No Debate Necessary: Accommodating Employees Who Had Strokes

, ,

By Dan Gephart, November 15, 2022

I watched my no longer undefeated Philadelphia Eagles take on the Washington Commanders on Monday Night Football. I am usually a wreck watching my Birds, and the last few weeks have been more anxiety-filled than ever. Despite the loss, the game was less stressful. The reason? I wasn’t forced to watch dozens of political ads during the game.

Regardless of where you are on the political spectrum or how you feel about last week’s results, I think we can all agree on saying good riddance to these dark, poorly produced, truth-averse, fear-mongering commercials. This past election season took awfulness and ugliness to a new level.

As losing candidates and parties continue their post-mortems this week, I’d like to conduct one, too. But I don’t want to discuss issues, votes, winning, or losing. Let’s talk about reasonable accommodation.

As the Pennsylvania primaries rolled to an end, the campaign for Senatorial candidate John Fetterman announced that he had suffered a stroke. Fetterman still won the Democratic primary, then stayed off the campaign trail for weeks as he recovered.

A major party candidate for the Senate recovering from a stroke seemed like an anomaly. It’s not. Former Illinois Senator Mark Kirk suffered a severe stroke and still campaigned for reelection in 2016, although he eventually lost to Tammy Duckworth. Two current Senators – Ben Ray Lujan of New Mexico and Chris Van Hollen of Maryland – have suffered strokes since they’ve been in office. More than 795,000 people in the United States have a stroke each year, according to the CDC.

Fetterman’s campaign announced he had auditory processing difficulties, a common occurrence after a stroke. Fetterman’s first big foray back in public, other than a few small rallies, was a televised high-stakes debate with his opponent Mehmet Oz. Fetterman had requested and received an accommodation of closed captioning.

Despite the accommodation, Fetterman stumbled over some words, struggled to find others, and spoke haltingly. Critics and opponents called his debate performance “painful to watch,” “disastrous,” and “cringe-worthy.”

As Federal HR and EEO practitioners and supervisors, what can we learn from all of this?

  1. A communication disorder is not a reflection on an individual’s brain capacity or his/her/their ability to do a specific job. This should be obvious to everyone, but it isn’t always. For years, people have assumed that someone who struggles communicating — whether it’s a speech impediment or aphasia — lacks intelligence. Research has consistently shown that is not always the case.
  1. Accommodations are highly individualized. Just because another employee who had a stroke received a certain reasonable accommodation doesn’t mean that accommodation will be successful for someone else who suffered a stroke. There are a wide variety of stroke-related limitations. And people experience these limitations in different ways. The Job Accommodation Network suggests asking the following questions during the interactive process:
  • What limitations is the employee experiencing?
  • How do these limitations affect the employee and the employee’s job performance?
  • What specific job tasks are problematic as a result of these limitations?
  • What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?
  • Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?
  • Do supervisory personnel and employees need training?
  1. Not every reasonable accommodation will be effective. Closed captioning is a potentially effective accommodation for someone who processes visual information better than auditory information, such as Fetterman. “But during a debate,” Disability Policy Expert Adam Fishbein wrote in an opinion piece for the Philadelphia Inquirer, “where multiple people were speaking rapid-fire, it would be difficult for Fetterman to integrate what he needed to read in order to process what was being said.” Fishbein and his cowriter Susan Paul, a certified speech/language pathologist, said a more effective accommodation would’ve been to allow Fetterman extra time to digest what he read and formulate his response, not starting the clock on his response until he started talking. Work closely with the employee and communicate often about the effectiveness of the accommodation.
  1. Have patience with the employee, but don’t delay accommodation. Not only are the limitations for individuals who have had strokes highly individualized, so is the recovery time. Taking your time to find the right accommodation doesn’t mean letting the situation play out. Jeffry R. v. USPS, EEOC App. No. 0120180058 (EEOC 2019) offers a great example: After a city carrier had a stroke that caused partial paralysis, he requested a spinner knob on his vehicle. The agency failed to provide one for three years. The agency argued that the carrier was not qualified because he took too long to complete his route. However, the EEOC found the agency only gave the carrier one month to reacclimate to delivering mail and to his route – he was able to do it within four months.

For more guidance on accommodation, join Attorney at Law and FELTG Instructor Katherine Atkinson November 17 for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency. Gephart@FELTG.com

And Now a Word With … EEOC Commissioner Keith Sonderling

, ,

By Dan Gephart, October 18, 2022

Efficiency.

Enforcement.

These two words are probably not among the first to spring to mind when you think of the Equal Employment Opportunity Commission. But EEOC Commissioner Keith Sonderling has a whole lot of statistics to explain why they should be.

Let’s look at FY 2021, the last year for which data is currently available. The EEOC collected a total of $485 million for more than 15,000 victims of discrimination. Out of that large sum, almost $100 million went to 2,169 Federal employees.

“When I speak across the country and I talk about that statistic, people are shocked,” EEOC Sonderling said. “That’s a big chunk of change from an overall picture.”

What about efficiency? Try on this statistic: The 7,664 hearing requests received in FY 21 was a decrease of 6.2 percent from the previous fiscal year. This can be partly attributed to the resolution of 9,082 complaints by the Commission’s hearings program. “Getting 9,000 complaints out the door, that’s really efficient.”

Meanwhile, employees took advantage of the EEOC’s free mediation program. More than 600 Federal sector mediations were conducted, resulting in another $8.4 million for Federal employees and applicants.

“We’ve seen a lot more interest in mediation since the pandemic when we went virtual,” Sonderling said. “Before, you had individuals hesitant to enter mediation. Think of an old-school mediation. You go into a conference room with the person who discriminated against you and your old boss. You never want to see these people again. It’s traumatic. But virtually, you can be in a separate breakout. You don’t even have to see the people.”

