The State of the Civil Service: 2022 Edition

By Deborah Hopkins, January 11, 2022

It’s now 2022, and over the past 12 months there have been significant changes in the Federal civil service – common any time there’s a change in administration, but more so in this past year than any other year I can recall. As I’ve done for the past several Januarys, I’d like to share some highlights and happenings (and, unfortunately, non-happenings) in the world of Federal employment law.

Vaccine Requirement

On September 9, President Biden issued Executive Order 14043, which required all Federal employees to be vaccinated against COVID-19, unless they qualified for a legal exemption. These exemptions only apply when employees have a medical condition or sincerely held religious belief that prohibits them from being vaccinated. Even then, exemptions will only be granted if doing so does not cause an undue hardship on agency operations. The deadline to be “fully vaccinated” was November 22.

In December, the administration issued guidance telling agencies to wait until the new year to take any disciplinary actions involving a loss of pay (suspensions, demotions, or removals) for employees who fail to be vaccinated and don’t qualify for a legal exemption.

Now that it’s 2022, agencies are free to move forward with the steps of progressive discipline as set forth in the guidance.

This EO has gone largely unchallenged, whereas the vaccine requirement for Federal contractors, and those for employees outside the Federal government, have seen numerous Court challenges and injunctions.

Executive Orders

President Biden issued 77 Executive Orders in 2021, many within his first few days in office. Below are just a few that directly impact Federal employees.

• 13985: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
• 13988: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
• 14003: Protecting the Federal Workforce (this EO rescinded President Trump’s three Federal workforce EOs from 2018, plus the EO on Schedule F designation)
• 14035: Diversity, Equity, Inclusion, and Accessibility in the FederalWorkforce
• 14043: Requiring Coronavirus Disease 2019 Vaccination for FederalEmployees

MSPB

Last year, President Biden nominated three individuals to serve as members of the Merit Systems Protection Board.

In October, the nominees were voted out of committee, which means the next and final step is a vote from the Senate, where a simple majority could confirm the nominees.

As of this writing, that vote has not been scheduled and we have no indication when, or if, a vote will occur.

The last time there was a quorum at the MSPB was Jan. 7, 2017. The backlog of Petitions for Review has now reached over 3,600. If and when the nominees get confirmed they will have a LOT on the agenda besides the backlog, including:

• Assessing cases under new performance requirements, as a result of the March 2021 Federal Circuit decision Santos v. NASA
• Challenges to Administrative Judge authority, as a result of Lucia v. SEC
• Interpretations on the newish VA accountability law
  • This includes the burden of proof in misconduct cases, as a result of the August 2021 Federal Circuit decision Rodriguez v. VA
• Untangling the timeline in cases involving several Executive Orders and OPM regulations that were issued first under the Trump administration and then rescinded under the Biden administration

We can only hope these confirmations will occur soon. If so, we should start getting MSPB decisions in time for MSPB Law Week, March 28 – April 1. Register soon and save your seat.

EEOC

The Equal Employment Opportunity Commission has been very busy over the past twelve months, in the Federal sector and beyond. In addition to taking on an integral role in President Biden’s Diversity, Equity, Inclusion and Accessibility (DEIA) agenda, the Commission has also regularly provided updated guidance related to the COVID-19 pandemic and related EEO issues.

More recently, the EEOC cautioned employers against illegal reprisal related to vaccine exemption requests. We’re tackling that in the January 19 webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace.

For more, join us for EEO Counselor training later this month or EEOC Law Week in April. And be sure to check out Dan Gephart’s recent interview with EEOC Chair Charlotte Burrows about what agencies can expect in the world of EEO in 2022.

FLRA

The MSPB isn’t the only agency dealing with a backlog. The Federal Labor Relations Authority has several hundred Unfair Labor Practice cases pending review. In addition, two nominees for Authority members are still awaiting Senate confirmation. Sound familiar? Of course, the significant difference between these confirmations and the MSPB confirmations is that there are currently Authority members in acting positions, so there’s a quorum and decisions can still be issued.

In addition to quickly overturning President Trump’s union-related EOs, the Biden Administration has also taken several steps to increase the visibility of, and employee participation in, Federal unions. OPM issued management directives in October 2021 that instructed Federal agencies to highlight collective bargaining rights for Federal employees.

Plus, there have been numerous precedent-altering decisions over the past year that may be impacted after the anticipated change from a Republican majority to a Democratic majority. On top of that, we’re still waiting for the Senate to confirm the first permanent FLRA General Counsel in more than four years.

Join us for FLRA Law Week May 10-14, where the entire world of Federal Labor relations will be discussed in depth. By then, a lot of these issues should be much clearer.

OPM Regulations

Last week, OPM issued proposed new rules on 5 CFR Parts 315, 432 and 752, as a result of Executive Order 14003. Comments are open for the public until February 3.

OPM also proposed regulations for 5 CFR part 724, the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020, and comments on these regs are due by February 4.

Next week, FELTG’s News Flash will share the takeaways from these proposed regulations.

Closing Thoughts

2022 looks to be quite interesting with a continued pandemic, anticipated returns to the workplace, and expanded telework for hundreds of thousands of employees. As always, we’ll keep you up to date when ever anything noteworthy occurs. Hopkins@FELTG.com