By William Wiley, October 20, 2021
[Editor’s note: This is the second of a two-part article. You can find the first part here. In the way only he can do, Bill Wiley reminisced about the old Federal Personnel Manual and offered the first five steps of a Checklist to help you implement the COVID-19 vaccination EO. We pick up where Bill left off last week.]
- Assuming continued non-compliance, on November 15, the Vaccine Mandate Coordinator proposes a one-day suspension. Those of you in the FELTG Nation are aware that MSPB case law tells us that progressive discipline is not necessary prior to a removal. In addition, there’s good argument a Reprimand in Lieu of Suspension is a better alternative to disciplining continued misconduct. However, given the high visibility that these cases will receive, and the general lack of public understanding of how discipline in the Federal civil service really works, a traditional suspension at this stage is a small step to take to avoid having to argue whether it is necessary (OPM even calls progressive discipline for vaccine refusal the “preferred approach”). You might need to craft exceptions to your existing agency disciplinary/grievance policies to make this work, but that should not be too difficult.
OPM’s guidance recognizes that there is a regulatory difference between separating a career Federal employee by “removal” and a probationary employee by “termination”. Traditionally, agencies don’t engage in progressive discipline with probationers in large part because there is not much of a standard for terminating a probationer other than the generalized non-specific conclusion that the employee is not a good fit in that particular government position. That’s why we don’t have to provide due process or appeal rights in most terminations of probationary employees.
However, though progressive discipline is almost never used with probationary employees, you might want to consider engaging in it when implementing the vaccination EO. OPM doesn’t rule it out and seems to go out of its way to emphasize the importance of it in this situation. Refusing to be vaccinated arguably is a different sort of misconduct from that which usually is the basis for a probationary termination. Maybe the jolt of a suspension will bring the employee in line with the President’s mandate.
Frankly, here at FELTG, we wish OPM had taken a clear stand on this aspect of enforcement. Since it has not, and since the arguments are good on both sides, the decision as to whether to suspend a probationary employee who refuses to comply with the mandate comes down to an individual call as to your patience and your resources.
- The government-wide minimum notice period for a proposed suspension of 14 days or fewer is 24 hours. If your agency policy or collective bargaining agreement provides for a longer response period, you will either need to create an exception to your policy or modify the following as appropriate. Otherwise, the suspension proposal notice can be straightforward:
Previously, you have been informed of the requirement that you provide documentation that you have been vaccinated against COVID-19. Upon your failure to comply with this requirement, you were counseled and thereby given an additional five days to provide the necessary documents. As of this date, you have failed to do so. Therefore, this office is proposing that you be suspended for one day in the hope that a suspension without pay will impress upon you the importance of complying with the government-wide vaccine mandate. You may defend your inaction by responding to this proposal by the close of business tomorrow. Any response should be addressed to this office.
- Assuming an inadequate (or no) response, on November 17, the VMC issues a decision:
Previously, this office proposed that you be suspended for one day for failure to document that you have been vaccinated for COVID-19. As you have failed to respond to the proposal in a manner that would cause a different outcome, it is the decision of the Vaccine Mandate Coordinator that you be suspended without pay for one day effective tomorrow. If within five days subsequent to the suspension (by November 22) you provide documentation that you have been vaccinated as required, no further action will be taken. However, if you continue to fail to provide the mandated documentation, this office will propose that you be removed from Federal employment. If you so choose, you may challenge the validity of this suspension decision by filing a grievance with this office as soon as possible.
- November 23: You got bupkis. Either the employee does not understand the gravity of the misconduct, or the employee is daring you to do something about it. Oh, sure; perhaps the employee has deeply held beliefs that the vaccine will cause the development of a third eye, or the whole “pandemic” is a government hoax. Maybe the employee has done independent research and decided to accept the opinion of someone on the Internet with “secret information” he obtained from the friend of a cousin (who has twice been probed by aliens) instead of the findings of every single reputable scientific body in the known universe. If so, personally my heart breaks. Still, as an agency, you have little choice at this point. You have to initiate the removal of the employee from government service. Here’s your proposal notice:
Previously, this office counseled you, then suspended you, for your failure to comply with the order that you provide documentation that established that you have been vaccinated against COVID-19. Therefore, it is with regret that by this notice your removal from service is proposed. In selecting the penalty of removal, in addition to your previous disciplinary record, I have considered the following factor:
The nature and seriousness of the offense and your willful repeated failure to comply with clear notice of the vaccine mandate.
Within the past 45 days, the agency provided you notice of the government-wide mandate for you to obtain full vaccination against the COVID-19 virus, and to provide documented proof of your compliance (attach 1). Should you have been confused about the necessity to comply with the mandate, this office previously counseled you and then suspended you to give you the opportunity to comply with the documentation requirement, or to otherwise defend your inactions (attachments 2 and 3). Yet to this day, you have failed to provide the necessary documentation.
As for the seriousness of the offense, you have failed to comply with a government-wide Presidential order regarding a matter of life-or-death, relative to yourself and to those with whom you come in contact as a Federal employee. The Executive Order highlights the importance of a Federal employee being vaccinated:
“The health and safety of the Federal workforce, and the health and safety of members of the public with whom they interact, are foundational to the efficiency of the civil service. I have determined that ensuring the health and safety of the Federal workforce and the efficiency of the civil service requires immediate action to protect the Federal workforce and individuals interacting with the Federal workforce. It is essential that Federal employees take all available steps to protect themselves and avoid spreading COVID-19 to their co-workers and members of the public. The CDC has found that the best way to do so is to be vaccinated.
