Harassment Investigation Challenge: Who is Telling the Truth?

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By Dan Gephart, September 29, 2020

If you’re a regular reader of Barbara Haga’s articles in our monthly newsletter (and if you’re not, what’s wrong with you?), you may have noticed a common thread weaved within her last two articles.

Sometimes, federal employees lie.

Earlier this month, Barbara told the tale of an FAA civil engineer who was asked point blank if she used her work computer “for unofficial personal reasons while on duty for any reason.” Her reply was a simple “no.” Unfortunately for the engineer, the agency had already compiled an Internet history of the computer in question and found more than 33,968 nonwork-related transactions on sites, such as Amazon, eBay, and Etsy. Further investigation revealed that the employee was actually running her Etsy business from her work computer.

A month earlier, Barbara wrote about an employee who denied sending inappropriate text messages, many of a racist nature, on her phone by replying “I do not admit to the validity of these messages.”

In both of these cases, the agency had one thing going for it – a lot of evidence.

But when you’re doing investigation of hostile work environment harassment, sometimes there isn’t much evidence, so you end up with the classic he said/she said situation. How do you determine credibility, especially when there is so much raw emotion involved? And how do you do it during a pandemic, when the interviews are being done remotely?

Next week, October 6-8, 2020, FELTG will present the virtual training Conducting Effective Harassment Investigations. On the third and final day of the seminar, FELTG instructor Meghan Droste will cover everything from interviews to writing the report, including a module on determining credibility.

First off, the EEOC has recognized that being able to see a witness is crucial to gauging credibility, so be sure that you have a reliable webcast platform like Zoom or Skype. Although you’re no longer in the same room, you should still be able to read demeanor and body language.

Here’s what you do: Start with easy questions. Monitor how the employee moves, including facial expressions. This sets a baseline for how the interviewee will react when telling the truth. Then start to toss in tougher questions. Look for a difference in reactions. Has the employee’s pitch or speech rate changed? What about eye contact? Are they fidgeting at all? Are their answers limiting details or are they adding more? Are they answering your questions with the same amount of certainty?

You can learn a lot from body language. Or, you may learn very little, because body language is a highly-contested area of credibility findings. Therefore, you can’t rely on just body language to make a determination. There are several other ways that truth, or more accurately, lies can be revealed.

Consider the following:

  • Detail. How specific was the witness’s testimony? Did the witness deny the allegations in detail or just generally? Did anyone leave out important or obvious information during the interview?
  • Corroboration/Conflict. Are the conflicts over minor or significant issues? Does the witness’s testimony contradict other testimony? Was the witness’s story consistent through the testimony or did it change on a second telling?
  • Plausibility. Which story make the most sense? Are the details in the testimony realistic?
  • Motive. Does the employee have a motive to lie about, exaggerate, or deny the incident? Do any of the witnesses have special loyalty to or a grudge against anyone involved in the incident?
  • Past record. Have there been any prior incidents between the complaining and accused employee? Does the accused have a history of this type of misconduct?
  • Demeanor. Was anybody’s reaction unusual, as compared to their typical demeanor?

Again, you can’t rely on any one of these factors when determining credibility. But taken as a whole, you should be able to develop some sense of who is telling the truth. Gephart@FELTG.com

Agency Concerned About Telework as Reasonable Accommodation Request: Should It Request More Medical Information?

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By Deborah Hopkins, Ann Boehm, and Bob Woods, September 1, 2020

Here’s a hypothetical reasonable accommodation case to consider:

An employee requests telework due to a medical condition, specifically because of the side effects of the medication being taken for the medical condition. The medical information provided by the health care provider states that the medication being taken causes sleepiness and precludes the employee from driving. Can additional clarification be requested from the employee’s healthcare provider to ensure that the medication being taken by the employee will not affect his ability to perform his essential functions, specifically to handle potentially private information, including personally identifiable information (PII)?

We sure love hypotheticals. Because FELTG is a training company, we can’t give specific legal advice about this scenario. But your authors got together (well, virtually anyway) to discuss some things the agency should probably consider.

The telework request

Sometimes, folks overthink these situations too much. In this time of pandemic, thousands more employees are working from home. It’s still the same work with the same duties and responsibilities, just in a different environment. The employee is responsible for properly safeguarding PII at work, so that’s still a requirement at home. Is the agency allowing other similar employees to work from home? If so, how do THEY safeguard PII? If this employee fails to safeguard PII, the agency should deal with it when it occurs and take appropriate action to hold the employee accountable.

In cases like the hypothetical above, supervisors are often concerned that they can’t keep an eye on the employee to make sure they’re getting their work done and aren’t malingering. There are ways to deal with such concerns. For example, while teleworking, the supervisor can assign projects with specific deadlines or require periodic updates by phone or email. They can also have Zoom or Skype meetings, etc. They just need to think through how they monitor work while in the office and then try to replicate that as well as possible in the virtual environment. If the employee’s production decreases or the employee doesn’t respond in a timely fashion to phone and/or email, then the supervisor just deals with that like they should in the normal workplace (i.e., follow FELTG’s performance cases outline to hold the employee accountable).

The medical request

We know from EEOC cases that assuming or speculating that a certain disability will result in a particular behavior, without any evidence or history of such behavior, can get agencies in trouble. See, e.g., Matilde M. v. SSA, EEOC Appeal No. 0120140147 (Jan.17, 2017); Smith v. Navy, EEOC Appeal No. 01A40794 (June 8, 2006); Lamb v. SSA, EEOC Appeal No. 0120103232 (Mar. 21, 2012).

In our hypothetical, drowsiness as it relates to driving is the reason for the telework reasonable accommodation request. An agency should be very careful not to read into something for which there is no evidence. Drowsiness or sleepiness does not automatically suggest other issues. (In fact, all of your authors have been groggy on the job a time or two.) Grogginess does not automatically mean an employee cannot do the job, and without a direct link to the essential functions – for example, operating machinery or driving – it can be risky to assume one cannot. Lots of medications warn against driving, but that’s a different cognitive need than getting certain types of work done.

