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.

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.

OPM’s New Regs Clarify Who is Responsible for Douglas Factors Analysis

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By Deborah Hopkins, October 26, 2020

There is a lot going on in our country right now. The election is in just a week (though it feels like it’s been going on for years – and in some ways, it has) and the news cycle is packed with that, plus the ongoing pandemic.

In addition, the telework is continuing for many of you. Can you even remember the last time you actually saw your coworkers in person?

I’m sure you’re exhausted and frustrated and tired of 2020. And given that it’s almost November, it might be tempting to check out for the remainder of 2020, and hope that 2021 holds better things.

But wait!

You can’t check out. There is SO MUCH going on in the federal civil service, from changes that have gone into effect in the last few weeks, to changes that will be implemented within the next several, and your agency cannot afford to miss them.

One of the biggest happenings is the issuance of OPM’s regulations modifying 5 CFR Parts 315, 432 and 752, which go into effect November 15. These 199 pages are packed full of information, some of it surprising and some of it unsurprising yet still significant. I’ll provide an overview of the biggest takeaways during a webinar on November 12, but today I wanted to share a portion that directly speaks to one of the most hotly-contested topics in the history of FELTG training: Who should do the Douglas factors assessment — the Proposing Official (PO) or the Deciding Official (DO)?

Take a look at the below addition to 5 CFR Part 752, which previously only had subparts (a) and (b):

§ 752.403 Standard for action and penalty determination.

(c) …The penalty for an instance of misconduct should be tailored to the facts and circumstances… Within the agency, a proposed penalty is in the sole and exclusive discretion of a proposing official, and a penalty decision is in the sole and exclusive discretion of the deciding official.

To some of you, that may seem like it’s nothing new. However, if you look at the discussion under 752.202, which also applies here, the emphasis is on an individual determination and assessment of each distinct case of employee misconduct. The discussion says, “there is no substitute for managers thinking independently and carefully about each incident as it arises, and, as appropriate, proposing or deciding the best penalty to fit the circumstance.” Subpart (d) also says that a minor indiscretion for one supervisor based on a particular set of facts can amount to a more serious offense under a different supervisor.

So, how does this answer the question about Douglas? Well, taken along with the context provided, each case is unique, and who better knows about all the details relating to the misconduct and its effect on the agency than the Proposing Official? And what better way to tailor the penalty “to the facts and circumstances” than having the PO do a full Douglas penalty analysis? We’ve been saying it for 20 years at FELTG, and we’ll be saying it for the next 20 years.

This language also speaks to advisors who might disagree with the PO’s proposed penalty or the DO’s ultimate decision, and might try to change their minds. The regulation clearly states the penalty is entirely up to the PO and DO. As advisors we may advise on an acceptable range of options, but that document is going to be signed by the person taking responsibility so it needs to match their analysis.

Stay tuned in the coming weeks as we discuss more takeaways from the regulations. Feel free to email Ask FELTG (info@feltg.com) if you have any questions. In the meantime, take care. Hopkins@FELTG.com

What President Trump’s EO on Mental Health Issues Means for Agencies

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By Deborah Hopkins, October 14, 2020

We’ve all learned by now that this COVID-19 thing is intense. Not just the virus, but the effects it has on everyday life. From kids being at home to masks being required in public places, from social isolation to the loss of loved ones, every single American has been affected in some way.

And it’s taking a toll.

In a July 2020 poll from the Kaiser Family Foundation, 53% of U.S. adults said their mental health was harmed because of the worry and stress they’ve experienced over COVID-19 – and that was THREE MONTHS AGO. I can’t imagine what the percentage is today. There have been also been increased reports of substance abuse suicidal ideation among Americans since the onset of the pandemic.

Last week, while he himself was a COVID-19 patient at Walter Reed, President Trump issued an Executive Order On Saving Lives Through Increased Support For Mental- and Behavioral-Health Needs in an attempt to prevent suicides, drug-related deaths, and poor behavioral-health outcomes, as a result of the COVID-19 pandemic. This is a topic FELTG has been covering since the start of the pandemic, and will again discuss during the December 10 virtual training program Managing Employees With Mental Health Challenges During the COVID-19 Pandemic.

