COVID-19, OWCP claims, and vaccine discussion

On September 9, 2021, the Biden administration pushed out Executive Order (EO) 14043, titled, “Requiring Coronavirus Disease 2019 Vaccination for Federal Employees.” The order called upon the ‘Safer Federal Workforce Task Force” https://www.saferfederalworkforce.gov/faq/  to provide additional implementation guidance to federal agencies. As a result, the Task force has systematically released guidance to agencies in the form of FAQs via the Task Force website. 

Legal pundits supporting the Biden Administration’s agenda have gone into overdrive, and are using tactics such as appeals to fear and threatening language to compel feds to comply with the vaccine mandate despite the demonstrated ineffectiveness of the drug. On top of this, the current guidance from the Task Force says (incredibly) that in cases of employee refusal to be vaccinated agencies “should pursue disciplinary measures, up to and including removal from Federal service”.

The AMA is against forcing any medical procedures, including vaccinations, on federal employees. Vaccination should be a choice, and the mandate to ‘vaccinate or get fired’ is unconstitutional and un-American. A wealth of available scientific studies and information clearly demonstrates the ineffectiveness of the mRNA vaccines against the COVID Delta variant, and the Delta variant currently accounts for over 95% of reported COVID cases. Science says there is a problem with the vaccine, but politics and power (and the over 32 billion dollars drug companies have received) is driving these reckless policies. To be clear, the AMA is not ‘anti-vax’ and most AMA board members are vaccinated – but we are fiercely pro-choice, pro freedom and pro FAM.

A recent excerpt from a popular management training group Q&A, which services agency counsel, makes very clear which direction agencies are likely to go - specifically directing agencies to go after employees who make false vaccine statements, as well as requiring employees to provide their vaccination documentation:

• Q: Are there penalties for providing false information on the vaccination attestation form?
• A: Federal employees who make a false statement on the Certification of Vaccination form could be subject to an adverse personnel action, up to and including removal from their position. It is also a Federal crime (18 U.S.C. § 1001) for anyone to provide false information on the form. Falsification could also affect continuing eligibility for access to classified information or for employment in a national security position under applicable adjudicative guidelines.
• Q: Must agencies require documentation from employees to prove vaccination status?
• A: Yes, agencies must require documentation from employees to prove vaccination, even if an employee has previously attested to their vaccination status. Employees may provide a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card, a copy of medical records documenting the vaccination, a copy of immunization records from a public health or state immunization information system, or a copy of any other official documentation containing required data points. The data that must be on any official documentation are the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). Employees must certify under penalty of perjury that the documentation they are submitting is true and correct. Employees may provide a digital copy of such records, including, for example, a digital photograph, scanned image, or PDF of such a record that clearly and legibly displays the information outlined above. In requesting this information, agencies should comply with any applicable Federal laws, including requirements under the Privacy Act and Rehabilitation Act of 1973.

And another training gem: instructing agencies to NOT waive the vaccine requirement despite an authentic accommodation, outlining that the agency can insert its SUBJECTIVE OPINION into the authenticity of a religious accommodation request, and the agency can SKIP PROGRESIVE DISCIPLINE and jump right to REMOVAL for feds not in compliance with vaccine mandates despite the Task Force outlining a multi-step progressive process:

Three Questions About the Vaccine Requirement for Feds

Executive Order 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, is currently the basis of a lot of conversations in the Federal employment law world, and beyond. I know it’s a potentially divisive topic, and most people have strong feelings about it. However, we must focus not on feelings, but rather on the legal issues related to the EO.

Below are three recent questions – and our best attempt at answers based on what we know so far. Please keep in mind the guidance has been changing every few days, so we’ll keep you posted if anything new comes up.

• 1. What are the “exceptions as required by law” referenced in the Executive Order?

There are two primary areas where legal exceptions might be granted: as reasonable accommodation for disability, and as reasonable accommodation for religion. It’s important to understand the differences between disability accommodation and religious accommodation, as the processes and requirements are entirely different. And just because someone has a valid medical reason to not get the vaccine or has a sincere religious belief or practice that prevents them from receiving the vaccine, this DOES NOT mean the agency must waive the vaccine requirement. It merely means the employee is entitled to the RA process to determine whether a reasonable accommodation is available without causing an undue hardship. (Be prepared to address whether allowing an unvaccinated worker to report for duty could cause a direct threat by putting the employee, or co-workers or members of the public, in harm’s way, which is likely an undue hardship.)

