A Letter of Caution Can Equal Reprisal – or, Another Yellow Donut Case

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By Deborah Hopkins, December 7, 2021

We have long taught that issuing a letter of caution, warning, expectation, concern, and the like can cause more problems for agencies than it’s worth. A supervisor can caution, warn, set an expectation, or express concern for an employee verbally, then follow it up in an email, and achieve the same purpose, while lessening the likelihood of a grievance or complaint being filed. At FELTG, we refer to these types of documents as lesser letters, or more memorably, the yellow donut.

There are too many cases where agencies have spent hundreds of thousands of dollars, plus time and years of effort, defending these documents before various third parties. These documents don’t have any legal substance or definition and don’t even count as disciplinary actions. Just to get you started, see, Meaghan F. v. SSA, EEOC Appeal No. 0120152932 (November 2, 2016); Huddleson v. USPS, EEOC No. 0720090005 (2011) Massie v. DoT, 2010 MSPB 106; Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015).

A few days ago, I came across a fairly recent EEO case that confirms the above: Will K. v. USPS, EEOC Appeal No. 2020000109 (Oct. 26, 2020). Among other claims raised, a USPS Operations Industrial Engineer alleged retaliation for protected activity after his supervisor discussed with him several performance concerns. The supervisor issued a Letter of Concern (LOC), which recapped the discussion. If you’re thinking that an LOC is not discrimination or reprisal and the supervisor did nothing wrong here, you’re correct in general. But it all depends on what is in the LOC. If the content includes a mention of events related to previous protected activity, the agency has a big problem.

In this case, the LOC contained a list of areas where the supervisor was concerned about the complainant’s performance, including:

  • Mentioning that the complainant “claimed work-related illness/injury for stress” [which is an employee’s right, under workers’ compensation laws];
  • References to a previous EEO settlement agreement; and
  • An indication that the complainant “claimed discrimination and harassment at work, currently being investigated.”

The AJ granted summary judgment to the agency. On appeal, the EEOC found the reference to the Complainant’s protected activity was per se retaliation. Including this type of information in a Letter of Concern is “reasonably likely to either deter Complainant or others from engaging in the EEO process. Therefore, although Complainant ultimately has not demonstrated that the LOC itself was unwarranted, the Agency is still liable for per se retaliation with regard to some of the language used in the LOC.”

With exemption requests to the COVID vaccine requirement indicating protected activity under the EEO categories of disability and religion, we want to help your agency handle these cases properly and avoid even the hint of retaliation.

So, send all your supervisors, HR and EEO staff to the January 19 webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace, and we’ll show you how. Hopkins@FELTG.com

Updated Guidance on Vaccine Refusals – Just in Time for the Holidays

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By Deborah Hopkins, December 7, 2021

While the federal mandate for COVID-19 vaccination had a compliance rate of more than 97% from civilian and military personnel as of the end of November, there are still a number of personnel who have not complied with the Executive Order or requested an exemption. The deadline for compliance of civilians was November 22. Until a few days ago, the guidance from the administration had been that agencies should begin the process of counseling, then quickly disciplining, employees who refused to comply.

Perhaps, as a direct result of requests for delay by labor unions, the Safer Federal Workforce Task Force updated its guidance on discipline for vaccine refusals, encouraging agencies to counsel and educate employees on the benefits of vaccination for an “appropriate period” of time rather than the 5 days previously recommended.

In an email to agencies, OPM more closely defined that time period by advising agencies to refrain from suspensions until after the holidays. This timeline aligns more closely with the January 4 deadline the administration set for federal contractors to be fully vaccinated against COVID-19.

The Task Force guidance also included a new suggested step in the disciplinary process of noncompliant employees — the reprimand.

If the employee does not demonstrate progress toward becoming fully vaccinated through completion of a required vaccination dose or provision of required documentation by the end of the counseling and education period, agencies may issue a letter of reprimand, followed by a short suspension (generally, 14 days or less).

