Ask FELTG: The difference between vaccine “exemptions” and “exceptions” and do such requests relieve the Federal employee from meeting the vaccine deadline?

November 1, 2021

Q: We have seen the words “exemption” and “ exception” used in connection with the vaccine mandate. Would you explain the difference between the two?

A: Functionally, there’s no real difference – employees are asking for the reasonable accommodation of an exemption to vaccination mandate or an exception to the rule that employees must be vaccinated. It’s two different ways of addressing the same issue.

Q: If someone has submitted a vaccine exemption request and a decision is not made close to or after the deadline to get vaccinated for COVID-19, does the exemption request relieve the Federal employee from meeting the vaccine deadline until a decision has been made? 

A: Yes, our understanding based on recent Safer federal Workforce Task Force guidance is that if an employee has a pending reasonable accommodation request for disability or religious exemption, the vaccine deadline is extended. Of course, in the interim, it is appropriate to continue safety protocols such as masking, distancing, teleworking, and testing.

Join FELTG for these upcoming vaccine-related training events:

November 3: The Exemption Proves the Rule: Reasonable Accommodation, Discipline, and the Vaccine Mandate

November 17: Are You Ready for the Last-minute Requests for Vaccination Exemptions?

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.

Ask FELTG: What penalty is appropriate for an employee who untruthfully claims a supervisor said something inappropriate?

September 28, 2021

In this hypothetical question posed by a FELTG reader, a bargaining unit employee (Employee A) reported that a non-bargaining unit employee (Employee B) told another non-bargaining unit employee (Employee C) that their mutual supervisor said Employee C was “attractive.”

The FELTG reader said that such a conversation never took place and considered it slander against the supervisor. And based on recent interactions, it appears that this “slander” made it out to the rest of the staff.

The questioner wrote:

Given the gravity of the misconduct, and the ripple effect it could cause, and may have already started (sexual harassment complaints, lowered morale, strain on working relationships, damage to supervisor’s career) would a suspension be recommended, and a letter of reprimand? What if Employee B is also facing a Letter of Counseling for other inappropriate comments to other employees?

In FELTG training, you stated that a suspension is not a deterrent to misconduct, and that GAO supports this. Given that there are two victims and other affected parties in this hypothetical scenario, what would be the recommended penalty?

There is a lot going on here, and as a training company we can’t give legal advice to this specific scenario. We’d suggest that the supervisor contact the Labor/Employee Relations specialist or an OGC attorney to work through the problem. However, we can speak to the principle in general.

If an agency supervisor is considering discipline for Employee B’s conduct, then there would need to be some type of inquiry or investigation so the agency could determine whether there was a preponderance of the evidence that the employee violated a workplace rule or expectation. [Editor’s note: Perhaps the most challenging investigations involve harassment claims. Join FELTG President Deborah Hopkins and FELTG Instructor Katherine Atkinson for Conducting Effective Harassment Investigations October 4-6. Classes run from 12:30 pm – 4 pm ET each day.]

Evidence could be from personal observation, copies of emails from people complaining about the rumors, statements from other people who were told the rumor, video recordings, or things like that. The evidence gathered during the inquiry will also help the supervisor determine the appropriate penalty using the Douglas factors.

The penalty factors need to be considered independently for this employee and this act of misconduct, and OPM regulations say that the proposing and deciding officials are responsible for proposing and ultimately determining the appropriate penalty. There is not one firm answer we can give, such as “a reprimand is too weak” or “a removal would be justified” because we are not privy to the Douglas factors in this employee’s case. However, supervisors get broad discretion to determine what is appropriate based on the factors such as the nature of the offense, the employee’s performance, trust and confidence in the employee, and more.

The bottom line: Whatever penalty the proposing (and ultimately deciding) official deems appropriate, and can justify through the Douglas factors, should be legally defensible. We have seen other cases involving similar misconduct where agencies have chosen to reprimand, or suspend, or remove – and the entire range has been upheld based on the penalty factor justification.