Agencies can ask for medical information to substantiate the need for accommodation, and to help understand the functional limitations. If the agency in the hypothetical above accepted the medical information as written (employee needs to telework because they can’t drive due to the effects of medication), granted telework, and the accommodation is working and there are no problems with the employee’s performance or conduct, then why would the agency need additional medical information about the performance of essential functions based on the driving restriction alone?

The bottom line

Telework can be an effective and reasonable accommodation. Whether it’s being permitted as an accommodation or just as a workplace flexibility, supervisors need to determine how they are going to assign and monitor work and how the teleworker will maintain security and PII.

Remember, it’s the same work, just a different location. As for requesting medical information regarding an accommodation, stay focused on the critical elements of the job. Remember, an accommodation is provided to enable the employee to perform the essential elements of the job. If necessary, the employer may request the medical practitioner to answer the following:

  • Nature, severity, and duration of disability;
  • Explanation of impact of disability on and off the job;
  • Extent to which impairment(s) limit ability to perform functions of job;
  • Estimated date of full or partial recovery;
  • Medical professional’s assessment of individual’s ability to successfully perform essential functions of position;
  • Explanation as to how the particular accommodation will assist individual in performing essential functions of position.

We’ll be discussing challenges related to unseen disabilities in more detail on September 8 during the virtual training program Accommodating and Understanding Employees with Hidden Disabilities, and we also have an entire virtual class dedicated to handling employee medical information during Absence, Leave Abuse & Medical Issues Week, September 28-October 2. If reasonable accommodation requests are something you deal with, you will definitely want to join us. Hopkins@FELTG.com

And Now a Word With … Dennis Dean Kirk

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By Dan Gephart, FELTG Training Director, August 11, 2020

I really had hoped and expected that when we conducted an interview with Dennis Dean Kirk, it would be to discuss his new role as Chairman of the Merit Systems Protection Board. As the FELTG Nation knows, President Trump nominated Mr. Kirk more than two years ago for one of the three open spots on the Board. Those three spots remain open because the Senate has not scheduled a vote, and the likelihood of us getting an actual Board anytime soon is, to quote the person who made the nomination: #Sad!

But Mr. Kirk isn’t just sitting around waiting to hear from the Senate. Since being named the Office of Personnel Management’s Associate Director of Employee Services earlier this year, Mr. Kirk has dived deep into his role of developing and administering policy on issues as wide ranging as pay, labor relations, performance management, and more. And now Mr. Kirk and his Employee Services team are focused on implementing President Trump’s executive orders and ensuring that all federal supervisors are appropriately “equipped to address performance and conduct issues.”

As you can imagine, the FELTG team is very interested in Mr. Kirk’s current work. We’ve been providing specific useful guidance on the aforementioned EOs in training since the day after they were signed. And equipping supervisors to address performance and conduct, well that’s kind of our thing. So we’re thrilled to see OPM prioritizing supervisory training and we thought it important that you knew what was going on. So we reached out to OPM and sent our questions to Mr. Kirk. What follows is that Q&A.

DG: Could you tell us briefly about the team you have in place at Employee Services and the priorities you have been working on?

DDK: Our team is a mix of highly qualified and seasoned civil servants and senior political appointees who are experts in their fields. Appointees help lead the department and ensure that our priorities are aligned with the Trump Administration’s policy objectives.

Our top priority is assisting agencies in implementing President Trump’s three workforce Executive Orders on employee removals, collective bargaining, and official time. These Executive Orders have tasked agencies to renegotiate collective bargaining agreements to bring them in line with the provisions of the Executive Orders, understand and record the amount of official time that is being billed to the taxpayers within their agency, and rein in extra-statutory impediments to maintaining accountability within their organizations. As a result of the data collected from these efforts, OPM is creating reports on the use of official time, collecting and publishing collective bargaining agreements, developing model collecting bargaining agreement language with the help of the Labor Relations Group, and creating training materials to help managers understand how and when to take adverse actions.

Over the past four decades, the cost of higher education has risen dramatically. In 1978, the average expense of one academic year at a four-year in-state public college was $8,250 in inflation-adjusted U.S. dollars. Today, one year at the same college would cost $21,370 on average. This trend makes the widespread reliance on educational requirements by employers an ever-steeper hurdle to gainful employment for many Americans. For example, among U.S. workers over the age of 25, 26 percent of blacks – as compared to 40 percent of whites – have at least a bachelor’s degree.

President Trump believes that regardless of whether an individual had the ability to pay for a college education, they should have an opportunity to demonstrate whether they have the capacity to perform the duties of a job. The Office of Personnel Management is also implementing the President’s Executive Order on Modernizing and Reforming the Assessment and Hiring of Federal Job Candidates issued this summer to open up the Federal hiring process to job seekers with a much wider set of experiences. This Executive Order requires that agencies develop and offer competency-based assessments – as distinct from self-assessments – for every job advertised in the competitive service. It also specifies that, unless a certain level of education is required for licensure in a certain field, educational attainment cannot be used to bar someone from taking an assessment.

We are setting up listening sessions between private businesses – both large and small – and Acting Director Michael Rigas and our team at OPM to learn from the innovative ways these companies are identifying talent using assessments rather than relying on college degrees. OPM is also supporting the Federal HR community to help them meet the demands of the Executive Order and reviewing our guidelines and policies to assure that education is not used as a barrier to entry.

DG: OPM shared an employee engagement toolkit with agencies earlier this year. What was the goal of that toolkit?

DDK: In October of 2018, OPM issued government-wide guidance and reporting requirements on two President’s Management Agenda milestones. To support agencies with achieving these milestones, OPM developed the employee engagement toolkit for supervisors.The two milestones were the “Workforce of the 21st Century” Cross-Agency Priority Goal, Subgoal 1:”

  1. All major components/bureaus will identify its bottom 20% on the 2018 Federal Employee Viewpoint Survey (FEVS) Employee Engagement Index (EEI) and target a 20% improvement in those units by the end of 2020.
  2. All agencies will have clear standard operating procedures for disseminating the Federal Employee Viewpoint Survey (FEVS) data to all organizational levels

DG: Have you received any feedback on the toolkit?