Reports from the end of November revealed that some agencies were already beginning the disciplinary process for employees who did not comply with the vaccine requirement. Most of those actions will likely be held in abeyance, but the email from OPM does not say agencies are prohibited from disciplining certain noncompliant employees before the end of the year.

According to a November 29 article by Government Executive, OPM’s email said “We understand that your agencies may need to act on enforcement sooner for a limited number of employees, such as where there are additional or compounding performance or workplace safety issues under consideration, but in general, consistency across government in further enforcement of the vaccine requirement after the start of the new calendar year is desired,” they wrote. “We believe this approach is the best one to achieving our goal of getting the federal workforce vaccinated.”

I’m sure this is frustrating for some of you who had already begun work on the disciplinary process and is welcome news to others who are inundated with discipline issues. Wherever you might be, and however you might feel about the vaccine requirement, FELTG thanks you for your service to the American people and promises we will keep you posted as new developments arise. Hopkins@FELTG.com

Is Removing Fed for Lack of Vaccination a Potential Due Process Violation?

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By Deborah Hopkins, November 17, 2021

Executive Order 14043 requiring all Federal employees to be fully vaccinated against COVID-19 by November 22, unless the employee qualifies for a legal exemption (disability or religious belief), it’s all but certain your agency is currently dealing with a significant number of exemption requests. And with that deadline fast approaching, agencies will soon be disciplining employees who fail to provide proof of full vaccination by that date.

OPM and the Safer Federal Workforce Task Force recently put out guidance about the progressive discipline process agencies should generally use in instances where employees refuse or fail to be vaccinated as required by EO 14043.

In a recent training class, a student brought up this question:

The guidance says that employees who fail to comply with the vaccine mandate should be counseled, and then suspended, and if they continue to refuse to be vaccinated, they should be removed. Isn’t this a due process issue since the discipline is pre-decided in these cases?

And our FELTG answer:

It’s wise to be thinking of these potential concerns before the disciplinary process begins en masse. Fortunately, if Deciding Officials are sufficiently prepared and understand their limited role in the process, due process violations can easily be avoided.

The steps of due process in agency disciplinary actions under 5 CFR § 752 are:

  1. Notice to the employee of the charge(s), the proposed penalty, and the material the agency relied upon in the proposal;
  2. Employee’s opportunity to respond, with the assistance of a representative if desired; and
  3. An impartial decision, where the decision is made based ONLY on the proposal and the employee’s response.

While the guidance says generally employees should be removed for failing to comply, the Deciding Official has the final say. And even if every DO ultimately decides to remove an employee who does not get vaccinated (and does not qualify for an exemption), as long as the DO can credibly testify that she did not make her decision until after the employee’s reply, then there is no due process violation.

Think of a few of statutory penalties that exist for Federal employees: minimum 30-day suspension for misuse of a GOV; 3-day suspension for a first offense of whistleblower reprisal under 5 USC 7515; removal for Treason. These do not raise a due process issue if the DO considers the employee’s response before making the decision about the proposed discipline. The same principle applies here.

We’ve been busy at FELTG helping agencies prepare for these processes. If there’s anything we can do to help you, please don’t hesitate to let us know. Hopkins@FELTG.com

The Word ‘Reasonable’ is Half of Reasonable Accommodation

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By Deborah Hopkins, November 17, 2021

Numerous EEOC decisions were recently published, and one case dealing with disability accommodation caught my attention. As most FELTG readers know, after receiving a request for reasonable accommodation, an agency “must make a reasonable effort to determine the appropriate accommodation” for the qualified individual with a disability. 29 C.F.R. Part 1630, app. § 1630.9.

In this case, the complainant worked as a rural mail carrier for the U.S. Postal Service. She had several medical conditions that required her to limit her walking and standing time to 1-2 hours per day, to limit the time she spent lifting to no more than 1-2 hours per day, and to limit the amount of weight she lifted to 10 pounds or less. Medical documentation supported these restrictions.

