How Long is Too Long for COVID-Related LWOP?

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By Deborah Hopkins, November 17, 2020

Nearly every day, we at FELTG get questions about COVID-related federal workplace issues. Here’s a recent one worth sharing with the rest of the FELTG Nation.

Dear FELTG:

I was wondering if there was any guidance on how long an agency must allow an employee to remain on Leave Without Pay status if the employee is high risk. Hypothetically, we have employees working in the stores so telework is not an option. If an employee has been given a medical note stating they should avoid exposure or remain at home, and has now been on LWOP for several months, where’s the limit? At this time, there is no end in sight with regards to the pandemic, so no return to work in sight either.

And our FELTG response:

In some ways this is a hypothetical “who really knows” situation because we don’t have any precedent for this pandemic. OPM has encouraged flexibility with telework and scheduling, but obviously someone who works in a store needs to be onsite to do that. Here are a few general thoughts related to your hypothetical.

The employee’s LWOP may be a reasonable accommodation, since the agency is granting LWOP because the employee’s condition prevents him or her from coming to work. Of course, whether it’s an RA depends on why the employee is high risk: Does the employee have asthma or an autoimmune disorder, for example (disabilities)? Or is the employee over 65 and high-risk according to CDC guidance (not a disability)?

Assuming this is an RA, the proper analysis would be to ask at what point the LWOP becomes an undue hardship for the agency, because EEOC’s stance is that attendance is not an essential function of a federal job. And if it’s not yet documented as an RA, that would be an important thing to do, to show the agency fulfilled its obligation to accommodate the employee.

The next thing to do, after the LWOP was determined to be an undue hardship, would be to consider reassignment to a job the employee could perform from home.

If all that failed, this might be a case where the agency could remove the employee for medical inability to perform, depending on what the medical documentation says, and whether a reassignment was available.

If the employee is high-risk simply because of age, or because they live with someone who is high-risk, then none of the RA steps above will apply. In that case, the agency would need to issue a return to work order (whenever LWOP goes beyond a reasonable time), and then could remove the employee if they refused to report. As far as how much LWOP is too much, we really can’t answer that – some agencies allow employees to use it for years. Others are more strict. It really depends on your agency’s staffing situation.

Down the road, this might become an excessive absence removal, especially if the LWOP goes on for over a year, and the return to work is not foreseeable (be sure to follow the Cook analysis if you go this route, and look at cases to help determine how much leave is “excessive” under the law).

All that said, this employee could be reassigned as well, not as part of RA but because the agency has a business need to fill a job elsewhere and doesn’t want to fire the employee.

This is a tough situation. COVID is out of everyone’s control, and agencies want to protect high-risk employees. However, agencies also have to get the work done. Lots to consider here. Good luck! Hopkins@FELTG.com

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Threats of Violence: Assessing Risk and Taking Action

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By Dan Gephart, November 17, 2020

While the nation is grappling with a pandemic, the government’s most well-known scientist has been besieged with death threats. And as more than 150 million people exercised their right to vote earlier this month, state and local officials, as well as volunteer poll workers, also faced violent threats as they attempted to count the ballots.

This dangerous risk to our nation’s civil servants is not new.

A September 2019 GAO report and a subsequent article by Government Executive laid out the stark reality of the dangers faced by federal employees at one particular agency — the Bureau of Land Management. The report included numerous examples of violence against BLM employees, including an employee who was stabbed outside a federal building, and another who received hundreds of aggressive calls, including death threats, after someone posted his phone number on Twitter.

So you bet I listened closely last week as FELTG Instructor Shana Palmieri, LCSW, delivered the third and final of the webinars in her Behavioral Health series — Threats of Violence in the Federal Workplace: Assessing Risk and Taking Action. (The previous webinars were Understanding and Managing Federal Employees with Behavioral Health Issues and Suicidal Employees in the Federal Workplace: Your Actions Can Save a Life.)

Violence can come from a current or former employee, a customer/patient, a domestic partner, a personal conflict that spills into the workplace, or someone not known to the agency. Regardless of where the threat is coming from, it’s awfully hard to predict. More than 3 percent of the general US population commits one or more violent acts each year.

What are the factors that lead to violence? A lack of education, decreased social stability, and high unemployment are factors.

What’s not a factor? Mental illness. The majority of patients with stable mental illness do NOT present an increased risk for violence. In fact, researchers estimate that only 4 percent of violence in the United States can be attributed to mental illness.