DDK: OPM has received positive comments from agencies expressing the value of the toolkit. Several agencies have informed OPM they have taken steps to deploy the toolkit within their agency, and they have offered webinars to highlight the toolkit and how to interpret and use FEVS results to improve employee engagement.

DG: While there has been improvement, a majority of employees still responded negatively to the statement on OPM’s Federal Employee Viewpoint Survey: “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.” Why do you think this is a perennial issue and what can be done to fix it?

DDK: This is why we are making the implementation of the President’s three Executive Orders on accountability and labor relations a top priority. When President Donald Trump issued three executive orders that made it easier to fire poorly performing government employees, the backlash from public-sector unions was fierce. Union leaders did not like it—one called it an “assault on federal employees.” But a poll following the signature of these Executive Orders found that the majority of government workers— 51 percent —support the Administration’s efforts.

Moreover, only 24 percent of Federal employees oppose the recent executive orders, and another quarter are unsure. Some federal employees no doubt take advantage of their insulation from accountability, but most civil servants are hard-working and dedicated — a fact attested to by the 70 percent customer satisfaction rate among those who receive some federal service. The diligent federal workers must pick up the slack for those who do not do their share, only to sometimes be denied opportunities for advancement by the dead weight above them. And, as anyone who has worked in an office environment knows, unmotivated and unruly co-workers can take a heavy toll on morale. So, although a few bad apples may prefer to keep the status quo, it is not surprising most federal employees welcome these provisions of the President’s Executive Orders.

DG: What do you see as the main reason some training is not effective? 

DDK: Over the years and through extensive research, OPM has learned the value of shifting from traditional classroom-based learning to experiential and social learning activities. With experiential and social learning activities, approximately 70 percent of learning takes place on-the-job; 20 percent of learning results from meaningful relationships and coaching; and 10 percent of learning occurs through formal classroom training. OPM’s research also suggests that this approach to employee training is more situated in the context of an employee’s work, providing cost savings opportunities to build and demonstrate the competencies needed for success.

DG: What is the skill you’d most like to see supervisors improve upon over the next year?

DDK: OPM supports Federal agencies to ensure all supervisors develop critical leadership competencies within the first year of appointment and are appropriately trained on performance management, as well as addressing performance and conduct issues.

Additionally, OPM is committed to providing supervisors with best practices, guidance, training, and forums with a focus on employee experience, performance, and continual learning. We also emphasize the importance of succession planning in support of talent management from entry to leadership level.

DG: What is the most critical skill you’d like to see HR improve upon over the next year?

DDK: OPM encourages HR professionals to shift their focus from the traditional functional role to more of a strategic partner within their organization. The Federal Government continually faces unique challenges to meet its mission to effectively serve the American people. HR professionals can support Federal leaders to improve the agility of the workforce, adapt to change, and develop workforce solutions to overcome these challenges.

Editor’s note: FELTG’s flagship course UnCivil Servant: Holding Employees Accountable for Performance and Conduct, is just one of our many training programs that empower federal supervisors to confidently and effectively take legally defensible actions to address poor performance and misconduct, and comply with OPM’s 5 CFR 412.202(b) requirements. We can provide this course specifically for your agency. And we’ll be teaching UnCivil Servant: Holding Employees Accountable for Performance and Conduct virtually as an open enrollment over two half-days on September 9-10. Gephart@FELTG.com

Managing Employees With Narcissistic Personality Traits

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By Shana Palmieri, August 4, 2020

Do you have an employee who refuses to accept feedback, is always right, monopolizes the conversation and feels entitled to special treatment within your agency? Are these traits creating a challenge for leadership to engage this employee to collaborate with the team to achieve the mission, purpose and goals?

Individuals with these traits often create a struggle for supervisors and leadership within organizations, the struggle can be even more severe if the individual within the leadership position embodies narcissistic personality traits.

Let’s first review: What exactly is Narcissistic Personality Disorder and how prevalent is it in our society?

Narcissistic Personality Disorder

Narcissistic Personality Disorder is noted to be the least studied of the psychiatric disorders. Patients with Narcissistic Personality Disorder are often known for coming to therapeutic treatment ‘by force’ or as a last resort and often do poorly in therapeutic treatment.

The research indicates that the underlying roots of narcissism are often due to negative developmental experiences such as being rejected in childhood, or, in contrast, excessive praise during childhood leading the individual to believe he has exceptional traits.1 A 2009 study found narcissistic personality disorder was a fairly prevalent personality disorder in the United States, occurring at an estimated rate of 6.7%, with rates in men at 7.7% and in women at 4.8%.2

An individual may have traits of the disorder or meet full diagnostic criteria for the disorder. The typical presentation of Narcissistic Personality Disorder includes:3

  • An exaggerated sense of self-importance.
  • A sense of entitlement and a consistent need for excessive admiration.
  • Expectation to be recognized as superior without achievements that indicate the need for recognition.
  • The individual exaggerates his or her achievements, abilities and talents.
  • The individual has a preoccupation and obsession with success, power, beauty, brilliance or being the perfect mate.
  • The individual believes he or she is superior and only desires or agrees to associate with people he or she views as equally special people.
  • The individual tends to monopolize conversations and belittle others who they perceive as inferior.
  • The individual expects to receive special favors for his or her expectations to consistently be met, and for unquestioning compliance in his or her demands and requests.
  • The individual is unable and unwilling to recognize the feelings and needs of others.
  • The individual is both envious of others and also believes others envy them.
  • The individual behaves with arrogance.
  • The individual insists on having and deserving the best of everything.

Likely the most challenging aspect for employers is that individuals with narcissistic traits or narcissistic personality disorder have an incredibly difficult time accepting feedback or criticism. They often have the following reactions:

  • Become irritated, angry or emotionally distressed when they do not get their way or view themselves as not getting special treatment.
  • Are unable to regulate their emotions and struggle to tolerate stressful situations.
  • May react with rage and then direct their anger toward criticizing others and demonstrating their own superiority.
  • Have frequent interpersonal conflict, especially with the individuals who provide the feedback (perceived as criticism).
  • Significant difficulty adapting to change or adjusting their mindset.