The agency modified some of her job requirements, but not all. The complainant asserted that the agency did not accommodate her fully because it:

  • Assigned her to run the “Blue Door,” which meant she had to walk to the warehouse to speak with supervisors and carriers concerning customer complaints. The total walking time averaged 4-6 hours per day, which violated her medical restrictions; and
  • Required her to deliver Express Mail, which included walking stairs and hills and carrying items in excess of 10 pounds. That also violated her medical restrictions.

The complainant reported that her assignments were violating her medical restrictions. She said rather than be accommodated, she was warned she would be sent home if she could not do the work as assigned.

She also reported that a supervisor threatened to discipline her after she made the supervisor aware the assigned work was violating her medical restrictions. In EEOC’s decision, they found the agency did not properly accommodate the complainant:

Upon review, we find that the record reflects that Complainant was denied a reasonable accommodation for her disability when Agency management required that she work the Blue Door, which required Complainant to walk in excess of her medical restrictions causing her further injury. Complainant asserted that she notified multiple management officials that she was being made to work in excess of medical conditions.

We note that the record reflects that Complainant informed multiple management officials herein that she was provided with duties in excess of her restrictions, but no action was taken to address Complainant’s concerns. In fact, management engaged in retaliatory actions by threatening to send Complainant home for exercising her right to seek out an accommodation and be allowed to work within her restrictions. Based on a review of the record, we find that Complainant established that she was denied reasonable accommodation for her disability when she was made to work in excess of her medical restrictions and subjected to reprisal for attempting to exercise her rights under the Rehabilitation Act.

Marleen G. v. USPS, EEOC No. 2020003464 (Sept. 7, 2021)

The EEOC ordered the agency to ensure the complainant was provided a reasonable accommodation that allowed her to perform her work within her medical restrictions. Remember, partially accommodating an employee without considering all restrictions, is not reasonable accommodation at all. Hopkins@FELTG.com

Timeliness: It’s The Attempt That Counts

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By Deborah Hopkins, October 26, 2021

Equal Employment Opportunity Commission regulations have long required that Federal employees (or applicants) must make a request to initiate precomplaint counseling with an EEO Counselor within 45 days of the effective date of the personnel action, event or matter alleged to be discriminatory. 29 CFR § 1614.105(a)(1). And 29 CFR § 1614.105(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in § 1614.105, unless the Agency extends the time limits in accordance with § 1614.604(c).

In a recent case, the EEOC looked at this very issue when a complainant argued her contact was timely, and the agency argued otherwise. The complainant alleged that her agency subjected her to discrimination on the basis of sex (female) when:

1. She was expelled from the Physical Security Training Program (PSTP) class at FLETC on Jan. 31, 2017; and

2. Her employment as a Law Enforcement Specialist was terminated on Feb. 8, 2017.

At the conclusion of the investigation, the agency provided the complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). She timely requested a hearing, and the agency filed a Motion to Dismiss the complaint for untimely EEO Counselor contact. The complainant timely filed an Opposition to the Agency’s Motion to Dismiss.

The complainant argued that she timely initiated EEO counselor contact when she contacted the DHS Office of Civil Rights and Civil Liberties, Equal Employment Opportunity and Diversity Division on March 21, 2017, after obtaining the phone number from the Agency’s website. She also asserted she made additional calls and left voicemails on March 23, 24, and 27, 2017 and on an unspecified date, she was contacted by the Agency’s EEO office and directed to contact the Federal Protective Service Complaints Manager. She did so on April 5, 2017, and was directed to the FLETC EEO office.

The AJ found that the alleged discriminatory acts took place on Jan. 31, 2017, the date of the complainant’s expulsion from FLETC; and Feb. 8, 2017, the date of the complainant’s removal. Therefore, the complainant had until March 25, 2017 to contact an EEO counselor. Noting that March 25, 2017, fell on a Saturday, the AJ observed that even if the time limit was extended to the next business day (Monday, March 27, 2017), the complainant’s April 5, 2017 contact with an EEO counselor was still untimely.