Notably, teleworkers and remote workers are NOT exempted from the vaccine mandate. According to updated guidance from the Safer Federal Workforce Task Force (issued last week), “Employees who are on maximum telework or working remotely are not excused from this requirement, including because employees working offsite may interact with the public as part of their duties and agencies may need to recall employees who are on maximum telework or working remotely.” Also, note that political beliefs or personal feelings do not provide a valid reason for legal exemption.

• 2. Must an employee’s religion explicitly forbid the COVID-19 vaccine for an employee to receive a religious exemption?

We believe this is going to be an emerging area where agencies will suddenly be inundated with requests.  Previously, religious accommodation requests have not been very common or complicated. In fact, in most agencies there’s not a designated team to assist in religious accommodation requests. We suggest that your agencies train a point person or team to be ready to handle these requests, as such exemptions must be requested by November 22. And because religious accommodation is different than disability accommodation, don’t assume your existing RA team has experience with religious accommodation requests.

No doubt you’ve seen media reports of pastors offering religious exemption certificates in exchange for donations to the church, and discussions about whether mainstream religions really forbid the COVID vaccine. For example, Pope Francis publicly stated that the Catholic Church does not forbid the COVID-19 vaccine. He called getting vaccinated “an act of love.” So, here's an example of what you might see: a request for exemption from an employee who claims their Catholic religion forbids them from receiving the vaccine. Is that a sincere belief even though it’s contrary to mainstream Catholic Church’s stance? No doubt we will have EEOC cases in the coming years focused on this topic, but here are a few things we already know:

• Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief.” The definition of religion is broad and includes not only traditional, organized religions, but also religious beliefs that are new or uncommon, or that seem illogical or unreasonable to others.
• A religion does not have to be an organized, formal religion, and may include moral and ethical beliefs as to what is right and wrong that are sincerely held with the strength of a traditional religious view. 29 CFR §1605.1.
• Social, political, or economic philosophies, as well as mere personal preferences, are not ‘religious’ beliefs protected by Title VII. EEOC Compliance Manual, Section 12-I, A-2.
• Agencies should ordinarily assume that the employee’s religious beliefs are sincerely held unless there is “an objective basis for questioning either the religious nature or the sincerity of particular belief.” 29 CFR 1605; EEOC Compliance Manual 12-I. 
• Factors that may indicate a belief is not sincere include:
• Whether employee has behaved in a manner markedly inconsistent with the professed belief
• Whether accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons
• Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons)
• And whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons

(EEOC Compliance Manual, Section 12-I, A-2.)

As you can see, this area is ripe for potential exploration, perhaps specifically on the sincerity of beliefs.

• 3. If employees refuse the vaccine and don’t qualify for a legal exemption, must agencies use progressive discipline?

I can’t count the number of times in recent days I have seen reports that agencies will or should employ progressive discipline for employees who refuse to get the vaccine. Is progressive discipline (reprimand, suspension, removal) a tool agencies may use in these cases? Yes. Is it mandatory? Unless there’s an agency policy that says so, no. The Task Force guidance says that in cases of employee refusal to be vaccinated agencies “should pursue disciplinary measures, up to and including removal from Federal service.”

As we’ve discussed previously, employees who refuse a mandate to get vaccinated may be removed, even for a first offense. See Mazares, Jr. v. Navy, 302 F.3d 1382 (Fed. Cir. 2002). But some agencies may take the approach that a reprimand and/or suspension should come first, as an attempt to give the employee a chance to correct his misconduct before a removal is proposed.

Be mindful of the charge your agency uses when disciplining an employee for not being vaccinated. Will the agency go with a charge such as “failure to follow instructions” or “refusal to be vaccinated against COVID-19,” or will it choose to look at these cases as “failure to maintain a condition of employment”?