Have a question? Ask FELTG.

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.

Performance Isn’t About Can’t Do vs. Won’t Do

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By William Wiley, September 7, 2021

Below is an email we received from a FELTG student, lightly edited for space and context, followed by our FELTG answer.

Dear FELTG,

I attended your MSPB Law Week in person last year just before everything was shut down due to COVID. I recall your discussion about performance management, and you made a statement that I swear I wrote down but cannot find in my notes. I was wondering if you might be able to reiterate. You said something along the lines of “Performance vs. conduct is not a matter of can’t do and won’t do.” This can’t vs. won’t is something I was taught as a young ER practitioner some years ago. However, your explanation was MUCH better!

Thanks in advance.

And the response:

Ah, the old “can’t do vs. won’t do.” Has a nice ring to it. The reason that FELTG teaches that this is an incorrect concept is based in law and, unfortunately, the law doesn’t always have a nice catchy rhythm.

If we read the statute that lays out the procedures for taking a performance-based removal (codified at 5 USC 4303), we don’t see anything that speaks to volition. Therefore, the willfulness of an employee’s unacceptable performance is not a matter of law with which we need to be concerned when initiating a performance removal. We don’t have to care whether the employee says, “Boss, I refuse to work that hard” or “Boss, I can’t work that hard.” If the employee is not performing at a level that the supervisor sets as the minimum level of performance, we can initiate a 432-performance action.

Being able to initiate a 432-performance action without concern for can’t v. won’t is important for several reasons:

  • It’s one less case element we have to prove on appeal. It gives the employee one less thing to argue with us about. Reducing arguments is a very desirable outcome.
  • 432-performance actions are a fast, efficient procedure for dealing with a documented non-producing employee. We can initiate a 432 action today by giving the employee a notice that specifies the performance elements being failed, and then propose the employee’s removal 31 days from now if performance does not improve to the minimal level. In contrast, a 752-misconduct action (a reference to 5 USC Chapter 75 adverse action removal procedures) many times involves an initial Reprimand (which might be grieved), followed by a proposed-then-decided Suspension (which also might be grieved), and THEN by an eventual proposed Removal. Those steps invariably take more than 31 days.
  • Separately, performance-based removals need be supported by only substantial evidence, whereas misconduct-based removals must be proven by the higher burden of a preponderance of the evidence. And MSPB cannot mitigate a performance-based removal to something else. No Douglas Factors to worry about. 432-removals are the preferred procedure to deal with problem employees who can’t or don’t do what they are told to do performance-wise.

In addition to all of this, we have to acknowledge that there are exceptions to the concept that can’t-do problems are necessarily addressed via a 432-performance-based action. We routinely use 752-adverse-action procedures to remove employees who can’t do things, e.g.:

  • The employee who can’t come to work because of matters beyond the employee’s control where leave has been approved (Excessive Absence)
  • The employee who has a medical limitation and, thereby, can’t perform an essential job function (Medical Inability to Perform)

I hope you either read one of our earlier FELTG articles and/or attended our webinars that explained that the Federal Circuit recently changed what management is required to do when confronted with a non-performing employee. Previously, we had to prove that the employee was put on notice of on-going unacceptable performance (usually by the supervisor initiating a Demonstration Period, i.e., a DP), and then prove that the employee did not perform acceptably during the DP. Now, we also must prove that the employee was performing unacceptably BEFORE the DP was initiated.

Bottom Line: Assessing whether a problem with an employee is “can’t do or won’t do” is unnecessary and possibly misleading. It’s better just to focus on the outcome when dealing with a poor performer. When it comes to the concept of volition – can’t do vs. won’t do – Master Yoda said it most succinctly, “You must unlearn what you have learned. … Try not. Do, or do not. There is no try.” Hey, if we can’t rely on the wisdom of a little, old, green alien, who can we trust?