“The potential of violence lies within all of us,” Palmieri said during the webinar. “It’s something anybody can be driven to as a human, not just a result of mental health (issues).”

During the webinar, Shana offered numerous suggestions for risk assessment and response management plans, with a focus on “intervention early on and using practices that are evidence-based to mitigate or de-escalate the potential for violence to occur.”

If you missed the webinar, and you’d like to book Palmieri, who handled the psychiatric aftermath of the Navy Yard shooting in 2013, to come to your agency (virtually or in-person), email me at Gephart@FELTG.com.

In the meantime, you can share with your staff these techniques for de-escalating aggressive and potentially violent behavior, which were discussed more in-depth during the training:

  • Respect personal space – do not move towards employee. Don’t lean into the employee. Keep your distance.
  • Be aware of your body position. Stand at an angle. “You don’t want to come in with a defensive stance. If I’m standing face-to-face, staring them right in the eyes that’s a defensive stance,” she said.
  • Use a calm voice. If the aggressor gets loud, speak quietly. People tend to mirror those they are engaging with.
  • Be empathetic and validate the person’s feelings. You don’t have to agree with the content of what the individual is saying, but you can let them know you understand that they’re feeling angry. “Stay calm,” Palmieri said. “Be present.”
  • Avoid all power struggles. People who are angry will try to bring you into the fight. Don’t let them trigger you. “It’s very important to avoid that power struggle,” Palmieri said. “It will only escalate the dynamic. It’s not the time to fight the battle.”

Gephart@FELTG.com

Another Look at Lee v. FAA: Getting a Disciplinary Action Right

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By Barbara Haga, November 17, 2020

In a prior column, I addressed the case of Lee v. Federal Aviation Administration, No. 2019-1790 (Fed. Cir. July 29, 2020) in regard to failure to truthfully respond during an investigation and potential (or lack of it) for rehabilitation.

To recap: Lee was a civil engineer who was conducting extensive personal business on duty. The agency initially proposed removal but lowered the penalty to a 45-day suspension. The arbitration resulted in the penalty being reduced to 30 days. The Federal Circuit upheld the 30-day suspension. This month, I delve into the details of how the action was handled and also take a look at the impact of union contract language on management’s ability to discipline.

The investigation

The initial inquiry began apparently after an e-mail containing inappropriate pictures was sent to Lee by a coworker. That resulted in a request to obtain Internet and email history from both the sender’s and Lee’s work computers.  There is nothing in the Federal Circuit decision that indicates that the supervisor, Mr. Smith, knew about her extensive use of the computer and Internet for personal business at that point. When the report was submitted it revealed the following:

The forensic report of Ms. Lee’s FAA internet history spanned more than 1,900 pages and revealed that between January and April 2017, Ms. Lee conducted 33,968 online transactions. Mr. Smith saw concerning levels of activity on eBay, Amazon, and Etsy, among other non-work-related sites. He was particularly concerned that, both during and after work hours, Ms. Lee was frequently visiting Etsy where, as he discovered, she sold handmade crafts through her account, “BoosTinyBits.”

Analysis of the degree of misuse

When dealing with computer misuse, it is important to get the details straight. In her response to the action, Lee noted that the initial report did not account for time that windows were left open for extensive periods of time when there was no activity on that page. Because Lee raised this, Smith requested a supplemental investigation. Here’s what happened:

The supplemental report excluded obviously work-related transactions and removed from the time calculations any periods where the time between active clicks on a certain webpage was more than five minutes. Still, 22,829 internet transactions remained. Based on this narrowed data, the supplemental report calculated that Ms. Lee had an average of 1 hour and 44 minutes per day of not clearly work-related internet use over the 45 workdays on which her usage was tracked.

The first sentence is troublesome. It took a supplemental report to exclude the obviously work-related transactions? If the report was used in the proposal to substantiate misuse, it needed to clearly identify what was misuse. Perhaps there was an issue because the original purpose of the analysis was to determine if there was something inappropriate going on between Lee and her coworker and the report wasn’t geared to deal with misuse related to conducting personal business, but the advisor who was working this case should have been looking at this in preparing the proposal. Dropping the number of transactions by 10,000 or roughly 1/3 after her reply is huge.

The issue about windows being left open should also have been addressed before the proposal was issued. I have been known to leave windows open for full days!  So, any data about how long I was actually doing something on that site would be misleading without checking the activity on the page. It appears that the IT staff was able to provide this information since it is included and accounted for in the supplemental report.