Finally, legal pundits are also offering training and guidance to federal managers recommending that adverse actions happen swiftly and immediately. For instance, in the most recent guidance issued by the ‘Safer Federal Workforce Task Force’, the following statement about Federal employees who refuse the vaccine (and don’t have an agency recognized valid legal exemption) should be noted:

• "If the individual continues to refuse to be vaccinated or provide proof of vaccination, the agency should pursue disciplinary measures, up to and including removal from Federal service. Employees should not be placed on administrative leave while pursuing an adverse action for refusal to be vaccinated, but will be required to follow safety protocols for employees who are not fully vaccinated when reporting to agency worksites.”

The Task Force does say agencies should retain employees during the process of obtaining the accommodation and subsequent appeals - yet advisers to agency Chief Counsels are advocating that employees who receive a notice of proposed removal should be placed on administrative leave (or some version thereof) as a matter of routine. According to agency attorney advisors, taking the employee immediately out of the workplace is necessary so that the agency doesn’t have to guess who might ‘get violent, or steal things, or plant a virus, or trip and fall and file a workers’ compensation claim, or spend all day complaining to coworkers about the removal’.

Federal agency legal training further explains that in 2016, Congress passed a law creating a brand new category of leave, called Notice Leave, specifically for the notice period which allows agencies to remove the worker immediately from the workplace when they are given ‘notice’ – in TSA’s case either an options letter, disciplinary action, or notice of either medical or administrative non-compliance.

Lastly, agency manager refresher guidance is going out for Reasonable Accommodations and Discipline:

• Reasonable Accommodation

Your agency probably hadn’t received requests for disability accommodation related to a global pandemic before 2020. Now, when you receive a COVID-related RA request, you should give the request the same individualized analysis as any other RA case.

1 - Does the employee have a disability?

2 - Is the employee a qualified individual with a disability?

3 - Did the employee request accommodation?

4 - Did the agency engage in the interactive process to determine potential accommodations?

5 - If an accommodation is denied, is it because the accommodation would not be effective, or would be an undue hardship?

In sum, the facts are new, but the process is not – agencies already have the tools to deny vaccine related accommodations.

• Employee Misconduct

Agencies have been disciplining employees for misconduct under the civil service systems for more than 100 years. The facts related to the misconduct might change, but the framework does not. Whether an employee steals something, refuses to wear a mask in a Federal building where there is a mask mandate, or refuses to provide proof of vaccination, the misconduct case should be handled according to law and regulation.

For example, agencies will examine:

1 - Is there a rule?

2 - Does the employee know the rule exists?

3 - Does the agency have evidence the employee broke the rule?

4 - Can the agency justify the penalty?

5 - Did the agency provide due process?

In sum, the facts are new, but the process is not – agencies already have the tools to discipline employees for vaccine non-compliance.

The most recent guidance from the ‘Safer Federal Workforce Task Force” further addresses discipline in the Q&A section, outlining the steps agencies should take if a federal employee refuses to be vaccinated or provide proof of vaccination. Notably, the recommendation from the task force is progressive discipline, not the jump to removal as many legal advisers to agency counsel are advocating.

Task Force language:

“Employees covered by Executive Order 14043 who fail to comply with a requirement to be fully vaccinated or provide proof of vaccination and have neither received an exception nor have an exception request under consideration, are in violation of a lawful order. Employees who violate lawful orders are subject to discipline, up to and including termination or removal,” the guidance explains.

The guidance instructs agencies to “initiate an enforcement process to work with employees to encourage their compliance” through:

-          Beginning with a brief period of education and counseling (5 days), including providing employees with information regarding the benefits of vaccination and ways to obtain the vaccine.

-          Following with a short suspension (14 days or less).

-          Continuing with removal if an employee refuses to comply following suspension.

Agencies may begin initiating enforcement proceedings as soon as November 9, 2021, for employees who are not vaccinated or refuse to provide vaccination documentation and have not received or are under consideration for an exemption.

The guidance clarifies, “Unique operational needs of agencies and the circumstances affecting a particular employee may warrant departure from these guidelines, if necessary, but consistency across government in enforcement of this government-wide vaccine policy is desired, and the Executive Order does not permit exceptions from the vaccination requirement except as required by law.” In other words, agencies shall not depart from the EO requirements by granting accommodations.