The AJ reasoned that the complainant was informed of the 45-day time limit in her Welcome Packet, handbook, and termination letter, and that her argument that her contact with another office was timely, was misplaced. The AJ reasoned that where a complainant is provided clear procedural instructions regarding how and when to contact the Agency’s EEO office, a failure to follow such instructions renders attempted contact insufficient.

On March 4, 2021, the Agency issued its Final Action fully implementing the AJ’s decision, procedurally dismissing the complaint pursuant to 29 C.F.R § 1614.110(a). The complainant appealed to the Commission.

After reviewing the arguments from both sides, the Commission found the complainant initiated contact on March 21, 2017, when she called the DHS Office of Civil Rights and Civil Liberties. Both the EEO Counselor’s Report and the “Headquarters/FPS EEO Intake Form” identified March 21, 2017 as the date of initial contact.

The Commission explained:

As for the agency’s contention on appeal that this contact was insufficient and Complainant was required to contact the FLECTC EEO office, we disagree. We have consistently held that “a complainant may satisfy the criterion of Counselor contact by initiating [contact with] an agency official logically connected with the EEO process, even if that official is not an EEO Counselor.” Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989). Here, by contacting the Agency’s Office of Civil Rights and Civil Liberties, instead of a local, particular EEO office, we find that Complainant met her obligation in initiating the EEO process. Therefore, we find that Complainant’s contact regarding her February 8, 2017 termination … was timely.

Ellan C. v. Mayorkas, EEOC No. 2020003085 (Aug.19, 2021).

The EEOC remanded the case back to the agency, and ordered the agency to send the file to the hearings unit. Whether there was discrimination on the merits, we don’t yet know, but we now have another case that tells us EEOC will consider contact timely if the contact is logically related to the EEO complaint or process. For more on this and other EEO mistakes to avoid, join FELTG November 16 for the 60-minute webinar So You Think You Can Dismiss That EEO Claim. Hopkins@FELTG.com

So, About that Employee Who Gets Vaccinated AFTER Being Removed

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By Deborah Hopkins, October 20, 2021

In the previous article, Bill Wiley shared the logical process for agencies to use progressive discipline when a Federal employee refuses to be vaccinated and doesn’t qualify for a legal exemption.

There are a couple of other scenarios also worth addressing, as it’s likely they will occur in at least a few agencies. We’ll begin where the employee has received a notice of proposed removal for refusing to be vaccinated.

Scenario A: At the response to a proposed removal, the employee:

  1. Says she was vaccinated after the proposal, or
  2. Says she will get vaccinated if she’s permitted to keep her job.

OPM and the CHCO Council recently issued enforcement guidance that suggested the discipline should “end” if after the proposal notice the employee provides the agency with appropriate documentation that the employee is now fully vaccinated.

If the employee has only received one dose of a 2-dose vaccine, the guidance suggests the agency should “hold any disciplinary action in abeyance pending receipt of appropriate documentation that the employee has received the second dose within the designated 3- or 4-week interval depending on the vaccine received by the employee, even if this means the employee will not be fully vaccinated until after November 22, 2021.”

Under Scenario A.2, though, here’s another thought: The DO could offer the employee a Last Chance Agreement and include a requirement that she provide proof of the first vaccine dose within 5 days (any of the FDA-approved or emergency use authorized vaccines), and proof of a second dose (if applicable) within 21 (Pfizer/BioNTech) or 28 (Moderna) days, depending on the vaccine received. According to the guidance, the employee would need to provide documentation of full vaccination status within 5 weeks.

If the employee does not show proof of full vaccination by the end of that time period, the agency could then remove the employee under the LCA. As a bonus, other parameters written in to the LCA could also allow the agency to remove the employee for any misconduct or less than fully successful performance over the next two years.

Scenario B: The employee is removed, files an MSPB appeal, and gets vaccinated before his MSPB hearing.

In this scenario, the main question for the agency is whether MSPB is likely to uphold the removal since the employee’s condition has changed. Indeed, the nominees for MSPB were asked about this very scenario during their committee hearing on September 22, and demurred on answering this specific question.

