Ask FELTG: Can an agency require an employee who has just returned from maternity leave to use a dedicated lactation room when her preference is to pump at her desk?

November 19, 2019

Before we answer the specific question, let’s delve into the more specific details of this hypothetical situation that came in to FELTG.

The agency’s dedicated lactation room fits all of OPM and EEOC’s guidance, and the agency has several back-up rooms to boot. However, the employee doesn’t want to use those rooms. She needs to pump frequently to keep up her supply. Each pumping session can take 30 minutes to an hour. Because pumping time is an unpaid break, she says it would be a hardship for her to take so much time away from her desk and have to make up that time later in the day.

The employee works in a private office, but it does not have a door. She wears nursing covers and takes other measures to ensure her pumping is done in private. However, coworkers have complained and the manager wants to direct her to use the lactation room for pumping and either take her laptop with her when she goes there or continue using breaks and making up the time later.

As far as the relevant information here, this hypothetical employee does not have a disability and therefore is not entitled to disability accommodation under Title VII.

Now on to the FELTG response.

The Pregnancy Discrimination Act has been interpreted by EEOC to give female employees the same freedom for lactation-related needs that employees have for other similarly limiting medical conditions. [Don’t miss Meghan Droste’s webinar Pregnancy in the Federal Workplace: Discrimination, Harassment, and Accommodation, which will be held on Thursday.]

There’s a Fifth Circuit decision (that is not binding on the federal government) that says the Pregnancy Discrimination Act amended Title VII to provide that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions . . . .”  The court held that lactation is a “related medical condition” of pregnancy. See  EEOC v. Houston Funding II, Ltd., No. 12-20220 (5th Cir. May 30, 2013).

Indeed, there is a body of case law about sex discrimination of pregnant/postpartum women, but that generally involves intentional discrimination cases (fired for taking time off for “maternity leave”, hostile environment based on comments about breastfeeding mothers, etc.). However, this doesn’t seem to be the issue in this hypothetical situation.

This is a general control-of-the-workplace situation, and management has the right to control the workplace.

If we were on staff we’d advise the agency to look into why the coworkers are complaining. Is it the noise? If so, they should consider how others in non-pumping situations would be treated. If an employee is playing music too loudly, of course, they can be instructed to turn it down or turn it off. If the pump is too loud, the employee could be given the same kind of instruction. If the noise can’t be reduced, is there a way to muffle it, perhaps by putting a door on the office, or using a white noise machine?

If not, and there is a valid reason for doing so, the employee can be given a direct order: “You can’t pump at your desk.” Management can direct the employee not to pump at her desk, but it can’t say: “You have to use the pumping room.” The law does not require lactating mothers to use a pumping room but rather requires employers to have a suitable private space (not a bathroom) for pumping available. That’s an important distinction.

Leave it up to the employee to select a suitable alternative: use the pump room, don’t pump, quit, take more time off, or something else. As we teach at FELTG, management should always have a bona fide reason for anything you do that involves an employee. Coworker complaints can be a valid bona fide reason.

Control the work space, not the pumping.

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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: In light of Van Wersh/ McCormick, do you have any suggested language for a waiver of appeal rights in exchange for a new appointment?

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September 24, 2019

Challenges to waiver language have not come up enough in caselaw since Van Wersh for us to have definitively worded notice language. However, the basic principle of waiver is that notice must be clear for any subsequent claim of waiver to be knowing. Many agencies provide a general statement in their offer letter.

Some may state something to the effect of:

“I understand I am required to serve a new probationary period in accordance with 5 CFR 315. My rights and entitlements for adverse and disciplinary actions will be processed in accordance with the provisions of the CFR, part 315.”

Here’s what’s going to happen when we try to get anyone who has signed the language above to testify that they knew what was happening:

Attorney: Did you see the reference to 5 CFR 315 when you signed the notice?

Appellant: Yes.

Attorney: What did you think it meant?

Appellant: Well, I thought it was referring to the Council of Foreign Relations in upstate New York, area code 315

Let’s start with a blank page. We prefer explicit language to clarify what is happening. Also, we take the approach that the employee is not waiving anything, but instead understands that he will have only probationary appeal rights in the new position. In other words, he’s not actually giving up any rights; he just won’t have any rights to begin with.

