Tips From the Other Side: Retaliation Is a Very Real Issue

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By Meghan Droste, June 16, 2021

Have you ever secretly wanted to get revenge for something? Hoped that the coffee shop messes up the order of the person who cut in front of you?  Blamed something on your sibling — and getting them in trouble — as a way to get back at them for taking something of yours? Decided not to go to a friend’s party because they didn’t go to yours?

I imagine that you all can think of at least one example of when you’ve wanted to get even with someone for some slight, real or perceived. It might not be the best look, but it’s a completely human response.

Now let’s change the question a little bit: Have you ever wanted to retaliate against an employee or coworker? I assume that most people will say no to that question. You’re probably thinking to yourself that you would never do that, you know it’s against the law and you’re just not the kind of person who would do that.  While I do hope that all you thinking that are correct, and that you will never engage in retaliation, research shows that the same perfectly human desire for revenge can pop up once someone is accused of having engaged in discrimination or harassment. The person named in the complaint feels wronged and, unfortunately, may act on that feeling.

For the next few months, we’ll be taking a look at relation claims in the Tips From the Other Side.  My first tip is — don’t.  Don’t engage in retaliation. I know, that’s obvious and not much of a tip.  But unfortunately it’s something that needs to be said. Retaliation has been the most frequently alleged basis of discrimination in the Federal sector for more than a decade. In the most recently available EEOC Annual Report on the Federal Workforce, retaliation was alleged in 51 percent of the 15,154 formal complaints filed in FY 2016. No matter how much we all want to believe that we would never engage in retaliation, it is clearly a very real issue.

My next tip is to make sure your agency is providing sufficient training and information to managers.  As the EEOC has noted, it is “important for federal agencies to help their managers understand the behaviors associated with retaliation by incorporating this information into organizational training … Often, managers are not prepared for the inevitable conflicts associated with managing human relations within the work setting.” See Retaliation – Making it Personal, available here. Agencies should also provide information managers at the outset of the complaint process that acknowledges “the potential emotional response involved with being accused of a discriminatory action, as well as the problematic implications of seeking to avenge any perceived offense.”  See id. This information should help managers take a step back and think before taking any retaliatory actions. Droste@FELTG.com

[Editor’s Note: Want more guidance? Register for the 60-minute webinar EEO Reprisal: Handle It, Don’t Fear It, part of our annual Supervisory Webinar Series. It takes place on August 24, from 1-2 pm ET]

If You Thought SES Discipline Was Unique, Wait Until You Read About SES Performance Procedures

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By Deborah J. Hopkins, June 16, 2021

Last month, we looked at some of the unique aspects to disciplining a member of the Senior Executive Service (SES). This month, we will cover your agency’s options in the rare event a non-probationary member of the career SES has a performance issue.

Unlike GS and WG employees who can be removed for unacceptable performance entirely unrelated to an annual performance rating, a performance-based removal for an SES member must be based on that employee’s final rating(s) – typically the rating given as part of the annual performance appraisal.

If an SES member is performing unacceptably, however, agencies do not have to wait until the end of the appraisal year. There is flexibility to end an SES member’s appraisal period at any time (after the minimum appraisal period, which is 90 days in most agencies) if there is an adequate basis to prepare a final rating. According to OPM, this rating may “serve as the basis, or part of the basis, for a performance-based action.”

However, the word removal in this context does not mean removal from Federal service (also known as firing); it is removal from the SES, and in cases of unacceptable performance, the SES member has a guaranteed placement right to a non-SES career civil service position. This right to placement does not exist if the SES member is removed for misconduct.

If an SES member is performing unacceptably, the process generally follows these steps:

1 – The agency issues final rating of unsatisfactory or its equivalent (Level 1 in most agencies), at annual rating time or sooner, if the agency has an adequate basis to rate the employee, as detailed above.

2 – The agency notifies the SES member, in writing, of the impending “removal” from the SES, at least 30 days in advance of the removal date. The notice must contain:

  • The reason(s) for the action.
  • The effective date of the action.
  • The employee’s placement rights and information on the position to which the employee will be moved. The placement may be:
    1. A reassignment or transfer to another position within the SES, or
    2. Removal from the SES and placement into a GS-15 or equivalent position, with SES saved pay.

According to OPM, SES saved pay is set at the highest of three alternative rates –

  1. Rate of pay for the position in which the employee is placed;
  2. Rate of pay for the position from which the employee was appointed to the SES; or
  3. Rate of pay earned immediately before removal from the SES
  • Notice of the right to request an informal hearing from the MSPB at least 15 days before the removal is effective (although such an opinion is advisory only and is not binding on the agency). If applicable, the notice must also include the employee’s eligibility for immediate retirement under 5 U.S.C. 8336(h) or 8414(a).

