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

10 Reasons Why FELTG Is the Best Option for Your Summer Conference Plans

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By Dan Gephart, July 15, 2020

If your favorite summer conference is not being held on-site, and you still have training funds, we hope you’ll register for Federal Workplace 2020: Accountability, Challenges, and Trends During the COVID-19 Pandemic. Here are 10 reasons why:

  1. It’s hard to believe, but some virtual conferences require attendees to register for the full event even if you’re only planning on attending a few sessions. This doesn’t seem like a wise way to spend your agency’s money.  Federal Workplace 2020: Accountability, Challenges, and Trends During the COVID-19 Pandemicallows you to register and pay for only the sessions you want to attend.
  2. And, speaking of sessions, we have some timely sessions from which to choose. All are updated with the latest information and guidance, especially as they apply to the current pandemic. There are sessions on performance and conduct challenges during a pandemic, EEO trends in the COVID-19 world, the latest on sexual orientation and transgender discrimination, and much more.
  3. We also have sessions on the perennially challenging topics like mixed cases, reasonable accommodations, the intersection of the ADA and FMLA, performance feedback, and much more.
  4. If you’re going to a virtual training, you’d expect the event to be live, right? Beware: Some virtual training conferences are presenting recorded sessions. That idea doesn’t fly with us here at FELTG Headquarters. All of our sessions will be presented live, which means you’ll have opportunities to ask questions of the instructors, and get immediate answers.
  5. Speaking of instructors, your favorite FELTG presenters, such as FELTG President Deborah Hopkins, Barbara Haga, Katherine Atkinson, Dwight Lewis, Bob Woods, and Ann Boehm (just to name a few) will be a part of the event.
  6. We make it easy for EEO counselors and investigators to get their 8 hours of annual refresher credits.
  7. No, we didn’t forget about you attorneys out there. This event offers many chances to earn CLE credits, including two hours of Ethics.
  8. Federal Workplace 2020: Accountability, Challenges, and Trends During the COVID-19 Pandemichas something for everyone, whether you’re a supervisor, HR professional, EEO practitioner, union representative, or attorney.
  9. This isn’t our first rodeo. Since we launched the FELTG Virtual Training Institute earlier this year, we’ve produced several multi-day virtual training events.
  10. If for some reason you can’t attend this session, we have plenty of other upcoming, more specific events before the end of the fiscal year, including EEOC Law Week and MSPB Law Week. Check out the FELTG Virtual Training Institute for more details.

Avoid Thoughtless Approach to Essential Function Determination

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By Dan Gephart, July 15, 2020

Essential can be a loaded word. Any discussion on whether something is essential – whether it’s workers, food, or art – will likely not lead to consensus. Would you have considered GrubHub drivers “essential” workers at this time last year? Probably not. Despite the authoritative nature of the word itself, essential is subjective in most cases.

But when it comes to reasonable accommodation for a disability and an employee’s job functions, essential is not a word to be played with loosely.

In order to be a “qualified individual with a disability,” an employee must meet the basic job qualifications and be able to perform the essential functions of the job with or without reasonable accommodation. When you actually identify the essential functions of a job, you might find that they’re not always what you may think they are. As you go through this process, it’s important that you analyze each function and avoid rash decisions.

Consider the following:

The time spent on the function may not be as important as the consequences. Here’s an example: A firefighter may not regularly have to carry an unconscious adult out of a burning building. However, the consequence of failing to require the firefighter to be able to perform this function would be serious.

Outcomes are more important than how the function is usually performed. Essential functions are the fundamental duties of a job — the outcomes that must be achieved by someone in that position, not the means by which those outcomes are achieved. There are plenty of EEOC cases where agencies felt an employee was not qualified because of a lifting restriction, only to find out there are a lot of ways to move items. In Small v. U.S. Postal Serv., EEOC Appeal No. 0720100031 (Apr. 5, 2012), a push cart was just as effective as a satchel for a letter carrier with a lifting restriction.