I spoke with Shana Palmieri, FELTG’s resident behavioral health instructor, after this EO was issued, about how agencies can best handle some of the related mental health challenges that come along with the pandemic.

DH: What are some of the tells or signs that might indicate an employee is struggling with depression, anxiety, or other mental health challenges? 

SP: The increase in stress and drastic life changes as a result of the pandemic are significant risk factors for increasing rates of depression, anxiety, suicidal ideation and substance use disorders. Key symptoms that may indicate an individual is suffering from a worsening mental health condition include low mood, emotional withdrawal, withdrawal/socially isolating (beyond what is required by CDC guidelines); excessive tearfulness; difficulty with focus and concentration; sleep disturbance/insomnia; anger/moodiness/irritability; forgetfulness; guilt; panic attacks; racing or unwanted thoughts; feelings/expressing pending doom; and excessive worry or fear.

High-risk symptoms that indicate the need for immediate crisis intervention include suicidal thoughts, plans or behaviors; psychotic symptoms (a loss of touch with reality evidenced by delusions, hallucinations or extreme paranoia);  change in mental status evidenced by severe confusion; evidence of a significant increase in alcohol or drug use; and extreme agitation, aggression or expression of thoughts/intent to harm others. 

DH: What are some practical suggestions for agencies to help employees who are dealing with mental health issues?

SP: In order to effectively assist employees dealing with high levels of stress or mental health issues, agencies should engage in a number of proactive steps to keep employees healthy, provide assistance to those who need mental health treatment, and be prepared to intervene should a mental health crisis present itself.

Tip #1. Ensure ease of access to behavioral health treatment. Proactively provide employees with information on how to access treatment such as EAP, behavioral health treatment through their health insurance provider, or through digital telehealth solutions.

Tip #2: Proactively provide key messaging to the agency workforce about:

  • How the agency is responding and able to provide assistance
  • The impact of the pandemic on mental health and substance abuse
  • How employees can access assistance from the agency, resources available, and information for the suicide crisis hotline. (National Suicide Prevention Hotline: 800-273-8255; Veterans Crisis Line: 1-800-273-8255; Veterans Text Line: 838255)

Tip #3: Ensure your agency has a policy and procedure developed for managing a mental health crisis in the workplace. It is crucial to have a plan in place that identifies protocols on the management of a suicidal employee, violent threats/behavior, and risk of or on-site overdose. Ensure supervisors and employees receive training on the protocols for a behavioral health crisis in the workplace.

Tip #4: Provide mental health training to supervisors, managers, leadership and HR staff.  This training should include:

  • An overview of mental health symptoms and conditions and how they can impact employee work performance
  • Implementation of appropriate workplace accommodations
  • How to appropriately – and safely – intervene in a behavioral health crisis

Tip #5: Ensure the agency has a culture that promotes mental health wellness.  Create a culture of physical and emotional wellness within the agency.  Ensure a culture that eliminates stigma and promotes mental, emotional and physical wellness through:

  • Improved access to care
  • Training of supervisors, managers, and leadership
  • Communication strategies from leadership to agency workforce encouraging employees to access resources and engage in strategies and behaviors that promote overall wellness

DH: Do you have any advice for supervisors who suspect an employee might be suicidal but are afraid to ask? 

SP: Remember to take all concerns and statements about suicide seriously.  Your actions can save a life!  Below are some key tips and recommendations if you are worried about an employee being suicidal:

Suicide Warning Signs

  • Making comments or direct statements about suicide
  • Seeking out lethal means or a lethal plan to kill self
  • Expressing a preoccupation with death
  • Expressing a lack of hope and despair about the future
  • Self-loathing, self-hatred
  • Saying goodbye and getting affairs in order, unexpectedly
  • Self-destructive behavior
  • Withdrawing socially from others (a change from the individual’s normal personality)

How to Talk with Someone About Suicide

  • Have an open conversation and state your concern for the individual
  • Stay open and non-judgmental
  • Actively listen and express concern
  • Offer support and guide the individual on how to receive help
  • Access mental health crisis services if necessary

Helpful Things You Can Say

  • “I have been feeling concerned about you lately.”
  • “I wanted to check in with you because you haven’t seemed like yourself lately”
  • “You are not alone, I/we are here to support you”
  • “It may not seem like it is this moment, but the way you are feeling can change”
  • “I may not be able to understand the exact way you are feeling, but I am here for you.  How can I help?