The EEOC has been criticized in the private and Federal sectors about case backlogs. Progress is being made there, too, according to Sonderling. In the Federal sector, the aged inventory was reduced by 11.5 percent. And resolutions result in a 6 percent reduction of cases that were more than 300 days old.

“The reduction of pending and aged inventory will have a positive impact on the agency’s ability to more timely process the hearings complaints received and better serve participants in the hearings process.”

The agency is developing its next Strategic Enforcement Plan – an important document that will determine the Commission’s priorities for the next five years. The last strategic plan was approved in 2016. It set the EEOC’s focus over the past five-plus years on, among other things, eliminating barriers in recruitment and hiring, protecting vulnerable workers in underserved communities, ensuring equal pay, and preventing systemic harassment.

Why is this important? Of the EEOC’s 99 findings of Federal sector discrimination in FY 2021, 83 were “identified as implicating one or more Strategic Enforcement Plan priorities, including numerous decisions addressing equal pay or other wage discrimination issues.”

There have been three hearings on the new SEP, all are available on the EEOC’s YouTube page. There will be an opportunity to submit formal comments through the Federal Register. As the agency looks forward, we thought it was a good time to check in with Commissioner Sonderling (pictured at top next page) about priorities, trends, and more. “The most important thing for me and, I think, for all of us at the EEOC is to ensure that the Federal government is leading in creating an inclusive, barrier-free workplace because the US government is the largest employer in the country,” Sonderling said. “It’s important for Federal government to be the model employer. That falls on the EEOC to give guidance to the agencies compliance assistance to prevent discrimination and also from an enforcement perspective when discrimination occurs.

DG: Charges of discrimination are down. Why is that?

KS: I’d love to say it’s because (employees are) realizing employers are trying to do the right thing and prevent discrimination from occurring. Or that the EEOC has provided enough information to employees to know what happened may not have been discrimination. Also, too, with the economy we have now and so many jobs available, instead of going down this very long road of filing charges of discrimination, they may give up because they got another job and think, “I don’t need this anymore.”

DG: Reprisal continues to be a major problem for agencies. Based on the cases before you, what can agencies do best to limit reprisal?

KS: Well, let me tell you: It’s not just the Federal government. It’s across the board. It’s the number one filed alleged basis of discrimination in the United States. Hands down. Those are the most claims. It’s a persistent thing.

It’s not just at EEOC and in the discrimination context. The NLRB has retaliation provisions. Department of Labor, OSHA has provisions, as well.

Back in 2016, the EEOC put out broad guidance and tried to define reprisal very broadly. It’s treating employees differently because they complained about discrimination on the job, filed a complaint, participated in any manner in a charge or proceeding — theirs or someone else’s. Second, something negative has to happen

to your employment, generally, in addition to just filing charge of discrimination. What happens if you’re resisting sexual advances? Or you requested an accommodation for disability or religion? Did your work situation change in an adverse way once that occurred?

For agencies, it’s really just maintaining plain language anti-retaliation policies.

We simplified the definition in our guidance available to the public. Federal agencies’ policies and retaliation reporting procedures must do the same, just make it simple. Make it so plain language with examples of what is retaliation and what is not retaliation.

If you are fired or demoted because you are not performing well at work, you’re not hitting your goals, or just not doing the job, that’s not retaliation. But, if you are fired or demoted because you were sexually harassed or filed a charge, that’s a different story. Make it clear: This is retaliation, and this is not.

And it must come from the top. We saw this really changed with the MeToo movement. When the movement happened, it was national news. Harvey Weinstein and offending CEOs were fired. New management teams came in: What was the first message they were saying? From that CEO level, they were saying: “We’re not going to tolerate this harassment. We’re willing to fire the CEO. We’re willing to fire our rainmakers, our best performers if they are sexually harassing. And the same needs to happen here. In cabinet agencies, it needs to come from the top. It needs to come from the highest career SES, the cabinet secretaries themselves, the leaders of the agencies. This is just not going to be tolerated. We have an open-door policy. If you feel like you’re being harassed, here’s the mechanism we put in place in our agency. If you don’t feel comfortable going to that, here are alternate ways to report harassment, so you’re not dealing with the harasser or the direct manager. You can go to neutral HR or the civil rights office in your agency and not have that fear of reprisal.”

DG: Policies are important.

KS: Let’s make them easier to understand, and let’s have that commitment come from the top. So that from very first day, they know the leader of the agency is against this and it’s part of the culture at this agency.

That’s my best advice.

DG: Federal agencies often require a bar on reemployment as a term in an EEO settlement agreement for an employee who no longer works at the agency and filed an EEO complaint. Does the EEOC have a position on whether such clauses constitute retaliation per se?  

KS: Yes, the EEOC has dealt with this. And the Supreme Court has dealt with this in the private sector. They basically said: Look, it’s a contract and the parties in the settlement agreement or consent decree or however you get there, if you agree to this no re-hire policy, if it’s very clear and if it’s a legitimate nondiscriminatory reason for refusing to re-hire, then it’s valid. That is the key.

Even if settling claims of discrimination, if you’re putting in no-hire provisions, they should be explainable, and if it is later challenged, you may have to be able to provide the reasons the no-re-hire position was related to legitimate nondiscriminatory reasons. Basically, it’s a contract claim. However, Courts will not enforce contracts about future discrimination. So even in the event you have a no-rehire clause and you re-hire the individual, you cannot waive future claims of discrimination.

The EEOC dealt with this in 2003 in a Federal sector opinion [Jablonski v. NLRB, EEOC Appeal No. 01A23730]. That was a case of an employee against NLRB. We upheld that a no re-employment clause in a settlement agreement with a former employee was valid. The agency also declined to impose a reasonable limitation on the no-rehire period.

