Federal Employees and COVID-19 Vaccination Attestations: Immediate Takeaways
Legal Sidebari
Federal Employees and COVID-19
Vaccination Attestations: Immediate
Takeaways
Updated August 13, 2021
Executive Order 13991 established the Safer Federal Workforce Task Force (Task Force) to provide
ongoing guidance to heads of executive agencies on government operation and employee safety during
the Coronavirus Disease 2019 (COVID-19) pandemic. On July 29, 2021, the Task Force issued revised
“model safety principles” to executive agencies and departments. Among other safety principles, this
guidance instructs federal agencies to determine the vaccination status of federal employees and onsite
contractors, and requires employees and onsite contractors to “sign an attestation confirming their
vaccination status.” Those who decline to provide an attestation must wear a mask and be subject to
testing and other safety measures. This effort to promote COVID-19 vaccination, similar to some state
and municipal employers’ requirements, follows newly reported increases in COVID-19 cases and related
hospitalizations attributable to the spread of the contagious Delta variant of COVID-19.
While some news reports have colloquially described the Task Force’s guidance as a “vaccine mandate,”
receiving a COVID-19 vaccine is not required under the policy. Unlike vaccination mandates that require
employees to either receive COVID-19 vaccination or obtain an exemption as a condition of
employment—such as the vaccination requirement recently imposed by the Veterans Health
Administration on its medical employees—the Task Force provides employees and onsite contractors
with the option to either attest to full vaccination status or adhere to specified safety measures.
This Sidebar begins by providing background on the Task Force and the vaccination attestation policy. It
then describes the primary authorities federal agencies may employ to implement the policy and relevant
constitutional considerations. Next, the Sidebar discusses key requirements under federal
antidiscrimination laws that may inform the implementation of the guidance. Finally, the Sidebar briefly
considers whether COVID-19 vaccines’ current emergency use authorization (EUA) status affects the
federal government’s ability to impose requirements related to vaccination.
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Background
Upon taking office on January 20, 2021, President Joe Biden issued Executive Order 13991, which
requires federal employees, onsite federal contractors, and other individuals in federal buildings and on
federal lands to adhere to the Centers for Disease Control and Prevention’s (CDC) safety guidelines. The
Order cites as its legal basis the President’s authority under the Constitution and the “laws of the United
States”—specifically 5 U.S.C. § 7902(c), which authorizes the President to “undertake such other
measures as he considers proper to prevent injuries and accidents to employees of the agencies.”
The Executive Order also created the Task Force, composed of several agency heads, to provide ongoing
guidance regarding government operations and employee safety during the COVID-19 pandemic. Days
after the Order was issued, the Task Force and the Office of Management and Budget (OMB) provided
agencies with the initial set of model safety principles to help them tailor COVID-19 workplace safety
plans to be consistent with CDC guidelines. At the time, COVID-19 vaccines were not yet widely
available, and applicable CDC guidelines recommended mask wearing, maintenance of social distance,
and other public health measures to prevent the spread of COVID-19. In May 2021, after the CDC revised
its guidelines to provide that vaccinated individuals do not need to wear masks outside and in most indoor
settings, OMB supplemented the model safety principles to provide that fully vaccinated federal
employees, onsite contractors, and visitors were no longer required to wear masks in federal buildings.
On July 27, 2021, the CDC updated its masking guidelines in light of new evidence on the
transmissibility of the Delta variant of COVID-19, recommending that fully vaccinated people wear a
mask in public indoor settings in areas of substantial or high transmission. On July 29, 2021, the Task
Force issued revised model safety principles to reflect the updated CDC guidelines and set forth the
vaccination attestation policy. Under the policy, federal employees and onsite contractors may decline to
provide their vaccination status, but they will be treated as not fully vaccinated for purposes of safety
protocols. Under the safety protocols, unvaccinated individuals and those who decline to provide
vaccination status must wear a mask, physically distance, and be subject to a weekly or twice-weekly
screening test requirement and to restrictions on official travel. The guidance directs agencies to establish
a program to test, on a weekly or bi-weekly basis, employees and onsite contractors who are not fully
vaccinated or decline to provide their vaccination status.