As you can tell, these issues can quickly become serious. FELTG provides training for agency supervisors and employees on how to safely, and legally, handle behavioral health issues in the workplace. Please let us know if there’s anything we can help you with. Hopkins@FELTG.com

What Dave Wants, Dave Gets: Sexual Harassment is Misconduct

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By Deborah Hopkins, September 16, 2020

We discuss misconduct a lot during some FELTG training classes. And in other classes, we discuss sexual harassment in the workplace. Sometimes these two matters are discussed in the same class because rarely do workplace issues occur in a vacuum.

Among the worst types of misconduct to occur in the federal workplace is sexual harassment, particularly the egregious cases. It’s been almost three years since the #MeToo movement gained widespread traction, but cases of sexual misconduct, harassment, assault and more are still problems agencies face today.

Let’s look at an EEOC decision from last summer. The Complainant made allegations that her second-line supervisor subjected her to numerous incidents of sexual harassment for a period of approximately five months, including:

  • Continuously talking about his sex life.
  • Making sexually suggestive comments in the workplace.
  • When she was putting eye drops in her eyes, he said, “Let me do that for you. I am real good at putting things in.”
  • Discussing women he had affairs with, including his “high school sweetheart,” whom he said he got pregnant three times.
  • Talking about his ability to get sex whenever he wanted, stating, “What Dave wants, Dave gets.”
  • When the Complainant told him she was not feeling well and might go home, he stated that she might be pregnant and told her about his wife stating that she (the wife) needed a pregnancy test and said, “Well, if you hadn’t raped me, I wouldn’t be asking for the test.”
  • Refusing to clean the women’s restroom because “women are dirty and bleed all over the place and are smelly.”
  • Threatening to hit the Complainant with a cardboard roll.
  • Making comments to the Complainant such as said, “Why don’t you try smiling, darling?”
  • Physically touching her in a sexually suggestive or otherwise inappropriate way on multiple occasions.
  • Hitting her with a yardstick.
  • During her performance review, pulling her chair next to his desk, and, after the review, putting his hand on the inside of her thigh and saying, “See, it wasn’t that bad.”
  • Tousling her hair and poking her in the ribs, and after being told to stop, continuing to poke her and asking, “Oh, you are ticklish?”
  • Touching her on the back and shoulders several times, in front of co-workers.

These are just some of the events that were alleged, a number of which were witnessed by others, and many more are detailed in the case. Based on the factual record the EEOC found that the Complainant was subjected to a hostile work environment because of the unwelcome verbal and physical conduct based on sex, that was sufficiently severe or pervasive to create an abusive working environment.

The EEOC noted that a second-level supervisor placing his hand on Complainant’s leg at her thigh, in and of itself, was sufficiently severe to constitute a hostile work environment, because it was an unwelcome, intentional touching of an intimate body area. In addition, the EEOC found the agency liable. The Agency was ordered, among other things, to ensure that the Complainant was removed from the Store Manager’s supervisory/managerial authority. Terrie M. v. DOD, EEOC Appeal No. 0120181358 (Aug. 14, 2019).

You may be wondering why the EEOC only told the agency to separate the Complainant from the offending supervisor, instead of something more severe. That’s because the EEOC does not have the authority to require the agency to discipline federal employees who engage in misconduct. However, you can imagine the issues that arise if this level of misconduct goes undisciplined – issues we will discuss during the upcoming live virtual class Conducting Effective Harassment Investigations, October 6-8.

So, do you want to know what happened in the end? Well, “Dave” quit his job and left the country, so at least we know he isn’t currently doing this to another federal employee. Or, let’s hope he’s not. Dave worked for DOD and we know they have locations all over the world. And because this egregious sexual harassment isn’t in his disciplinary record (remember, he quit before he was disciplined), I sure hope a new employer bothers to call his former supervisor for a reference. Hopkins@FELTG.com

Agency Concerned About Telework as Reasonable Accommodation Request: Should It Request More Medical Information?