Like the Supreme Court, the EEOC finds that settlement agreements are contracts between the complaint and the agency. If the intent of the party is in the contract, that’s what’s going to control.  We rely on the plain meaning of the contract.

Where confusion arises when settling with current employees is waiving future claims of discrimination, including retaliation that has not yet occurred. Even if you had that no re-hire, and agency goes and prevents you from getting another job, that’s still retaliation.

DG: What impact did the pandemic have on employees with disabilities?

KS: Employees with existing disabilities have been largely impacted by the pandemic. For instance, they had a disability before and now the disability is more severe and now they need additional accommodations. Or, you have Federal workers who weren’t disabled and now need those accommodations because of long haul COVID.

So many Federal workers who were not disabled suddenly have become disabled post-COVID and we’re seeing that across the board, related to long haul COVID.

We’ve given out a lot of guidance on this to help Federal agencies make that determination: What is a disability now post-COVID? What is long haul COVID? Our guidance has very specific examples of the types of long haul COVID, like needing supplemental oxygen, having heart-related issues, severe fatigue, heart palpitations versus what is not COVID — a cold, congestion, sore throat.

I think the Federal agency EEO/Accommodation manager will be flooded with these requests, especially as more employees come back to the office.

[Editor’s note: Join FELTG for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency on Nov. 17, from 1-3 pm ET.)

DG: Technology is accelerating at such a fast pace, especially workplace technology. Is accessibility to this technology keeping up the same pace?

KS: In the private sector, companies are rapidly implementing technology like artificial intelligence to make decisions about their workforce, whether to recruit, whether to hire. The future is now.

A big concern is that workers with disabilities have the same ability to use these platforms with their disability as they would any kind of screening test. Federal agencies have had these assessment tests for decades, and a lot of them are going online. The agencies know they must accommodate both applicants and employees who are being subject to these tests.

The technology can certainly affect workers with disabilities when it comes having to do your interview online or having to take your test online.

Make sure these newer technologies don’t discriminate against any of the categories we enforce here, especially workers with disabilities. Outside of retaliation, disability discrimination is our number one cause of action in the private sector. Employers using these technologies should go through the same interactive process on the front end for applicants and during the life cycle, so employees feel comfortable asking for requests without fear they’re not going to get the job because they’re not using the program the employer spent a lot of money on buying and implementing.

With artificial technology in the ADA space, there are three takeaways:

  1. It needs to provide reasonable accommodation.
  2. The tool can’t intentionally or unintentionally screen out employees with disabilities.
  3. Make sure these tools are not seeking disability-related inquiries or not medical examinations and relevant to the job.

These are the same principles we know for reasonable accommodation, but they can’t be lost here. With HR technologies, you can’t have that set-it-and-forget-it approach.

Gephart@FELTG.com

And Now a Word With … Former EEOC Commissioner Christine Griffin

,

By Dan Gephart, September 26, 2022

When Christine Griffin (photo, right) started her tenure as a commissioner at the Equal Employment Opportunity Commission in 2005, she had a long list of things she wanted to work on. Despite her previous work with the Boston Disability Law Center, the Federal employment of people with disabilities was not at the top of that list.

That quickly changed.

“After learning early on that people with disabilities, and more specifically, targeted disabilities were not represented in the Federal workforce in any meaningful numbers, I decided that should be my focus,” Griffin said. “I always believed that government should live up to the ideals that it was telling everyone else to live up to.”

During her time at EEOC, Griffin and a team of attorneys that included Steve Zanowic and Jo Linda Johnson, developed the LEAD Initiative (Leadership for Employment of Americans with Disabilities) with two goals:

  • Increase awareness of the issue.
  • Increase the number of people with targeted disabilities working for the Federal government.

LEAD laid the groundwork, and numbers have steadily risen. The overall participation rate of individuals with targeted disabilities increased from 1.05 percent in 2003 to 1.80 percent in 2019. Meanwhile, 12 of 28 independent agencies, 11 out of 17 cabinet departments, and 34 out of 98 subcomponents of cabinet departments are meeting the 2 percent goal. In 2016, only 10 independent agencies and subcomponents reached that goal.

Griffin took that work to the Office of Personnel Management five years later when she became the agency’s Deputy Director. Her most memorable moment, she said, was sitting next to President Obama the day he signed Executive Order 13548, aimed at increasing the employment of individuals with disabilities.

“I think it has taken a long time,” Griffin said, “but the work we did at EEOC to create awareness coupled with the Executive Order from President Obama made Federal agencies more accountable. What is measured is treasured and having someone at the highest level ask for those measurements through EEOC and OPM makes a difference.”

At OPM, Griffin’s team created the first government-wide Diversity and Inclusion Work Group that led to the development of the first government-wide diversity and inclusion strategic plan. And there was another first. Griffin and then EEOC attorney Veronica Villalobos set up OPM’s Diversity and Inclusion Office at OPM. [Editor’s note: Another member of that team was J. Bruce Stewart, who will be presenting The Power of an Inclusive Mentality on November 8.]

Griffin is currently senior executive search consultant at Bender Consulting Services, Inc.

DG: What impact has the pandemic had on reasonable accommodation in the workplace?

CG: The most beneficial impact that the pandemic had was to prove to employers that employees can work from home and be productive. With the amazing technology we have access to, there are very few jobs that can’t be done remotely. I think that came as a shock to many who always thought working from home was a boondoggle. I believe that this will prove to continue to have a significant impact on the reasonable accommodation requests to work from home for people with disabilities. This request will be difficult for employers to deny going forward and hopefully difficult for judges to uphold those reasonable accommodation denials, since even they learned how to work remotely.

