According to the Department of Justice Office of Inspector General survey earlier this year, 63% of the Federal Bureau of Prisons (BOP) staff reported that they had already been vaccinated or were planning to get vaccinated as soon as possible, by the BOP or otherwise. However, nearly 20 percent of respondents said that they were not sure whether they would get vaccinated and another 18 percent said they did not plan to get vaccinated at all.
The BOP is still seeing significant cases of COVID-19 and 92 of its 122 institutions are at a Level 3 (Intense COVID-19 protocols in place as of October 5, 2021). A number of institutions have also cancelled inmate visitation.
BOP Director Michael Carvajal issues mandate … but union pushes back
Inmates, for the most part, spend their time inside prison facilities, so their only exposure comes from contractors who visit the facility and BOP staff. BOP Director Michael Carvajal gave testimony to Congress (Senate and House) in March and April where he came under criticism for the agency having a low vaccination rate (at the time stated to be under 50%) when the BOP had been given priority COVID-19 vaccine doses. However, the then-preliminary approval of the vaccine by the Food and Drug Administration (FDA) prohibited a mandate. Now with FDA approval of multiple vaccines, President Joe Biden has mandated that all federal employees get vaccinated. Director Carvajal put out an internal memo on September 29, 2021 with the directive to the agency on the mandate, its implementation and the penalty for not complying. It has not been well received.
Carvajal’s memo stated, “Meeting this vaccination requirement is vital to keeping our staff, families, co-workers and inmate population safe.” To enforce the mandate, Carvajal listed the the penalty for failure to get vaccinated, “if you [staff] are exempt for a religious or qualifying medical reason, you must be fully vaccinated by November 22, 2021, or you will be subject to disciplinary action, up to and including removal from the federal service.” Unions are already hitting back.
The American Federation of Government Employees (AFGE) is the largest federal employee union proudly representing 700,000 federal and D.C. government workers nationwide and overseas … it includes members of the BOP staff. Eric Speirs, President of AFGE Local 501 in Miami (FDC Miami) submitted a grievance that the mandate is unconstitutional and also argues that inmates, who cannot be mandated to take the vaccine, have more rights than the staff who supervise them. “I’m all for vaccines but this is not a personal issue, it is a Constitutional issue,” Speirs told me in an interview.
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Speirs filed a Request for Reasonable Accommodation (DOJ Form 100A), a form usually used for those with disabilities asking for the government to provide a “reasonable accommodation” to work. Speirs said, “My filing with this form was not without a lot of thought. I’m looking for some reasonable accommodation for our members to do their job and answering a question about whether or not someone is vaccinated is not reasonable.” Speirs’ request asks that the BOP “Protect, Restore and Maintain All Sworn FDC Miami, FL AFGE Local 501 Bargaining Unit Members Law Enforcement Officer US Constitutional Bill of Rights (including, but limited to 1st, 4th, 5th, 6th, 14th amendments etc).”
Speirs said, “our members are sworn law enforcement officer and, as such, have taken the federal 5 USC 3331 Oath of Office. They can’t have it both ways. On one hand the mandate violates employees constitutional rights, but does not violating federal inmates right “Under the Color of Law” 18 USC 242. Honestly, I don’t see two violations of rights solving the problem either.”
This mandate and union position come as the BOP is faced with shortages of staff at a number of institutions where they have had to resort to recruitment and retention bonuses. There is also the looming decision as to whether or not inmates who are on home confinement under the CARES Act will have to return to prison once the pandemic has ended. For now, the pandemic is alive and well inside the BOP.
