By Ben Banchs

September 10, 2021

Yesterday, President Biden issued an executive order requiring all Federal employees and contractors to be vaccinated against COVID-19. The order requires each Federal Agency to issue guidance to their workforce within the next 7 days. For employees represented by LIUNA Local 1776, that implementation guidance will come from the Department of Defense (DoD).

We have already received numerous inquiries from members asking about the vaccine requirement. Bottom line, most all employees will have to be vaccinated. The only accommodations to be made will be for those with a sincerely held religious belief that prevents them from being vaccinated or for those with a medical condition, and even those exceptions are not absolute. To put it bluntly,  the Federal government can require that employees be vaccinated against COVID or any other disease as a condition of employment. Aside from religious or medical exemptions, an employee who refuses to be vaccinated will be subject to termination.   

Vaccine mandates are not new. The Supreme Court has ruled on these before both in and out of the workplace. When it comes to the workplace, the case law is well established that if/when the government issues a requirement that you as an employee or member of the military be vaccinated as a condition of employment or service, then you have two choices: comply or lose your job. The DOJ, EEOC, and Federal Courts have ruled as such for decades, way before COVID. Again, the only exceptions are religious and medical, and those are very narrowly applied. 

I've provided a few links to websites and/or articles regarding vaccine mandates:

1. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
2. https://www.natlawreview.com/article/doj-memo-food-drug-and-cosmetic-act-does-not-prohibit-entities-requiring-vaccines
3. https://www.natlawreview.com/article/federal-court-upholds-employer-s-covid-19-vaccine-mandate
4. https://www.justice.gov/olc/file/1415446/download

For those wondering whether the Union can stop or delay the mandate, the short answer is no. The only concerns that we will have as a Union will be:

1. Will adverse reactions to the vaccine be covered by Workers Compensation (i.e., OWCP)?
2. Will the vaccines be provided to the employee at no cost and during duty hours?
3. Will employees be provided information/materials about the vaccine they are receiving as required by applicable law?
4. Is personal medical information being safeguarded IAW applicable law?
   
5. Are the vaccines being administered by trained medical personnel?
6. Outside of religious/medical exemptions, what happens to an employee that refuses the vaccine?

Once the above questions are satisfied then management can proceed with implementation of the vaccine mandate. We suspect most if not all of these questions/concerns will be addressed in the implementation guidance due out in the next 7 days. Outside of the questions listed above, we have no legal way to prevent management from requiring employees to be vaccinated as a condition of employment.

Many of our members are dual-status technicians. We have been notified that some states will begin administering vaccines to military personnel during their upcoming unit training assemblies (UTA's or drill weekend). Unfortunately, we have no legal say on how the vaccine mandate is implemented on the military side of the house, and the military can and will move forward with vaccinating folks without any legal obligation to answer the above questions. However, the main difference between receiving a vaccine while you are in a military versus a civilian status is who pays for medical care and loss of income should you experience an adverse reaction to the shot that renders you incapable of work. The best advice we can give you is that if you do receive your vaccine while on military status and experience an adverse reaction make sure you demand that they place you in an Incapacitation (INCAP) Pay status and immediately file a line of duty (LOD) claim. Do not allow them to return you to civilian status until your medical condition has been resolved. What is important to know is that you have a legal entitlement to INCAP Pay; it is your right to remain on orders and be compensated if you are injured while on military duty status, and that injury is not due to your negligence or misconduct. Do not agree to their taking you off of orders. If the reaction happens after drill has ended, immediately notify unit medical personnel and demand to be placed on orders as required by law and regulation and do not delay initiating the LOD process. We recommend you familiarize yourself with INCAP Pay provisions just in case you find yourself in that situation not just for vaccines but also for any injury incurred while in a military duty status:

1. DoDI 1241.01 Reserve Component (RC) LOD Determination for Medical and Dental Treatments and Incapacitation Pay Entitlements
2. DoDI 1241.2 Reserve Component Incapacitation System Management 
3. AFI 36-2910 Line of Duty (LOD), Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay
4. AR 135-381 Incapacitation of Reserve Component Soldiers
5. DA PAM 135-381 Incapacitation of Reserve Component Soldiers Processing Procedures

Just to reiterate:

1. The Federal government as your employer can require that you receive the COVID-19 vaccine.
2. If you refuse the vaccine you will be terminated.