President Biden speaks about COVID-19 vaccinations after touring a Clayco Corporation construction site for a Microsoft data center in Elk Grove Village, Ill., on Oct. 7, 2021.

President Biden speaks about COVID-19 vaccinations after touring a Clayco Corporation construction site for a Microsoft data center in Elk Grove Village, Ill., on Oct. 7, 2021. Susan Walsh / AP

Biden Administration Delays Vaccine Mandate Penalties Until 2022

OMB and OPM officials said agencies should extend the counseling portion of enforcement of President Biden’s vaccine mandate through the end of the year, citing recent progress in the federal workforce’s vaccination rate.

The Biden administration announced Monday that it would delay until 2022 issuing suspensions and other serious penalties related to noncompliance with its mandate that the federal workforce be vaccinated against COVID-19.

President Biden’s vaccine mandate required federal workers to be fully vaccinated or request a medical or religious exemption by Nov. 22. The White House advised agencies that they should deal with noncompliant employees by providing a week of counseling to encourage them to get vaccinated, followed by suspensions and, eventually, more severe adverse personnel actions, including removal.

But on Monday, Office of Personnel Management Director Kiran Ahuja and Office of Management and Budget Deputy Director for Management Jason Miller said in an email, obtained by Government Executive, that agencies should wait until January to begin suspending noncompliant feds, citing the news last week that about 92% of the 3.5 million federal employees and military service members have been inoculated against COVID-19.

“We have been clear that the goal of the federal employee vaccination requirement is to protect federal workers, not to punish them,” they wrote. “Last week’s deadline was not an endpoint or a cliff. We are continuing to see more and more federal employees getting their shots. Given that tremendous progress, we encourage your agencies to continue with robust education and counseling efforts through this holiday season as the first step in an enforcement process, with no subsequent enforcement actions.”

Ahuja and Miller wrote that in most cases, agencies should at most issue a letter of reprimand for noncompliant federal workers “if warranted” this year. But they acknowledged that there are rare circumstances where agencies should move forward with adverse personnel actions more quickly.

“We understand that your agencies may need to act on enforcement sooner for a limited number of employees, such as where there are additional or compounding performance or workplace safety issues under consideration, but in general, consistency across government in further enforcement of the vaccine requirement after the start of the new calendar year is desired,” they wrote. “We believe this approach is the best one to achieving our goal of getting the federal workforce vaccinated.”

The White House Safer Federal Workforce Task Force updated guidance on its website to reflect the change, encouraging agencies to issue a letter of reprimand prior to more serious sanctions against noncompliant employees, as well as allowing for multiple rounds of suspensions before agencies move to fire them.

"Agencies may consider the length of the education and counseling period or following an initial brief suspension (14 days or less) with a longer second suspension (15 days or more), rather than moving from a first suspension to proposal of removal," the task force wrote. "That said, 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."

The delay came as welcome news to the American Federation of Government Employees, which called on the White House earlier this month to push back enforcement of the vaccine mandate until January to ensure it is aligned with the deadline for federal contractors to be inoculated. That deadline itself was delayed to align with the Occupational Safety and Health Administration’s enforcement of the requirement that employees at private sector companies with at least 100 workers must be vaccinated or submit to weekly testing.

“AFGE previously asked the administration to harmonize the vaccine deadlines for federal workers and contractors,” said AFGE National President Everett Kelley, in a statement Monday. “This announcement, in effect, responds to that request. Once again, President Biden has demonstrated his commitment to hearing from rank-and-file federal employees through their unions and responding to workers’ concerns. While we applaud the new policy that defers suspensions and removals, we continue to encourage all our members who are able to obtain one of the [Food and Drug Administration-approved] anti-COVID vaccines as soon as they possibly can.”

This story has been updated to include additional guidance from the White House Safer Federal Workforce Task Force.