There are countless MSPB cases where the Board has upheld discipline for employee insubordination, failure to follow orders, and related charges. See, e.g., Phillips v. General Services Administration, 878 F.2d 370 (Fed. Cir. 1989); Gallagher v. Department of Labor, 11 MSPR 612 (1982); Parbs v. USPS, 2007 MSPB 302 Lentine v. Treasury, 94 MSPR 676 (2003).

And of course, in light of Executive Order 14043, most of us are now familiar with a case where the Federal Circuit upheld an agency’s decision to remove two employees who refused an anthrax vaccine mandate. The Federal Circuit agreed the agency had authority to require vaccines because such action was necessary and appropriate to protect the health of the employees. Mazares, Jr. v. Navy, 302 F.3d 1382 (Fed. Cir. 2002). The MSPB had also affirmed the removal in that case.

The answer on whether removal will be upheld may seem clear. However, remember that MSPB is allowed to mitigate an agency’s penalty if it finds the penalty is outside the bounds of reasonableness. See Payne v. USPS, 72 MSPR 646 (1996). Will the incoming MSPB find a removal is too harsh for an employee who initially refused, but eventually got vaccinated? Doubtful, but possible.

One other fun thought: There are a few cases where MSPB has reinstated a removed employee whose situation has changed, but those tend to deal with non-disciplinary medical inability to perform removals. MSPB has such cases, where an employee’s medical condition improves and  the employee is medically able to work again, as easy to resolve because it would be “manifest absurdity” not to reinstate an employee who was removed for non-disciplinary medical reasons beyond their control. In such cases the appellant must produce evidence of a) full recovery b) prior to the close of the record before the Administrative Judge. See, e.g., Street v. Army, 23 MSPR 335 (1984); Hodges v. DoJ, 2014 MSPB 54. How this would work, if it would work at all, with a two-step vaccine mandate with a government-wide date certain, nobody knows.

FELTG suggestion: Rather than force the issue to litigation, the agency could settle with the employee and offer a reprimand in lieu of a 14-day suspension, if the employee was valuable to the agency and it would benefit the agency to bring the employee back.

Join FELTG November 3 for the brand new virtual event The Exemption Proves the Rule: Reasonable Accommodation, Discipline, and the Vaccine Mandate where we discuss all these matters, and more. Hopkins@FELTG.com

Novel Coronavirus Workplace Challenges: You Already Have the Tools to Do This

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By Deborah Hopkins, October 5, 2021

The novel coronavirus has brought about numerous novel challenges in the Federal workplace. It can be tempting to allow all these “new” issues to feel completely overwhelming. But let me share something with you that I first heard from Katie Atkinson, one of FELTG’s instructors and our resident specialist in all things related to COVID-19 and EEO. “You already have the tools to do this. Apply the facts to the existing legal framework” to get the answer you need.

I can think of a couple of areas where this is especially important both now and when return to the workplace orders are implemented.

Reasonable Accommodation

Your agency probably hadn’t received requests for disability accommodation related to a global pandemic before 2020. Now, when you receive a covid-related RA request, you should give the request the same individualized analysis as any other RA case.

1. Does the employee have a disability?

2. Is the employee a qualified individual with a disability?

3. Did the employee request accommodation?

4. Did the agency engage in the interactive process to determine potential accommodations?

5. If an accommodation is denied, is it because the accommodation would not be effective, or would be an undue hardship?

A person with a back problem who requests an ergonomic chair will benefit from the same step-by-step process as a person with asthma or diabetes who is susceptible to severe covid infection if exposed in the workplace.

The facts are new; the process is not. You already have the tools to do this. (If you need a refresher, join FELTG for on the virtual training event The Exemption Proves the Rule: Reasonable Accommodation, Discipline, and the Vaccine Mandate November 3 and we’ll show you how.)

Employee Misconduct

Agencies have been disciplining employees for misconduct under the civil service systems for more than 100 years. The facts related to the misconduct might change, but the framework does not. Whether you have an employee who misuses an agency purchase card, falsifies a timecard, refuses to wear a mask in a Federal building where there is a mask mandate, or refuses to provide proof of vaccination, the misconduct case should be handled according to law and regulation.