Managing and Setting Boundaries

Employees with these traits can be challenging at best to manage within an organization and ultimately may be toxic to the overall success of the organization. Some of the tips below may help minimize the impact these individuals have on your organization.

1. Check yourself. Prior to assuming the individual you are seeking to manage is narcissistic, take a look at yourself and your approach to ensure your management style is not creating a defensive reaction in your employees. Key tip: If you struggle to manage all your employees and think they all have significant pathological personality problems, it may be an appropriate time for self-reflection.

2. Clearly identify your objectives. What are the goals and objectives you need to accomplish to meet the mission of your agency? In which areas is the employee demonstrating an inability to perform? What needs to change in order for the employee to be successful? Attempt to be objective and separate your own emotional reaction to the employee. What specifically do you need the employee to do/change in order for the organization to be successful?

3. Be concrete and clear with expectations. Engage in all conversations with respect and empathy, but stay focused on what needs to change in order for the employee to meet the goals and expectations of the organization.

4. Align with the leadership team on expectations and boundaries. If the employee is able to go above the supervisor’s head and get an exception or special treatment, the situation will be exacerbated and create further toxicity within the organization. The rules and boundaries must be clear, consistent and aligned with the leadership team.

5. Be consistent. The expectations need to be consistent not only for the employee causing the challenging dynamic, but for all employees. Attempt to keep rules, boundaries and expectations consistent across the board with employees to minimize special treatment and favoritism.

6. Follow through on consequences for not meeting expectations. Ensure goals and expectations are being met. If the expectations are not met, follow up promptly.

7. Stay focused. Do not let yourself be swayed by emotion or manipulation. Stay focused on the facts and the key tasks, objections and goals of the organization. Refer back to the facts and make the decision off the facts, not the emotional persuasion of the employee.

8. Remember your role. As a supervisor or leader, your role is to support the mission, purpose and goals to be accomplished. Stay focused on supporting your employees with the key objective being to meet the goals and objectives of the agency, not the personal goals of individual employees.

9. Be willing to part ways. If the employee is unable to collaborate with the team to successfully perform the functions of the job, be willing to part ways. Excellent leaders and supervisors will provide empathetic, respectful and considerate support to their employees to ensure their success. However, they must also understand the appropriate time when an employee has personality traits that are interfering with success of the organization and may need to make the decision to part ways.

Note: Shana will cover personality disorders and several other topics during Managing Employees With Mental Health Challenges During the COVID-19 Pandemic on August 26, 1-4:30 pm ET. info@feltg.com

1 Mitra, P. (2020, April 15). Narcissistic Personality Disorder. Retrieved July 20, 2020, from https://www.statpearls.com/kb/viewarticle/27055

2 Stinson, F., Dawson, D., Goldstein, R., Chou, S., Huang, B., Smith, S., . . . Grant, B. (2008, July). Prevalence, correlates, disability, and comorbidity of DSM-IV narcissistic personality disorder: Results from the wave 2 national epidemiologic survey on alcohol and related conditions. Retrieved July 20, 2020, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2669224/

3 Narcissistic personality disorder. (2017, November 18). Retrieved July 20, 2020, from https://www.mayoclinic.org/diseases-conditions/narcissistic-personality-disorder/symptoms-causes/syc-20366662

Workers’ Comp Rules for COVID-19 Depend on Job Type

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By Frank Ferreri, Special Guest Author, July 28, 2020

If anything in recent history has proven to be the ultimate “disruptor,”  COVID-19 certainly makes a strong case for top billing. Among the many changes the pandemic has brought are new approaches to workers’ compensation across the country, including within the federal government.

So, what’s changed? For some federal employees who contract COVID-19, the nature of their employment will cause the Office of Workers’ Compensation Programs to accept that their exposure was work-related without the usual showing of evidence.

High-risk Employees

As OWCP explained in guidance, federal workers who must have in-person and close proximity interactions with the public on a frequent basis, such as members of law enforcement, first responders, and front-line medical and public health personnel, will be considered to be in “high-risk employment” and have a more direct path to compensation.

As a result, and as the U.S. Department of Labor spelled out in FECA Bulletin No. 20-05 (DOL 03/31/20), if: 1) a COVID-19 claim is filed by a high-risk employee; 2) the employing agency supports the claim; and 3) Form CA-1, Notice of Traumatic Injury, is filed within 30 days, the employee is eligible to receive continuation of pay for up to 45 days.

Under the “old normal,” workers generally weren’t entitled to benefits for exposure to infectious agents without the occurrence of a work-related injury. COVID-19 has shifted OWCP’s focus, particularly for high-risk employees.

“The new procedures … call the adjudicator’s attention to the type of employment held by the employee, rather than burdening the employee with identifying the exact day or time they contracted the novel coronavirus,” OWCP’s guidance explained.

What’s needed for a “high risk” COVID-19 claim under the Federal Employees’ Compensation Act? OWCP requires the following evidence:

  • Exposure. If an employee meets the “high risk” criterion, OWCP will confirm the nature of employment based on the position title and confirm with the agency that the position is considered high risk. With this confirmation, the employee’s COVID-19 infection will be presumed to have come from work-related exposure.
  • Medical. The employee must provide medical evidence establishing a COVID-19 diagnosis. The factual and medical background must include the physician’s recognition that the employee is engaged in high-risk employment that included exposure to COVID-19 while in federal employment.

Other Federal Employees

Acknowledging that not all federal positions are at heightened risk of COVID-19 exposure, OWCP also spelled out what happens for claims from non-high-risk employees. In short, it’s not unlike other workers’ compensation claims.