The written job description isn’t the be-all and end-all. Just because a function is in the job description doesn’t necessarily mean it’s essential. Sometimes the position description includes functions the employee never actually performs, while functions that are essential have become part of the job over time. Focus on whether you actually require the employee in the position to perform the functions that you claim are essential. You’d be surprised to find out how many functions are listed in the job description that the employee has never actually done and will never need to do. The written job description can be evidence of an essential function – but it’s not the be all-end all.

And here is the best example, why you shouldn’t rush to make a decision.

Attendance is not an essential function. In Cottrell v. USPS, EEOC Appeal No. 07A00004 (2001), an employee with ADD couldn’t be in the workplace certain days of the week due to his disability. However, there was a reasonable accommodation that allowed the employee to complete essential functions.

In many jobs, of course, attendance seems to be essential. But in the federal government, poor attendance is looked at as a potential undue hardship, not as an essential function.

Here are some other considerations, per 29 CFR § 1630.2(n)(2), as you determine the essential functions of a position:

  • The reason the job exists is to perform that function.
  • A limited number of employees available to perform the function/
  • The function is highly specialized such that incumbent is hired based on expertise or ability to perform that function.

If you’re looking for training on reasonable accommodation, FELTG has plenty of options. Reasonable Accommodation in 75 Minutes, which will be presented by former EEOC Dallas Region Chief Judge Dwight Lewis, will be one of 14 sessions we’re offering during our conference-like event Federal Workplace 2020: Accountability, Challenges, and Trends during the COVID-19 Pandemic.

Also, you can register now for the Reasonable Accommodation in the Federal Workplace webinar series, which begins on July 30. You can register for any or all of the five 60-minute webinar events.

The bottom line: Take requests for reasonable accommodation seriously. There may be times when you’ll find an employee is not qualified for the position with or without a reasonable accommodation. But if you take an open-minded, creative and analytic approach to reasonable accommodation requests, you’ll find that in almost all cases you’ll find an effective solution. Gephart@FELTG.com

Consider the Impact of Stress in Workplace Reopening Plans

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By Dan Gephart, June 17, 2020

A glimpse at the Internet during the coronavirus pandemic reveals people cutting their own hair, making their own bread, showing off their TikTok dance moves, and building elaborate Rube Goldberg machines.

Fun, fun, fun.

However, dig a little deeper and you’ll find that much of our nation, if not the world, is besieged by stress. Reports of police brutality, rising unemployment, a volatile stock market, and the continuing pandemic are pushing many to the edge. One professor told Time Magazine that we’re suffering from a “national anxiety.” This is not a flippant remark. It’s the truth, and it’s frightening.

We all know the friend, colleague, or family member who proudly claims: “I perform best under pressure.” Well, that’s great. Go take a seat over there next to Michael Jordan and have fun comparing your stress-filled accomplishments. There are many people, including plenty currently employed by the Federal government, who must routinely perform their jobs under highly stressful situations. And they do it every day. Quietly, without fanfare. I commend them.

However, if you’re not required to take on inordinate amounts of stress, you shouldn’t. Stress is bad for the body. It can cause minor ailments like stomachaches, headaches, heartburn, tension, and it can lead to serious health issues like depression, heart attacks, and strokes. Stress weakens immune systems and makes the body more vulnerable to attacks, such as the one posed by COVID-19. Put simply: If you’re stressing out about the coronavirus, you’re making yourself more at risk for getting it.

Now, think about the amount of stress this pandemic has caused and then try to imagine what that means to those individuals already suffering from anxiety disorders.

Last month, we discussed three issues to consider as you prepare to return employees to the physical workspace – ADA, age discrimination, communication. The previous month, I wrote about the rise in pandemic-related discrimination. This month, I turn the attention to stress and anxiety-related disorders that will make the already difficult transition back to the workplace an even more taxing endeavor for some employees.

Most people get depressed at some time in their lives, especially if they have suffered a loss. But there are others who have clinical depression, which is a much more serious condition that ranges from mild temporary episodes of sadness to suicidal ideation or behaviors.