The Federal Circuit decision states that original removal was reduced to a 45-day suspension because of “Lee’s lack of prior formal discipline, her satisfactory work performance, her five years of federal service, and her statement that she had stopped Etsy transactions at work, stopped accessing the Etsy website, and ceased ‘all nonwork’ related usage of Amazon and eBay.’”

I can’t help but think that another factor that led to the mitigation was that the proposal cited a significantly greater amount of misuse than could be substantiated.

Conducting the investigation

One of the charges against Lee was lack of candor. To prove lack of candor, you have to be able to show that  the person failed to disclose something that, under the circumstances, should have been disclosed to make the statement accurate and complete. Lee received written notice of the potential charges and was scheduled for the interview in advance.

The decision states: “At several points, Ms. Lee asked the interviewer to clarify his questions, but he told her that he could not depart from the questions as written.” What kind of questioning is that? Was a robot doing the interview?

Lee argued in her appeal of the arbitrator’s decision that she didn’t knowingly provide incomplete answers to the interviewer because she did not understand the questions. The court described the questioning as “inartful,” but clear enough to warrant more than the one-word answers Lee gave. The FAA survived this challenge, but agencies should be able to do better. Trained investigators should be able to rephrase and elaborate further on the point of the question.

Contract Language

Participants in my Advanced Employee Relations course have heard me address this. [Editor’s note: Register now for the next Advance Employee Relations training December 1-3.]

Union contract provisions that may seem routine can come back and bite you. This case is a perfect example. The arbitrator upheld every one of the agency’s charges – misuse of government property, misuse of government time, and lack of candor. However, the arbitrator mitigated the penalty to a 30-day suspension. The union agreement required that disciplinary action be prompt.  The arbitrator said that waiting five months after the investigatory interview to initiate the action was not prompt, so a lower penalty was warranted. The Federal Circuit did not disturb that finding.

There is no information in the decision about why there was a delay.  Did it take several months to get the supplemental investigation? Was the manager out for several months during the decision phase of the action? Whatever the reason, having your legitimate 45-day suspension reduced to 30 is a high price to pay for not being prompt. Haga@FELTG.com.

Compound the Pain: When EEOC Orders Agencies to Pay Interest on Damages

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By Meghan Droste, November 17, 2020

Do you remember March 2020? I think I do, although sometimes when I think back to things I did in early March—including traveling across state lines and attending large events!—it feels like years ago, rather than just eight months or so.  Well, one thing I did in March was share an EEOC decision in which the Commission had some serious concerns about the agency’s ongoing and repeated failure to comply with the Commission’s orders.

In Alma F. v. Department of the Army, EEOC Pet. No. 2019004337 (Feb. 4, 2020), the Commission described how the agency had failed to provide evidence of compliance in 19 other cases, all with petitions for enforcement from 2019.  (You can read more here: You and What Army?)  As I noted in my article, the Commission doesn’t have an army to back it up when it orders agencies to take certain actions.  Unlike in cases in which agencies fail to comply with EEOC regulations about processing complaints or with orders from administrative judges, the Commission seems reluctant to issue sanctions, such as default judgment, when agencies fail to comply with orders on appeals.

So what can and does the Commission do?  Well, as it warned in Alma F., it can issue a show cause order to the head of an agency or certify the issue to the Office of Special Counsel.  (By the way, this warning doesn’t seem to have made much of an impact.  In a September 2020 decision, the Commission noted the same issue was ongoing in more than 20 cases.  See Calvin D. v. Dep’t of the Army, EEOC Pet. No. 2019004326 (Sept. 30, 2020).)  The Commission can also order an agency to pay interest on damages to address an agency’s failure to meet deadlines.

That is exactly what happened in Lyda F. v. Dep’t of Homeland Sec., EEOC App. No. 2020002790 (Sept. 16, 2020). In 2017, the Commission reversed the Agency’s FAD and remanded the complaint for correction and amendment to the accepted claims, and a supplemental investigation. The Commission ordered the agency to complete the supplemental investigation within 120 days and provide a copy of the ROI to the complainant no more than 30 days later.