The employee must provide a factual statement and available evidence concerning exposure. The employing agency is expected to provide OWCP with information regarding the alleged exposure and indicate whether it is supporting or controverting the claim. As with high-risk employees, if the agency supports the claim and a CA-1 is filed within 30 days, the employee is eligible for COP for up to 45 days.

In non-high-risk positions, the employee must provide evidence of the duration and length of occupational COVID-19 exposure. This evidence may include information such as a description of job duties, which agency the employee worked for, and the location of the work. OWCP advises employees to provide a “detailed statement” on:

  • The nature of employment.
  • How long they were exposed to the virus.
  • When the exposure most likely occurred,
  • How long and often they were exposed.
  • Where and how the exposure occurred.
  • From the agency, OWCP will seek information about occupational exposure including relevant agency records. This may include:
  • Comments from a knowledgeable supervisor on the accuracy of the employee’s statements.
  • Whether the agency concurs.
  • Confirmation of an actual positive COVID-19 test result.

Additionally, regarding medical evidence, a non-high-risk employee must show that the diagnosed COVID-19 was aggravated, accelerated, precipitated, or directly caused by work-related activities. This requires a qualified physician’s opinion, based on a “reasonable degree” of medical certainty, that the employee’s COVID-19 was causally related to employment conditions.

“Employment conditions” may include employment-related travel. In such a case, OWCP noted that the employee and agency would have to “describe in detail” the travel and potential exposure.

What’s Not Covered?

Outside of work-related travel, OWCP explained that COVID-19 exposure that occurs while going to or coming from work — such as might happen on public transit — is not compensable, as it does not arise out of and in the course of employment.

Similarly, an employee who’s exposed to COVID-19 while on vacation or leave has not experienced a compensable injury because the exposure must occur in the performance of duty.

info@feltg.com

When Cleaning Desks and Wearing Masks is Required: Life With COVID-19

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By Barbara Haga, July 15, 2020

We’ve previously talked about issues related to employees who report to work with symptoms and what to do about taking temperatures when employees are reporting to the worksite. What other issues could present once more and more employees are returning to work? This month, we look at wearing masks and cleaning workspaces.

Wearing Masks

Masks are a hot button issue. I do not understand it, but I have seen enough to accept it is real.  Forbes published an interesting article in May on the top reasons why people don’t want to wear them. The article explains it covers everything from claiming individual rights are being abridged to it’s not cool or for those who worry about it, not masculine.

Regardless, the OSHA guidance recommends that employers encourage workers to wear face coverings at work. The CDC guidance updated in May 2020 advises employers to encourage employees to wear cloth face coverings in the workplace, if appropriate.

When are masks not feasible? According to the CDC, it includes situations such as the following:

  • Working with people who are deaf or hard of hearing who rely on lipreading.
  • People with intellectual and developmental disabilities, mental health conditions or other sensory sensitivities.
  • Younger children older than 2 (e.g., preschool or early elementary aged).
  • People engaged in high intensity activities, like running.
  • People engaged in activities that may cause the cloth face covering to become wet, such as swimming.
  • People who work in a setting where cloth face coverings may increase the risk of heat-related illness or cause safety concerns (for instance, straps getting caught in machinery, chemicals accumulating in mask, etc.).

Clearly, these are not typical issues in many Federal workplaces. The question will be whether masks are encouraged or required, and, if required, what happens when employees refuse to comply.

As noted last month, several unions have posted information about concerns regarding reopening and what they see as requirements for a safe return to the workplace. AFGE’s “10 Principles on Return to Worksites” notes:

“Protections must be put in place by the agency: temperature taking at the door/masks and appropriate PPE/hand sanitizer/soap/tissues, proper distancing, dividers, regular disinfecting, air circulation, etc.”

The Federal Workers Alliance,  which includes a long list of unions, including NAGE, IAFF, IAMAW, PASS, POPA, SEIU and IFPTE, demands that “[A]ll individuals present in the worksite should be expected to wear masks to reduce the possible spread of COVID-19 through respiratory droplets.” NTEU’s press release discussed whether agencies were providing hand sanitizer, disinfectant wipes and masks, but noted employee should be able to bring their own masks.

As discussed in my May column on taking temperatures, if the agency sets a mandatory requirement and is faced with employees who refuse to comply, then disciplinary action should ensue. The charge would likely be failure to follow instructions or some variation of that. Since the employee won’t be allowed in the workplace without the mask, he or she would have to be sent home on admin leave just like any other situation where you have an employee who reports not ready, willing, or able to perform work. The admin leave would extend until you could get your notice of proposed action completed. At that point, the employee could be on notice leave while waiting for the reply and decision.

The local union is not in a great position to argue against wearing masks if the national union is advocating their use. I suppose it is possible that an employee might have some medical reason (which would need to be supported with medical documentation) as to why he or she cannot wear a mask. That could create a question regarding accommodation if that underlying medical condition would rise to the level of a disability.

Or, perhaps the employee will agree to wear the mask after:

  • Receiving a proposed action
  • Or after the discipline is effected.

Cleaning Workspaces

The CDC guidance on reopening addresses the need for cleaning, stating that reducing the risk of exposure to COVID-19 by cleaning and disinfection is an important part of reopening that will require careful planning. What’s in that plan? What new requirements are going to be necessary to keep workspaces as free from the virus as possible? Are there going to be issues with obtaining compliance with these reopening requirements? Could be.

The information issued by the unions may offer a clue. AFGE talked about protections that needed to be put in place by the agency, which included “regular disinfecting.”

The NTEU press release noted: “Employees remain anxious about the risks posed by taking public transportation, being in enclosed facilities with hundreds of coworkers and whether their work stations will be consistently and properly cleaned and disinfected.”

The Federal Workers Alliance post included a requirement to “assign and ensure that all shared/common areas and equipment are sanitized at regular intervals by personnel qualified and trained in disinfection of COVID-19” in their list of required agency actions. These postings seem to indicate that the expectation is that cleaning of individual workspaces is not being done by employees but by someone else.

Is it reasonable to expect there are agency personnel or contractors available with the necessary time, products, and training to do all of this? This may be within the realm of existing contracts and resources for some agencies.