It’s the same with anxiety. Everyone gets a little anxious at times, such as when our favorite team is just a few yards away from the endzone with a playoff spot on the line, or when we have to make a presentation to our superiors. That anxiety is fleeting. That’s not the case for those with anxiety disorders. An anxiety disorder is a psychological disorder caused by excessive fear or anxiety. It can be severely debilitating, and it affects up to 30 percent of the adult population at some point during their lives.

Common anxiety disorders include panic disorder, phobias, social anxiety, posttraumatic stress disorder, acute stress disorder, separation anxiety disorder, and obsessive compulsive disorder.

Missions will not be accomplished if incapacitating stress runs rampant upon the re-opening of the workplace.

What can you do to address this challenge?

First step: Take care of yourself,  even if you don’t have an anxiety disorder. Shana Palmieri, a licensed clinical social worker, senior vice president of Behavioral Health and co-founder of Xferall, and FELTG Instructor, shared several tips for coping with pandemic-related stress in this newsletter a couple of months ago. Read that article and take it seriously. Personally, I’ve significantly reduced my social media time and rely on only a few reputable sources for pandemic-related news. That has made a huge difference. As Shana said: “We all must do our part to stop the spread of COVID-19 and engage in self-care to keep ourselves and our communities physically and emotionally healthy during these challenging times.”

Next step: Recognize that there is a mental health crisis in America and the COVID-19 pandemic is having a serious negative impact on that crisis. A vaccine, herd immunity, or a flattened curve may signal a close end to the pandemic, but the nation’s mental health crisis will still be here.

With employees’ return to work comes your responsibility to accommodate. Shana and FELTG President Deborah Hopkins will discuss accommodations for all behavioral health issues on the first day of Emerging Issues Week, which runs July 20-24. Some of the simple accommodations for stress are:

  • Allow for longer or more frequent breaks.
  • Provide additional time to learn new task or skills.
  • Allow flexible leave for counseling/ therapy.
  • Consider more frequent meetings with supervisor.
  • Provide stress-reduction programs through Human Resources or EAP services.

Lastly, communicate. When sharing plans for workplace reopening, provide facts. The return to work should follow a well-crafted plan with few to no surprises. And be honest. There are still nearly 1,000 deaths a day due to COVID-19, and the number of cases continues to rise. Ignoring the reality of the moment will only exacerbate stress.

Managing this mental health crisis in the workplace will be one of several topics discussed during the encore presentation of Federal Workplace Challenges in a COVID-19 World: Returning to Work During a Pandemic to be held on June 29. Shana and FELTG Instructor Ann Boehm will also cover telework,  leave and flexible work schedules, medical testing, employees who blow the whistle about COVID-19 related issues, reasonable accommodation, and everything else you’ll need to consider as you attempt to return the workplace to some semblance of normalcy. Gephart@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

Three Things to Consider as You Prepare for Employees’ Return to the Workplace

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By Dan Gephart, May 20, 2020

While the nation’s slow re-opening is being welcomed by struggling small businesses and Americans eager for a return to normalcy, it is also being met with hesitation and fear by many employees who will soon be making their way back to the workplaces they last occupied several weeks ago.

They are not the only ones who are hesitant. You probably are too. And you should be. Bringing teleworkers back to the physical workplace amid a pandemic will not be easy. Agency HR/EEO professionals, attorneys, supervisors, and managers play important roles in ensuring that their agencies follow the appropriate guidelines, comply with laws involving leave and reasonable accommodation, and meet their burden for providing a safe workspace.

Last month, we looked at the rise in virus-related discrimination and harassment against Asian Americans and Pacific Islanders. That is an ongoing problem, as EEOC Chair Janet Dhillon alluded to in a recent message sharing her concerns about race and national origin discrimination.

“Amidst the challenges we are all facing during these uncertain times, the anti-discrimination laws the EEOC enforces are as vital as ever,” Dhillon wrote. “The EEOC is rising to the challenges before us, continuing our mission of advancing equal employment in the workplace and enforcing our anti-discrimination laws.  The EEOC urges employers and employees to be mindful of instances of harassment, intimidation, or discrimination in the workplace and to take action to prevent or correct this behavior.  Our collective efforts to create respectful workplaces for all our nation’s workers, even during these trying times, will enable us to emerge from this crisis stronger and more united.”

