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October 4th, 2021 | Issue #13-09
Dewey's FREE MONTHLY "News and Case Alert" keeps you up-to-date with the latest federal sector employment and labor laws, cases and news.
Read the full archive of over 100+ News and Case Alerts online at:

Updated with cases through mid-2021, the Disability Deskbook is an extensive compilation of cases interpreting the Rehabilitation Act, ADA, ADAAA, and other statutes and implementing regulations and covers all disability related topics. Major topics include who is covered under the ADA, specific impairments, major life activities, "regarded as having a disability," "qualified individual with a disability," reasonable accommodation, undue hardship, direct threat defense, and disability related inquiries.
Written for federal supervisors and managers, a Guide to Ethics, Rules, and Responsibilities details and explains the primary rules governing ethics. Major topics include sources of ethics rules; gifts; financial conflicts; impartiality; seeking employment; misuse of position, property, time, vehicles, information; outside activities; reporting wrongdoing; social media postings; post-employment; supervisory liability; and enforcement.

While enhancing public safety, the Administration enhanced job security of (vaccinated) personnel lawyers when on September 9, it issued the “Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees.”

Plainspoken, E.O. 14043 directs that “each agency shall implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.”

By its memo of October 1, 2021, to heads of departments and agencies, OPM calls for employees to be fully vaccinated by November 22, and informs us:

Is there a recommended approach to enforcement?

Agencies must comply with all statutory, regulatory, and collective bargaining agreement requirements (where applicable). If the employee has not provided proof of vaccination by November 8, 2021, and has not received an exception and the agency is not considering an exception request from the employee, OPM recommends agencies initiate the enforcement process with counseling and education. Agencies should use the counseling period to remind the employee again of the vaccination requirement, emphasize that failure to comply will lead to discipline up to and including removal or termination, address any questions, and inform the employee that they will have a short period of time (e.g., 5 days) to submit documentation establishing either the initiation or completion of vaccination, as applicable, or request an exception.

If, after the recommended counseling and education period ends, the individual continues to refuse to comply, the agency should pursue disciplinary measures, up to and including removal or termination from Federal service. In pursuing any disciplinary action, the agency must provide the required procedural rights to an employee and follow normal processes, including any agency policies or collective bargaining agreement requirements concerning disciplinary matters. Employees generally should not be placed on administrative leave while the agency pursues disciplinary 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. Agencies may wish to consult with counsel as to any other mechanisms that might be available to address the situation.

Agencies are reminded that generally the objective of discipline is to correct deficiencies in employee conduct. Discipline can deter misconduct and correct situations interfering with the efficiency of civil service. While the law and OPM adverse action regulations do not require progressive discipline, this is the preferred approach in the instance of non-compliance with the requirement to be vaccinated. With this in mind, agencies are strongly encouraged to consider whether lesser disciplinary penalties are adequate, as an initial matter, to encourage an employee to be vaccinated, such as a short suspension of 14 days or less under procedures established under 5 CFR 752.203 (or procedures for similar matters which arise under other personnel systems). If a short suspension proves inadequate in encouraging an employee to become vaccinated, agencies should then consider a greater disciplinary penalty, such as removal or termination from the Federal service, under procedures established under 5 CFR 752.404, 5 CFR part 315, subpart H (for probationers), or procedures for similar matters which arise under other personnel systems.

Agencies should strive for similar penalties for similarly situated employees, where appropriate, within the same work unit. To facilitate this for larger organizations where actions may be necessary for multiple employees, an agency should consider designating one management official to be a proposing official and designating another management official to be a deciding official for all actions in the work unit.

. . .

Why can an employee be disciplined for refusing to get vaccinated or refusing to provide documentation of vaccination?

If an employee receives a direct order to receive a vaccine as required under EO 14043 and refuses, this is an act of misconduct. Any adverse actions for misconduct taken under 5 CFR Part 752 are taken for such cause as will promote the efficiency of the service. When taking an action under 5 CFR Part 752, agencies should consider relevant aggravating and mitigating factors when determining the penalty. See Douglas v. Veterans Administration, 5 MSPR 280 (1981). Agencies should consult with their human resources and legal offices in making these determinations.