Authority for the Vaccination Attestation Policy and Potential
Implementation Questions
The Task Force’s authority to issue its new guidance, like earlier policies, appears to flow from Executive
Order 13991. Neither the new guidance nor any prior iteration specifies a mechanism to ensure
compliance with the directives. Instead, agencies appear expected to implement the new guidance through
existing legal authorities. The most pertinent authority appears to be 5 U.S.C. § 7902(d), which directs
agency heads to “develop and support organized safety promotion to . . . encourage safe practices, and
eliminate work hazards and health risks.”
The Task Force’s new guidance does not specify how agencies should handle employees who decline
attestation and refuse to comply with mask and testing protocols. Agencies may take different approaches
to dealing with noncompliance, but it seems that disciplinary action may be possible. An employee’s
refusal to comply with an agency’s workplace health and safety protocols may potentially be treated as
misconduct that could result in an adverse employment action. If an agency were to take action against a
noncompliant employee, such as removal, suspension for more than 14 days, or a reduction in grade or
pay, the action might be appealed to the Merit Systems Protection Board. An employee who appeals a
personnel action to the Board is entitled to a hearing and representation. In general, final Board decisions
may be subject to judicial review.
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An adverse action taken for allegedly discriminatory reasons, as well as for failure to adhere to an
agency’s health and safety protocols, may be reviewed by the Board and the Equal Employment
Opportunity Commission (EEOC). In so-called “mixed cases” appealed to the Board, the Board will
decide both the discrimination issue and any appealable action. Alternatively, an employee may raise
discrimination claims in a mixed case complaint filed with the employee’s agency. An agency’s final
decision may then be appealed to the Board. Employees who have received a final Board decision on a
mixed case appeal or mixed case complaint may petition the EEOC for review of that decision. If the
EEOC concurs with the Board, the Board’s decision becomes judicially reviewable. If the EEOC
disagrees with the Board, the matter will be referred back to the Board for further consideration. A Board
decision that affirms or reverses its initial decision may be subject to judicial review.
Constitutional Constraints on the Vaccination Attestation Policy
The vaccination attestation policy, as a federal government action, is subject to constitutional constraints.
While the constitutionality of a federal government-wide employer vaccination policy does not appear to
have been previously litigated, relevant case law suggests the level of scrutiny that courts would apply to
the policy may depend on the nature of the rights asserted. In general, courts have not applied heightened
constitutional scrutiny in reviewing challenges based on an asserted liberty interest and corresponding
right to be free from compulsory vaccination. Even where a challenge to a vaccination policy involves a
fundamental right under the Constitution, such as a claim under the First Amendment’s Free Exercise
Clause, courts have generally evaluated such requirements under rational-basis review if they are neutral
and generally applicable. Under rational-basis review, courts generally uphold the relevant government
action so long as it is reasonably related to a legitimate government interest.
In Klaassen v. Trustees of Indiana University, for instance, several students challenged a state university’s
policy that requires students to either receive a COVID-19 vaccination or qualify for a medical or
religious exemption as a condition of in-person attendance for the fall 2021 semester. Under the policy,
those who obtain an exemption are subject to extra requirements of masking, testing, and social
distancing. The district court concluded—at the preliminary injunction stage—that the university’s policy
withstands rational-basis review.
The U.S. Court of Appeals for the Seventh Circuit (Seventh Circuit), in an August 2, 2021, order denying
the plaintiffs-students’ procedural motion to enjoin the university’s policy while they appeal the district
court’s order, signaled that it agrees. In an opinion by Judge Frank H. Easterbrook on behalf of a three-
judge panel, the circuit court concluded that under Jacobson v. Massachusetts, in which the Supreme
Court in 1905 upheld a state law that authorized the local board of health to require all inhabitants of a
city or town to be vaccinated against smallpox, individuals lack a fundamental right under the Due
Process Clause to be free from compulsory vaccination. Instead, the Seventh Circuit observed,
“vaccination requirements, like other public-health measures, have been common in this nation,” and thus
warrant no stricter scrutiny than rational-basis review.
