White House Delays Vaccine Mandate Disciplinary Actions While the Pentagon Doubles Down
President Biden has issued three separate mandates for the COVID-19 vaccine: one for civilian and military federal employees, federal contractors, and businesses with over 100 employees. This week, the Biden administration delayed suspensions and firings for federal employees until 2022 despite 97 percent compliance with the mandate. For the latter two, a federal court has halted enforcement of the private sector mandate and the contractor mandate has been suspended in three states.
As previously reported by FEDagent, the Biden Administration required all civilian federal workers to be fully vaccinated by November 22 or request a medical or religious exemption and the Safer Federal Workforce Task Force announced updated guidance further extending the vaccine mandate for federal contractors to January 18, 2022. To resolve noncompliance, the White House advised agencies to offer a week of counseling to encourage employees to get vaccinated, followed by suspensions and, eventually, more severe adverse personnel actions, such as terminations.
Yet in a Monday email, Office of Personnel Management (OPM) Director Kiran Ahuja and Office of Management and Budget (OMB) Deputy Director for Management Jason Miller suggested agencies wait until January to begin instituting discipline actions.
According to Ahuja and Miller, for this year, agencies should only issue letters of reprimand to non-compliant federal employees if it is warranted. Although, they acknowledged that in rare circumstances, agencies should move forward with adverse personnel actions more quickly.
“We have been clear that the goal of the federal employee vaccination requirement is to protect federal workers, not to punish them. Last week’s deadline was not an endpoint or a cliff. We are continuing to see more and more federal employees getting their shots,” they stated, “Given that tremendous progress, we encourage your agencies to continue with robust education and counseling efforts through this holiday season as the first step in an enforcement process, with no subsequent enforcement actions.”
To reflect the change, the Safer Federal Workforce Task Force updated its website with guidance encouraging agencies to issue reprimands to noncompliant employees before imposing more serious sanctions, as well as allowing repeated suspensions before firing an employee.
A second suspension (15 days or more) should be considered following an initial brief suspension (14 days or less) rather than moving from a first suspension to a proposal of removal, according to the task force report, though government-wide consistency is a commendable goal.
“After extensive outreach to the Biden Administration on behalf of our members, FLEOA is encouraged that the administration appears to be finally moving towards less intimidation of those federal employees who do not wish to receive one of the available COVID-19 vaccines. While we have encouraged our members to receive the available vaccines, FLEOA has remained staunchly opposed to a vaccine mandate, one viewed as a punitive measure that forces federal law enforcement officers and other employees to choose between their beliefs and their jobs, particularly after the Administration was able to so quickly delay the federal contractor mandate until mid-January,” stated Larry Cosme, National President of the Federal Law Enforcement Officers Association (FLEOA).
Alternately, in a memo to top uniformed and civilian officials at the Pentagon, Defense Secretary Lloyd Austin announced the Department of Defense (DOD) will not pay National Guard members who refuse to receive to comply with the federal vaccine mandate for duties performed while under federal jurisdiction or accrue benefits while inactive. The guidance is to take effect December 6.
The guidance was issued in response to Oklahoma Governor Kevin Stitt waiving the vaccine mandate for approximately 8,000 members of the Army and Air National Guard in this state. As Stitt indicated in a letter sent to Austin earlier this month, he would not punish any members of the guard who did not take the vaccine, claiming that the mandate infringed on many Oklahomans' personal freedoms.
As of November 22, 70 percent of National Guard members had received at least one dose of COVID-19 and 63 percent had been fully immunized.
By June 2022, every reservist and member of the Army and Air Guard must have received the vaccine. Active-duty members of the Air Force, Navy and Marine Corps have already passed their vaccine deadlines, while Army soldiers have until December 15 to get vaccinated or apply for an exemption.
Airmen still waiting for medical and religious exemptions will have to follow some special rules while they wait. Lt. Gen. Brian Kelly, the Deputy Chief of Staff for Manpower at the Pentagon's Air Force Headquarters, announced unvaccinated airmen will not be eligible to move and will not be able to apply for future orders unless they receive approved medical or religious accommodations.
About 95 percent of Marines received at least one dose of the vaccine. Marines who applied for religious exemptions from the vaccine totaled 2,441 – about 1,900 have been processed and not a single request has been granted.
“The Department of the Navy does not normally grant religious accommodations for vaccinations. The process for religious exemption begins with an interview at the Marine’s unit with the chaplain and an endorsement by the first general officer in the chain of command. The request is forwarded to Manpower and Reserve Affairs where it is evaluated by a 3-member Religious Accommodation Review Board as well as by health services and legal. The recommendations from these representatives are forwarded to the deputy commandant for M&RA for final determination. The Marine Corps uses a centralized approval authority for these requests to ensure consistent adjudication of the requests,” stated General David Berger, Commandant of the Marine Corps.
The Navy enforces vaccinations strictly, which accounts for its nearly 100 percent vaccination rate among active duty personnel. Though, when it comes to its largest shipbuilding contractor with its tens of thousands of employees, officials have taken a different approach.
Last week, Huntington Ingalls Industries (HII) announced that its shipbuilding divisions would no longer be subject to the vaccination requirement since it was not contractually obligated to do so. As vaccine mandates do not require them for contracts considered to be "products," Navy officials did not modify the contracts with HII; however, President Biden's executive order and Safer Federal Workforce Task Force guidelines strongly recommend that all contracts implement the federal government’s vaccination mandate.