3 – The SES member is placed into the new position on the effective date. Those SES members who held a career or career conditional appointment immediately before entering the SES are entitled to an appointment of equivalent tenure. Those who did not hold such an appointment before SES (for example, they were hired from the private sector) may be appointed using Schedule B authority under 5 CFR 213.3202(m).

There is no traditional MSPB appeal right for a performance-based “removal” from the SES. If the SES member is placed into a GS-15 position and then performs unacceptably, chapter 43 performance procedures would apply.

But wait! We’re not done yet.

Here are a few other odds and ends:

Marginal performance won’t cut it. The SES member receives two final ratings of unsatisfactory within 5 consecutive years, or two final ratings of less than fully successful (a Level 2 rating) within 3 consecutive years, that employee must be removed from the SES and placed in a GS position – they may not be reassigned or transferred to another SES position.

Moratoriums exist. A career SES member may not be reassigned or removed from the SES within 120 days after appointment of a new agency head or of a new noncareer who is the initial rater for the career appointee, unless the reassignment or removal is based upon a final rating of unsatisfactory completed before the moratorium began. This is to protect the SES members from political motivations.

Not demotions, but pay decreases. If an SES member receives a less than fully successful rating or otherwise fails to meet requirements of a critical element and remains in the SES, the agency may reduce the employee’s pay by up to 10 percent, subject to the 12-month restriction on pay adjustments. 5 CFR 534.404(j). Hopkins@FELTG.com

How is Kirkpatrick Act Discipline Different from Traditional Discipline?

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By Deborah Hopkins, June 7, 2021

Last week, the MSPB released a research brief Agency Leader Responsibilities Related to Prohibited Personnel Practices. Since the MSPB still doesn’t have a quorum (1,613 days and over 3,400 Petitions For Review – and counting), publishing research briefs is one function the Board is still able to complete.

This brief looks at specifics in the Dr. Chris Kirkpatrick Whistleblower Protection Act (Kirkpatrick Act), 5 U.S.C. § 7515, which was passed unanimously by the Senate in 2017. The Kirkpatrick Act was named after a VA doctor who reported patient abuse and issues with patient medications (opioids) at the VA Medical Center where he was newly employed. Dr. Kirkpatrick made allegations that he was reprised against for being a whistleblower, and died by suicide shortly after he was removed from his position.

In case you’re not familiar, the Kirkpatrick Act sets out specific requirements for discipline against management officials who reprise against whistleblowers and other employees, specifically limited to the 5 U.S.C. § 2302(b) Prohibited Personnel Practices (PPP) 8, 9, and 14:

  • PPP 8 addresses retaliating or threatening to retaliate against a whistleblower.
  • PPP 9 addresses retaliating or threatening to retaliate against a person who exercises his/her/their right to participate in an appeal, complaint, or grievance (including as a witness), and retaliating or threatening to retaliate against an employee who refuses to obey an order that would require an individual to violate a law, rule, or regulation.
  • PPP 14 involves accessing the medical record of an employee or applicant as part of the commission of any other PPP.

If there is a finding of what MSPB in its brief refers to as a “Kirkpatrick PPP,” then specific requirements must be met in proposing discipline. We’ll discuss those below.

But first, according to the report, while “[t]he Kirkpatrick Act does not state what constitutes a determination that a Kirkpatrick PPP was committed or how to determine who committed the PPP in question,” the finding of a Kirkpatrick PPP can only be made by:

  • The head of the agency employing the supervisor;
  • An administrative law judge;
  • The MSPB;
  • The U.S. Office of Special Counsel (OSC);
  • A judge of the United States;
  • The Inspector General (IG) of the agency.

This seems to exclude the findings of a standard misconduct investigation unless, of course, the agency head reads the ROI and decides reprisal has occurred. Once the reprisal finding is made, the Kirkpatrick Act details the following process:

The head of the agency shall:

  1. Propose a suspension of at least three days (for a first offense), or propose removal (for a second offense by the same supervisor).
  2. Provide the employee 14 days to respond to the proposal, and allow the employee to be represented and to review the material relied upon; and
  3. Exercise judgment when considering the employee’s response and deciding to implement the proposed action, with the decision due by the end of the 15th business day (5 CFR § 752.103; this timeline may be amended in the future as a result of Executive Order 14003.)

There’s another interesting caveat to the Kirkpatrick Act. It only applies to actions taken against supervisors, as defined by 5 U.S.C. § 7103(a). If you have a few minutes to look it over, the brief can be found here. It includes a nice side-by-side chart comparing Traditional Discipline with Kirkpatrick Discipline. The brief also details various training on PPPs that agencies must require (including supervisor training on Kirkpatrick discipline), so please let us know if you’d like us to help you out there. After all, it’s what we do. Hopkins@FELTG.com.