Best of luck out there. Wiley@FELTG.com

 

Ask FELTG: For FMLA eligibility to care for an adult child, does the inability to perform one of the activities of daily living have to be permanent?

August 30, 2021

A FELTG customer shared the following hypothetical scenario: An adult child is involved in a car accident and during a lengthy recovery period may not be capable of performing one of the activities of daily living (ADLs), however the prognosis is that eventually they will regain all functionality.

FMLA eligibility only covers children under the age of 18 unless the child has a mental or physical disability defined as being incapable of self-care/cannot perform one of the ADLs.

Is the parent, who is the employee, eligible to take FMLA to care for the adult child in this situation?

And here is FELTG’s answer:

To be eligible, the son or daughter must be unable to perform three activities of daily living (see definition of son or daughter in 5 CFR 630.1202), not one.

The requirements are that:

  • Son or daughter over 18 must first have a disability to be covered.
  • Beyond that must be incapable of self-care because of the disability, which requires active assistance or supervision of the parent.

If there is a complete recovery, the parent may not have FMLA eligibility any longer. The adult son or daughter would have to continue to meet the definition of disabled in addition to the need for care for there to be continued coverage for the parent under FMLA.

If you’re looking for more information on FMLA, join FELTG Senior Instructor Barbara Haga for the 75-minute session Medical Certification Requirements for Sick Leave and FMLA, happening during Federal Workplace 2021: Accountability, Challenges and Trends, which takes place September 27 – October 1. Click here for more information about this exciting weeklong event. Or contact info@feltg.com to find out how to bring FMLA training (or any other Federal employment law training) to your agency – either onsite or virtually.

Do you have a Federal employment law-related question? Ask FELTG.

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.

Ask FELTG: Am I supposed to report when I notice that one of my employees has symptoms of the new COVID-19 variant? Wouldn’t that be a violation of HIPAA or the ADA?

June 29, 2021

Even as masks come off and life appears closer to normal, there is still a lot of concern about the spread of coronavirus, especially with the identification of new variants. A recent outbreak in a state government office in Manatee County, Fla., left two employees dead and several hospitalized.

The current White House stance is that “generally” Federal employees are not required to be vaccinated against COVID-19. So, we understand your unease with employees who show symptoms of the virus, and the potential impact on employees who are not vaccinated.

The Health Insurance Portability and Accountability Act (HIPAA) requires healthcare facilities to ensure the protection of patient’s medical data. HIPAA is not applicable in this situation.

The Americans with Disabilities Act requires that employers keep all medical information about employees confidential, even information that’s not about a disability. The CDC addressed a similar question in its most recent guidance, and provided the following answer:

“Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.

The question is what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.”

For more information on this topic, join FELTG Instructor Katherine Atkinson for Vexing Vaccine Requirements: Responding to Requests for Exemptions and Reasonable Accommodations – a 75-minute webinar, starting at 1 pm ET on July 12. The webinar will answer questions regarding obligations to accommodate employees who are uncomfortable being in a workplace where not everyone will be vaccinated, and those who have underlying medical conditions that make them more susceptible to a severe infection. 

Do you have a Federal employment law-related question? Ask FELTG.

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.

Ask FELTG: How do you discipline an employee for a second act of misconduct that occurred before you’ve had the opportunity to discipline him/her/them for a first act of misconduct?

June 1, 2021

In the hypothetical situation, the agency started the disciplinary process for an employee’s failure to follow instructions (FFI). During this process, the employee went Absent Without Leave for three days. The agency already had started the process of proposing disciplining for FFI, so it proceeded to issue disciplinary action on that charge alone. A few weeks later, the agency issued a separate disciplinary action for AWOL.

Was this the right approach?

There are actually two approaches the agency could have taken. It could have cancelled the first discipline altogether and then re-proposed the discipline based on the two charges.