The Safer Federal Workforce Task Force (Task Force), established by Executive Order 13991 of January 20, 2021 (Protecting the Federal Workforce and Requiring Mask-Wearing), has issued important guidance to protect the Federal workforce and individuals interacting with the Federal workforce. Agencies have also taken important actions, including in some cases requiring COVID-19 vaccination for members of their workforce.
Accordingly, building on these actions, and in light of the public health guidance regarding the most effective and necessary defenses against COVID-19, I have determined that to promote the health and safety of the Federal workforce and the efficiency of the civil service, it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.”
Should you provide the required documentation by the end of the notice period, this proposed removal action will be cancelled and no record of it will be retained in your official personnel folder. Should you provide proof that you have begun the process of becoming fully vaccinated using a two-dose series, but have not yet completed the vaccination cycle, the decision on the proposal will be delayed to allow you an opportunity to complete the requirements of your particular vaccine protocol
[Your agency’s standard rights-notification would go here.]
- December 23, at the expiration of the statutory 30-day notice period for proposed removals, assuming continued non-compliance, you issue the decision:
Thirty days ago, this office proposed that you be removed due to your failure to provide documentation that you have been fully vaccinated against COVID-19. Finding your continued non-compliance and no mitigating factors warranting a different outcome, it is the decision of the agency that you be removed from Federal employment, effective tomorrow.
[Your agency’s standard rights-notification would go here.]
That’s it. Nothing fancy, just classic civil service accountability procedures. They work most every time if you know what you’re doing. And if you’ve been to any FELTG training on this topic in the past 20 years, you already know this stuff. To save us all a little time, let me take a guess at a few questions you might have.
Question: FELTG has taught for many years that in a proposed removal, the deciding official should issue a decision soon after the employee’s response, usually within just a couple of days. Why are you recommending here to delay the decision to the end of the 30-day notice period? For unexplained reasons, OPM’s implementation guidance requires that the employee be retained at the worksite during the proposed removal period: “Employees should not be placed on administrative leave while pursuing an adverse action for refusal to be vaccinated.” Obviously, this is dangerous to coworkers and clients of the agency, even when safety protocols are in place for non-vaccinated workers. Since you will have to keep employees in the workplace during the notice period, it would be unnecessarily dangerous during that period to inform them that the decision has been made to fire them, then continue to allow them to access the workplace. We NEVER want a disgruntled employee to have access to a government worksite any more than necessary (just read the horrific news articles to appreciate what can happen when “disgruntled employees” get angry at their coworkers). Therefore, keep the employee around, but in the dark as to the outcome, until you can immediately implement the removal.
Question: There are 12 Douglas Factors. The proposed removal notice mentions only two or three (Nos. 1, 3, and 9). Why does it not discuss the others? The Board has held that an agency does not need to assess all Douglas Factors, only those relevant to the specific case. As the EO requires removal for failing to get vaccinated, and the employee by this point has failed to get vaccinated, there’s really no lesser sanction available once the misconduct is established. As for consideration of a second, more severe, suspension in lieu of removal, there’s no case law nor science that establishes that a second longer suspension is more likely to correct behavior than was the previous suspension. Remember, we’re trying to correct behavior – to get the employee vaccinated – not trying simply to punish the employee for misbehavior. Plus, time is of the essence.
Question: What about our labor relations obligations to the unions? Absolutely you need to satisfy the statutory and contractual requirements relative to implementing a new agency policy. Exactly what will be involved in meeting those obligations is beyond the scope of this little article. However, it’s worth noting the language of the official guidance on implementing the vaccine mandate policy: “[B]argaining over this Government-wide policy will be limited to impact and implementation issues not otherwise addressed in the guidance. Moreover, agencies must implement Government-wide policy by the deadline, so any bargaining that has not been completed by the time implementation must begin will have to be finished post-implementation.”
Question: What about a request to be excused from the vaccine mandate to accommodate a disability? Another topic for a great long article, but not in this space. There are so many variables to deal with, it’s hard to develop a common strategy other than the usual approach:
- Require that the employee provide evidence of the specific medical condition that prohibits vaccination. Once it’s provided,
- Have agency personnel review the employee’s medical evidence to see if an inability to be vaccinated is warranted by the proffered evidence. If it is,
- Evaluate the employee’s duties and workplace to see if they can be modified so that the employee can perform safely without being vaccinated (be sure to consider steps that might allow the unvaccinated to work such as providing employee isolation, masks, and periodic testing). If not,
- Search the agency for vacant positions at the same grade and lower to which the employee can be accommodated and offered reassignment. If there are none,
- Fire the employee for Medical Inability to Perform.
Question: What about a request to be excused from the vaccine mandate to accommodate a religious belief? Unless I had smoking gun evidence that the employee’s claim was a ruse to get out of being vaccinated (e.g., an email with sad little green emojis ? coupled with an admission that the employee doesn’t really have valid religious beliefs), this Old Practitioner would yield to the claim and start looking at accommodations. If you would prefer to fight out before EEOC whether the employee’s religious beliefs are a “sincere and meaningful belief that occupies a place in the life of its possessor parallel to that filled by God,” “part of a comprehensive religious belief system” and not simply an “isolated teaching,” then bless you. We can always use the case law. Hope this helps. Best of luck out there. Wiley@FELTG.com