If the complainant requested another FAD, the Commission ordered the agency to issue it within 60 days of the request.  The complainant requested a FAD on the supplemental ROI on July 11, 2018.  The agency did not issue the FAD—in which it found liability for both harassment and retaliation—until July 10, 2020, two years after the complainant requested it. The Commission found that interest on any compensatory damages award was the appropriate way to address the agency’s obvious failure to meet its deadline.  It did not label this as a sanction, but I think that is a fair way to look at it.

Depending on interest rates, the amount of the damages award, and the length of the delay, compounded interest could result in just a few hundred dollars increase in the money an agency must pay to a complainant.  But the longer the delay and the larger the award, the more likely the agency will be forced to pay thousands of dollars more because of a delay. The best-case scenario is of course to avoid violating Title VII or any of the other civil rights statutes, but if that has already occurred, make sure you don’t add to the problem by taking too long to address it. Droste@FELTG.com

GSA Offers Guidelines for Re-entry Into Physical Workspaces

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By Michael Rhoads, November 17, 2020

The good news about the pandemic is we (hopefully) may start to see a light at the end of the tunnel. When will a vaccine be ready? When will it be widely available to the public? These questions do not have a definitive answer yet.  However, it is important to prepare now for what steps your agency will have to take once it is feasible to return employees to shared office spaces.  GSA recently put out some guidelines to help agencies prepare for a return to the office in the Return to Workplace Strategy Book.

Office etiquette – a new paradigm

When returning to the office, it is important to prepare employees for a paradigm shift in their behavior. The recommendations from GSA specify that “Frequent Cleaning by Individuals” will be necessary. This may be a sudden change for some employees after a long hiatus on telework, but it’s worth noting that employees “… should not rely on others to disinfect surfaces.” The agency should offer the cleaning supplies, but those supplies will be for agency office use only.

While individuals will be responsible for their own workspaces, the shared workspaces such as conference/meeting rooms, breakrooms, and restrooms will also get a makeover.

For meeting and conference spaces, it is important to ask can the meeting be held virtually instead? Since the capacity of meeting rooms will not be the same as before, consider how many people can fit in the room? Can the door to the meeting room remain open to allow for more ventilation?  Additionally, does the meeting room have the technology to loop in employees who are attending virtually?

Phases for reopening the office

Before the first person walks back in the door, determine the building capacity with your GSA building manager to determine how many employees your office can safely accommodate. A phased reopening approach is recommended.  When determining how many people to bring back in each phase, consider the workspace footprint and how many people may be able to inhabit the space at one time.

Per the GSA: “[T]he reduced capacity of these spaces may affect the number of people who can return to the workspace per phase.” Reassessment will loom large in your phased reopening.  Keep abreast of changes to federal, CDC, and local guidelines.  Employee feedback should be a part of your decision-making process. Also, consider if more parking spaces will be needed by employees who previously used public transportation and now prefer driving.

Individual workspace planning

When considering how to distance your employees’ workspaces, the Return to Workplace Strategy Book provides some great floor plan examples of how to phase in employees safely.  The office capacity used for these examples reflects an office with the maximum capacity of 33 cubicles, and 9 private offices.  Pathways are the spaces where an individual can walk freely.

30% Capacity: The most conservative model would allow individual cubicles to maintain physical distancing at all times. No additional barriers, such as clear plastic shields above cubicle walls to extend the height of the wall, would need to be added. Individuals would be placed in cubicles that allow for other co-workers to move through pathways without contacting a cubicle’s space.

50% Capacity: When half of the office capacity is used, physical distancing mostly would be maintained for individual cubicles except when co-workers walk around in pathways. Barriers such as clear plastic dividers would be added to the top of some cubicle walls to extend the height of the cubicle wall.

75% Capacity: Personal responsibility is the key to this level of employee capacity. Barrier use is important since employees would be encroaching on each other’s space more frequently via pathways around the individual’s cubicle. Clear plastic barriers on top of all cubicle walls in most areas of the workspace would be necessary. At 75% capacity, the use of smaller meeting spaces as individual offices should be considered.

Additional takeaways

Touchless Experience – GSA must approve any changes to fixtures such as doors, faucets, and toilets. However, it is a good idea to update these items to touchless fixtures to reduce employee contact with one another in high touch areas.

Occupancy Monitoring – Sensors can be placed in lobbies, meeting rooms, and break rooms to keep track of how many people are in a space at a given time.

Signage – The guide also offers templates for signage to put up around the office, not only for the employee workspace, but for lobbies, restrooms, breakrooms, and wellness/well-being areas.