Here’s a statement you could use:

“I understand that for my first year of employment in this position, I will be serving in a probationary period, even though I have had prior federal service. As a probationer, I will have limited appeal rights and procedures available to me (Title 5 Code of Federal Regulations) rather than the more extensive rights of a career employee (Title 5 Code of Federal Regulations Part 752). I have had the opportunity to ask questions of a human resources specialist regarding service in a probationary period.”

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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: Who uses Notice Leave in conjunction with removals? We were advised that we needed special approval and that we could only place an employee on this leave in very rare cases.

September 4, 2019

We simply don’t understand why people would not use this gift of Notice Leave that Congress gave you for these exact situations. Notice Leave only applies during the Notice period. Why would Congress create it if they didn’t want you to use it?

A number of agencies use Notice Leave, so the person who told you it is for limited cases is completely wrong. The Administrative Leave Act of 2016 went into effect December 23, 2016, and starting that day, Notice Leave became an option. We know from talking with people in our classes that components of DOD, HHS, and DOI use Notice Leave regularly, as well as other agencies too. According to the law, there is no special permission required to use Notice Leave; the agency simply has to show that retaining the employee at work jeopardizes a legitimate government interest and the employee is not someone who the agency thinks would be suited for a reassignment position. Retaining anyone in the workplace after a proposed removal jeopardizes a legitimate government interest. Why in the world would an agency say: “You’re fired … but you get to keep coming in for 30 days?”

These are the kinds of situations where you may need to push back a little and ask: “Where does it say that I can’t use Notice Leave?”

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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: Are there any reasons why a Deciding Official should deny an employee’s request to extend the opportunity to respond to a proposal for an adverse action?

August 20, 2019

Let’s look at it from another angle: The only time a Deciding Official is required to extend a response period is if a union contract says the employee is entitled to such an extension. Employees often try to get more time to prepare a response, and absent a contractual obligation, the agency is free to deny such a request, as long as the agency complies with the legal minimums (24 hours for a short suspension; 7 days for a long suspension, demotion or removal) or the agency’s policy requirement, if it differs from these timeframes.

In addition, if the response period is extended past the 30-day notice period, the agency is in violation of Executive Order 13939, which directs agencies to not extend the notice period past 30 days. Most federal employees wouldn’t want the President to find out you were violating one of his Executive Orders.

Bottom line: You can allow the employee a few more days to respond if you so choose, but absent the circumstances above, there is no legal requirement to do so.

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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 a union official make disparaging remarks about a non-federal employee (contractor) working with agency managers? Is the union official protected under the “robust debate” umbrella?

July 24, 2019
Abusive or insulting language made by union officials may constitute robust debate in the following categories:
  • Negotiations
  • Newsletter
  • Representational meetings
  • Bulletin boards
FELTG has not seen a case that involved robust debate toward a contractor (that doesn’t mean there isn’t one), though our guess would be if that person was working on the management side then the same principle would apply: As long as the union rep is wearing his union hat, he can say a lot of things that would otherwise be unacceptable in the workplace.
There are outside limits to robust debate (racist, sexist, or threatening language/actions) but it has to be pretty bad to not be protected.

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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: If an employee is requesting leave without pay to cover an absence due to illness, can a supervisor and/or HR practitioner contact the medical provider to authenticate a medical certificate received from the employee? What if the employee was requesting sick leave? We just want to know whether the employee was seen by the medical provider on the date identified on the medical certificate.

June 25, 2019

The type of leave doesn’t really matter in this instance, whether it is LWOP or sick or FMLA. When you use the term “authenticate,” do you mean the questions to the health care provider would be something like: “Is this the document you signed?” or “Are these dates correct?” If so, then either a supervisor or HR staff member can do that.

There is actually case law on this issue regarding FMLA. The case is Probasco v. Air Force, No. 2010-3182 (Fed. Cir. 2011)) (unpublished). Probasco argued that the Air Force violated FMLA by contacting the physician’s assistant whose name was on the medical certificate received, where they learned that it was not that person’s signature. The Federal Circuit found no violation.

As long as you are not asking for disclosure of medical information or asking for an explanation of medical findings (such as why the employee needs to be out so long), you can verify signatures, dates, and ensure that explanations are accurate, etc. We suggest you do it in writing with a cover memo on top explaining that you are simply verifying the info and send it by fax to the health care provider. It’s safest to not use e-mail. Also, think twice before you do it by phone. If it is important enough to try to verify the information, the agency should want to see a written response.