DG: Why is it important to revisit existing reasonable accommodations — and how often should that be done?

CG: It is important to revisit reasonable accommodations because of the rapid advances in technology that allow more people to enter and remain in the workforce. I can’t think of one disability that would prevent someone from becoming employed. We don’t need our limbs and senses for most jobs and if we think differently, that is usually a plus for employers. I think an annual review of accommodations would be useful for the employer and employees alike. Just an annual check in with an employee to see how the accommodation is working and if there is something that could be changed, tweaked, etc., to make the employee’s and the employer’s experience better.

DG: What should agencies be doing (or doing better) when recruiting employees with disabilities?

CG: The first thing agencies must do is establish a plan to increase the hiring of people with disabilities that is endorsed at the highest level. Schedule A makes it so easy for Federal agencies to hire people with disabilities without going through a lengthy competitive process. When I was at OPM, we developed the Shared List – a list of people with disabilities who were Schedule A eligible and ready to go to work. This list was populated by Bender Consulting, who found individuals with disabilities with the skills requested by the CHCOs. Agencies had access to the list and could search for the person with the skills they needed. OPM stopped funding that list, and Federal agency personnel are still calling and asking where it is. For now, agencies can contract with Joyce Bender, CEO of Bender Consulting, to help them find the candidates with the skills they need. Bender has been working with agencies for more than 20 years to help them recruit and hire individuals with disabilities.

DG: On the flip side, individuals with targeted disabilities are leaving the government at twice the rate as those without disabilities. Where do you think agencies are failing?

CG: I think some Federal agencies have failed to create the inclusiveness necessary to keep any employees who bring diversity to the workplace. People leave a workplace when they don’t feel valued, and that includes employees with disabilities. We used to say that they will hire you because you’re different (check off a box) and get rid of you for not being the same. I also think that people with disabilities in the Federal government don’t enjoy the same opportunities for advancement. If they can seek that advancement elsewhere, if they feel more valued elsewhere, they will leave.

[Editor’s note: Register for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency on November 17, starting at 1 pm ET.] Gephart@FELTG.com

Employees Can Be AWOL Even if at Work or Working Elsewhere

, , ,

By Dan Gephart, September 12, 2022

Only six percent of American workers who have been teleworking since the pandemic began want to return to the physical workplace, according to a recent poll.

You know that there are more than a handful of people at your agency who feel the same way. What if one of those employees just never came back to the physical workplace and just kept working from home. What would you do?

Let me spell it out for you.

A-W-O-L.

But they’re still working, you say. Yes, but are they working in the location where they were told to report? No? Well then it looks like you have a clear-cut case of Absence Without Leave.

As FELTG President Deb Hopkins pointed out during the recent training session What You Think You Know About AWOL is Probably Wrong, there are foundational MSPB cases going back to the 1980s on AWOL. The newly quorumed MSPB has already decided AWOL cases. And there are so many AWOL cases in between that you should have little problem finding one with a similar fact pattern to yours. As Deb said during the training, “a lot of employees have gone AWOL over the last 40 years.”

Are you still hesitant to charge AWOL for an employee who works remotely despite orders to return to the physical workspace?  Well, the MSPB has ruled that an employee doesn’t even need to be “absent from the work site to be found AWOL.” Buchanan v. Dep’t. of Energy, 247 F.3d 1333 (2001).

There are several examples of this, including the employee successfully charged with AWOL for conducting personal business while on duty (Mitchell v. DoD, 22 MSPR 271 (1984)) and the employee removed via AWOL for sleeping on the job. Golden v. USPS, 60 MSPR 268, 273 (1994).

And then you have Mr. Lewis. The Bureau of Engraving and Printing employee, still seemingly dismayed by a change of shifts two years previously, refused to obey his supervisor’s order. He was told that he only should return to work only if he was “willing and able to report for duty.”

Lewis took his supervisor’s directive to mean that he was on “approved leave,” and could take his time to determine if he wanted to continue working. The agency disagreed with his assessment and charged him with AWOL. The MSPB agreed with the agency. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

If you missed Deb’s recent session, join us for Feds Gone AWOL: Understanding the Charge and Applying it Correctly, which will be held on October 6 from 1-2 pm ET, and get yourself up to speed on this important charge. Gephart@FELTG.com

Sometimes Things Just Aren’t as They Seem

, ,

By Dan Gephart, August 16, 2022

If you’re a Federal supervisor and you see your name in the Washington Post, chances are it’s not going to be a positive experience. And that was certainly the case for the high-ranking senior government official whose demeanor and leadership were questioned by anonymous staff members in a story last month.

That this personnel investigation was dragged onto a public website that generates 70 million unique views each month doesn’t look good for anyone involved. I will not weigh in on any of the specific details of this story, nor make any judgments. But I will share three important lessons we can take away from the article.

1. A disability may appear to be something else. Before you rush to judgment on an employee’s behavior, be aware that some disabilities exhibit themselves in ways you wouldn’t expect.

More than 37 million Americans, a whopping 11.9 percent of the population, had some form of diabetes in 2019, according to the American Diabetes Association. That’s a lot of people. When blood glucose levels become too high or too low, a diabetic individual’s mental status can become impaired. It could lead to slurred speech and moodiness that mimic intoxicated behavior. It may seem obvious to you that an employee is drunk, but that may not be the case.

When an employee shows up to work looking disheveled, acting irritably, and appearing sleep-deprived, you may think she was out on a bender. She could have anxiety, post-traumatic stress disorder, or may be undergoing a mental health crisis.