The most important takeaway is agencies should be flexible in their approach to returning to the office. As the guide states: “Each agency will need to address specific conditions location by location.” In the coming weeks and months, we will face many challenges brought on by this pandemic, but I am positive the lessons we learn now will only make us stronger for the future that awaits us.

Happy Thanksgiving to all!  Stay safe, and remember, we’re all in this together. Rhoads@FELTG.com

OPM Regs Provide Clarification on Clean Record Settlements

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By Deborah Hopkins, November 17, 2020

Earlier this week, new and updated OPM regulations on 5 CFR Parts 315, 432 and 752 went into effect. Among the most significant changes included guidance, inspired by Executive Order 13839, on what agencies may and may not do when settling an employment law dispute with an employee. We’ll look at the specific language in § 432.108, the principle of which is also applicable to part 752 actions.

  • 432.108 Settlement agreements.

(a) Agreements to alter personnel records. An agency shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse action.

FELTG Note: What does this mean for litigation files? Agencies may need to keep track of documentation for litigation in another forum, such as EEOC or OSC. A narrow reading means an agency probably could keep a litigation file without violating this limitation. We won’t know until more guidance is issued, or the matter is litigated before the still-lacking-a-quorum MSPB. One other item to point out: Proposed action memos are not normally retained in official employee files, as they are preliminary steps that may or may not lead to future action.

(b) Corrective action based on discovery of agency error. An Agency may take discipline out of the record if it discovers errors of fact or legality. In all events, however, the agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error.

FELTG Note: This makes sense. If an employee is disciplined and it turns out the discipline was not warranted (for example, the discipline was whistleblower reprisal), then the discipline should be taken out of the record.

(c) Corrective action based on discovery of material information prior to final agency action. When persuasive evidence  comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action.

There’s a whole lot more on these regulations. If you missed the webinar I held earlier this week, we’re reprising Implementing New OPM Regs for More Effective Disciplinary and Performance Actions on December 3 at 2 pm. Register now before it sells out.

Tips from the Other Side: Dismissing Failure to Accommodate Claim

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By Meghan Droste, November 17, 2020

For the past few months, we’ve been discussing reasonable accommodation issues in this space. Why? Well, they’re interesting.  Also, because I anticipate you will probably see more requests whenever your agency starts to move back to having employees work in the office rather than at home. (Of course, with the recent increases in cases across the country, that might not be for a few more months at least.)  If you do receive more accommodation requests, that may also lead to an increase in the number of EEO complaints alleging a failure to accommodate.

Agencies can, and frequently do, run into trouble when determining whether to accept or dismiss any type of EEO complaint. Reasonable accommodation issues present their own challenges, such as when an agency improperly dismisses a complaint for untimely EEO contact, forgetting to take into account that a failure to accommodate can be a continuing violation. (For more on that, check out my Tips from the Other Side from April 2018.)  But they can also be mishandled in ways that apply more broadly to other complaints. These mistakes are unfortunately common but can be voided easily.

For example, at the acceptance or dismissal stage, an agency should not consider the merits of the claim. Does it seem like the agency has an airtight defense? It doesn’t matter. The only question is whether, assuming all facts are true as alleged, the complaint could state a claim for relief. If it can, the agency should accept it.

What does this look like in the failure to accommodate context? It could be considering the agency’s reasons for not providing an accommodation. It could also be looking at the agency’s efforts to provide an alternative accommodation and finding them sufficient. For example, in West v. National Archives & Records Administration, EEOC App. No. 01A43235 (Sept. 13, 2004), the agency dismissed the complaint for failure to state a claim.  The agency’s reason for the dismissal was that the complainant did not suffer an actionable harm because the agency had attempted to place the complainant in a position that would accommodate her disability.  As a result, the agency found there was no harm that could be remedied. The Commission reversed, finding that the consideration of the agency’s response to the complainant’s request for accommodations went to the merits of the claim.

Agencies should only dismiss a complaint for failure to state a claim if there is no possibility that the complaint articulates a harm for which the EEOC could order a remedy. Although I’m sure it’s possible that a claim alleging a failure to accommodate could meet this standard, I think it will be unlikely in most circumstances. If you find yourself inclined to dismiss a failure to accommodate claim for this reason, I recommend you take a step back and make sure that you aren’t doing so simply because it appears that the agency did try to provide an accommodation or had a good reason for not doing so.  Droste@FELTG.com