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By Deborah Hopkins, Ann Boehm, and Bob Woods, September 1, 2020

Here’s a hypothetical reasonable accommodation case to consider:

An employee requests telework due to a medical condition, specifically because of the side effects of the medication being taken for the medical condition. The medical information provided by the health care provider states that the medication being taken causes sleepiness and precludes the employee from driving. Can additional clarification be requested from the employee’s healthcare provider to ensure that the medication being taken by the employee will not affect his ability to perform his essential functions, specifically to handle potentially private information, including personally identifiable information (PII)?

We sure love hypotheticals. Because FELTG is a training company, we can’t give specific legal advice about this scenario. But your authors got together (well, virtually anyway) to discuss some things the agency should probably consider.

 

The telework request

Sometimes, folks overthink these situations too much. In this time of pandemic, thousands more employees are working from home. It’s still the same work with the same duties and responsibilities, just in a different environment. The employee is responsible for properly safeguarding PII at work, so that’s still a requirement at home. Is the agency allowing other similar employees to work from home? If so, how do THEY safeguard PII? If this employee fails to safeguard PII, the agency should deal with it when it occurs and take appropriate action to hold the employee accountable.

In cases like the hypothetical above, supervisors are often concerned that they can’t keep an eye on the employee to make sure they’re getting their work done and aren’t malingering. There are ways to deal with such concerns. For example, while teleworking, the supervisor can assign projects with specific deadlines or require periodic updates by phone or email. They can also have Zoom or Skype meetings, etc. They just need to think through how they monitor work while in the office and then try to replicate that as well as possible in the virtual environment. If the employee’s production decreases or the employee doesn’t respond in a timely fashion to phone and/or email, then the supervisor just deals with that like they should in the normal workplace (i.e., follow FELTG’s performance cases outline to hold the employee accountable).

The medical request

We know from EEOC cases that assuming or speculating that a certain disability will result in a particular behavior, without any evidence or history of such behavior, can get agencies in trouble. See, e.g., Matilde M. v. SSA, EEOC Appeal No. 0120140147 (Jan.17, 2017); Smith v. Navy, EEOC Appeal No. 01A40794 (June 8, 2006); Lamb v. SSA, EEOC Appeal No. 0120103232 (Mar. 21, 2012).

In our hypothetical, drowsiness as it relates to driving is the reason for the telework reasonable accommodation request. An agency should be very careful not to read into something for which there is no evidence. Drowsiness or sleepiness does not automatically suggest other issues. (In fact, all of your authors have been groggy on the job a time or two.) Grogginess does not automatically mean an employee cannot do the job, and without a direct link to the essential functions – for example, operating machinery or driving – it can be risky to assume one cannot. Lots of medications warn against driving, but that’s a different cognitive need than getting certain types of work done.

Agencies can ask for medical information to substantiate the need for accommodation, and to help understand the functional limitations. If the agency in the hypothetical above accepted the medical information as written (employee needs to telework because they can’t drive due to the effects of medication), granted telework, and the accommodation is working and there are no problems with the employee’s performance or conduct, then why would the agency need additional medical information about the performance of essential functions based on the driving restriction alone?

The bottom line

Telework can be an effective and reasonable accommodation. Whether it’s being permitted as an accommodation or just as a workplace flexibility, supervisors need to determine how they are going to assign and monitor work and how the teleworker will maintain security and PII.

Remember, it’s the same work, just a different location. As for requesting medical information regarding an accommodation, stay focused on the critical elements of the job. Remember, an accommodation is provided to enable the employee to perform the essential elements of the job. If necessary, the employer may request the medical practitioner to answer the following:

  • Nature, severity, and duration of disability;
  • Explanation of impact of disability on and off the job;
  • Extent to which impairment(s) limit ability to perform functions of job;
  • Estimated date of full or partial recovery;
  • Medical professional’s assessment of individual’s ability to successfully perform essential functions of position;
  • Explanation as to how the particular accommodation will assist individual in performing essential functions of position.