Unfortunately, we continue to see increased vaccine requirements despite their demonstrated ineffectiveness. A recent Clark Hill article advises of future contract requirements via FAR: https://www.clarkhill.com/news-events/news/far-council-releases-guidance-to-agencies-on-issuance-of-agency-deviation-to-implement-executive-order-14042/

As you know, the AMA spends the bulk of membership dues on attorneys who work hard to defend you during adverse actions, litigate lawsuits on your behalf, and advise and counsel members both individually and as a group. The firm has been answering individual FAM questions since the start of the pandemic, and requests for counsel have increased exponentially since the vaccine mandate. The COVID ordeal has demonstrated how critical it is to have a large attorney group with deep experience and multiple practice experts advocating for FAMs. Few large firms have the depth of employment law experience that Clark Hill has, and our attorneys routinely train agency managers (so they know exactly how agencies think). As members, we will not fill your head with nonsense or false hope; worse, we will not incite you to make hasty moves that will endanger your federal career.

With the vaccine EO, you need to be very careful about the forms you fill out and what you say. Accommodation request forms can open you up to actions by FAM Medical, your SFAM, or lead to security clearance revocations. Don’t jump the gun, and only use the AMA accommodation request forms! We have received calls from nonmembers who received bad advice about fighting the agency through the EEOC process if accommodations are denied, or taking action to ‘force’ the agency to do something; this kind of nonsense will only get you fired and the AMA will not assist these individuals who already followed fools down a rabbit hole. There is little you can do to escape the mandate outside of an accommodation or a disability retirement, and a futile fight will cost you years of unnecessary aggravation and hardship. 

That doesn’t mean the AMA hasn’t been exploring challenges to this vaccine overreach. Our attorneys are currently looking into the limitations on the authority of Presidential EOs, their ability to supersede agency policy, and if an employee removal from the implementation of an EO grants the removed employee any right of action. We are also looking into the authority of the ‘Task Force’, if the agency is merely following Task Force guidance or developing policy, or if the guidance from the Task Force denies employees agency due process. These questions are complex, require much nuanced research, and we are glad we have a strong attorney team looking into it. Rest assured, if there is a way to sue, or get an immediate injunction, we will be quick to file.

The easiest way to avoid TSA adverse actions is to get vaccinated, and (for most FAMs) the choice between losing your job and getting a COVID vaccine is clear. As an option for those who cannot get vaccinated, we encourage you to explore the option of OPM disability retirement. Information on OPM Disability Retirement can be found at https://www.airmarshal.org/disability-retirement/ . In most cases, this is the best option for those that cannot get vaccinated and who have a qualified medical condition.

Finally, we have developed a flow chart to assist you in discovering what your options are and the likely outcomes to your choices regarding the vaccine mandate.

If you have a request for direct counsel, please send your request to admin@airmarshal.org so that we can schedule your attorney consultation.

10/7/2021

The Federal Government is continuing its rollout and issuance of guidance regarding mandatory COVID-19 vaccination for all federal employees, including all members of the Transportation Security Administration.  On September 24, 2021, the Biden administration issued its latest vaccine guidance that covered federal contractors and subcontractors.  Pursuant to that guidance, covered contractor employees must be fully vaccinated no later than December 8, 2021.

Also on September 24, 2021, Administrator David Pekoske issued a workforce communication regarding the FAM Service compliance with the Biden vaccination mandates.  In that communication, Administrator Pekoske indicated that members of the FAM Service must be fully vaccinated on or before November 22, 2021.  This includes all employees having received both doses of the Moderna or Pfizer vaccines, or the single dose Johnson & Johnson vaccine by November 8, 2021.  The Administrator’s memorandum acknowledged that in certain circumstances members of the FAMS may request a reasonable accommodation relating to the vaccine mandate due to a physical disability as defined by the Americans with Disabilities Act and/or requesting an accommodation based on a “sincerely held religious belief.”  Accommodations and vaccine exemptions based upon a disability are set forth in the regulations implementing the Americans with Disabilities Act.  Typical physical conditions allowing certain exemptions from mandates are cancer, multiple sclerosis, muscular dystrophy and schizophrenia.  The majority of active employees of the FAM Service are not eligible for physical disability exemptions based upon the conditions of their employment.

With respect to the religious exemption from vaccination, the steps which the TSA must adhere to are uniform and entail the following:

1.  The employer must determine whether requests for religious exemption from COVID 19 vaccination is in compliance with existing policies regarding religious exemptions for other issues.

