By William Wiley, October 12, 2021
This is the first of a two-part article.
Ah, the good old days. As a fresh-faced lowly Navy Civilian Personnel Intern back in the 70s, one of the jobs that fell to me periodically was to update the Federal Personnel Management guidance. For those of you too young to have had the experience, here’s a quick history lesson. The US Civil Service Commission, followed in 1979 by the US Office of Personnel Management, published and maintained a many-volumed three-ringed-binder set of hands-on guidance relative to all the various federal laws and regulations related to managing a federal workforce. Throughout the week, every personnel office in government received by mail sheets of three-hole punched CSC/OPM guidance updates that had to be filed (CORRECTLY!) in the proper volume (I think there were about 20 volumes). In addition, each agency (and many times agency subcomponents) also issued similar to-be-filed guidance adding a specific tweak or exercising a flexibility in the overall government-wide personnel guidance.
In the Navy, that meant we got instructions from the Department of Defense, the Department of the Navy (on blue paper, of course), and then for me at the San Diego Naval Hospital, occasional additional instruction from the Navy’s Bureau of Medicine and Surgery (BUMED). All had to be filed in the correct topical-index order in the correct date order or be prepared to suffer the wrath of senior personalists who couldn’t find something. Yep, if we need to know the proper size font to use in a Letter of Reprimand, there was guidance on that and every other detail one might need to make a personnel office hum.
Then came Al Gore.
In the early part of the Clinton administration, the White House became convinced that the reason that personnel work in government (now called, affectionally, human resources) was so slow and ponderous was because of all that darned guidance. So, the President directed OPM to stop issuing or maintaining the FPM. VP Gore had the fun of setting on fire a collection of those volumes of government guidance, thereby freeing agencies to do whateverthedevil they wanted to do, constrained only by the law and the federal Code of Regulations. Yes, finally, no more updating work for the interns to do and no more detailed, front-line guidance on implementing a legal and regulatory effective human resources program. Of course, with the freedom to do whatever came the freedom to make mistakes, and the freedom not to do anything or to do it slowly because without guidance, whothedevil really knows what to do?
Since the abolishment of the FPM in the early 90s, OPM has done what it could to provide agency guidance beyond the CFR. Some years it did a better job than others. This past year OPM has provided quite helpful baseline advice to those of us in the federal employment law field. For example, on September 9, the White House mandated by Executive Order that all federal employees must receive their last dose of vaccine against COVID-19 by November 8, or be fired. In implementation of that directive, OPM now maintains a “Safer Federal Workforce” website that, among other things, tells agencies how to handle employees who decline to comply with the EO and get vaccinated. Separately, a week or so ago, OPM issued a detailed question-and-answer document entitled “Guidance on Enforcement of Coronavirus Disease 2019 Vaccination Requirement for Federal Employees – Executive Order 14043”. We may not be back in the good old FMP three-ring-binder update days, but we are pleased to see OPM in the game.
If FELTG can claim any modicum of success from these past 20 years, and if it has made any contribution at all to a successful civil service, it is that FELTG has taught forever the straightforward way to get things done, legally, fairly, and expeditiously. With that goal in mind, and in consideration of all the good work done so far by OPM, here’s a nice little 10-step how-to FELTG Checklist for you to follow to implement the COVID-19 vaccination Executive Order:
1. First, your agency will benefit greatly from an agency-wide policy regarding the mandate. As FELTG President Deb Hopkins has said, if we leave the decisions up to individual supervisors as is done under most all agency disciplinary policies, we’re going to have a really inconsistent mess on our hands. Normally, FELTG would argue for managers to be able to make individual disciplinary decisions without someone outside of the organization telling them what to do. This EO requiring removal government-wide for a very particular act of misconduct is not a normal disciplinary situation.
2. The policy should identify a Vaccine Mandate Coordinator (VMC). That office should be responsible for oversight of the program and other responsibilities enumerated below. Depending on the agency’s size, the responsibilities of the VMC might be collateral to existing duties or might be best served by the short-term employment of a full-time coordinator (a re-employed annuitant or two might be perfect). In any case, the VMC should have expertise in and receive consultation from human resources, the disability accommodation office, and the general counsel’s office.
3. The agency policy should require, initially, that the employee be notified of the required information regarding the benefits of vaccination, the ways to obtain the vaccine, and a warning that getting vaccinated is required to maintain federal employment. For evidentiary purposes, the information should be provided in a documented manner such as an email to the employee; maybe even more than once.
4. The notification also should set a deadline for the employee to provide the acceptable documentation and certification to the employee’s supervisor. OPM recommends that date be November 8. On November 9, the supervisor should forward all documentation and certifications to the agency’s VMC. If any employees have not provided the required documentation, the supervisor should identify those employees for the VMC.
5. Within 24 hours, the VMC should initiate the formal enforcement process with counseling and education. “What?!? Only 24 hours later? Around here, we can’t get out an invitation to a birthday cake cutting in the break room in fewer than three days.” Well, get better. You need to move promptly to comply with the deadlines in the EO. You can do this by centralizing the process, with the added benefit of relieving the immediate supervisor of a requirement for confronting the employee. Plus, the more time you give the employee to comply before you have to initiate a removal, the fairer you are to the employee.
OPM calls this step “counseling and education.” Here at FELTG, we would have taken the more traditional step of issuing the employee a formal reprimand. While a counseling has the appeal of sounding a bit more friendly, a reprimand is more formal, better documented, and less ambiguous. Plus, it might well engage the employee’s union representative in the discussion, perhaps adding a dose of rationality to the employee’s thinking process.
Although not a reprimand, we believe that the counseling should be documented, to add seriousness to the situation and to create defensive evidence for the agency down the road. The counseling can be very simple: “Previously, you were notified of the benefits of and government-wide requirement for federal employees to be fully vaccinated by November 21, 2021. You were given until November 8 to provide documentation that you have complied with this requirement. You have failed to meet this deadline. Therefore, you are being counseled to impress upon you the importance of this requirement. Should you fail to provide documentation of compliance within the next five days (by November 14), you will be subjected to discipline, including removal from federal service.”
You can issue the counseling by email. No need for a signed-as-received hard copy. No need to provide grievance rights (in most agencies) because you have not entered a document into the employee’s official personnel file. Be sure to include links in the counseling to the educational components relative to getting vaccinated that are available on the web.
The second part of this article, including steps 6-10, will appear in the October FELTG Newsletter next week.