It seems likely to me some agencies will need employees to take care of some of this. That means cleaning of individual keyboards, desk, phones, etc. It could extend to common areas such as counters in break areas, refrigerator doors, coffee pots, and door handles. Copiers, faxes, hole punches, and commonly used staplers might also make the list.

Encouraging voluntary compliance with these kinds of tasks is probably the easiest approach. Perhaps employees in the unit could draw up a rotational schedule for the tasks covering common areas. An employee might volunteer to do the cleaning.  But, I believe it would be naïve to think that there won’t be some who say “that’s not in my p.d.” Bottom line: If it is a requirement, not complying would be a failure to follow instructions, although perhaps not at the same level as with the masks.

These are actions that have likely not been carried out before. However, as has become painfully apparent, it’s a brand new world. Haga@FELTG.com

More About that Employee Who Left His Laptop Charger at Work During the Pandemic

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By Deborah Hopkins, June 23, 2020

Last week, we published an article about an employee who left his laptop charger in the office at the beginning of the COVID-19 pandemic. The employee claimed he worked 40 hours a week for eight weeks, even though he later admitted he had done no work during that time. I characterized it as an open-and-shut case. It wasn’t seen that way by a number of you in FELTG Nation.

If you haven’t read the article, or didn’t read it closely, I urge you to take a look before you continue reading this article.

Many of our readers had comments, and some strong feelings, about the matter. Most of the feedback fell into three areas:

  1. The potential existence of a backup charger or at-home computer alternative.
  2. The investigation of IT records to see if the employee was working through some other mechanism.
  3. The issue with supervisor not tracking the employee’s [lack of] work product.

Below are some of the comments we received in each category, followed by an official FELTG response:

The Forgotten Charger

FELTG reader comments:

  • Some years back I was sent out of state on a business trip and forgot my charger. I…drove over to a Best Buy, and got a new power cord. Problem solved in about one hour. In today’s COVID world, I’d probably buy one from Amazon. But just because the employee forgot his power cord isn’t evidence the employee wasn’t working. How about checking on his output??
  • Perhaps the employee simply opted to buy another charger or had a reasonable substitute already at their home – they are readily available.
  • In reply, the employee will obviously claim he had another charger cable at home (and he could’ve purchased on Amazon).
  • I have a docking station, monitor, and mouse of my own for my home office.
  • Does the agency allow the employee to work on his own personal device from home?
  • Most likely there was a back-up charger. I have been telecommuting for 4 months and my charger burnt out twice. I was out of commission for a week.
  • Admittedly I did this and worked on my desktop for all of quarantine.

Official FELTG response: All excellent points, and details you would absolutely want to find out during your management inquiry or misconduct investigation. If the employee was allowed to use a personal device, or bought a backup charger, or had a docking station for his laptop at home, then as long as he was working the 40 hours a week he claimed, we don’t have misconduct.

The employee’s misconduct was lying on his time card – not leaving his charger at work. If you look closely at the article’s application of the five elements of discipline, you’ll see the employee was charged with the time and attendance violation, not leaving the charger in the office. A disciplinary charge of “leaving your laptop charger at the agency” may not rise to the level of misconduct, especially if it was accidental.

IT Records

FELTG reader comments:

  • Most agencies can see if the network was accessed or logged into.
  • The one thing I may do is have IT perform an evaluation of his computer usage as further confirmation that he hasn’t logged on and worked.
  • The IT people should be able to audit access to the [employee’s work] files, if nothing else.

Official FELTG response: In some cases, you would want to pull IT records to verify if the employee was working at all. Let’s modify the hypothetical a bit and say the employee was working on a personal device through the agency’s VPN, and claimed 40 hours of work a week, but the supervisor suspects he was working less. A search of IT records could show the amount of time the employee was on the VPN to give the agency a better idea of how much potential time theft was involved. Other considerations, such as whether the employee does work that does not require computer or VPN use, would also be relevant.

But in the original hypothetical, the employee admitted he did not work at all. Yet, he claimed 40 hours a week. That admission is preponderant evidence, so the agency could propose discipline based on that evidence alone. Yes, the IT records would provide additional evidence, but they wouldn’t be required because the burden of proof in discipline cases is only preponderant evidence – or substantial evidence, at the VA.

Supervisor Oversight

FELTG reader comments:

  • The burning question in my mind is how could the supervisor not know there was a problem; when you send people home to work, it doesn’t mean you don’t keep tabs on what they’re doing daily. Why wasn’t the supervisor communicating on at least a weekly basis and asking for accountability, not just of this employee but every employee?
  • Simplest way to check up is to ask to see work product if you doubt. Why are they having to use “inference” of a power cord sitting at the office rather than checking with IT for emails, and checking other systems for evidence of work? Seems to me the supervisor needs at least a counseling for failing to do his job as well!
  • Should we also address the supervisor who failed to see no work from this employee for months?
  • There should have been ways for management to create check points/milestones or activity goals to ensure this person was working.
  • If I was the said employee’s supervisor, I would be a little concerned about my own “failure to supervise” allegation.

Official FELTG response: Right on! This hypothetical supervisor failed to monitor the employee’s work, because no work product in eight weeks is unacceptable in any government job. As the previous article alluded, we could write another article entirely on the supervisor’s potential performance and misconduct issues.

Thanks, as always, for your responses. We loving hear from you, and enjoy the conversations. For a more in-depth discussion on related topics, be sure to join us July 1 (that’s next week!) for the 75-minute webinar Performance and Conduct Problems During the COVID-19 Pandemic: Holding Remote Employees Accountable. Hopkins@FELTG.com

Breaking News: SCOTUS Says Federal Law Protects LGBTQ Workers From Employment Discrimination

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By Deborah Hopkins, June 15, 2020

This morning, the Supreme Court issued a decision in Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, 590 U.S. ______ (Jun. 15, 2020). The 6-3 decision was written by Justice Gorsuch. He was joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan.