If you caught Katherine Atkinson’s insightful and engaging virtual training EEO Challenges in the COVID-19 World last week, you are now aware of the numerous EEO challenges you’ll soon face, if you haven’t already. (If you missed the training, no worries: Katie will be presenting it again on June 30. Register here. And then scoot on over to here to register for Federal Workplace Challenges in a COVID-19 World on June 10, where we’ll cover leave, whistleblowing, mental health crises, reasonable accommodation, and much more.)

This month, we offer three bits of advice as you prepare for the eventual return of employees, the first two of which will be covered extensively in EEO Challenges in the COVID-19 World on June 30.

Beware of the potential liability of making age a factor in employment decisions.

The evidence is clear, and it’s been repeated ad nauseum by everyone from the CDC to the President to your neighbor: The older population, specifically those 65 years old or older, are at a heightened risk for contracting the coronavirus.

So what do you do with that information? Here’s what you can do: Recognize the risks to all of your employees, particularly those most vulnerable, as you facilitate the safe and healthy return to the workplace.

Here’s what you can’t do: Take an employment action against an employee because of his/her age and not for a legitimate, nondiscriminatory reason. Avoid any statements or actions that indicate an age-related bias.

Does that mean you can’t forbid your older employees from returning to the physical workplace? This is where the waters get murky. Such a decision appears discriminatory on its face, but there may be some legal wiggle room because of the importance of health and safety of workers and the fact that this virus disproportionately impacts older individuals. Your best bet is to stay current with guidance out of the EEOC, CDC, White House, OPM, and OMB.

Meanwhile, keep an eye out that you, supervisors, or coworkers do not create a hostile work environment for employees based on their age, or their perceived vulnerability.

Brush up on the Americans with Disabilities Act, and include COVID-19 in your analysis.

As Katie explains during the virtual training EEO Challenges in the COVID-19 World, the ADA is relevant to the current pandemic in at least three significant ways.

  1. It regulates employers’ inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. In pre-pandemic times, it would have been unlawful for agencies to take employees’ temperatures at work. Not now, though. Not only can agencies take employees’ temperatures, but they can also administer COVID-19 tests, because COVID-19 is currently a direct threat.
  2. It prohibits covered employers from discriminating against individuals with disabilities or excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a direct threat. And since March 2020, a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace.  The most recent CDC and public health authorities’ assessment provides the objective evidence needed to deem COVID-19 a direct threat.
  3. It requires reasonable accommodations for qualified individuals with disabilities during a pandemic. Employees with COVID-19 are not entitled to reasonable accommodation solely by virtue of having the disease. Does that mean you should dismiss the thought of accommodating an employee recovering from COVID-19 or at risk for COVID-19? Consider an employee with an underlying respiratory condition: You should follow the usual analysis for determining if the employee is a qualified individual with a disability.

Effectively communicate changes and policies with your employees.

Do you remember labor-management partnerships? Regardless of your opinion on this Clinton-era concept, you have to admit: A strong working relationship between unions and management would be especially helpful these days.

Some of the changes to the physical workplace over the next year could be substantial, particularly until a vaccine arrives on the scene. Tightly filled open workspaces are likely a thing of the past. Some private-sector employees are installing clear acrylic safety shields (think sneeze guards) between employee cubicles. We can likely expect more environment-altering innovations.

How will that play out in the federal workspace? Agencies and unions have waged battles over inches of space in an office. Think of how these new workplace layouts and innovations will go over with union reps. And what will bargaining unit employees think of new restrictions such as mask requirements or enforced social distancing requirements? How can any of the sudden and dramatic workplace changes be implemented in a way that makes everyone comfortable and limits labor clashes?

Few contracts address any of the specific changes we’re going to see implemented. However, as FELTG instructor Joe Schimansky reminded me last week, most contracts include the statutory right for agencies to take whatever actions may be necessary to carry out their missions during emergencies. Joe will undoubtedly be covering these challenges when he presents FLRA Law Week with fellow FELTG instructor Ann Boehm August 3-7.