We’ll be discussing challenges related to unseen disabilities in more detail on September 8 during the virtual training program Accommodating and Understanding Employees with Hidden Disabilities, and we also have an entire virtual class dedicated to handling employee medical information during Absence, Leave Abuse & Medical Issues Week, September 28-October 2. If reasonable accommodation requests are something you deal with, you will definitely want to join us. Hopkins@FELTG.com

Can Delaying Discipline Cause EEO Liability for an Agency?

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By Deborah Hopkins, August 19, 2020

On the MSPB side of federal employment law, FELTG has long held the stance that agencies should take disciplinary actions as soon as is practicable after a federal employee engages in misconduct. The longer an agency waits, the less justification the agency will have of the “harm” the employee caused, and the more unreasonable its penalty begins to look.

Take a look at Eotvos (pro se) v. Army, CH-0752-17-0355-I-1 (2018)(ID). In this case, the employee solicited a minor for sex and the agency removed him. The AJ reversed the removal because the appellant disproved the rebuttable presumption of nexus by highlighting the following details:

  • There was no proof of publicity about the event.
  • There was no customer knowledge; the agency had no minors as customers.
  • His coworkers did not care about his conduct.
  • His work performance remained good.
  • The agency waited 5-plus months to fire him.

While Eotvos is “just” an administrative judge’s decision and has no precedential value, it illustrates the importance of timing. When an agency fires someone for misconduct it states as egregious, but then waits nearly half a year to take the action, a third party may begin to question how “bad” the misconduct really was if the employee wasn’t removed immediately.

The longer you wait, the more precarious your position, unless you have a darn good reason for the delay.

For precedential MSPB decisions on the topic take a look at Baldwin v. VA, 2008 MSPB 169 (If an agency’s delay in charging discipline is unreasonable, the charges may be dismissed), or Brown v. Treasury, 61 MSPR 484 (April 7, 1994) (In cases where there is not an explanation for the delay, the Board will consider how serious the agency actually considered the misconduct and may mitigate the penalty if it believes the delay undermines the argument for harm).

Every now and then this important principle of “discipline early and often” finds its way into an EEOC case. Take, for example, Sharon M. v. Dep’t of Transp., EEOC Appeal No. 0120180192 (Sept. 25, 2019). In this case, the complainant, an Air Traffic Control Specialist, received an email from a coworker that contained a racial slur (an abbreviation of the n-word).

The agency initiated an investigation and found that the coworker did indeed used an inappropriate racial slur, and that such behavior violated its code of conduct, so the agency told the complainant that her coworker would be suspended for 30 days. The conduct did not occur again.

Sounds good, right? The agency did an investigation, took corrective action, and the conduct didn’t happen again. So, we’re good to go?

Not quite. Although the agency took corrective action, the EEOC found that the action was not “prompt” and, therefore, the agency was not absolved of liability. Why? The agency waited six months to discipline the coworker who used the n-word. Take a look at some language from the body of decision:

…[T]he Agency is responsible for the hostile work environment unless it shows it took immediate and effective corrective action. Although the Agency took effective corrective action, upon review, we find that the Agency’s action was not prompt. We note that the record clearly indicated that the investigation occurred in early December 2016… The Agency did not state how long the internal investigation took and failed to provide a copy of the internal investigation in the ROI for the Commission to determine how long the Agency investigated the matter…

The proposed 30-day suspension was not received by [the coworker] until May 16, 2017, nearly a month after it was allegedly drafted. There is no reason given for the delay. In addition, it appears that the Agency took over six months to issue the proposed disciplinary action. Based on the events of this case, we find that six months is not prompt. See Isidro A. v. U.S. Postal Serv., EEOC Appeal No. 0120182263 (Oct. 16, 2018) (finding that the Agency failed to take prompt and effective action when it investigated a single utterance of the word [n-word] in the workplace on July 15, 2017 and issued disciplinary action on November 21, 2017). As such, we conclude the Agency failed to take prompt action after learning of the harassment. Because the Agency failed to meet its affirmative defense burden, we find that it is liable.

In most cases similar to Sharon M., we see agencies lose because they did not investigate promptly or did not put effective corrective action into place, but here the delay in taking prompt corrective action is what caused the loss.