Are you supposed to somehow figure this out on the fly? No. Are you supposed to ask the employee if he has a disability? Heck no! The law prohibits your agency from asking questions likely to elicit information about a disability at this stage. General questions such as, “Are you feeling okay?” are usually appropriate, as is telling the employee: “Hey, did you know we have a Reasonable Accommodation Coordinator?  I’ll email you her contact information just in case you’d like to talk to her.”

If the employee is indeed drunk, remember that you can and should discipline the employee – even if the employee has a disability such as alcoholism.

2. You should hold all employees accountable, even if they may have a disability. Let’s say an employee arrives late for a couple of times in one week. Could a change in medication or a hidden disability be the cause? It’s possible. But that doesn’t mean you ignore what’s happening. Yes, you can point the employee to the RA Coordinator. Then document the incidents using your 75-cent tool (prices may change due to inflation). If the misconduct or poor performance continues, take the appropriate action

3. Reasonable accommodations are not a one-and-done thing. What if the employee had previously informed you of his disability and had already received an accommodation? And now, out of the blue, the performance or conduct worsens.

This is a good reminder that reasonable accommodations are not lifetime appointments. It’s good practice to reassess the accommodation if an employee appears unable to perform the essential functions of their job. Medications change (as do their side effects), and conditions improve, worsen, or simply change over time. Most reasonable accommodations are no- or low-tech. But if you’re providing a high-tech accommodation, you need to ensure it’s compliant with current and changing technology needs and be aware if there’s a new alternative product that would be effective.

The pandemic changed us all. If your employees are returning to the physical workplace after more than two-plus years, now may be the time to re-evaluate the effectiveness of their reasonable accommodations. It’s one of those rare things you can do that is a true win-win for everyone. Gephart@FELTG.com

[Editor’s note: Join Attorney Katherine Atkinson for the session Revisiting Existing Reasonable Accommodations, one of the 11 sessions that make up FELTG’s Annual Federal Workplace 2022: Accountability, Challenges & Trends August 29 – September 1.]

And Now a Word With … MSPB Acting Chair Cathy Harris

,

By Dan Gephart, August 8, 2022

For five-plus years, we at FELTG and others have referred to the then-growing backlog of cases at the Merit Systems Protection Board with dread. So the enthusiasm with which MSPB Acting Chair Cathy Harris is approaching her new position, as evidenced by her appearance on the radio and here, is surprising. And refreshing. And very hopeful.

The Acting Chair said she was “honored and humbled to be nominated” by President Biden. “I am committed to doing the very best I can to protect the merit systems and achieve justice,” she told us. “What an incredible opportunity!”

Harris says “opportunity.” Others see challenge, to put it lightly. The new Board inherited a 3,500-case backlog, at which they’ve been dutifully whittling away. But there are some anxious employees and agencies, who have been waiting a long time for resolution of their cases. And new cases are coming in every day.

DG: What would you say to someone who has a Petition for Review and is wondering when the Board is going to get to it?

CH: We are diligently working to get to your case. The good news is that the career staff has done the work to prepare the Board members to be able to make efficient and thoughtful decisions, so we are not starting from scratch. That said, it is going to take time for us to consider and get to all the decisions that are awaiting our review. We don’t yet have an estimate as to when we will be able to project when we will get through the case inventory but am hoping we should be able to do that before too long.

DG: What are your thoughts about Federal Circuit decisions on issues that the Board didn’t have an opportunity to address (given the lack of a quorum) and their impact on future MSPB decisions?

CH: Appellants may take their cases directly to the Federal Circuit after a decision from an administrative judge. During the lack of a quorum, this enabled appellants to get appellate review of their cases. But appellants have this right even in the presence of a quorum, so the Board is accustomed to situations where it may not have had an opportunity to opine on certain issues.

DG: Is there any extra effort given to encourage settlement on backlogged cases?

CH: Yes. We are actively exploring ways in which we can identify cases that might be appropriate for settlement. We encourage parties to contact the PFR Settlement Program if they feel their case would be appropriate for mediation at this juncture. As time has passed and circumstances have changed, we understand it may be easier for parties to achieve a resolution now. Interested parties may contact the PFR Settlement Program at (800) 209-8960.

DG: Is the Board considering shortening decisions to speed up the backlog reduction?

CH: Yes. The Board will be issuing shorter decisions where appropriate.

DG: Is there a mechanism in place for giving feedback to administrative judges regarding the quality of their decisions?

CH: Yes. Internally, administrative judges receive instructive guidance through Board decisions. Further, pursuant to MSPB’s Judges’ Handbook, Chapter 12, Chief Administrative Judges review initial decisions written by administrative judges below the GS-15 grade level prior to issuance.

Chief Administrative Judges also review initial decisions for complex cases written by administrative judges at the GS-15 grade level prior to issuance. Other initial decisions are reviewed after issuance. Chief Administrative Judges and Regional Directors provide direct feedback to administrative judges regarding whether initial decisions sufficiently adhered to authorities such as the Judges’ Handbook, MSPB regulations, and relevant statutes and case law.

My message to all federal employees, not just supervisors, is: The Board is fully back, and we are committed to protecting the merit systems. Employees and supervisors would do well to educate themselves as to merit system principles and prohibited personnel practices. There is more information on these topics on our website.

[Editor’s note: See our previous interviews with Member Tristan Levitt and then-Acting-Chair Raymond Limon, and register for the MSPB and EEOC Case Law Update on August 31 from 3-4:15 pm ET, part of FELTG’s annual Federal Workplace 2022: Accountability, Challenges and Trends event, or MSPB Law Week September 12-16.] Gephart@FELTG.com

No BS: Prepare Your Agency for Possible BA.5 Wave

, ,

By Dan Gephart, July 18, 2022

Folks, it ain’t over yet.  Forget the crowds of unmasked frolickers you’ve seen on your summer adventures or the lack of above-the-fold headlines about death rates or hospitalizations. COVID is still very real. And there’s a chance we are in for some hard times ahead. How hard those times will be, though, is still not certain.