Under rational-basis review and Jacobson, the university’s policy, in the Seventh Circuit’s view, presents
no constitutional problems because it is less compulsory than the requirements at issue in Jacobson in two
ways. First, the university’s policy provides both medical and religious exemptions. Those who obtain an
exemption “just need to wear masks and be tested”—requirements that, in the Seventh Circuit’s view,
“are not constitutionally problematic” on this record. Moreover, unlike the vaccination requirement at
issue in Jacobson that required all adults within a city to be vaccinated and subjected those who refused to
fines or imprisonment, the university’s requirements are imposed as a condition of enrollment. Each
university, the Seventh Circuit observed, “may decide what is necessary to keep other students safe in a
congregate setting,” and vaccination (or masking and frequent testing of the unvaccinated) are among the
conditions that are “normal and proper,” particularly because they “help all students remain safe when
learning.” Students who do not want to be vaccinated, the Seventh Circuit observed, may attend a
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university elsewhere. On August 12, 2021, the Supreme Court denied, without written opinion, the
plaintiffs-students’ request to block the university’s policy.
The Seventh Circuit’s last observation echoes that of the district court, which more specifically responded
to the plaintiffs-students’ argument that the university’s policy is “coercive.” The district court observed
that the university’s policy—which allows only those who qualify for an exemption to be excepted from
the vaccination requirement—nevertheless presents students with “real options,” including getting the
vaccine, applying for an exemption (and being subject to extra safety measures if obtained), transferring
to a different school, or foregoing school for the semester or altogether. While these options may present
“a difficult choice,” that choice “doesn’t amount to coercion.”
On this point, another district court reviewing a private hospital’s similar COVID-19 vaccination
requirement for its employees agreed. Though unnecessary to resolve the state law claims at issue in that
case, the court specifically rejected the plaintiff-employee’s argument that she was coerced by “being
forced to be injected with a vaccine or be fired.” In the court’s view, the choice presented by the
vaccination requirement, which the hospital adopted “to keep staff, patients, and their families safer,” did
not amount to coercion where the plaintiff remained free to choose to accept the vaccine or refuse and
“work somewhere else.” Both of these policies are stricter than the Task Force guidance’s vaccination
attestation policy, which gives any federal employees—not just those who qualify for a medical or
religious exemption—the option to adopt alternative safety measures rather than attesting to full
vaccination status.
In Klaassen, the plaintiffs-students also separately raised before the district court an argument potentially
relevant to the vaccination attestation policy. In particular, they argued that the additional safety measure
involving masking—to which those who obtain an exemption are subject—burdened the exercise of their
religion because “masking essentially labels them with a ‘scarlet letter’ that targets them for religious
bullying.” The district court, on the record before it, rejected this claim. In the court’s view, mask wearing
under these circumstances “doesn’t signify to others that the individual religiously objects to the
vaccination” because students could choose to wear a mask for a variety of other reasons, including
because they qualify for a medical exemption, because they are vaccinated but are concerned about
COVID-19 variants, or because they are vaccinated but have immunosuppressing conditions. Thus, the
court held that the masking requirement did not warrant heightened scrutiny. Under rational-basis review,
the court continued, the additional safety measures are reasonably related to the university’s legitimate
interest in promoting public health in its campus community.
To the extent a court applies similar reasoning to the vaccination attestation policy, which shares the
underlying rationale of the university policy in Klaassen but more broadly gives federal employees the
option to decline to disclose vaccination status, the policy would likely withstand rational-basis review.
However, to the extent that any agency provides a medical exemption to the alternate safety measures of
masking, testing, and social distancing, there may be an open legal question as to whether the agency
must also provide a religious exemption under the First Amendment.
Potential Constraints, Under Federal Antidiscrimination Law, to the
Vaccination Attestation Policy
The Task Force guidance instructs that agencies ensure that employees either attest to vaccination or take
other safety precautions, including masking. Although federal civil rights laws do not bar vaccine or
masking requirements for federal employees and contractors, they may affect the requirements’
application to certain individuals. These protections afforded by civil rights laws may sometimes be more
robust than those required under the Constitution. Accordingly, agencies’ implementation of the Task
Force guidance may be informed by these legal requirements.
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As explained more fully in an earlier Legal Sidebar, employer vaccine, testing, and masking mandates
would likely come under the purview of federal civil rights statutes addressing discrimination in the
workplace. The EEOC, which enforces these federal civil rights protections for federal and private
employment, has issued guidance on COVID-19 and vaccination policies.