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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: If a federal employee goes to an EEO office wanting to initiate a complaint of discrimination for alleging hostile work environment and other things related to conditions of employment but can’t state a claim alleging discrimination under the applicable employment discrimination laws like Title VII, etc., can the employee file a complaint?

May 28, 2019

An employee can file an EEO complaint about anything he wants. There is no prohibition on that. The EEO Office, when looking at the allegations in the complaint, should then dismiss any part of the complaint, or the entire complaint itself, if there is no covered basis (under Title VII, Rehab Act, etc.) alleged.

For example, if I am claiming a hostile work environment because I am a Dallas Cowboys fan and my supervisor is a Philadelphia Eagles fan, I can file a complaint. However, the EEO office should dismiss it for failing to state a claim upon which relief could be granted. Or, if I am alleging that a “personality conflict” is the issue there is no basis for a discrimination complaint because I have not claimed the conflict is based on gender or religion, for example, that should be dismissed as well.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and are 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: Let’s say our agency fires an employee, but the MSPB AJ puts the employee back to work and orders back pay and attorney fees. The agency files a Petition for Review  and it stacks up with the other PFRs waiting for a quorum at the Board to make a decision. It’s stuck in PFR no-man’s land. Does the employee go back to work, or does she wait until the Board issues a decision? What happens with the back pay and attorney fees?

May 28, 2019

Let’s go with the premise: The agency fires the employee, and the AJ reverses that removal. If the agency then wants to PFR the AJ’s decision, it must put the employee back on the payroll as “interim relief” in order to have the Board accept the PFR. Some agencies put the employee back to work. Others keep them at home while they pay them. That is completely up to the agency.

However, there is no order for back pay or attorney fees during interim relief. That’s held in abeyance until a final decision on the PFR. Therefore, if the Board reverses the AJ and re-fires the employee (upholding the original removal), there’s nothing to pay back. The agency had the option of requiring the employee to report to work during interim relief in order to get paid. Therefore, if he was at work, he was earning his pay. No repayment necessary. If the agency does not put the employee back to work, and instead pays the employee to stay at home, then that’s on the agency, not the employee.

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.

Ask FELTG: If an employee elects to file an MSPB appeal on his mixed case issue, can he also bring in that same issue up in a separate EEOC claim under the hostile work environment umbrella, i.e., not as a discrete act?

April 25, 2019

The employee only gets one bite at the apple. If the employee files an MSPB appeal on a removal and raises discrimination as an affirmative defense, then files an EEO complaint arguing hostile work environment in which the removal is one of the acts alleged, then EEOC will defer to the MSPB appeal process for the removal and consider the EEO hostile environment complaint without the removal being considered as one of the continuing incidents. Otherwise, the employee would get two reviews of his removal, and that’s just not going to happen because it doesn’t make sense.

It’s worth noting that in an MSPB appeal where discrimination has been raised as an affirmative defense, the employee can seek review of the MSPB’s findings of discrimination by the EEOC. This review only considers findings of discrimination and not findings based on civil service law. 5 USC 7702(b)(1). If the EEOC disagrees with the MSPB, it must immediately refer the matter back to MSPB and MSPB then has 30 days to consider the EEOC’s decision. 5 USC 7702(c). If there’s a disagreement, we’re headed to the Special Panel. We’ll tackle that topic another time!

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

Ask FELTG: We would like to direct an employee to undergo a medical examination. In a recent class, you mentioned that there are three limited situations where an agency can direct an employee to undergo a medical evaluation. What are they?

April 2, 2019
As we discuss in our Absence, Leave Abuse & Medical Issues Week, OPM restricts an agency’s authority to order an employee to undergo a medical exam (they don’t call it a Fitness For Duty anymore) to just three situations:

 

1. Periodic screening due to hazardous work (e.g., x-ray techs get an annual bone scan);
2. Established physical standards (e.g., police officers have to run a mile in 9 minutes); or
3. There are physical requirements in the employee’s Position Description (e.g., must be able to lift 20 pounds).

 

You can find these at 5 CFR 339.104 and 5 CFR 339.302. Under the regulations an agency may offer a medical exam to an employee but cannot require the employee to go. And MSPB will whack us hard if we fire someone for refusing to undergo a medical exam ordered outside of these limited authorities. See Doe v. PBGC, 2012 MSPB 42. (Note: if the employee is receiving OWCP benefits, medical exams are also permitted. We’ll tackle that in a future Ask FELTG column.)

 

Have a Question? Ask FELTG.

 

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