We’re entering uncharted waters, and there’s only one thing we know for certain: Effective communication is the starting point. As always, FELTG has you covered: Join Dr. Anthony Marchese on August 19-20, 2020 for the virtual training program Effectively Managing and Communicating With Federal Employees. Good luck out there. Gephart@FELTG.com

And Now a Word With … Bob Woods

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By Dan Gephart, May 20, 2020

We are thrilled to announce the newest addition to our FELTG Faculty – Bob Woods (pictured at right). As a former federal conference program chair, I had the opportunity to work with Bob in recent years. He’s smart, engaging, approachable, and cares about the federal workforce. In other words, he fits right in with the rest of FELTG’s instructors.

If you have seen Bob present or if you’ve worked for the Department of the Navy, then you already know this about Bob. If not, you’ll get to see and hear him in action soon. Bob will be one of the presenters during the FELTG Virtual Training Institute’s Taking Defensible Disciplinary Actions on June 1-3, 2020 and EEOC Law Week August 10-14, 2020.

Most recently Bob served as the Principal Deputy Assistant Secretary (Manpower and Reserve Affairs) for the Department of the Navy. He  was the principal advisor to the Assistant Secretary in executing responsibilities for the overall supervision and oversight of manpower and reserve component affairs of the Navy, including the development of programs and policy related to military personnel (active, reserve, retired), their family members, and the civilian workforce; the tracking of the contractor workforce; and, the oversight of Human Resources systems within the Department.

Previously, Bob served as  Assistant General Counsel (M&RA) where he was legal advisor to the Secretariat for matters concerning military and civilian personnel policy. He also coordinated the efforts of Navy attorneys worldwide in administrative and federal court employment litigation. He was appointed Special Counsel Litigation where he was responsible for the most important litigation matters under the cognizance of the General Counsel. His pre-Navy career included stints with the General Services Administration and the Department of Commerce, where he handled labor and employment litigation.

Bob retired from the U.S. Air Force in 1998 after more than 20 years of active duty.

We had to put an end to the FELTG Faculty initiation process a few years ago, so instead, we’re submitting Bob to an And Now a Word With … interview.

DG: What’s the best advice you’ve received that had the most impact on your federal career?

BW: I’d have to say that in addition to “follow the golden rule,” the best advice I received was the tried and true (for the most part) “bloom where you’re planted.” About 98 percent of the time, I was “planted” in places where I could bloom and thrive. In those cases, I found that putting in the work and being a generally cheerful and helpful colleague enabled me to be recognized for my potential and helped me get the assignments and jobs that I wanted and that helped me progress. I learned that I was/am responsible for myself and that I can choose to be sunny (or gloomy). Learn your craft, be inclusive, take on the tough assignments, be timely, be collegial and you’re likely to be successful. In those very few cases where I was “planted” in less than “fertile soil,” I made an effort to improve the conditions by doing those things (hard work, cheerful colleague, etc.) that helped me thrive. Sometimes however, no matter what you do, you can’t fix toxic conditions and you have to find a way to move on.

DG: What’s the federal employment law-related myth that you think is most prevalent government-wide?

BW: I think the most prevalent federal employment law-related myth I’ve encountered is that you can’t fire a civilian. In my experience, many supervisors suffer poor-performing or toxic employees for far too long. These employees make up a very small fraction of the civilian workforce, but account for a disproportionate amount of grief. In my opinion, the tools available to deal with poor performers are sadly underutilized, despite the fact that they are fairly straight forward and relatively easy to use.

DG: How can that be fixed?

BW: This is clearly a leadership issue. Some supervisors would rather put up with the poor performer than use these tools. This is probably because they either don’t understand how to use these tools or they’re afraid of having to defend against the employee’s complaint or appeal (or a combination of the two). To fix this problem, supervisors need to be taught how to use the tools, provided good support from their leaders, HR and Legal teams, and held accountable themselves by their supervisors to do the right thing.

DG: What’s your favorite part of teaching/presenting?