That said, the approach taken is fine. However, note that you cannot use the first instance of FFI as prior discipline for the second act of AWOL. MSPB’s reasoning is the employee must be given a chance to learn from prior discipline for it to be progressive. See Fowler v. USPS, 77 MSPR 8 (1997), and because the discipline was not issued before the employee was AWOL, it cannot be relied upon. All the more reason to discipline as soon as possible after an act of misconduct.

Speaking of progressive discipline, join FELTG President Deborah Hopkins for the 60-minute webinar Using Progressive Discipline in the Federal Workplace: Three Strikes and You’re Out? on June 10, starting at 1 pm ET.

Do you have a Federal employment law-related question? Ask FELTG.

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.

Symptoms and Vaccines: FELTG Answers Your COVID Questions

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We covered a lot of ground during FELTG’s four-day Emerging Issues in Federal Employment Law event last month. It was a week of engaging instruction, and the questions continued to pour in days after the event ended. Not surprisingly, a lot of the questions involved current and expected pandemic-related challenges.

If you’re still looking for answers, join Attorney at Law Katherine Atkinson for EEO Challenges: COVID-19 and a Return to Workplace Normalcy on June 2 from 1:00-4:30 pm ET.

Here are a couple of questions that came in following the Emerging Issues event.

Let’s assume that there is a point where the pandemic is no longer considered a direct threat and we do not require vaccination for employees to return to work. What if an employee who refuses to be vaccinated uses the lack of vaccination as an objection to returning to the workplace? Can you take the employee off telework and require him to return to the workplace even if he is not vaccinated?

This question popped up after FELTG Instructor Katie Atkinson’s session COVID-19 and EEO: What We’ve Learned and What We Still Need to Know. Katie replied that an employee’s “objection” to returning to the workplace is irrelevant unless that person is requesting a reasonable accommodation.

Let’s look into the near future and envision a time when the world is back to pre-pandemic parameters for telework. At this point, an employee’s refusal to return to work is simply a failure to follow a direct order or an AWOL charge.

Be careful, though: If the “objection” is framed as a request for reasonable accommodation, then you need to process it as a reasonable accommodation request. Here’s an example: “I have a medical condition that necessitates telework.”

You need to determine: is the employee a qualified individual with a disability? Does he have a medical condition that substantially limits a major life activity? Can he perform the essential functions of the job while teleworking? Are there other accommodations available? Would full-time telework impose an undue hardship?

To your question about vaccinations, the employer can require the employee to return to work regardless of whether the employee is vaccinated. If the employer does not require a vaccination, then whether to get vaccinated is the employee’s choice. If this is not a reasonable accommodation situation, then it’s entirely the employer’s choice whether they want to require the employee to work in person.

An employee reports to work with symptoms of COVID. I want to send him home, but he doesn’t want to be sent home because he doesn’t have any sick leave. What leave options are there for this?

This may sound complicated, but it’s really not. As Senior Instructor Barbara Haga explained in her session Leave for the Federal Employee in 2021, there are new leave provisions that cover just this circumstance. As long as the employee is actively seeking a diagnosis as soon as possible, he would be covered. [Editor’s note: Speaking of leave, join Barbara for the 60-minute webinar Implementing the Employee Paid Provisions of the American Rescue Plan on May 26.]

Do you have a COVID-related question that needs an answer? Or another Federal employment law-related question? Ask FELTG.

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.

Ask FELTG: Does Executive Order 14003 require the parties to renegotiate the provisions imposed by the FSIP that related to Trump EO issues on union official time and union use of office space?

April 12, 2021

In the hypothetical situation posed by the questioner, the agency has been negotiating a new term CBA with the union since 2018. The parties went to the Federal Service Impasses Panel to break an impasse over the ground rules and negotiated term provisions. They received a Decision & Order imposing provisions on the term provisions last August. The CBA subsequently failed ratification and, per the parties’ ground rules, the agency engaged in continued negotiations.