Disability protections, for example, restrict employers from making certain medical examinations or
inquiries. In the case of COVID-19 vaccinations, the EEOC has stated that a vaccination itself is not a
medical examination. The EEOC has further concluded that requiring proof of vaccination is not a
disability-related inquiry, although vaccination status must be kept confidential. In the EEOC’s view,
employers may generally require vaccinations and ask for documentation. At least one court has cited the
guidance approvingly. Moreover, in the EEOC’s view, the circumstances of the pandemic mean that
employers may also require COVID-19 testing. Although disability law restricts some employer-
mandated medical tests, the EEOC has declared that it “does not interfere with employers following
recommendations by the CDC or other public health authorities regarding whether, when, and for whom
testing or other screening is appropriate.”
Disability protections may also require exemptions or modifications to workplace vaccination rules. In
particular, the Rehabilitation Act of 1973 (applying Americans with Disabilities Act standards to federal
employers and grant recipients) requires federal employers to provide reasonable accommodations for
employees with disabilities.
Other federal laws protect employees with religious objections to vaccines. Title VII of the Civil Rights
Act of 1964 requires employers to accommodate workers’ religious practices unless they impose an
“undue hardship on the conduct of the employer’s business.” Whether an accommodation is an undue
hardship takes into account other employees’ rights, efficiency, cost, and other considerations.
Requests for accommodations—for either religion or disability—must be evaluated under the worker’s
unique circumstances. An accommodation may take the form of an exemption to COVID-19 response
measures, such as vaccination, if providing this accommodation does not impose an undue hardship on
the employer. Still, an accommodation may impose alternative COVID-19 protections, such as masking,
testing, telework, or social distancing even if these measures are not required of other employees. The
Task Force guidance does identify masking and testing as an alternative for employees who do not want
to attest to their vaccination status. Whether this alternative provides sufficient accommodation, or
whether further accommodation or exemptions must be provided for this alternative in some instances, is
not entirely certain.
Federal workers, including contractors, may enjoy additional protections under the Religious Freedom
Restoration Act (RFRA), which restricts actions that “substantially burden” a person’s exercise of
religion. While the interplay between RFRA and Title VII is uncertain, RFRA may limit some government
employers’ vaccine policies and affect future legislation governing vaccine mandates. (For more on
considerations under RFRA, see this CRS Legal Sidebar.)
Whether the COVID-19 Vaccines’ EUA Status Affects Employers’ Ability
to Issue Requirements Related to COVID-19 Vaccination
The Food and Drug Administration (FDA) has not yet licensed the available COVID-19 vaccines under a
biological license application, the standard regulatory framework under which vaccines are typically
made available to patients. Some commentators and litigants have argued that the Federal Food, Drug,
and Cosmetic Act’s EUA provisions, and in particular Section 564(e)(1)(A)(ii)(III), preclude entities from
requiring the receipt of a medical product subject to an EUA because the provision requires potential EUA
product recipients be informed “of the option to accept or refuse the administration of the product.” As
noted, however, the vaccination attestation policy gives federal employees the option to either attest to
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vaccination status or undertake specified safety measures. Thus, unlike a vaccination mandate that
requires receipt of a vaccine and subjects those who refuse to certain adverse consequences, the
vaccination attestation policy likely does not directly implicate the legal question regarding whether
entities (including the federal government) may require an EUA product under § 564(e)(1)(A)(ii)(III).
Nevertheless, those employees who decline to disclose their vaccination status may argue that the burdens
associated with the alternative safety measures give rise to a functional mandate to receive vaccination.
Accordingly, this section provides a brief analysis of this issue.
Section 564(e)(1)(A)(ii)(III) directs the Health and Human Services Secretary, when issuing an EUA for a
medical product, to impose conditions necessary to protect the public health, including appropriate
conditions designed to inform individuals “of the option to accept or refuse administration of the product,
of the consequences, if any, of refusing administration of the product, and of the alternatives to the
product that are available and of their benefits and risks.” Pursuant to this requirement, the FDA has
required vaccination providers to distribute certain approved fact sheets with the relevant information to
potential vaccine recipients. Because the provision requires individuals to be provided with “the option to
accept or refuse” vaccination, some have argued that vaccination mandates involving an EUA product are
categorically prohibited.