BW: I enjoy the fact that I’m able to share what I know with the audience and I enjoy interacting with them. Federal employment law can be a complicated topic and I enjoy breaking it down for folks to be able to better understand and use these tools.

Gephart@FELTG.com

And Now a Word With … EEOC’s Dexter Brooks

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By Dan Gephart, April 21, 2020

For a dozen or so years, I was a regular attendee at the EXCEL Conference, put on annually by the Equal Employment Opportunity Commission. I’m an introvert, so conferences could be a challenge for me. But I always felt at ease at EXCEL once I saw Dexter Brooks and his beaming smile walking down the hallway toward registration.

You’d be hard-pressed to find a better person to fill the role that Dexter performs at EEOC, where he is associate director of the Federal Sector Programs Office within the Office of Federal Operations. The SES-er leads FSP’s efforts to help agencies develop strategies to prevent discrimination. Dexter knows EEO law top to bottom, and he has a deep insider’s understanding of how EEO plays out at federal agencies. He is also an effective and engaging presenter, able to convey his EEO knowledge in practical and understandable bites.

FELTG caught up with Dexter before the country was turned upside down by the COVID-19 pandemic. We wanted to hear what OFO’s approach was to cases involving sexual orientation and gender identity as we await the Supreme Court’s ruling on Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC. The combined cases raise the issue of whether Title VII’s protections against sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity. The ruling is expected later this term.

The agency deferred on the question, not wanting to get ahead of any decision coming out of the Supreme Court. Understood. So we turned our attention to discrimination trends in the federal workplace.

DG: In what areas do agencies need the most training help?

DB: Based upon Federal Sector Programs’ complaints data collected from federal agencies, EEOC’s Appellate Review Programs’ findings of discrimination and procedural reversals, and FSP’s outreach and technical assistance to agencies, it appears that agencies are most in need of training on retaliation/reprisal, reasonable accommodation, non-sexual harassment, properly identifying and framing hostile environment harassment claims, identifying and resolving conflicts of interest issues that arise during the administrative EEO complaints process, and barrier analysis.

DG: It’s been a few years now since the agency’s report on harassment, and the sharp increase of sexual harassment complaints prompted partly by the #MeToo movement. What trends are you seeing in terms of harassment complaints? And have you noticed any considerable changes in how agencies are training their employees on harassment?

DB: Between fiscal years 2012 and 2018, federal agency sexual harassment complaints increased by about 1 percent, with a total of 3.1 percent of all complaints alleging sexual harassment in 2012 compared to about 4.4 percent of all complaints alleging sexual harassment in 2018.

After the issuance of the EEOC harassment report, EEOC developed new training classes for employees and managers on creating and maintaining a respectful workplace. These classes teach employees how to create a culture of respect using bystander intervention techniques and instruct managers how to identify and address uncivil behavior before it rises to the level of harassment. These modules are focused on proactive prevention rather than the traditional legal/compliance modules that typically had been the centerpiece of anti-harassment training. The demand for this type of training in the federal sector has been robust and has increased each year since the training’s 2017 rollout.

This is consistent with information FSP has received from agencies during outreach, which revealed agencies are not limiting their anti-harassment efforts to mandatory compliance training but are adding to their training modules on topics such as cultural awareness and civility.

DG: The workplace is as divisive as it has ever been. Is that being reflected in the number and type of claims you are seeing?

DB: Generally, the rate of counselings and complaints have seen a spike since fiscal year 2014, reaching a peak in fiscal year 2018 at 37,042 counselings — an 11 percent increase since fiscal year 2014. This is fairly consistent across all bases as of fiscal year 2018. Complaints also reached their highest level since fiscal year 2014 at 15,578 — an 8 percent increase. This increase appears to be across all bases, as the proportion of complaints filed by statute has remained consistent during this same time period, with Title VII comprising about 56 percent of all complaints, followed by ADEA at 22 percent, Rehabilitation Act at 21 percent, EPA at .48 percent and GINA at .42 percent.

DG: How is the EEOC doing on the backlog of cases over 500 days old? How long is a typical EEOC appeal from the time it’s received until the time it’s issued?