The parties reached impasse again in December 2020. They are now at the point where either party may request FSIP assistance once again on the renegotiated provisions at impasse.

The union posits that the EO requires the parties to “throw out all provisions negotiated” over the last 2½ years and start the whole process over. The agency takes a more narrow view.

Practically speaking, it’s probably not in the best interest of the taxpayer to “throw out all provisions negotiated” in the past few years and start over. The parties should carefully review and possibly revise those provisions, because the EO does indicate that’s a requirement.

It would make sense for the union and management to do an honest assessment of whether those provisions negotiated pursuant to the Trump Executive Orders are hindering union representation of bargaining unit members and whether any particular changes to those provisions would harm performance of the agency’s mission.

As far as union use of space is concerned, the rescinding of EO 13837 does indicate that agencies cannot charge unions for use of agency space. It will be up to the parties to negotiate an appropriate use of space, as was probably done at your agency before EO 13837 existed.

This is a pretty dynamic time in federal labor relations. Get the latest and most in-depth guidance on all things LR by joining us for FLRA Law Week May 10-14. Ann Boehm, who defended the FLRA before the U.S. Court of Appeals and the Supreme Court in the Weingarten case, and Joe Schimansky, former Executive Director of FSIP, will give you a solid foundation in LR and bring you up to speed on where the current law stands.

Do you have another question about Executive Order 14003? Or another federal employment law-related question? Ask FELTG.

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.

Ask FELTG Tackles EO 14003 and Clean Record Settlements/Official Time

February 16, 2021

After last week’s FELTG webinar on President Biden’s Executive Order on Protecting the Federal Workplace, one thing is clear: You have a lot of questions. If you missed the webinar, you are in luck: FELTG will present an encore presentation of Changing Course: Understanding the Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F on February 25 from 2:30-4 pm ET.

Meanwhile, presenters Ann Boehm and FELTG President Deborah Hopkins address two of those questions in this week’s Ask FELTG.

As a result of Executive Order 14003, where do things stand on Clean Record Settlement Agreements?

EO 13839 was the first place we saw a ban on clean record agreements, and OPM incorporated that language into their updated regulations, which went into effect in November 2020. By revoking EO 13839, EO 14003 tells agencies that you can do clean record settlements again (though you don’t have to). There’s language in the EO that seems to indicate OPM will need to consider amending their regs to be consistent with 14003.

As a result of Executive Order 14003, should agencies go back to the term Official Time?

EO 13837 changed the term “Official Time” to “Taxpayer Funded Union Time,” and many agencies made the change as well. Now that EO 13837 has been revoked by EO 14003, it is probably a good idea – and shows good faith to the unions – to go back to the term that is in the Federal Service Labor-Management Relations Statute (Statute) at 5 U.S.C. § 7131 – “Official Time.”

Do you have another question about Executive Order 14003? Or another federal employment law-related question? Ask FELTG.

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.

Ask FELTG: Can Agency Fire Employee Who Took Part in Capitol Siege? You Decide.

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By Deborah Hopkins, January 11, 2021

Unless you were living under a rock on a deserted island without Wi-Fi for the last week, you saw the horrifying sight of a mob of American citizens, in protest of the results of the Presidential election, rioting at the United States Capitol.

Dozens, if not hundreds, of individuals engaged in violence against law enforcement officers, broke into one of our country’s most sacred buildings, destroyed government and personal property, smoked marijuana, defaced statues, stole government property, and drove our elected Members of Congress and their staffs – dedicated federal employees – to evacuate the building in fear for their safety. At least 5 deaths have been reported.

So, what would, could, or should happen if one of the rioters turned out to be a federal employee? We know that private sector companies have issued terminations. Can a federal agency fire such an employee?

When asking and answering this age-old question, it’s important to remember the discipline framework, regardless of the nature of the conduct. Following the framework will bring you to the right answer every time. At FELTG, we call this framework the Five Elements of Discipline.