The BA.5, the most dominant variation of omicron, has residents across Europe and China bracing for a widespread wave and potential lockdowns. Here in the United States, however, we don’t really know what we’re dealing with. Some far-reaching areas of the web will have you believe the BA.5 variant is more contagious than strep throat at a high school party. But ask others about BA.5 and they might think you’re talking about a new boy band.

Since most people take COVID tests at home and others don’t test at all, the numbers being reported each day could be woefully underestimated. Or not. The mixture of conflicting information and COVID fatigue makes it hard to get an accurate sense of the situation – and to get people to care about it.

Regardless of its level of transmissibility, the BA.5 variant is poised to hamper efforts at bringing employees back to physical offices, endanger those who already work in those offices, and diminish agency productivity. Serious repercussions of BA.5 could happen in the next couple weeks. Or picture this: A COVID wave running through your agency as you and your colleagues are trying to put a wrap on the fiscal year. What can you do?

First, take care of yourself. Your best tools are still to avoid crowds, mask up when necessary, and get vaccinated.

As for your agency, you may decide to screen employees for COVID. Some agencies have temperature screening plans in place. As the EEOC notes in its guidance, measuring an employee’s body temperature is a medical examination, which is not permissible under the Rehabilitation Act, with a few exceptions. Because “the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.”

But temperature screens are not that useful. An ongoing UK study found fewer than one-third of the people who self-reported COVID symptoms included fever among them.

Requiring employees to take a COVID test before they return to the workplace is an option, although this is also tricky. The EEOC updated its guidance on COVID tests just this month. Like temperature screens, COVID tests are considered a medical examination, yet they can be used in certain situations.

The EEOC’s guidance:

A COVID-19 viral test is a medical examination within the meaning of the ADA. Therefore, if an employer implements screening protocols that include COVID-19 viral testing, the ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity.” Employer use of a COVID-19 viral test to screen employees who are or will be in the workplace will meet the “business necessity” standard when it is consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing. Be aware that CDC and other public health authorities periodically update and revise their recommendations about COVID-19 testing, and FDA may revise its guidance or emergency use authorizations, based on new information and changing conditions.

When assessing whether you meet the “business necessity standard” to administer COVID tests, consider the following:

  • The level of community transmission.
  • The vaccination status of employees.
  • The degree to which breakthrough infections are possible for employees who are up to date on vaccinations.
  • The ease of transmissibility of the current variants.
  • The possible severity of illness from the current variant.
  • How much contact employees have with each other in the workplace.
  • Potential impact on operations if an employee enters the workplace with COVID.

That’s a lot of information. If you want to keep your employees healthy and productive, keep an eye on guidance from the CDC and EEOC. That’s what we’re doing at FELTG. Every session we offer provides the most up-to-date information available. These upcoming events can help make your return-to-workplace transitions smoother:

Gephart@FELTG.com

EEOC Shares Good News/Bad News Re: Feds With Disabilities

, ,

By Dan Gephart, June 21, 2022

Good news is at a premium these days, so pardon me for still regaling in last month’s announcement from the EEOC about Federal employees with targeted disabilities. Back in a previous life, I worked with then-EEOC Commissioner Christine Griffin on a series of columns she wrote about improving participation rates for employees with disabilities, particularly those with targeted disabilities. I kept a close eye on reports that showed participation numbers slowly ticking up. However, according to a recent EEOC report that looks at a longer span of time, those rates are improving at a much better pace.

Here’s the information straight out of the EEOC’s Annual Report on the Federal Workforce for 2019:

  • The overall participation rate of individuals with targeted disabilities increased from 1.05 percent in 2003 to 1.80 percent in 2019. This was driven by increases in the participation rates of individuals with serious difficulty hearing, serious difficulty seeing, and significant psychiatric disorders.
  • More agencies are meeting the 2 percent goal for the participation rate of individuals with targeted disabilities. Twelve of 28 independent agencies, 11 out of 17 cabinet departments, and 34 out of 98 subcomponents of cabinet departments meeting the 2 percent goal. In 2016, only 10 independent agencies and subcomponents reached that goal.

Targeted disabilities include blindness, deafness, partial and full paralysis, missing extremities, dwarfism, epilepsy, intellectual disabilities, and psychiatric disabilities. Individuals with these disabilities typically have the greatest difficulty finding employment, according to the EEOC.

There’s more good news: The percentage of Federal workers with disabilities (not just targeted) has increased more than 8 percent since 2014. Federal workers will disabilities now make up just under 9.5 percent of the workplace, according to the latest EEOC data.

Unfortunately, there is also bad news via the EEOC’s recent report Status of Workers with Disabilities in the Federal Workplace.

People with disabilities are still underrepresented in Federal sector leadership. Among persons with targeted disabilities, 10.7 percent are in leadership positions and 89.3 percent are in non-leadership positions. That compares to 16.4 of people without disabilities in leadership positions, and 85.6 percent of people without disabilities in non-leadership positions.

Also, employees with targeted disabilities are involuntarily leaving the Federal workplace at more than twice the rate of people without disabilities. Individuals with any disability were 53 percent more likely to involuntarily leave than those without disabilities.

The report also reveals that over a five-year period, Federal sector physical disability-based complaints increased by 22 percent. Mental disability-based complaints increased by a whopping 72 percent. These statistics outpaced the overall increase in Federal sector EEO complaints.