FELTG’s Five Elements of Discipline© will get you there:

1. Is there a rule?

2. Does the employee know the rule exists?

3. Does the agency have evidence the employee broke the rule?

4. Can the agency justify the penalty?

5 . Did the agency provide due process?

The facts are new; the process is not. You already have the tools to do this. (If you need a refresher, join FELTG for the webinar series Navigating the Return to the Federal Workplace in October and we’ll show you how.)

A reporter recently asked me if I thought the Federal government was prepared to handle the challenges that are anticipated with return to the workplace orders, and I didn’t hesitate when I said: “They absolutely are prepared. The facts are new but the process is not.” Whether you realize it or not, if you have taken training with FELTG you already know how to do this. And if you need a little refresher or a primer, we’ll be happy to help. Hopkins@FELTG.com

Three Questions About the Vaccine Requirement for Feds

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By Deborah Hopkins, September 20, 2021

Executive Order 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, is currently the basis of a lot of conversations in the Federal employment law world, and beyond. I know it’s a potentially divisive topic, and most people have strong feelings about it. However, FELTG’s focus is not on feelings, but rather on the legal issues related to the EO.

Below are three recent questions – and our best attempt at answers based on what we know so far. Please keep in mind the guidance has been changing every few days, so we’ll keep you posted if anything new comes up.

1. What are the “exceptions as required by law” referenced in the Executive Order?

There are two primary areas where legal exceptions might be granted: as reasonable accommodation for disability, and as reasonable accommodation for religion. It’s important to understand the differences between disability accommodation and religious accommodation, as the processes and requirements are entirely different. (Join us October 12 for Handling Pandemic-Related Reasonable Accommodation Requests and Medical Documentation, the first webinar of our three-part series Navigating the Return to the Federal Workplace.) And just because someone has a valid medical reason to not get the vaccine or has a sincere religious belief or practice that prevents them from receiving the vaccine, this DOES NOT mean the agency must waive the vaccine requirement. It merely means the employee is entitled to the RA process to determine whether a reasonable accommodation is available without causing an undue hardship. (Be prepared to address whether allowing an unvaccinated worker to report for duty could cause a direct threat by putting the employee, or co-workers or members of the public, in harm’s way, which is likely an undue hardship.)

Notably, teleworkers and remote workers are NOT exempted from the vaccine mandate. According to updated guidance from the Safer Federal Workforce Task Force (issued last week), “Employees who are on maximum telework or working remotely are not excused from this requirement, including because employees working offsite may interact with the public as part of their duties and agencies may need to recall employees who are on maximum telework or working remotely.” Also, note that political beliefs or personal feelings do not provide a valid reason for legal exemption.

2. Must an employee’s religion explicitly forbid the COVID-19 vaccine for an employee to receive a religious exemption?

Fellow instructor Katie Atkinson and I discussed this topic in a recent FedUpward podcast, and we believe this is going to be an emerging area where agencies will suddenly be inundated with requests; previously religious accommodation requests have not been very common or complicated. In fact, in most agencies there’s not a designated team to assist in religious accommodation requests. We suggest that your agencies train a point person or team to be ready to handle these requests, as such exemptions must be requested by November 22. And because religious accommodation is different than disability accommodation, don’t assume your existing RA team has experience with religious accommodation requests.

Now on to the answer. No doubt you’ve seen media reports of pastors offering religious exemption certificates in exchange for donations to the church, and discussions about whether mainstream religions really forbid the covid vaccine.

For example, Pope Francis publicly stated that the Catholic Church does not forbid the COVID-19 vaccine. He called getting vaccinated “an act of love.” So, here’s an example of what you might see: a request for exemption from an employee who claims their Catholic religion forbids them from receiving the vaccine. Is that a sincere belief even though it’s contrary to mainstream Catholic Church’s stance?