I’m not going to fill in the answers for you; instead I am intentionally leaving space so that you can do the work and come to your own conclusion, with the guidance of some helpful hints in italics and a few Notes that might be of interest.

Element 1. Did the employee violate a rule?

Hint: Rules can come from a variety of places — statute, regulation, policy, should-have-known, agency SOP, code of conduct, supervisor’s unique rule, common sense, etc.

What rule(s) did the employee violate?

 

 

Note on nexus. Keep in mind if the misconduct occurs off-duty, there must be a nexus between the misconduct and the efficiency of the service. Assaulting a Federal police officer or destroying Federal property, and other things of that nature, show a link between the misconduct and the efficiency of the service.

Element 2. Does the employee know the rule exists?

Hint: An agency can’t enforce secret rules, so it has to show the employee knew, or should have known, there was a rule prohibiting such conduct.

What notice does this employee have, based on the rule(s) identified in Element 1?

 

 

Element 3. What evidence do you have that the employee broke the rule?

Hint: News footage, social media posts, emails sent on a government computer, courtroom testimony, and more have all been used as evidence in administrative cases.

What evidence would you use – and is it evidence at the preponderant level?

 

 

 

Element 4. Is removal an appropriate penalty?

Hint: Use the Douglas factors to get to the outcome. If you need a reminder, a Douglas Factors Worksheet can be found here: https://feltg-updates.stage1.estlandhosting.com/douglas-factors-worksheet/.

 

 

Note: In egregious cases such as these, you’ll want to hit hard the Douglas factor of the harm or potential for harm, but don’t ignore other factors such as job level, the cost of the damage, your trust and confidence in the employee, the potential for rehabilitation, and the employee’s past misconduct, especially if it involves violence, insubordination, or similar.

Element 5. Will you provide due process?

Hint: As tempting as it might be to tell someone who assaulted a Capitol Police Officer with a lead pipe “You’re fired, effective immediately,” you’ll want to be sure to follow the due process requirements that most career employees enjoy. That’s right, this citizen who has attempted to overturn the Constitution, is still entitled to his own Constitutional employment protections.

List the three-step due process requirement you’ll provide.

 

1.

2.

3.

(If you don’t know the process, then check out this article for a reminder: https://feltg-updates.stage1.estlandhosting.com/due-process-challenges-in-a-covid-19-world/)

Additional Considerations

A- If the employee was supposed to be working at the time they were breaking into the Capitol, the agency can charge the employee AWOL. In fact, that might be a streamlined way of getting to the removal, without having to rely on anything involving the violent behavior.

If the employee was arrested and didn’t show up to work the next day because they were in jail, the agency can also charge AWOL for that time. An employee’s annual leave request does NOT have to be approved because they are in jail.

OPM says annual leave requests may be denied if the agency’s denial is reasonable. You tell me: Is it reasonable to deny annual leave to someone who tried to overthrow Congress, assaulted federal LEOs, and destroyed government property in the process?

B – The agency can (and should) put the employee on Administrative Leave during the notice period, so they don’t come after you with a lead pipe because you’ve proposed their removal. Once regulations are issued on 5 U.S.C. 6329b the agency can use Notice Leave instead.

C – There are obviously criminal implications here. Because a removal is an administrative procedure, the agency does NOT need to wait for criminal charges to be brought, let alone a criminal conviction. Charge the underlying misconduct (for example, conduct unbecoming a Federal employee) and prove it by a preponderance of the evidence, and this employee could be off the payroll before investigators or police have paid him a single visit.

D – If you want to take the employee off the payroll even faster, you can invoke the Crime Provision under 5 U.S.C. 7513(b)(1).

We talk about all these things in upcoming training classes including UnCivil Servant: Holding Employees Accountable for Performance and Conduct (February 10-11) and MSPB Law Week (March 29-April 2). I hope you’ll join us. And please – stay safe out there. Hopkins@FELTG.com