While a delay is not always the death knell for a disciplinary action (check out my 2019 article on laches here), I hope you see now that it can be, both on the MSPB and EEOC sides of an issue.

And if you join us for MSPB Law Week, next offered virtually September 21-15, we’ll discuss all these things and a whole lot more. Hopkins@FELTG.com

Is There a Legal Path to Fire Dr. Fauci?

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By Deborah Hopkins, July 15, 2020

Here’s a hypothetical. Let’s say you have a U.S. President who is in office during a global pandemic, and that president gives an interview to a news outlet and says that the country is in “a good place” with how it is handling said pandemic.

Now let’s say that there’s a high-level career federal employee who works in infectious diseases who makes a statement to a different media outlet that goes something like this: “As a country, when you compare us to other countries, I don’t think you can say we’re doing great. I mean, we’re just not.”

Of course by now you know I’m not speaking in hypotheticals. As it goes with media sensationalism, one of the stories over the past few days surrounds the legality of the President firing Dr. Anthony Fauci, the head of National Institute of Allergy and Infectious Diseases (NIAID). Most FELTG readers are probably aware that Dr. Fauci’s statements on the COVID-19 pandemic have differed somewhat from those of the White House.

The question that is being asked on cable news, in media publications, and perhaps around dinner tables across the country: Can the president have Dr. Fauci fired?

The answer, based only on the evidence available to the public, is probably not. The President himself doesn’t have the authority to fire Dr. Fauci, who is a Title 42 employee and not a political appointee. But were the President to hypothetically order an official at HHS to fire Dr. Fauci, in order for the removal to be legal there would have to be cause — Dr. Fauci would had to have engaged in removable misconduct or poor performance.

Disagreeing with a President most likely does not fall into poor performance or misconduct. In fact, it is a prohibited personnel practice to make an employment-related decision because of a career employee’s political activities. While it may be acceptable for political appointees to be removed for differing opinions than those of their president, the fact that Dr. Fauci does not agree with the President about COVID-19 is NOT a valid reason to fire him.

We don’t know the details of Dr. Fauci’s work at NIH, so we can’t speak specifically to his performance or conduct on the job. However, misconduct, loosely defined, is the violation of a valid workplace rule.

Is a statement made in contradiction with the President misconduct? Probably not. Dr. Fauci doesn’t appear to have violated a workplace rule, as he has authorization to speak to the press about NIAID matters.

What about the list of the times Dr. Fauci “has been wrong on things,” recently compiled by White House. Do these statements rise to the level of poor performance? Without seeing Dr. Fauci’s performance plan, I cannot say for certain.

If Dr. Fauci is fired for any reason, whether it appeared to be legally valid or not, he could appeal his removal to the MSPB and let the Board (if we ever get one, that is) decide whether he engaged in misconduct or poor performance.

In case you’re wondering how Title 42 employees have civil service protections, here’s a brief lesson from Lal v. MSPB, Fed. Cir. No. 2015-3140 (May 11, 2016). Title 42 says that individuals may be “appointed” under Title 42 without regard to the civil service laws. A different statute gives agencies dealing with certain non-Title 42 employees the authority to “appoint[ ]…and remove[ ]… without regard to the provisions of title 5…” Reasoning that Congress saw a significance in the latter situation to include the authority “to remove” and that Congress did not specifically include the authority “to remove” in Title 42, Congress did not intend for Title 42 removal authority to be without regard for civil service protections. So, in sum Title 42 employees are hired under special authority but when it comes to being fired, they get the same protections as most of you in the FELTG Nation. And that includes Dr. Fuaci.

Interesting times, aren’t they? I’ve got some ideas for follow-up discussion and would love to incorporate your thoughts and questions into the content. So, what’s on your mind? Hopkins@FELTG.com

More About that Employee Who Left His Laptop Charger at Work During the Pandemic

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By Deborah Hopkins, June 23, 2020

Last week, we published an article about an employee who left his laptop charger in the office at the beginning of the COVID-19 pandemic. The employee claimed he worked 40 hours a week for eight weeks, even though he later admitted he had done no work during that time. I characterized it as an open-and-shut case. It wasn’t seen that way by a number of you in FELTG Nation.