Three Takeaways from the 2020 FEVS

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By Deborah Hopkins, May 24, 2021

The 2020 FEVS was released a few days ago. Thanks to COVID-19, it looks somewhat different than past FEVS. But, as always, it is full of interesting and helpful information about how employees view their agencies, their supervisors, their coworkers, and more. Below are three key takeaways.

1. Agencies still have a long way to go on performance accountability.

In the 2020 FEVS, one of the worst scores out of all the topics covered came as a result of this item: In my work unit, steps are taken to deal with a poor performer who cannot or will not improve. (Q. 10). Only 42 percent of employees agreed with this statement, which means 58 percent of employees think that supervisors don’t do enough to hold unacceptable performers accountable. Not great.

While this number is trending better than it has in recent years (it was 36 percent in 2019 and 28 percent in 2018), we can all agree that 42 percent is not the target any agency aims for. That’s a failing grade no matter how you look at it.

FELTG has been working with a few agencies on a targeted approach to increase performance accountability through a structured set of training on topics, including writing effective performance standards, providing feedback that makes a difference, and holding employees accountable. These agencies have seen their individual FEVS scores on this item increase significantly, which tells us that the good employees really appreciate when supervisors focus time and effort on employee performance matters.

2. The grade on diversity hiring and representation is a solid C+.

In response to this item: My supervisor is committed to a workforce representative of all segments of society (Q. 20), 79% of employees agreed.

With President Biden’s numerous Executive Orders highlighting the government’s role in promoting diversity, especially among traditionally underserved populations, we can anticipate that agencies will work on bringing this number up in 2021. In many agencies, leadership is especially focused on nondiscriminatory hiring, reasonable accommodation for employees with disabilities, raising awareness about LGBTQ issues, and training on types of microaggressions and bias that often lead to hostile work environment allegations.

3. COVID-19 definitely impacted agency performance, but not as much as you might think.

One of the new sections in the FEVS dealt with the impacts of COVID-19 on agencies’ ability to meet customer needs and focus on mission results while the world was turned upside down from the pandemic. The graphic below shows that while there have been some struggles, Federal employees have found ways to contribute to agency mission and customer service despite unprecedented working conditions, whether that was transitioning to work 100% from home, spending 12 hour shifts in PPE, working around the clock to develop tests, treatments, or vaccines, and much more.

If you haven’t yet read the FEVS, you can find it on OPM’s website here. It’s worth a look, and when you’re ready to talk to FELTG about how we can help you improve your agency’s scores (because after all, higher scores mean your employees are happier, and if your employees are happier they are more productive), we’ll be here. Hopkins@FELTG.com

 

The Good News: ‘Pro-employee’ is the Secret to Labor-Management Relations

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By Ann Boehm, May 19, 2021

The media does it. The President and Congress do it. I do it. We break the world down into “pro-union” or “anti-union” and “pro-management” or “anti-management.” And with these worldview parameters, we miss the key consideration:  What is “pro-employee?”

The goal for any workforce is for the employees to accomplish the mission. The best way for that to happen is for employees to enjoy their jobs. That can be a little bit challenging, because it’s “work,” not “play.”

There are good managers who have the knack for getting employees to work efficiently and effectively, thus helping them enjoy their jobs. But there are plenty of managers who do just the opposite.

Based upon my years of experience, and years of reading as much as I can on leadership, Federal personnel law and guidance, and media coverage of Federal personnel issues, I think the greatest source of union organizing and angst stems from leadership that forgets to take care of the employees.

In my very first Federal sector labor relations job, the workforce was evenly divided (by five votes in two separate union elections) on who wanted to be represented by the union and who did not. Amazingly, the division broke down based upon the leadership skills of the employees’ supervisors.

The supervisors who were effective leaders tended to have employees who opposed the union, and the supervisors who were not effective leaders tended to have employees who supported the union. It was pretty amazing to witness.

For those employees frustrated with bad leadership, a labor union can seem like the knight in shining armor that will protect them from the wickedness. Yet this is not always the case, because unions are not necessarily “pro-employee” either.

I worked for Immigration and Customs Enforcement at one point during my career. At the time, I had 16 years of Federal experience. We were moving to new office space. I figured as one of the more senior Federal employees, I would get top pick for the new office space. Wrong.

As a bargaining unit member, I was constrained by the collective bargaining agreement theoretically negotiated on my behalf by the union. Turns out, seniority for the bargaining unit was based upon years of service with ICE. All my years of prior service meant nothing, and I was the last person in the office selection queue. I have to tell you it was a big morale killer. The union was not my knight in shining armor.

Unions often make bad decisions without really contemplating the impact on the employees. Unions tend to defend the bad employees, sometimes 100 percent, and often at the expense on the good employees.

Just this week, I heard from an agency that the union, in its defense of an employee’s disciplinary action, challenged the agency’s reliance on the recently revised OPM regulations on comparator employees (5 C.F.R. § 752.403(d). The union called the regulation “fruit of the poisonous tree.”

