself, [some] employees who have been teleworking full time since March 2020 are going to have credible arguments that removing them is not in the interest of the efficiency of the service or is overly harsh in light of their length of service, performance and lack of prior discipline,” she said.

Thus far, no agency has set a time frame for when it plans to step up more-aggressive discipline against unvaccinated employees without exemptions. Veterans Affairs Secretary Denis McDonough has said, for example, that the process at his agency could take months.

For now, unvaccinated employees who have not requested or received an exemption face a process that starts with counseling about vaccines and the potential career consequences of not complying with the mandate.

That is not required of employees who have pending requests for exemptions, but in the meantime they must follow tighter distancing and mask-wearing standards and get regular testing when in the workplace.

Those requirements will continue to apply to them long-term if their request is granted; if it is denied, they will have two weeks to begin a course of vaccination or else go through the disciplinary process.

The National Treasury Employees Union, which represents about 150,000 federal workers, including many at the Internal Revenue Service, said it plans to continue to encourage its members to get vaccinated and is encouraging them to consult with a medical professional.

“It is helpful to remember … that the goal is protect the health of federal workers and not to punish them,” union president Tony Reardon said in a statement.

At least three lawsuits are pending against the mandate, with initial rulings in two. In each, a judge refused to temporarily block the order, saying employees have not yet experienced harm to their careers for not being vaccinated.

The federal employee mandate is not affected by legal challenges against separate vaccination requirements for certain private-sector workers. A mandate for companies with more than 100 employees is on hold pending an appeal of a court decision against it. On Monday, a federal judge in Missouri temporarily blocked a separate mandate for Medicare- and Medicaid-certified health-care providers and suppliers in 10 states.