No doubt we will have EEOC cases in the coming years focused on this topic, but here are a few things we already know:

  • Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief.” The definition of religion is broad and includes not only traditional, organized religions, but also religious beliefs that are new or uncommon, or that seem illogical or unreasonable to others.
  • A religion does not have to be an organized, formal religion, and may include moral and ethical beliefs as to what is right and wrong that are sincerely held with the strength of a traditional religious view. 29 CFR §1605.1.
  • Social, political, or economic philosophies, as well as mere personal preferences, are not ‘religious’ beliefs protected by Title VII. EEOC Compliance Manual, Section 12-I, A-2.
  • Agencies should ordinarily assume that the employee’s religious beliefs are sincerely held unless there is “an objective basis for questioning either the religious nature or the sincerity of particular belief.” 29 CFR 1605; EEOC Compliance Manual 12-I. (bold added)
  • Factors that may indicate a belief is not sincere include:
  • Whether employee has behaved in a manner markedly inconsistent with the professed belief
  • Whether accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons
  • Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons)
  • And whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons

EEOC Compliance Manual, Section 12-I, A-2.

As you can see, this area is ripe for potential exploration, perhaps specifically on the sincerity of beliefs. Join us in October for Navigating the Return to the Federal Workplace.

3. If employees refuse the vaccine and don’t qualify for a legal exemption, must agencies use progressive discipline?

I can’t count the number of times in recent days I have seen reports that agencies will or should employ progressive discipline for employees who refuse to get the vaccine. Is progressive discipline (reprimand, suspension, removal) a tool agencies may use in these cases? Yes. Is it mandatory? Unless there’s an agency policy that says so, no. The Task Force guidance says that in cases of employee refusal to be vaccinated agencies “should pursue disciplinary measures, up to and including removal from Federal service.”

As we’ve discussed previously, employees who refuse a mandate to get vaccinated may be removed, even for a first offense. See Mazares, Jr. v. Navy, 302 F.3d 1382 (Fed. Cir. 2002). But some agencies may take the approach that a reprimand and/or suspension should come first, as an attempt to give the employee a chance to correct his misconduct before a removal is proposed.

Be mindful of the charge your agency uses when disciplining an employee for not being vaccinated. Will the agency go with a charge such as “failure to follow instructions” or “refusal to be vaccinated against COVID-19,” or will it choose to look at these cases as “failure to maintain a condition of employment”?

We’ll keep you posted as things continue to develop. Don’t miss the last call for registrations for Federal Workplace 2021: Accountability, Challenges and Trends, where we’ll talk about all this and more. Hopkins@FELTG.com

Now that Vaccines are Mandated for Federal Employees, Can You Ask an Employee to Provide Your Agency with a Copy of Their Vaccine Card?

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By Deborah Hopkins, September 14, 2021

Stories about falsified vaccination cards are now peppering my newsfeed, including government seizure of fake vaccine cards at the border, and highlights of people who got caught attempting to travel to Hawaii with fake vaccination cards in attempt to and avoid mandatory quarantine. The woman whose card said she received a “Maderna” vaccine and the father who presented with vaccine cards for his 5- and 6-year-old children – far too young to be eligible for the vaccine – are the most memorable.

FELTG readers are likely aware of President Biden’s Executive Order 14043 last week requiring all Federal employees to be vaccinated against COVID-19. (FELTG instructor Katie Atkinson and I recently discussed the new vaccine requirement on an episode of the FedUpward podcast.)

This new EO reflects the administration’s increased push to get all eligible Americans vaccinated, and on Monday the White House set the vaccination deadline as November 22. The EO follows a July requirement that employees attest to their vaccination status, otherwise be mandated to weekly testing, limits on official travel, wearing face masks, and physically distancing, plus following other protocols the CDC recommends for unvaccinated people in the workplace.

New! On September 16, 2021, updated guidance was issued:

Q: Must agencies require documentation from employees to prove vaccination status?