If you haven’t read the article, or didn’t read it closely, I urge you to take a look before you continue reading this article.

Many of our readers had comments, and some strong feelings, about the matter. Most of the feedback fell into three areas:

  1. The potential existence of a backup charger or at-home computer alternative.
  2. The investigation of IT records to see if the employee was working through some other mechanism.
  3. The issue with supervisor not tracking the employee’s [lack of] work product.

Below are some of the comments we received in each category, followed by an official FELTG response:

The Forgotten Charger

FELTG reader comments:

  • Some years back I was sent out of state on a business trip and forgot my charger. I…drove over to a Best Buy, and got a new power cord. Problem solved in about one hour. In today’s COVID world, I’d probably buy one from Amazon. But just because the employee forgot his power cord isn’t evidence the employee wasn’t working. How about checking on his output??
  • Perhaps the employee simply opted to buy another charger or had a reasonable substitute already at their home – they are readily available.
  • In reply, the employee will obviously claim he had another charger cable at home (and he could’ve purchased on Amazon).
  • I have a docking station, monitor, and mouse of my own for my home office.
  • Does the agency allow the employee to work on his own personal device from home?
  • Most likely there was a back-up charger. I have been telecommuting for 4 months and my charger burnt out twice. I was out of commission for a week.
  • Admittedly I did this and worked on my desktop for all of quarantine.

Official FELTG response: All excellent points, and details you would absolutely want to find out during your management inquiry or misconduct investigation. If the employee was allowed to use a personal device, or bought a backup charger, or had a docking station for his laptop at home, then as long as he was working the 40 hours a week he claimed, we don’t have misconduct.

The employee’s misconduct was lying on his time card – not leaving his charger at work. If you look closely at the article’s application of the five elements of discipline, you’ll see the employee was charged with the time and attendance violation, not leaving the charger in the office. A disciplinary charge of “leaving your laptop charger at the agency” may not rise to the level of misconduct, especially if it was accidental.

IT Records

FELTG reader comments:

  • Most agencies can see if the network was accessed or logged into.
  • The one thing I may do is have IT perform an evaluation of his computer usage as further confirmation that he hasn’t logged on and worked.
  • The IT people should be able to audit access to the [employee’s work] files, if nothing else.

Official FELTG response: In some cases, you would want to pull IT records to verify if the employee was working at all. Let’s modify the hypothetical a bit and say the employee was working on a personal device through the agency’s VPN, and claimed 40 hours of work a week, but the supervisor suspects he was working less. A search of IT records could show the amount of time the employee was on the VPN to give the agency a better idea of how much potential time theft was involved. Other considerations, such as whether the employee does work that does not require computer or VPN use, would also be relevant.

But in the original hypothetical, the employee admitted he did not work at all. Yet, he claimed 40 hours a week. That admission is preponderant evidence, so the agency could propose discipline based on that evidence alone. Yes, the IT records would provide additional evidence, but they wouldn’t be required because the burden of proof in discipline cases is only preponderant evidence – or substantial evidence, at the VA.

Supervisor Oversight

FELTG reader comments:

  • The burning question in my mind is how could the supervisor not know there was a problem; when you send people home to work, it doesn’t mean you don’t keep tabs on what they’re doing daily. Why wasn’t the supervisor communicating on at least a weekly basis and asking for accountability, not just of this employee but every employee?
  • Simplest way to check up is to ask to see work product if you doubt. Why are they having to use “inference” of a power cord sitting at the office rather than checking with IT for emails, and checking other systems for evidence of work? Seems to me the supervisor needs at least a counseling for failing to do his job as well!
  • Should we also address the supervisor who failed to see no work from this employee for months?
  • There should have been ways for management to create check points/milestones or activity goals to ensure this person was working.
  • If I was the said employee’s supervisor, I would be a little concerned about my own “failure to supervise” allegation.

Official FELTG response: Right on! This hypothetical supervisor failed to monitor the employee’s work, because no work product in eight weeks is unacceptable in any government job. As the previous article alluded, we could write another article entirely on the supervisor’s potential performance and misconduct issues.

