On September 9, 2021, President Biden outlined a new, six-pronged plan for COVID-19 vaccination.  As a first step in his documented process, he signed Executive Order 14043 - Requiring Corona virus Disease 2019 Vaccination for Federal Employees. The executive order was somewhat vague as to the specific details of the plan.  Accordingly, President Biden charged the White House Safer Federal Workforce Taskforce with issuing guidance for implementation of the vaccine mandate. On Thursday, September 16, 2021, new guidance was released.  This guidance applies primarily to federal employees and personnel working under agreement with the federal government.  It does not apply to private employers.  Although this guidance is only applicable to federal employees it does provide potential insight into the immediacy and determination of the mandate.

The new guidelines require all federal employees to be fully vaccinated by November 22, 2021.  This deadline incorporates, in specific detail, the timelines associated with the various vaccine options for federal employees to be “fully vaccinated”.

• Pfizer-BioNTech - first vaccination no later than October 18, 2021.
• Moderna - October 11, 2021
• Johnson & Johnson (one shot vaccine) – November 8, 2021

The difference is based on the waiting period required between doses, for the respective vaccines, as well as the required time period for the final dose to take effect.  New federal employees who are set to start after November 22, 2021, need to be fully vaccinated prior to their start date.

Public safety is paramount under the new vaccination mandate. Executive Order 14043 covers all federal employees (as defined in 5 U.S.C. 2105) including those engaged in telework or remote work.  The rationale is that because remote employees may still come in contact with the public, they are to be vaccinated.  Similarly, all government agencies are encouraged to require employees and personnel who may serve under agreements with the federal government, but outside the definition of 5 U.S.C. 2105, to be vaccinated in accordance with the guidelines applicable to the executive order.

Specific exceptions still apply to the new vaccination mandate.  Government agencies will be required to provide reasonable accommodations for employees who are able to substantiate that they are not vaccinated because of a disability or strongly held religious belief.  Factors, including but not limited to, the basis for the claim, job responsibilities and “reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19” are to be considered in determining whether an exception is applicable.

Federal employees who refuse to be vaccinated and/or refuse to provide proof of vaccination will be subject to disciplinary review up to and including termination – “removal from federal service.”  All government agencies are responsible for collecting documented proof of vaccination.  This applies even to employees who have previously attested to vaccination. Proof of vaccination includes:

• Record of immunization from a health care provider or pharmacy,
• A copy of the COVID-19 Vaccination Record Card,
• A copy of medical records documenting the vaccination,
• A copy of immunization records from a public health or state immunization information system, or;
• A copy of any other official documentation containing required data, including but not limited to, date of administration, and the name of the health care professional or clinic site administering the vaccine.

Employees must certify that the documentation they are submitting is true and correct. Agencies must comply with any applicable Federal laws, including requirements under the Privacy Act and Rehabilitation Act of 1973 in requesting and recording this information.

This is the first guidance to be provided since President Biden outlined his plan on September 9, 2021.  It only applies to federal employees and personnel working under agreements with the federal government.  We anticipate additional guidance specific to private employers in the near future.  Beyond the immediate impact on federal employees, these guidelines reveal the specificity of intent and purpose of the new mandate.  We remain cautious in our report and interpretation of the guidance so as not to speculate or misapply the value of the guidance offered.  The new vaccination plan will utilize different agencies, regulations and statutes to enforce the mandate. The guidance will undoubtedly vary for government employees, the private sector, public schools and healthcare facilities.  We await additional guidance for those other specific categories of the workforce.

The draw from this information that appears relevant for all employers is the level of specification and diligence of the underlying narrative.  The fact that this guidance was issued within seven (7) days of the initial reveal of the new vaccination plan demonstrates the administration’s urgency and commitment.  The detail and unqualified demand for compliance, with very limited exceptions, confirms their resolve.  Employers must review the outline of the vaccination mandate as provided in our client alert of Monday, September 13, 2021 - COVID-19: President Biden’s Plan for Vaccination, Masking and Pandemic Relief - and consider its potential impact on their business and their existing COVID-19 mitigation and prevention plan.  The attorneys of the Employment Law Group of Cipriani & Werner, PC remain available to discuss your questions and concerns and assist in the development or modification of your plan. Please contact us at C&W at EmploymentLaw@c-wlaw.com or 1-888-488-2638.