A: Yes, agencies must require documentation from employees to prove vaccination, even if an employee has previously attested to their vaccination status. Employees may provide a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card, a copy of medical records documenting the vaccination, a copy of immunization records from a public health or state immunization information system, or a copy of any other official documentation containing required data points. The data that must be on any official documentation are the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). Employees must certify under penalty of perjury that the documentation they are submitting is true and correct.

Employees may provide a digital copy of such records, including, for example, a digital photograph, scanned image, or PDF of such a record that clearly and legibly displays the information outlined above. In requesting this information, agencies should comply with any applicable Federal laws, including requirements under the Privacy Act and Rehabilitation Act of 1973.

Q: Are there penalties for providing false information on the vaccination attestation form?

A: Federal employees who make a false statement on the Certification of Vaccination form could be subject to an adverse personnel action, up to and including removal from their position. It is also a Federal crime (18 U.S.C. § 1001) for anyone to provide false information on the form. Falsification could also affect continuing eligibility for access to classified information or for employment in a national security position under applicable adjudicative guidelines.

The Task Force will be releasing additional guidance on vaccination requirements later this week, and we’ll be sure to keep you informed. In addition, we’ll be dealing with this topic and more in the October 26 webinar Post-Pandemic Accountability: Handling Employee Performance and Misconduct in a COVID-19 World. That webinar is the final session of the three-part series Navigating the Return to the Federal Workplace, which begins October 12 and includes discussion on EEO issues related to vaccines, reasonable accommodation, and more. Hopkins@FELTG.com

What Happens if the EEO Director or Personnel Attorney is Named in an EEO Complaint?

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By Deborah Hopkins, September 14, 2021

Here’s the scenario: A complainant files multiple EEO complaints including complaints against an attorney in the agency’s Office of General Counsel and the agency’s EEO Director. The complainant requests the attorney and the EEO Director to recuse themselves from the case. The GC and EEO Director happen to be the employees who handle most EEO matters and litigation for the agency in this particular region.

Because of her experience, the attorney would like to be involved in defending the agency against the complaints rather than create a firewall and pass this case off to a less-experienced attorney. And the EEO Director doesn’t want to recuse because he believes there is no merit to the EEO complaint.

What should the agency do?

Ideally, the agency should have a conflict policy in place and an agreement with another region or even another agency to step in for the investigation and defense of complaints in situations like this.  The EEOC issued a report last year with guidance on these conflict policies.

If the agency doesn’t have a conflict policy in place now, the below case discusses the conflict issue and should encourage the agency to address this as soon as possible: Katharine B. v. USPS, EEOC App. No. 0120170444 (Dec. 7, 2018).

“In Monroig, the Commission held that permitting the Deputy General Counsel, one of the responding management officials, to attend the hearing and simultaneously act as agency representative would create an inherent conflict of interest and tarnish other witnesses’ testimony.

EEO Management Directive 110 (EEO MD-110) (Aug. 5, 2015) requires that there be distance between the fact-finding and defensive functions of the agency in order to enhance the credibility of the EEO office and the integrity of the EEO complaints process. EEO MD-110, Chapter 1, at § IV (Aug. 5, 2015). The Commission ruled that even if the Deputy General Counsel had testified before all other witnesses at the hearing, her presence would discourage other employees from testifying freely at the hearing.

The Commission noted that the Agency was well represented at the hearing despite the Deputy General Counsel’s absence.

Accordingly, we find that a conflict of interest existed in the Agency’s representation at [*13] the hearing and that Complainant is entitled to a new hearing, in which S1 may not be involved as an Agency representative. See Rabinowitz v. U.S. Postal Serv., EEOC Request No. 05930348 (Sept. 23, 1993) (officials involved in discrimination may not be involved in processing the complaint).” [bold added]

Bottom line: Take conflict allegations seriously. Find a way to recuse counsel or EEO officials who may have conflicts of interest. Better yet, get ahead of these situations now by putting together a conflict policy, as recommended by the EEOC. It may not be something that arises often but being prepared for a conflict will benefit the agency in the long run. Hopkins@FELTG.com