2.  The employee who requests exemption from vaccination must have that application reviewed by the employer to determine if it should consider the accommodation.  A request for exemption simply due to personal preference not to receive the vaccination is not protected by law, and the employer can reject such applications unless they implicate sincere religious beliefs or physical disabilities.

3.  The employee need not use particular verbiage when requesting an accommodation.  Managers and supervisors should understand how to recognize a request for accommodation and who to relay the information to within the agency.  The Air Marshal Association has prepared the attached template for Request For Religious Exemption from COVID-19 vaccination form for members of the Air Marshal Association for your use.

4.  After receiving a request for exemption, the employer must engage in a process in which the employee, his or her health care provider or religious leader, and the employer share information about the nature of the disability or religious belief and the limitations on receiving an employer-required vaccination.  This requires a good faith effort by the employer and the employee to discuss the particular request.  The review process entails review of any accommodation requests, written statements provided by the employee or medical personnel/ religious advisors, and other information submitted.

5.  For religious accommodations, the employee should be prepared to provide an explanation of his or her sincerely held religious beliefs and, if necessary, corroborating documentation from his or her religious leaders regarding the religious belief that conflicts with the mandate.

6.  The law requires employers to accommodate only religious beliefs that are “sincerely held.”   Because the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincere belief.  If, however, the employer determines that the employer has an objective basis for questioning the religious nature or the sincerity of the particular belief, the employer may be justified in seeking additional supporting information.

7.  Even if the employer determines that the religious exemption request is sincere, the ADA still allows employers to deny such requests if it imposes a direct threat to the health and safety of others.  Decisions based on undue hardship to the agency are scrutinized and may result in additional claims or administrative action.  The EEOC has issued guidance which states that “if an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean that the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state and local authorities.”  There is no clear guidance or instruction from the government to date as to whether a religious exemption from COVID-19 vaccination would be justification for removal from the federal service or termination of employment.

8.  Upon a full review of the petition for exemption, the agency must notify the employee in writing that the accommodation has been approved for denied.

All members of the FAMS should undertake deliberate consideration before seeking a religious exemption from the COVID-19 vaccination.  Religious exemptions, as a general matter, have a long history in this country that values religious freedom.  A test is, plainly, only the sincerity of the religious belief.  Even if the religious claim makes little sense or is not the actual teaching of a recognized religious group or denomination, what matters is the individual’s sincerely held belief.

To determine the validity of a religious exemption petition, the EEOC has identified four factors for an employer to consider when evaluating the sincerity of an employee’s religious exemption claim:

1.  Whether the employee has acted in a way that is inconsistent with the claimed beliefs;

2.  Whether the employee is seeking a benefit or an exception that is likely to be sought for non-religious reasons;

3.  Whether the timing of the request is questionable; and

4.  Whether the employer has other reasons to believe that the employee is seeking the benefit for secular reasons.

It is difficult to identify dishonesty among those who may fabricate religion to avoid vaccination.  However, most major religious denominations in the United States do not oppose the vaccine.  That alone does not preclude an individual’s personal, subjective faith-based belief against taking the vaccine.

NMW:djs

09/30/2021

The agency has put out guidance for any FAM that has an existing medical condition and may be at risk with regards to COVID-19 exposure. The agency has been very accommodating, as has taken a 'no questions asked' position about granting leave at this time. 

Contact your AMA Delegate or AMA admin if you are unsure about disclosing medical information to the agency.  

FAMs who test positive for the Coronavirus COVID-19 can rest easy: the AMA has a roadmap for claims!

Our OWCP Specialist will navigate you through the unique and complex process of benefits application and approval for an infectious disease claim.

First and foremost, follow the CDC guidelines for prevention.

Call your doctor if you are exhibiting flu like symptoms and have traveled to an area with an outbreak. Your doctor will likely work with the CDC to arrange COVID-19 testing. If you should test positive, contact us immediately and we will walk you through filing your OWCP claim and if you need it, help you with your medical narrative.

We have a prepared a template to help your doctor complete the medical narrative you will require.

Only the AMA has the knowledge and experience to foresee and address the unique and complex qualities of an infectious disease claim as it relates to our profession. Remember, a wrong step at any point in the process will jeopardize your claim.

Any member needing OWCP assistance should contact admin@airmarshal.org. 

We will keep you updated as new information arises.

Fly safe