DB: Currently, [the Appellate Review Program] has 124 pending cases over 500 days old. The average processing time for an appeal is approximately 312 days. By comparison, in FY 2019, the average processing time was 399 days.

[Editor’s note: We will cover everything EEO-related during FELTG’s popular EEOC Law Week, which has been rescheduled for August 10-14, 2020 in Washington, DC.] Gephart@FELTG.com

Flatten the Curve on Virus-related Workplace Harassment

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By Dan Gephart, April 15, 2020

As the grim realities of the COVID-19 pandemic began to spread across the country in mid-March, so did discrimination, harassment, and the unfair treatment of some Americans. Spurred on by references to coronavirus as the “Chinese Flu” and, even more disgustingly, “Kung Flu,” the unfair treatment took many forms with one commonality – those on the receiving end were thought to be Chinese.

The California-based Asian Pacific Policy & Planning Council received nearly 1,200 reports of harassment during a two-week period in mid-March. Most were reports of verbal harassment. In one case, a young woman was screamed at and spat upon on as she walked down a San Francisco street. It’s not limited to California. Across the country, numerous Asian Americans and Pacific Islanders have experienced everything from microaggressions and racial profiling to violence.

The biased treatment has taken on economic forms as well. While Americans bemoaned the lack of toilet paper, rolls upon rolls of the desired bathroom tissue sat on shelves in Korean and Chinese groceries across the country. Chinese restaurants saw a significant drop in customers even before restrictions on restaurants were put in place.

Recent reports optimistically suggest that social distancing efforts may be flattening the curve of the virus. But they do not suggest a flattening of this ignorance that leads to discriminatory actions. Bias may appear to be dormant now as the majority of employees work from home. However, you need to be aware that it could erupt anew when employees return to the physical workplace.

Employees are protected from harassment and disparate treatment based on national origin. National origin is a protected category and it’s broadly defined. The law protects employees against discrimination based on an individual’s place of origin, as well the origin of an individual’s ancestors. It protects individuals who have the physical, cultural, or linguistic characteristics of a national origin group. The law protects those who are married to a person of a national origin group, have a name closely associated with a national origin group, or belong to an association that promotes the interest of a national origin group. In its 2016 guidance, the EEOC noted that a lot of national origin discrimination tends to be intersectional, which means the individual is discriminated against based on national origin and another protected basis, such as race or religion.

Another important point: Employees are also protected from discrimination based on perceived national origin, which seems to be the case with much of the virus-related harassment.

If employees create a hostile work environment for a coworker because of his/her/their national origin based on some uneducated reasoning attached to COVID-19, it’s your responsibility to promptly investigate and correct those actions. You shouldn’t take action just to meet your legal obligations. Taking action inspires the trust of your employees and generates their confidence that you will take all allegations seriously.

To show that you’re serious, take corrective action that:

    • Is designed to stop the harassment.
    • Includes disciplinary measures that are proportional to the seriousness of the offense.
    • Doesn’t adversely affect the victim of harassment.
    • Addresses harm, such as reinstatement, expungement of disciplinary records, restoration of leave and other appropriate remedies, including an apology from the harasser.

You’ll learn more when you attend Preventing and Correcting Discrimination: A Focus on Race, Color, and National Origin on Thursday, April 23.  The presentation by FELTG Instructor Ricky Rowe, the former National EEO Manager for the Department of Veterans Affairs, is one of nine live instructor-led events taking place during the FELTG Virtual Training Institute’s three-day Emerging Issues in Federal Employment Law event, April 21-23.

While the country has always rallied to meet its great challenges, our sad historical tendency has also been to find a target to blame. This has led to numerous horrors, such as Japanese internment camps or the lingering discrimination against American Muslims. Don’t let it happen in your workplace. Gephart@FELTG.com

Managing the Workplace During the Coronavirus Pandemic

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By Dan Gephart, March 19, 2020

First, it was the guidance from the Office of Personnel Management less than two weeks ago. And then as last week ended, the White House recommended that agencies ensure continuity of operations and keep their employees safe by expanding telework and leave options. We are looking at a new federal workplace reality for, at least, the near future.