Thanks, as always, for your responses. We loving hear from you, and enjoy the conversations. For a more in-depth discussion on related topics, be sure to join us July 1 (that’s next week!) for the 75-minute webinar Performance and Conduct Problems During the COVID-19 Pandemic: Holding Remote Employees Accountable. Hopkins@FELTG.com

He Claimed He Teleworked for 2 Months, but His Laptop Charger Was at the Office

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By Deoborah Hopkins, June 17, 2020

Here’s a timely hypothetical that recently came across the FELTG desk:

Dear FELTG,

My agency sent all employees home to telework starting at the beginning of April. Hypothetically, the agency learned that an employee left his computer power cord in the office before he started teleworking, but he has been submitting 40 hours a week on his time sheets for the past two months. His computer charge lasts approximately 6 hours, and the employee’s work tasks requires use of the computer all day, every day.

I’ve been advised that investigating this misconduct would be too difficult because there wouldn’t be witnesses to attest the employee wasn’t working, and that our agency can’t discipline the employee anyway because of the current situation with the pandemic. Do you have any thoughts on this?

And our FELTG response.

Thanks for the note, FELTG reader. This one seems so easy to me. The employee is claiming pay for a large amount time when he did not work (approximately 320 hours), which is an egregious act of misconduct.

As members of FELTG Nation know, in order to discipline a Federal employee for misconduct, the agency must follow the five elements of discipline.

1 – Is there a rule? Yes, of course. Federal employees can’t lie on their time cards. It violates Federal statute to do so. See, e.g., 18 U.S.C. § 641; 18 U.S.C. § 287; 18 U.S.C. § 1001; 31 U.S.C. § 3729.

2 – Does the employee know the rule? Yes, every Federal employee receives training on how the time and attendance system works and is told their input must accurately reflect their schedule. In addition, most employees are subject to some version of the following when filling out their time and attendance records: “I certify that the time worked and leave taken as recorded on this form is true and correct to the best of my knowledge.” Moreover, the employee must click “Affirm” to validate, or sign their name if they submit a paper time and attendance form.

3 – Do you have proof the employee broke the rule? The standard here is preponderant evidence (or substantial evidence, if you’re covered by the new VA law). The employee has been at home for two months and has admitted he has not had a power cord for the laptop the entire time, and has done no work, yet he has submitted for full pay every day. Is this preponderant evidence? Sure it is. Your evidence is the employee’s admission. Remember, preponderant evidence – more likely than not – is all you need, and the employee’s admission meets that standard. There is also presumably evidence he is not working because no work has been submitted during this time. (There’s also a supervisory issue here, because a supervisor should be aware if an employee has not turned in any work in two months. But that’s another article.)

4 – Justify your penalty. Most agencies are required to justify a penalty by using the Douglas factors. A good starting point is to add up the amount of money the employee claimed and was paid, for time not actually worked. That amount, whatever it comes to, is an egregious misuse of taxpayer dollars. You can also address the loss of trust and confidence in the employee, plus any other Douglas factors that aggravate the penalty such as past discipline, employee performance, and rehabilitation potential. The COVID-19 pandemic might be a mitigating factor for some employee misconduct (for example, an employee did not log on to a web meeting because they were taking care of a child who was sick with the coronavirus and had a 103-degree fever), but in this hypothetical case a pandemic does not forgive, or even mitigate, two months of serious ongoing misconduct.

5 – Provide due process. You’ll complete these steps:

  • A proposal letter containing the charge(s) and penalty
  • The employee can respond to the charge(s)
  • An impartial decision

As far as the charge is concerned, in addition to the falsification/claiming time not worked/whatever you call the misconduct here, there could easily be another charge for the employee not alerting the supervisor that he left his laptop charger in the office and had no way of doing his work. Your agency telework policy likely mentions a process employees should follow if they have technical issues while on telework, and at the very least you can justify that the employee should have known that when he was on telework he was expected to work, and that if there were problems, he should alert the agency as soon as possible.

This scenario is not uncommon, unfortunately, and we will be addressing similar challenges on July 1 during the webinar Performance and Conduct Problems During a Pandemic: Holding Remote Employees Accountable. Hopkins@FELTG.com