Kudos for those hiring, retaining, and accommodating employees with disabilities.   For everyone else, it’s beyond time to get on board.  Here are three suggestions to help you do that:

1 – Take advantage of Schedule A authority. Do you have a hiring need? Are you already dreading the long and complicated road to filling the open position? Consider Schedule A. It allows you hire a qualified individual with a disability without posting a job announcement or going through the certificate process.

And the process is simple. Contact the correct person at your agency who handles Schedule A. (It could be an HR professional, a disability program manager, an EEO specialist, or a special placement program coordinator.) Explain the competencies you’re looking for, along with the essential and non-essential functions of the job. You will soon receive several resumes of qualified individuals who have the prerequisite skills and are looking for an employment opportunity.

For more guidance, read through the EEOC publication The ABCs of Schedule A Tips for Hiring Managers on Using the Schedule A Appointing Authority.

2 – Prepare yourselves for a huge increase in reasonable accommodation requests. Yes, we know you have a reasonable accommodation process in place. But when is the last time you seriously reviewed its effectiveness, and how well your managers are following it? And are you ready to handle the huge influx of accommodation requests that has already started to happen and will only increase as more employees return to the physical workplace?

Before you can tackle your processes, you need to know the law. Join us for the five-part Reasonable Accommodation in the Federal Workplace webinar series, especially the first session on July 21 that takes a look at Reasonable Accommodation Framework: Disability Accommodation Overview and Analysis.

You’ll learn about important information such as:

  • Understanding what “qualified individual” means.
  • How to properly identify a reasonable accommodation request.
  • When to deny a reasonable accommodation request.
  • And much more.

3 – Make sure supervisors understand the interactive process. An employee does not have to specifically state “I want a reasonable accommodation” when making a request. Also, the RA request does not have to come from the employee. It could from a coworker, family member. Heck, it could even come from a customer. And this is only the first part of the “interactive process.”

You also need to know the essential functions of the job, hold discussions with the employee – that means listen to the employee – and then get creative. Just because a supervisor knows the “best way” to complete a job doesn’t necessarily mean that’s the only way. And, likewise, the employee isn’t guaranteed to get his/her/their accommodation of choice if there is another accommodation that is just as effective. The interactive process is a team effort, and one that requires supervisors to be on top of their game. We’ll tackle the Importance of the Interactive Process in the second part of the Reasonable Accommodation in the Federal Workplace webinar series on July 28. Gephart@FELTG.com

And Now a Word With …. MSPB Member Tristan Leavitt

,

By Dan Gephart, June 6, 2022

Tristan Leavitt, Member, Merit Systems Protection Board

When And Now a Word With … last talked with Tristan Leavitt, the word “corona” evoked visions of a weak mass-produced beer not a virus that would eventually take the lives of more than a million Americans. And the Merit Systems Protection Board was in the seventh month of sitting member-less, following the expiration of former Chair Mark Robbins’ term.

As then-General Counsel of the MSPB, Leavitt had assumed the responsibilities for the executive and administrative functions usually vested in the Chair. Over the next couple of years, Leavitt and a dedicated group of agency staff steered the MSPB through its most challenging period.

Three months ago, Leavitt and Raymond Limon were confirmed and sworn in as Members, ensuring a quorum for the first time in more than five years. And now, the backlog of Petitions for Review that we all watched steadily are being addressed. New MSPB Chair Cathy Harris was finally confirmed by the Senate late last month, so the MSPB is back at full strength for the first time in over half a decade.

Like Vice Chair Limon recently, Leavitt very graciously took time to answer our questions, giving us a peek into the new Board’s approach.

 DG: Are you satisfied with the current pace with which you and Acting Chair Limon are tackling the backlog of cases?

TL: I think we’ve made a decent start.  Both he and I have fantastic staff, and I’ve really appreciated how smoothly our two offices have been able to work together.  That said, no matter how fast we move, we recognize that the backlog represents over 3,000 appellants and their agencies awaiting finality, so I doubt we’ll ever shake the sense of urgency that we look for ways to be more efficient.

DG: It appears you are prioritizing whistleblower cases. Is that so and why?

TL: Way back in October 2019 I mentioned in this same forum that MSPB’s career staff had drawn up plans for dealing with the backlog.  Primarily, that consisted of identifying a “priority group” of 300 cases as a first group for an incoming Board to address.  The group included a mix of all types of cases: easy cases to help new Board members acclimatize, cases dismissed as settled, precedential cases on which a number of other cases hinge, extremely old cases, cases potentially involving large amounts of backpay, etc.  When Ray and I were confirmed, we adopted the recommendation of staff and began working through the priority group of cases.  Given that whistleblower reprisal allegations are raised in some 25 percent of all cases before the Board, it’s not surprising that the group has included a number of whistleblower cases, some of them precedential.

DG: Are you planning to prioritize any other types of cases? 

TL: Since the creation of the first priority group, MSPB staff have developed second and third priority groups that are also approximately 300 cases each.  Beyond those groups, we haven’t yet developed a comprehensive strategy for how we intend to deal with the rest of the approximately 2,700 cases in the backlog.  To some extent, I would say that’s because we’ve been in an acclimation period, particularly since Ray is new to MSPB, and to some extent it’s probably also because it’s unclear how close we might be to the confirmation of a third Board member. Nevertheless, by the time we’ve worked through the priority groups there will have to be decisions made about where to go next in the backlog, and I would imagine we’d be well equipped at that point to develop a strategy.

DG: You’ve decided to keep the non-precedential cases and while most are 1-2 pages, others are much longer. Can you explain your approach to NP cases? 

TL: As Ray noted here recently, MSPB staff have already drafted recommended decisions for approximately 3,400 of the 3,600-case backlog, and those were generally drafted under the procedures in use when last the Board had a quorum.  While Ray and I have exchanged proposed edits with one another in cases or sent a handful back to the career staff for particularly involved revisions, I think it’s fair to say that thus far we’ve mostly just worked with the case formats and lengths presented to us by the career staff.  As a general matter, I would say the most abbreviated non-precedential orders tend to come in cases where it seems very clear to us there is no jurisdiction or where the administrative judge adequately addressed in the initial decision all relevant issues.

