President Biden and his administration announced on July 29 that, given mounting concerns about the Delta Covid-19 variant, all federal employees would be required to get vaccinated or have regular Covid-19 tests. While a mandate is yet to be implemented, a White House notice sets out what the administration has in mind for federal employees in strengthening safety protocols in the workplace.
While the decision to request vaccinations or to take weekly or perhaps biweekly testing was heavily anticipated, many who are concerned about taking the vaccine or have not yet received one are curious how it will affect them.
Q: Can authorities set different safety protocols for fully vaccinated, unvaccinated, and incompletely vaccinated employees?
A: Yes, agencies can – and some have already started – adopting different protocols for fully vaccinated, unvaccinated, or less than fully vaccinated individuals.
We have seen this with various teleworking policies to ensure the safety of those unable to receive vaccinations or by allowing those who have provided proof of vaccination to wear one in areas where other employees are present Forego mask.
This approach is in line with the White House announcement that “anyone who is not fully vaccinated, regardless of geographic location, physical distance to all other staff and visitors, must wear a mask at work, weekly or twice a week Screening tests are required and are subject to travel restrictions. “
Q: Can authorities ask about someone’s vaccination status?
A: One of the more controversial issues regarding the vaccine and mandatory testing is how the information is obtained.
An agency may ask certain restricted health questions about the vaccination status of employees, especially if they are asking for accommodation. However, under the Rehabilitation Act, which applies the standards of the Americans with Disabilities Act (ADA) to federal employees, the agency must be careful in collecting and disclosing this information.
Many people confuse the Rehabilitation Act / ADA with the Health Insurance Portability and Accountability Act (HIPAA) when trying to avoid their medical history being shared or disclosed. HIPAA prohibits medical and other related entities from disclosing personal health history only without an individual’s consent. It doesn’t prevent Federal authority from querying the vaccination status of an employee.
Employees are only asked to confirm their vaccination status. An employee can confirm that they received the vaccine, that they did not receive the vaccine, or they can refuse to certify.
The latter two options would then require the employee to undergo regular testing and other security protocols.
Q: How will the authorities react if an employee is medically or religiously exempt from the Covid-19 vaccine?
A: If a worker has a properly documented religious or medical exception from vaccination, they should contact their employer for information on how to continue their work in the future. When applying for an exemption, employees and their agencies should discuss what impact potential exposure to Covid could have on the employee’s work environment and how the agency should take reasonable precautions.
If an agency cannot prove that the placement requested would constitute “undue hardship”, it would have no right to reject an employee’s application. However, agencies are not obliged to provide the employee with the desired accommodation, only one that solves the problem.
Such an alternative has already been considered by the Biden administration by allowing employees who do not wish to confirm their vaccination status to have regular tests and to wear a mask. Those returning to work with a reasonable exception / shelter would likely need to follow normal social distancing practices and continue to wear a mask.
Q: What penalties could federal employees expect for lying about their vaccination status?
A: With the Biden government taking this resolute stance towards vaccinating employees, the consequences for an employee who lies about their vaccination status can be dire. First, by ignoring their agency’s policies, the employee could face disciplinary action based on behavior that is inappropriate for a federal employee, from reprimand to suspension, downgrading, or even termination. You could also be prosecuted as it is a federal crime to provide false information on certification forms.
Aside from the welfare impact of a criminal complaint, a criminal complaint can also have an impact on your future employment opportunities. A criminal charge may compromise some employees’ eligibility to access classified information or disqualify them from employment in national security positions. If convicted, an employee faces a substantial fine and / or imprisonment of up to five years.
While there are still concerns about the vaccines and the issue is sure to be challenged in court, it is important for every employee to be aware of their rights and to stay in touch with their authority so that they can best protect themselves and theirs at the same time Retains rights. their personal rights, including the right to privacy.
This column does not necessarily represent the opinion of the Bureau of National Affairs, Inc. or its owners.
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Stephanie Rapp-Tully is a partner at Tully Rinckey PLLC. She focuses on federal labor and labor law, including cases of violations of Title VII of the Civil Rights Act, the ADA, and the Age Discrimination in Employment Act. She represents employees before federal district and district courts as well as the commission for equal opportunities.