DEBRA D’AGOSTINO, FOUNDING PARTER OF THE FEDERAL PRACTICE GROUP, DISCUSSES DOJ OPINION ON REQUIRING VACCINES

Posted By smay || 11-Aug-2021

Scrutinize disciplinary actions involving possible whistleblower

DOJ says agencies can require vaccines under Food, Drug, Cosmetic Act

By Anjali Patel, Esq., cyberFEDS® Legal Editor Washington Bureau

IN FOCUS: Agencies that want to require employees to get COVID-19 vaccinations can point to a recent Justice Department memorandum opinion to President Biden, which concludes that the Food, Drug, and Cosmetic Act “does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.”

The Department of Veterans Affairs became the first federal agency to require employees to be vaccinate earlier this week. When asked whether other agencies should follow the VA’s lead, White House Press Secretary Jen Psaki said the White House will follow the Centers for Disease Control and Prevention’s guidance.

“We are going to continue to look at ways to protect our workforce and to save more lives,” she said. “I think a range of agencies and leaders will look at what steps they should take to protect their workforce and save lives.”

During remarks at the Office of Director of National Intelligence, President Biden was asked by a reporter if federal employees would be required to get the vaccine and he said it “was under consideration right now.” Some news outlets are reporting he may announce a vaccine requirement this week.

However, even with the new DOJ opinion, employees must receive information on their right to refuse the vaccine. However, the right to refuse could come with consequences.

The Federal Practice Group’s Debra D’Agostino told cyberFEDS® that “in the past, and today, vaccination mandates generally do not interfere with the informed consent process and an individual’s right to refuse,” but they do impose consequences for refusal.

Put another way, she said, “mandates do not require involuntary vaccination, but instead impose consequences on individuals who refuse to get vaccinated, such as termination from employment.” These “have repeatedly been held to be legal,” she said, citing Mazares v. Department. of the Navy, 102 LRP 22199 (Fed. Cir. 2002). In that case, the Federal Circuit affirmed the Merit Systems Protection Board’s decision to sustain the Navy’s removal of two civilian employees who disobeyed an order to be vaccinated against anthrax.

Reprinted with permission from: cyberFEDS®. © 2021 LRP Publications, 360 Hiatt Drive, Palm Beach Gardens, FL 33418. All rights reserved. For more information on this or other products published by LRP Publications, please call 1-800-341-7874 or visit our website at: www.shoplrp.com

 

Administrative time off

National Treasury Employees Union National President Tony Reardon told cyberFEDS® that the < DOJ > “has now issued a legal opinion making clear that employers, including the federal government, have the authority to require employees — especially those who interact with the public on a regular basis — to be vaccinated during a public health emergency like COVID-19.”

NTEU, he said, is also encouraging agencies to provide employees with administrative time – as authorized by the Safer Federal Workforce Task Force — to obtain the vaccine and recover from potential side effects, as “a smart incentive to increasing the vaccination rates in the federal workforce.” So, Reardon said, the NTEU “will work to ensure that employees have adequate time to obtain the vaccine or, in some cases, provide the necessary medical or religious information about why they cannot.”

Other laws affecting vaccine mandates

The DOJ also notes that the opinion does not address other laws that might affect the ability to impose such requirements, such as the Americans with Disabilities Act and state laws.

D’Agostino said that although recent Equal Employment Opportunity Commission guidance specifically says that the Americans with Disabilities Act does not prohibit employers from requiring all employees entering the workplace to be vaccinated, agencies still must consider exceptions to these general policies for individuals with disabilities who may need a reasonable accommodation.

“If an employer mandates vaccines, and an employee indicates [she] cannot receive a vaccine due to a disability, the employer generally must consider whether a reasonable accommodation is warranted,” she said.

Although unvaccinated individuals may pose a direct threat of infecting others at work, an agency “cannot exclude an employee from the workplace, or take disciplinary action, unless there is no way to provide a reasonable accommodation that would eliminate or reduce the risk so the unvaccinated person does not pose a direct threat,” she explained.

Agencies may also have to provide exceptions to a general mandate under Title VII, which requires employers to accommodate sincerely held religious beliefs unless the accommodation is an undue hardship, she added. Examples of reasonable accommodations for employees who do not get vaccinated due to disability, religious beliefs, or pregnancy may include wearing a mask, working at a social distance from coworkers, working a modified shift, getting periodic tests for COVID-19, telework, or reassignment, she added.

Confidentiality

D’Agostino also reminded agencies that the Rehabilitation Act requires agencies to maintain confidentiality of medical information, including an employee’s COVID-19 vaccination status and any relevant paperwork reflecting such status. Agencies “may require employees to bring in documentation of vaccination, but this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files.”

Masks

In other news, as agencies finalize plans to bring employees back to the workplace, the CDC has updated its guidance on the use of masks for fully vaccinated individuals.

Due to some rare breakthrough cases of the Delta COVID-19 variant, the CDC is now recommending that vaccinated people in high transmission areas wear masks in public indoor settings.

Substantial spread is considered areas with 50-100 cases per 100,000 individuals over a seven-day period.

Psaki said the White House would review and comply with the updated guidance. The Safer Federal Workforce Task Force has said that “agencies should make mask wearing requirements to enter the facility consistent with CDC guidance.”

July 27, 2021

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Reprinted with permission from: cyberFEDS®. © 2021 LRP Publications, 360 Hiatt Drive, Palm Beach Gardens, FL 33418. All rights reserved. For more information on this or other products published by LRP Publications, please call 1-800-341-7874 or visit our website at: www.shoplrp.com

Categories: Federal Employment Law, Firm News