By Ann Boehm, August 18, 2021
I’m pretty sure that you, my FELTG friends, are aware that the Biden administration issued some strong guidelines on vaccines, masks, and COVID-19 testing over the past few weeks. And along with this guidance has come direction from the administration that an employee’s failure to comply with the guidelines could result in disciplinary action or even criminal prosecution (for providing false information on the Certification of Vaccination form).
For those who manage people or for those responsible for advising those managers, this may seem like an enforcement nightmare. My job in this article is to give you an incentive to take action against the noncompliant, and to provide you the tools to reassure you that such actions are legally defensible.
So first, the incentive.
A few weeks ago, the VA issued a vaccine mandate for Title 38 VA employees. Soon after, articles about the mandate appeared with quotes from employees determined to resist the direction. Some employees plan to quit or retire. But one comment really got me (and here’s the incentive). One quoted employee said she was encouraging her colleagues not to retire or quit, and instead “force the department to fire them to maximize legal recourse.” Many VA Employees Apprehensive About Vaccine Mandate as Department Begins by Eric Katz, Government Executive (July 30, 2021).
If the employees want to force you to fire them, I think you should accept the challenge.
Now, the legal justification.
On July 29, the administration issued the guidelines that are binding on all Federal employees. Employees have two options. Certify that you are vaccinated (and possibly wear a mask in areas of substantial or high transmission areas) or wear a mask at all times, get tested, and physically distance. Employees do have options, at least. But they also have rules to follow. Break a rule, and you may be disciplined.
There’s precedent for enforcing these kind of rules. There’s even precedent for firing employees who do not comply with a vaccine requirement.
Let me give you a little history lesson. Way back in the 1990s, long before we could have imagined this past year’s pandemic experience, anthrax existed as a potential biological weapon. Anthrax can be deadly, but there is a vaccine for it.
In the early 1990s, the Department of Defense started vaccinating service members against biological warfare threats for which vaccines were available. By 1998, the anthrax vaccine immunization program included service members and civilian personnel who could be at high risk for biological weapons exposure.
Two civilian Navy employees being deployed on a ship bound for Korea were ordered to get the anthrax vaccine. They refused. The Navy removed them. They appealed their removals to the Merit Systems Protection Board. The MSPB Administrative Judge upheld their removals. They then appealed to the U.S. Court of Appeals for the Federal Circuit.
The Federal Circuit also upheld their removals. Mazares v. Dep’t of the Navy, 302 F.3d 1382 (Fed. Cir. 2002), cert. denied, 538 U.S. 960 (2003). The court expressly recognized the Navy’s authority to protect the health of civilian and military personnel. Id. at 1385. The court also determined that removal was a reasonable penalty for the employees’ charged misconduct: “’failure to obey a direct order to receive mandatory injections of an anthrax immunization vaccine.’” Id. The employees tried to get the Supreme Court to consider their case, but the Court denied the petition for writ of certiorari. 538 U.S. 960 (2003)
Just like anthrax, COVID-19 presents a legitimate danger to the health of the Federal workforce. The guidelines issued by the administration are intended to minimize that danger.
I fully acknowledge that there is a vast divide among people all over the world regarding vaccine and mask mandates. Just a few minutes reading through Facebook, Twitter, neighborhood listservs, and a multitude of media articles, or even conversing with friends and family makes that patently clear. But Federal employees now have been given the instructions. They must comply. Agencies: If employees choose to disobey the guidelines, they are subject to discipline. And Mazares strongly suggests that removal may be the appropriate penalty.
Good luck out there! Boehm@FELTG.com