The question before the Court was whether an individual’s sexual orientation or transgender status was covered under Title VII’s prohibition against sex discrimination. The Court ruled that “The answer is clear. An employer who fires an individual for being ho­mosexual or transgender fires that person for traits or ac­tions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” (p. 2).

AT FELTG, we’ve reviewed the decision and will be re-reading it to be sure we glean all the relevant information. After the initial read, we’ve pulled out couple of interesting points the Supreme Court discussed:

  • If sex was one but-for cause for discrimination – not the motivating factor or the only cause – then Title VII applies. (p. 6)
  • Employers who seek to avoid liability because they discriminate against men and women who are LGBTQ do not avoid liability – they double their exposure to liability because the language of Title VII talks about discrimination against individuals. (p. 9)

A few takeaways directly from the language of the case include:

  • [A]n employer who intentionally treats a person worse because of sex— such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discrimi­nates against that person in violation of Title VII. (p. 7)
  • From the ordinary public meaning of the statute’s lan­guage at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it inten­tionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the em­ployer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to dis­charge the employee — put differently, if changing the em­ployee’s sex would have yielded a different choice by the em­ployer — a statutory violation has occurred. (p.9)
  • The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s be­cause it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. (p. 9)
  • [H]omosexuality and transgender status are inex­tricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some dispar­ate impact on one sex or another, but because to discrimi­nate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. (p. 10)
  • When an employer fires an employee because she is homo­sexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individ­ual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that in­dividual’s sex, the statute’s causation standard is met, and liability may attach. (p. 11)
  • We agree that homosex­uality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosex­uality or transgender status necessarily entails discrimina­tion based on sex; the first cannot happen without the sec­ond. (p. 19)
  • In Title VII, Congress adopted broad language mak­ing it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for be­ing gay or transgender defies the law. (p.33)

We’ll be going over this case in much more detail in future training events including an upcoming EEO Refresher webinar entitled The Latest on Sexual Orientation and Gender Discrimination in the Federal Workplace on July 9, and a virtual training session as part of FELTG’s special event Federal Workplace 2020: Accountability, Challenges, and Trends on July 29.

In the meantime, read the full decision yourself here. Hopkins@FELTG.com

The Employee Who Refuses to Report to Work

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By Deborah Hopkins, June 9, 2020

Back in the day – before COVID-19 – there was a term we used for employees who refused to report to work: AWOL. Or, as our friends in the Navy call it, Unauthorized Absence. The pandemic has created a new scenario though, where a refusal to report to an agency work station might not be considered misconduct, depending on the circumstances.

As agencies start to bring employees back to the workplace, some are understandably wary about leaving the safety (and perhaps comfort) of their own homes and being put back in contact with the public once again. Some employees have more reason to be leery than others, particularly those in high-risk categories.

So, what should an agency consider when an employee expresses concern about returning back to the workplace while the virus is still killing 1,000 Americans each day?

According to OPM, agencies should work with employees and, if applicable, unions, to address return to work concerns even after agency management has determined that it is safe for employees to return. Once an agency has determined that sufficient conditions allow for employees to safely work in a given environment, employees can be expected to report to their worksite unless they are in an approved leave status.

Before issuing an order requiring employees to report to duty onsite, and when considering discipline based on non-compliance with a reporting requirement, agencies are encouraged to consider all facts and circumstances in each case. Among these considerations:

  • An employee’s vulnerability to serious complications if infected with the virus,
  • The presence of an individual in a CDC-identified high-risk category in the home, and
  • Child care or other dependent care responsibilities resulting from daycare, camp, or school closures.

Agencies should determine if other options are appropriate, such as allowing employees to continue to telework or asking them to request personal leave.

If the worksite is in a jurisdiction still subject to restrictions related to COVID-19, agencies should also consider the terms of any such restrictions as well as employee concerns about their safety in the workplace or during commuting, and determine if steps can be taken to mitigate those concerns.

FELTG readers know that federal employees are required to follow supervisory orders, including orders to report for duty, but they may legally refuse orders that would cause “irreparable harm.” These categories, found in MSPB case law, include orders that:

  • Are Illegal, whether the order itself is illegal, or obeying the order would be an illegal act.
  • Are immoral.
  • Require an unwarranted psychiatric examination.
  • Require an employee to forego a Constitutional right.
  • Are unsafe.

We know the first four are not at issue here; safety is the key. The question becomes: What is the balance between working to fulfill an agency’s mission while guaranteeing employee safety and protecting against irreparable harm?

For most employees, contracting COVID-19 would probably not cause irreparable harm. Recent data suggests a large group of the people infected – perhaps even 80% – are asymptomatic. But for a subset of employees in high-risk categories, contracting the virus could very well cause irreparable harm in the form of long-term or permanent health issues. Adding to the complication is that this virus is new, and we don’t have any information about its long-term effects.

So, where does that leave us? If an agency has determined that it is safe to return to the workplace, an employee’s subjective belief that it is not safe – especially if that employee is not in a high-risk category – will probably not be enough to have a disciplinary action for AWOL overturned.

Only time, and cases when we get them, will tell.

I think that agencies should try to be as flexible as possible, as employees are dealing with unprecedented challenges. But at the end of the day, your agency needs to fulfill its mission, and if an employee must be at work in order to do so, and work is a safe place, then the employee should be held accountable to report for duty. For more on this – and other virus-related workplace challenges – join FELTG tomorrow for the virtual training event Federal Workplace Challenges in a COVID-19 World: Returning to Work During a Pandemic. A few spots still remain. Hopkins@FELTG.com

And Now a Word With … Chai Feldblum

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By Dan Gephart, June 2, 2020

I’ve attended the EEOC’s EXCEL Conference for several years as a member of the press, which included a pre-arranged sit-down interview with one of the EEOC commissioners. Sometimes I interviewed the Chair, but usually I interviewed whoever was newest to the commission. (Guess they drew the short straw.)

The interviews didn’t usually delve too deeply into federal sector EEO issues, which is understandable. Many of the commissioners came from a non-Federal background and they were still learning the ropes. Most of their attention was on the private sector.