There is precedent for taking an adverse action against a Federal employee for disobeying an order to be vaccinated. In Mazares v. Department of Navy, 302 F.3d 1382 (2002), for instance, two civilian Navy employees challenged their removals for refusing to receive an anthrax vaccination. The court found there was a clear and unjustified refusal to obey a lawful order of a superior.
The OPM Guidance went on to explain how agencies should approach requests for exemption, accommodation, employees on leave, and employees in unusual employment status.

Executive Order 14043 (September 9. 2021)

OPM Guidance (October 1, 2021):

Mazares v. Dept. of Navy, 302 F.3d 1382 (Fed. Cir. 2002):
By: Natania Davis and Founding Author Ernest C. Hadley
Edition: 34th/2021
ISBN: 978-1-941825-86-0; 1-941825-86-9
Newly updated this valuable text provides comprehensive coverage of harassment law based on sex, race and color, religion, disability, national origin, age and reprisal. The history of harassment law is rooted in sexual harassment law and cases. Each chapter begins with that history and then explains what the law is today and how/if it differs for the various bases. (more details)
This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2020. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. Major topics include the nature of arbitration, the collective bargaining agreement, arbitrability, grievances, hearings, management rights, contract interpretation, common substantive arbitration topics, settlement, remedies, counsel fee and damages.

By: Broida & Davis
Edition: 12th/2021
This encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2021 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically. Major topics include adverse and performance actions, arbitration/collective bargaining issues, attorney fees, Board procedure, jurisdiction and judicial review, defenses, discrimination, evidence, harmful error, hearings, mitigation, PPPs, retirement, reemployment, remedies, RIFs, settlements, substantive offenses, timeliness, USERRA and VEOA.
A Dewey bestseller, Compensatory Damages is the seminal text on how to support and defend against claims for compensatory damages and other remedial claims in federal sector employment discrimination cases. Includes case summaries through mid-2020 and a chart of significant awards. Major topics include equitable and compensatory damages, proving damages, mitigation and offset, back pay, collateral source rule, tax consequences, settlement, managing discovery, calculating damages, and attorney.
Using Board and Federal Circuit cases as examples, Charges & Penalties offers the most comprehensive analysis and authoritative advice on adverse actions, charge drafting, and penalty selection. Major topics include the basics of adverse actions and charges; causation; charge classification; specific, generic, and narrative charges; power charging; lesser-included offenses; charge interpretation; notice and due process; the conjunctive charge; indefinite suspensions and security-related charges; merging, selecting and drafting the charge; advice for proposing and deciding officials; the penalty; and charges and proof requirements.
Suggested Reading
Newly updated, this guide provides practice notes and examples of provisions that are grouped by settlement topics. Major settlement provision topics include access to and return of agency property and access to facilities, actions upon and consequences of breach, cancellation or rescission of action, conditions of ongoing employment, construction of agreement, disclosure and maintenance of information, enforcement, financial considerations for the appellant, future employment, introductory clauses, leave status, performance, promotion, substituted employment actions, termination of appeal, waiver of rights, and miscellaneous settlement terms.
A comprehensive examination of the arbitration process and advocacy. With discussion of strategies and practice tips, this how-to guide assists union and management advocates. Major topics include advocate selection, case investigation and evaluation, arbitrator selection, case preparation, prehearing practice, witness selection and preparation, hearing specifics: opening statements, creating a record, witness testimony, direction examination, cross-examination, exhibits, and closing arguments, and post-award practice.
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Hosted By Peter Broida

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The EEO Guide offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners.

The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration.

The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law.

This comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through early 2021 and reviews EEO laws, regulations, guidance, and recent trends.

Condenses MSPB and Federal Circuit decisions from 1999 through early 2021 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically.


Thank You
Readers, Dewey thanks you for your support during the pandemic. Your continuing commitment to our products pays the rent, pays the staff, and keeps this small enterprise afloat. Our authors remain committed to producing quality texts year after year. We welcome your suggestions for improvements, or comments you may wish to pass along to

Legal reference books and audiovisual training on
federal civil service, equal employment, and labor law,
for attorneys, unions, arbitrators, managers,
and agency personnel offices.

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