DG: Why has the board talked about likely resuming reissuing short form decisions again?

TL: There has been discussion about how much time could be saved by reverting to true short form decisions, particularly for the types of cases I mentioned above that are only receiving abbreviated orders anyway.  On the other hand, drafting a very brief opinion doesn’t seem to be particularly arduous, especially since the shortest already tend to simply state the issue in question and articulate the Board’s standard for granting petitions for review.  As I mentioned before, there are a number of decisions to be made that we’ve postponed until we could get our feet wet by working through the priority groups, and my guess would be that this is one of those issues.  If we did decide to revert to short form decisions, I’d imagine it would be implemented with newer cases coming in for which recommended decisions haven’t yet been drafted.

DG: There was a lot of focus and attention on that backlog of cases, but how else has the presence of a quorum positively impacted the agency? 

TL: The restoration of a quorum is certainly beneficial to agency morale, as all of MSPB’s committed staff are eager to fulfill the full scope of the agency’s important mission.  The Office of Policy and Evaluation’s research agenda can now be finalized, and the full version of its studies issued moving forward.  MSPB can also update its regulations, which is long overdue in some instances.  Finally, while it only requires one Board member and not a full quorum, having gone from no Board members to two also reopens the door to issuing stays requested by the Office of Special Counsel in prohibited personnel practice cases.

DG: What is the status of the agency’s plans for returning employees to the physical workplace?

TL: I largely haven’t been involved on this topic since handing agency head responsibilities over to Ray. However, as far as I’m aware most employees have resumed reentering the workplace at least some days of the week.

Leavitt noted that even pre-pandemic, the MSPB had a relatively high telework rate compared to other agencies. Gephart@FELTG.com

[Editor’s note: How is the Board ruling in these decisions? Join FELTG President Deborah Hopkins for the two-hour virtual training Back on Board: Keeping up With the New MSPB on July 20, starting at 1 pm ET.]

Willful and Intentional: Know When You’re Dealing With Insubordination

, , ,

By Dan Gephart, May 16, 2022

Have you ever had an employee challenge your order or refuse an assignment? Has an employee ever replied to an order with the question: What gives you the right to make me do this?

Regarding the latter, the answer is simple — 5 USC 301-302. Here’s what it says:

“The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business … and to [D]elegate to subordinate officials the authority vested in him … by law to take final action on matters pertaining to the employment, direction, and general administration of personnel under his agency.”

The willful and intentional refusal to obey an authorized order of a superior that the superior is entitled to have obeyed is called insubordination. With employees returning to the physical workplace and the vaccine mandate kicking back in at the end of the month, there’s a good chance you will come face-to-face with situations that look like insubordination in the upcoming weeks. For example, maybe you’ll have:

  • An employee who will not get vaccinated.
  • An employee who will not provide proof of vaccination.
  • An employee who won’t wear a mask where required, or won’t follow other safety protocols.

Or here’s another likely possibility: An employee wants to remain in telework status, and continues to stall the process, by not responding to questions.

These are all instances of misconduct. But is it insubordination? Knowing this in advance is critical to whether any action you take will succeed if challenged.

In a recent class of Insubordinate Employees? Don’t Mess With the Wrong Elements, FELTG President Deborah Hopkins explained what it takes for insubordinate charges to succeed, and she shared some alternative charges that may more appropriate. [Want to bring this 60-minute training to your agency? Contact me or send an email to info@feltg.com.]

The important question you need to ask when faced with insubordinate-like actions is this: Is it a failure to comply or a refusal? When you charge an employee with insubordination, you must prove intent.

In the following two examples, one agency proved insubordination, and the other didn’t. This first decision is 20 years old, however, the topic is quite relevant.

Refusal to be Vaccinated

The Kilauea, a ship supplying ammunition to an aircraft carrier operating in the western Pacific Ocean, was headed toward Korea, a high-risk area for biological weapons. The Commander of the Military Sealift Command ordered that all members of the crew – civilian and military – receive vaccinations against anthrax.

Two Navy employees refused. The chief mate, their supervisor, ordered them to report to the Medical Services Officer to be vaccinated. Again, they refused to be vaccinated and the chief mate warned that they would be removed if they did not receive the vaccination. A week later, they were “signed off the ship.”

After investigating the employees’ claims that they were entitled to medical waivers, the agency removed both employees for “failure to obey a direct order to receive mandatory injections of an anthrax immunization vaccine.” The decision was later affirmed by the Board and the Federal Circuit, who found the removals neither excessive nor unauthorized.

“The misconduct constituted insubordination, which this court defines as a willful and intentional refusal to obey an authorized order of a superior officer, which the officer is entitled to have obeyed.”

A Change of Heart

Remember, intent is the key. The Navy employees refused to get vaccinated. And they followed through on their commitment. But what if they changed their minds? They certainly had plenty of opportunity to do so.

That wasn’t the case with the employee in Milner v. Department of Justice, 7 MSPR 37 (1997). The DOJ employee was being questioned as a witness in an investigation. She was ordered to turn over documents to the investigator. She initially refused, citing concerns about her colleague’s confidentiality. But she went home, gave it some more thought, and brought in the information the next day.

The agency wasn’t pleased with the delay and removed the employee for insubordination.

It didn’t hold up. The MSPB found the agency failed to prove a “willful and intentional refusal” because she ultimately complied. The agency could have charged the employee with something else, but they struck out with insubordination. Gephart@FELTG.com