Chai Feldblum (pictured above to the right), however, showed no reticence in talking about nitty-gritty federal sector issues. Despite being on the job for just a few months, she was not only enthusiastic, she was informed, curious, and engaging – the kind of traits that made her a popular professor at Georgetown University’s Law School. And Feldblum was very approachable, which is almost as impressive as her bio.

Feldblum graduated from Harvard Law School and clerked for Supreme Court Justice Harry Blackmun. She was legislative counsel for the ACLU’s AIDS project, where she played a key role in drafting the Americans with Disabilities Act. She provided legal counsel on the Employment Non-Discrimination Act and other efforts to prohibit discrimination on the basis of sexual orientation and gender identity. She founded Georgetown’s Workplace Flexibility 2010 campaign. And she was the first open lesbian to serve as EEOC commissioner.

She served on the commission from 2010 to 2019 and was even nominated for a third time by President Trump before conservative Utah Senator Mike Lee, a longtime opponent of LGBTQ rights, blocked the nomination.

Feldblum is a partner at Morgan Lewis and director of the firm’s Workplace Culture Consulting & Training, which helps employers implement preventive strategies to eliminate harassment and enhance workplace productivity.

At the EEOC, Feldblum forged successful working relationships with her fellow commissioners, especially then-Chair Victoria Lipnic. This led to some ground-breaking actions, such as a wide-ranging report on workplace harassment and the Commission’s ruling that sexual orientation and transgender discrimination are forms of sex discrimination under Title VII.

With many of us waiting for the Supreme Court’s decision on Zarda, Bostock, R.G. & G.R. Harris Funeral Homes — which will either affirm or reject the EEOC’s approach to sex discrimination — we thought it was an ideal time to catch up with Feldblum. She opted not to share her gut feeling about how the Supreme Court would rule, but, as always, she was thoughtful and informative in her responses.

DG: You spent nine years at the Commission. What do you think is your legacy there?

CF: I feel my legacy falls into two broad categories, substantive and procedural. On the substantive side, I feel the Commission made huge strides in protecting LGBT people under Title VII by ruling that sexual orientation and gender identity discrimination are forms of sex discrimination; in advancing employment rights for people with disabilities by reinvigorating the affirmative action requirements for federal agencies under Section 501 of the Rehabilitation Act; and in protecting pregnant women by issuing guidance that ensured they could receive light duty work when needed, which was adopted in part by the Supreme Court. I feel grateful that I was able to play a leadership role in those substantive areas.

On the procedural side, I enjoyed digging into the logistics of the EEOC and helping with strategic planning for the agency. The digital charge system, as well as the respondent and charging party portals, have enabled the EEOC to continue working well during this COVID-19 pandemic. I will always be proud of the contribution I made towards those advancements in technology for the agency.

DG: What is the biggest difference you see between the private and federal organizations when it comes to EEO issues?

CF: I have been struck more by the similarities than by the differences. In both private and federal organizations, I have met incredibly committed people who care deeply about EEO issues. In both types of organizations, I have met people who are interested in going beyond EEO compliance to broader workplace culture change. And in both private and federal organizations, I have seen people struggle with similar challenges, whether it is a limited amount of resources or skepticism from some quarters as to the utility of investing in workplace culture change. This is probably why it is good that I’m an optimist. I believe that the utility of robust EEO compliance and workplace culture change, in both private and federal organizations, will carry the day.

DG: It’s been almost four years since the Select Task Force on the Study of Harassment in the Workplace was released. Is there anything you would add, take out, or clarify if you were in charge of updating it now?

CF: I believe the Report of the Co-Chairs of the Select Task Force on the Study of Harassment has stood the test of time. It remains a very useful document for anyone wishing to understand the prevalence and scope of workplace harassment, the reasons for under-reporting of harassment, and new ideas for “rebooting harassment prevention.” I do not think there is anything I would take out of the Report. But together with my colleague Sharon Masling [former Chief of Staff for Feldblum at the EEOC], who joined me at Morgan Lewis as a Co-Director of Workplace Culture Consulting, we have built on and expanded the work and the ideas of the Report. Over the course of a year here at Morgan Lewis, we have created a quantitative survey on assessing culture, developed a system for a qualitative assessment of workplace culture, and refined a Respectful Workplaces training. All of this work builds on the research and insights of the Report.

DG: Are you seeing an increase in discrimination and harassment in the workplace and/or in the public space as COVID-19 has taken over the globe?

CF: The evidence is pretty clear that Asian-Americans have been the victims of increased harassment and hate crimes during the COVID-19 pandemic. The Asian Pacific Policy and Planning Council has collected data of over 1,700 incidents of verbal harassment, shunning and physical assaults against Asian Americans since March 2020. These reports come from 45 states and Washington DC and over a third of the incidents happened in public venues. I am sure workplaces are not immune from the possibility of discrimination and harassment against Asian Americans. I feel that the employers I have been able to work with over the past year are well-positioned to stop this form of discrimination and harassment from permeating their workplaces. But we need this to stop everywhere.

DG: What should the EEOC’s approach be to cases involving sexual orientation and gender identity in the federal workplace as we await the Supreme Court ruling?

CF: Keep going until the Supreme Court rules. The EEOC has continued to accept charges from LGBT employees and applicants who allege employment discrimination on the basis of sexual orientation and gender identity. That is precisely what the agency should do, since it has not voted to change its position on this issue. The question is whether the Supreme Court will read the law as the EEOC did. That is what we are all waiting to see.

[Editor’s Note: The Supreme Court decision in Zarda, Bostock, R.G. & G.R. Harris Funeral Homes will be discussed in the session The Latest on Sexual Orientation and Transgender Discrimination during FELTG’s weeklong conference-like virtual training event Federal Workplace 2020: Accountability, Challenges, and Trends July 27-31, 2020. Register for one, several or all sessions. And EEO counselors and investigators can learn more about the topic and earn refresher hours during the July 9 webinar The Latest on Sexual Orientation and Gender Discrimination in the Federal Workplace.]

Gephart@FELTG.com