At least one district court, in a suit filed by certain employees challenging a private hospital’s policy
requiring COVID-19 vaccination, has rejected this argument. The court concluded that
§ 564(e)(1)(A)(ii)(III) only “confers certain powers and responsibilities to Secretary of Health and Human
Services in an emergency” and does not expand or restrict responsibilities of employers, which, in this
case, is a private employer.
Consistent with this reasoning, the Department of Justice’s Office of Legal Counsel (OLC) recently
issued an opinion that more broadly concludes that § 564(e)(1)(A)(ii)(III) “concerns only the provision of
information to potential vaccine recipients and does not prohibit public and private entities from imposing
vaccination requirements for vaccines that are subject to EUAs.” According to the OLC, this
interpretation follows from the provision’s plain text—which effectively requires parties administering
the product to provide certain FDA-prescribed information—as well as the surrounding provisions in
§ 564(e)(1)(A)(ii) that require other factual information (such as the known potential benefits and risks of
such emergency use) to be provided to potential vaccine recipients.
While the OLC notes that the relevant legislative history does not appear to explain this provision’s
purpose, it posits, among other possibilities, that Congress may have viewed this requirement as a
variation on the “informed consent” requirement. The face of the provision, the OLC explains, does not
purport to restrict entities from requiring use of an EUA vaccine, nor do such vaccination mandates
typically undermine an individual’s ultimate “option” of refusing the vaccine, given that such mandates
generally are not imposed as direct legal requirements to receive the vaccine. Had Congress intended to
restrict entities or certain categories of entities from requiring the use of an EUA product, in the OLC’s
view, Congress could have directly created such a restriction. The OLC observed that under the relevant
canon of statutory construction, courts typically reject statutory interpretations positing that Congress
chose an “obscure path”—in this case, embedding a restriction prohibiting entities from mandating an
EUA product in a provision that on its face requires only the dissemination of specified information—to
reach a “simple result.”
Assuming that § 564(e)(1)(A)(ii)(III) does not generally restrict entities’ ability to require COVID-19
vaccination, other related statutory provisions may nevertheless place limitations on certain entities’
ability to do so. The OLC notes, for instance, that the Department of Defense (DOD) construes 10 U.S.C.
§ 1107a to mean that DOD may not require service members to take an EUA product subject to
§ 564(e)(1)(A)(ii)(III) unless the President exercises the waiver authority under § 1107a. Under § 1107a,
the President may waive the condition designed to ensure that individuals are informed of an option to
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accept or refuse administration of an EUA product only if the President determines, in writing, that
complying with such requirement is not in the interest of national security.
Considerations for Congress
In general, existing federal laws impose certain limits, but likely do not preclude, employers (including
the federal government) from generally requiring employees to undertake specified safety measures
(including vaccination) to promote the public health of the workplace. As the pandemic evolves, the
relevant legal frameworks generally give employers flexibility to impose relevant measures to address
changed circumstances.
There are, however, uncertainties in the application of existing laws in the pandemic context. For
example, Title VII and the Rehabilitation Act each require individualized assessments of whether an
accommodation must be granted to a particular employee, making it difficult to predict how managers,
agencies, and courts will apply them. In addition, it may be hard for federal employers to make some of
the required decisions and evaluations quickly because the statutes require an interactive process that
allows for back-and-forth communication, input from medical providers, and case-specific analysis.
To the extent Congress determines that a more uniform response would be appropriate, Congress might,
for instance, opt to specify whether or not unvaccinated or unmasked employees, or certain categories of
employees (taking into account their interactions with vulnerable populations) present a “direct threat”
under the Rehabilitation Act, which would preclude disability-accommodation eligibility. Congress could
also consider exempting vaccination policies during the pandemic from Rehabilitation Act, RFRA, and
Title VII coverage. Alternatively, Congress could specify whether certain protective measures, such as
isolation or wearing protective gear, constitute reasonable accommodations.
To the extent Congress determines that the ability of the federal government as an employer, or employers
in general, to impose specified safety measures should be further constrained, it could also consider
legislation with that aim. The Vaccine Passport Prevention Act of 2021 (H.R. 4126), for instance,
would—among other provisions—prohibit the federal government from requiring a federal employee to
receive a COVID-19 vaccine as a condition of employment.
Author Information
April J. Anderson
Jon O. Shimabukuro
Legislative Attorney
Legislative Attorney
Wen W. Shen
Legislative Attorney
Disclaimer
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Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
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