To all PASS-represented employees:
As you are aware, Executive Order (EO) 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, was issued on September 9, 2021. On September 16, 2021, in an effort to implement the EO, the Safer Federal Workforce Task Force made updates to its COVID-19 Workplace Safety: Agency Model Safety Principles.
In accordance with the EO and guidance, all federal employees are to be fully vaccinated against COVID 19 by November 22, 2021. Because the requirement is to complete the vaccination process by this date, in accordance with the EO, employees should receive their second shot (if Pfizer or Moderna) or first shot (if Johnson & Johnson) no later November 8, 2021. Since receiving official approval for use from the Food and Drug Administration in August, the Pfizer vaccine is being marketed under the name Comirnaty. (More on vaccine dates by brand.)
We are aware that employees have received messages from both the DOT and the FAA in the two weeks since the EO was announced. The FAA unions, including PASS, were not given notification before they were sent and we have expressed our frustration to both agency leadership and labor relations that this occurred. On such an important topic, messaging should be consistent, clear and concise.
A significant number of employees have communicated their concerns to PASS. Some have expressed their desire to not receive the vaccination for a range of personal, legal, religious and medical reasons while others view the mandate as a necessary safety protocol to protect them, their families and their work community. Of certainty, this EO has generated intense passion and opinions. As with any EO issued by any president, negotiating the substance or changing its terms is not legally possible. However, the union will bargain over the implementation and impact of the EO in accordance with the law and our collective bargaining agreements (CBA). PASS is expecting to receive a briefing in the near future and is already developing proposals.
We are living in unprecedented times and mandatory vaccinations for the entire federal workforce is an unprecedented situation. As a union, our goal is to protect and enhance the working conditions of employees and we take this obligation seriously. At its most basic level, this means securing employment and ensuring that the workplace is safe.
Consistent with how we have handled previous EOs from previous administrations, we will defend and enforce the provisions of our collective bargaining agreements (CBA) that may be impacted by the vaccine EO. In this sense, we will ensure that any employee who is detrimentally impacted by this mandate will be provided due process rights and that any penalty will be progressive in nature as provided for in the CBA. We will continue to explore if requiring certain employees to reveal vaccination status violates our CBAs.
PASS will bargain the impact that the EO has on the working conditions of employees in accordance with the law. There will need to be procedural clarity around how employees can request accommodations for religious- and medical/disability-based reasons. We will explore ways to have the agency provide up-to-date medical information on the vaccines to employees who have concerns about safety and efficacy. We will also seek to provide clarity on the how employees can pursue Federal Employee Compensation Act (FECA) for anybody who believes they were harmed by the vaccine.
While we have received a number of messages regarding the constitutionality and legality of this effort, at this time it doesn’t appear that there can be a legal challenge to the mandate. The U.S. Supreme Court, in;Elgin v. Dept. of the Treasury, has made clear that constitutional challenges must be taken up in the administrative procedures, such as grievance procedures, unfair labor practices, and/or Merit Systems Protection Board cases. Court challenges to the anti-federal employee Trump-era executive orders were also dismissed for jurisdictional reasons. An unfair labor practice charge is unlikely to impact the vaccine EO since there is no sitting General Counsel at the Federal Labor Relations Authority (FLRA) and Chapter 71 of the Federal Service Labor-Management Relations Statute provides for management rights, including the right to determine internal security practices. Moreover, the FLRA ruled in 2010 that a proposal allowing employees to refuse to participate in a flu vaccine program was nonnegotiable.
For all of these reasons, PASS is focused on negotiating as much as it can to assist employees. The results of bargaining or the outcome of any disputes over provisions found in our CBAs is unpredictable. However, we will take the typical steps available to federal sector labor unions to negate the impact of the agency’s actions.
To clear up some misconceptions, we want to answer those employees who have asked why the U.S. Postal Service and Congress are exempt from EO 14043. In its unique status as a quasi-governmental agency, it is true that USPS workers are exempt from the EO but they will be required to get vaccines or testing under forthcoming Labor Department requirements for businesses employing over 100 people. Executive orders only apply to the executive branch “that manages operations of the federal government.” They do not apply to the legislative branch, meaning Congress.
Finally, the employees we represent protect the flying public. A deep devotion to safety is ingrained in nearly every workforce that PASS represents, from certifying and maintaining air traffic control equipment to overseeing air carriers, aircraft, maintenance facilities, pilots and air agencies. As a union that takes pride in promoting safety, it is consistent to advocate for a workplace where employees will not be exposed to highly transmissible, airborne disease.
We will continue to fulfill bargaining obligations and protect the rights found in our CBAs while also advancing the cause for a safe and healthy workplace.
Be well and be safe,
Mike Perrone
National President
Dave Spero
National President-Elect