Here are some suggestions for managing the workplace, while protecting your employees, in this new reality.

Get over your issues with telework. It’s been 10 years since the Telework Enhancement Act was signed by President Barack Obama. Your agency should have a plan, even if that plan was scaled back over the last couple of years. One of the reasons telework was touted so strongly once upon another Administration is because it’s an agency’s best tool to ensure the continuity of its essential functions.

It’s hard to imagine a situation that aligns itself more with the use of telework. You have seemingly healthy employees who can work, but because of their contact with a person who may be symptomatic, they are quarantined out of the workplace.

Earlier this month, OPM sent out the following guidance:

“For an employee covered by a telework agreement, ad hoc telework arrangements can be used as a flexibility to promote social distancing and can be an alternative to the use of sick leave for exposure to a quarantinable communicable disease for an employee who is asymptomatic or caring for a family member who is asymptomatic. An employee’s request to telework from home while responsible for such a family member may be approved for the length of time the employee is free from care duties and has work to perform to effectively contribute to the agency’s mission.”

Most agencies would agree that telework is not the right option for employees who are taking care of children at home during the workday. And that was the standard practice – until recently. OPM suggested that agencies loosen up their policies to allow employees to telework even if they’re caring for children at home due to school closings.

Once this health crisis is in the rearview mirror, I hope the Administration, OPM and agencies reassess the value of telework and expand programs so they are better prepared for future emergency situations. And it doesn’t hurt that telework will also help agencies recruit and retain employees, increase productivity, reduce government spending, and accommodate some employees with disabilities.

Hold employees accountable for performance and conduct. A telework assignment is not an offer to Netflix and Chill. Remember this: Work is not a place, it’s a thing you do. And now, more than ever, you need employees who are doing their “thing” as best they can.

Follow these best practices as you manage teleworkers:

  • Review your employees’ telework agreements.
  • Communicate your expectations.
  • Model expected behavior, especially if you are also teleworking.
  • Support your employees. Be available to them.
  • Don’t over-monitor.

What about asymptomatic employees who were struggling with performance before telework became an option? If an employee is currently in the middle of demonstration period and is placed on telework, that demonstration period should continue as scheduled, whether there is a week, two weeks, or more left.

However, if an employee isn’t eligible for telework while they are quarantined, then it’s a different story. If the employee is on sick leave or  weather and safety leave, their approved time off cannot be used against them. Re-start the demonstration period when their leave ends and they return to the physical workplace.

Authorize weather and safety leave. Wait up, did I just say weather and safety leave? Are we expecting a late winter Snowmaggedon?

Not at all. OPM and the White House suggest that weather and safety leave be used for those asymptomatic employees who are “subject to movement restrictions” and aren’t a part of the telework program. 

Per OPM: “This determination is based on the significant safety risks for other employees and the general public that would be incurred if such an employee were allowed to travel to and perform work at the employee’s normal worksite.”

There is this disclaimer in OPM’s guidance: “The use of weather and safety leave would not be appropriate in cases of communicable diseases that have not been designated as quarantinable by public health authorities.”

Weather and safety leave isn’t the only option. Review OPM’s guidance for information on the use of sick leave, annual leave, and more. And you’ll be sure to get answers when you join us for Absence, Leave Abuse, and Medical Issues Week June 8-12 in Washington, DC.

Don’t get hung up on sick notes. OPM wisely allows agencies to be liberal with doctor note requirements for sick leave of three days or more requirement. (Quick reminder for future non-COVID-19 days: Agencies may require medical evidence for which sick leave is granted for fewer than three days if it determines the evidence is necessary.)

The government doesn’t want someone who has had contact with the coronavirus to be in the workplace, possibly infecting others. But tests for the virus are hard to come by so far. For that reason, OPM asked agencies to be “mindful about the burden and impact of requiring a medical certificate.”

“An agency may consider an employee’s self-certification as to the reason for his or her absence as administratively acceptable evidence, regardless of the duration of the absence.” Gephart@FELTG.com