OPM Releases Additional Guidance on Enforcement of Vaccine Mandate

On October 1, 2021, Office of Personnel Management (OPM) Director Kiran Ahuja announced further guidance on implementing the vaccine mandate as all federal workers must be entirely vaccinated by November 22, 2021.

OPM's actions follow Executive Order (EO) 14043, directing the Safer Federal Workforce Task Force (Task Force) to guide implementation. The Task Force also issued additional instruction to assist agencies with implementing the directive and outlined enforcement steps. 

Director Ahuja stated, in her letter to agency directors, "People are considered fully vaccinated two weeks after their second shot in a two-dose series or two weeks after a single-shot series."

The guidance explains actions federal employees must take to comply with the mandate:

-          The first dose of the Pfizer-BioNTech COVID-19 vaccine is no later than October 18, and their second dose is no later than November 8.

-          The first dose of the Moderna COVID-19 vaccine is no later than October 11, and their second dose is no later than November 8.

-          Single-dose of Johnson & Johnson/Janssen vaccine by November 8.

After November 22, 2021, all new employees must be fully vaccinated before their start date. The guidance states that agencies should require documentation to prove vaccination prior to the enter on-duty date. Agencies may delay the vaccination requirement for "urgent, mission-critical hiring need[s]." However, employees must still be fully vaccinated within 60 days of their start date and follow safety protocols for non-vaccinated individuals in the interim.

The guidance clarifies that employees cannot show a recent antibody test as proof of vaccination. The news guidance also instructs agencies to select a date by which employees notify the agency if they are applying for an exemption. But exemptions may still be submitted after this date. The guidance provides standard forms for agencies to give to employees seeking medical or religious exemptions.

According to the updated guidance, employees denied accommodations must be vaccinated within two weeks of the denial determination. Employees who are not fully vaccinated due to a legal exemption must follow "applicable masking, physical distancing, and testing protocols for individuals who are not fully vaccinated, as well as applicable travel guidance."

The Task Force guidance includes FAQs which outline the handling of several unique situations such as disability-related medical delays and failure to get vaccinated due to a lack of availability. Additionally, the steps agencies should take if a federal employee refuses to be vaccinated or provide proof of vaccination.

"Employees covered by Executive Order 14043 who fail to comply with a requirement to be fully vaccinated or provide proof of vaccination and have neither received an exception nor have an exception request under consideration, violate a lawful order. Employees who violate lawful orders are subject to discipline, up to and including termination or removal," the guidance explains.

The guidance instructs agencies to "initiate an enforcement process to work with employees to encourage their compliance" through:

-          Beginning with a brief period of education and counseling (5 days), including providing employees with information regarding the benefits of vaccination and ways to obtain the vaccine.

-          Following with a short suspension (14 days or less).

-          Continuing with removal if an employee refuses to comply following suspension.

Agencies may begin initiating enforcement proceedings as soon as November 9, 2021, for employees who are not vaccinated or refuse to provide vaccination documentation and have not received or are under consideration for an exemption.

The guidance clarifies, "Unique operational needs of agencies and the circumstances affecting a particular employee may warrant departure from these guidelines, if necessary, but consistency across government in enforcement of this government-wide vaccine policy is desired, and the Executive Order does not permit exceptions from the vaccination requirement except as required by law."