Yes, that particular OPM regulation derived from the now-revoked Trump Administration Executive Order 13839. But the language of that regulation is logical and consistent with MSPB case law dating back to Douglas v. VA, and other cases from the 1980s. It also corrects the craziness from the MSPB’s “Terrible Trilogy” of cases, suggesting agencies had to look at comparators from all over the entire “big A” Agency.

Consider what the regulation says: “Employees should be treated equitably. Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time. An agency should consider appropriate comparators as the agency evaluates a potential disciplinary action. Appropriate comparators to be considered are primarily individuals in the same work unit, with the same supervisor, who engaged in the same or similar misconduct.” 5 C.F.R. § 752.403(d).

Call me nutty, but this provision makes a lot of sense to me. The union’s knee-jerk reaction to this provision is ultimately not good for the workforce. Bad employees who engage in misconduct need to be disciplined appropriately. Otherwise the good employees the unions also represent will suffer. Disciplining every employee exactly the same just plain doesn’t make sense, yet often that’s what the unions seek.

Sometimes, though, agencies make bad decisions without really contemplating the impact on the employees, and the unions really can help. In 2018, the Department of Agriculture announced plans to relocate two of its scientific agencies from Washington, DC to somewhere else in the United States. The employees of these agencies were facing a major relocation to a point unknown. Not exactly a pro-employee action. The employees unionized pretty darn quickly.

When the USDA ultimately decided to move the employees to Kansas City, the union mobilized to try to mitigate the negative impacts of the relocation. The union was pro-employee in that situation, but the agency was not. Many of the impacted employees left the agency, despite the union’s best efforts to be the knight in shining armor. Without the union, likely more would have left.

Knee-jerk reactions from management that anything the union suggests is bad, and from unions that anything management suggests is bad, are very common and tend to muck everything up. If both sides could consider the employees (all of the employees in the bargaining unit – particularly the good ones) as a primary factor in every decision, I think the Federal sector labor-relations world would be a better place.

Better labor-management relations, and happy employees – that would be Good News! Boehm@FELTG.com

 

The Connections Between COVID-19 and Civil Rights

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By Meghan Droste, May 19, 2021

In January, I mentioned that it seemed like maybe we could see the light at the end of this COVID-19 tunnel. At that time, I honestly didn’t think that light would be any more than a pinprick for many, many months to come.  Surprisingly, it seems to be far brighter now that we’ve reached May. More than a third of the 18+ population is now fully vaccinated, with nearly 60 percent of adults at least partially vaccinated. CDC guidance on masks and group activities is changing somewhat rapidly. It feels like we might actually get back to some version of “normal” relatively soon. This feels like a long time coming, and also very fast.

While I know it’s important to look forward to all of the things we can do soon and all of the people we can see after going far too long without being together, we also shouldn’t be too quick to look away from the past year and the profound impact the pandemic has had, and continues to have, on so many people.  The Commission took a look back recently during a hearing on how the pandemic hurt vulnerable populations. (A summary of the hearing is available here and you can read more about it in Michael Rhoads’ article.)  The Commission heard expert testimony on various impacts of the pandemic, including the disproportionate impact of job losses on women people of color, the significant decline of women’s participation in the workforce, and increases in disability discrimination.

As we’re in the middle of Asian American and Pacific Islander (AAPI) Heritage Month, I also want to highlight the discussion of the significant impact on the AAPI community.  As John C. Yang of Asian American Advancing Justice testified, “[w]ith the dual pandemics of COVID-19 and anti-Asian hate and violence sweeping through Asian American communities nationwide, Asian American workers face significant challenges, including threats to both their lives and their livelihoods.”

As the Anti-Defamation League (ADL) reported the following in March in its annual survey of hate and harassment on social media: “Asian-Americans experienced the largest single rise in severe online hate and harassment year-over-year in comparison to other groups.”

The harassment of the AAPI community tied to the pandemic has been widespread and tragically, violent at times. Recent news stories depict physical attacks on members of the AAPI community in locations literally coast-to-coast. The harassment has also been verbal, with reports of people yelling “China-virus” or “go home” to people who appear to be Asian American.  Agencies, of course, have an obligation to prevent harassment in the workplace and correct it if it occurs.  This includes addressing microaggressions (“Where are you really from?”) as well as more open and obvious harassment (“Go back to Communist China.”).  I encourage you to keep this in mind as we all start to look forward to the end of the worst of the pandemic. Droste@FELTG.com

What You Should Know About SES Discipline

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By Deborah Hopkins, May 21, 2021

While it’s rare to see an individual in the Senior Executive Service (SES) receive disciplinary action, every now and then an SES breaks bad, and agencies respond accordingly. During a recent UnCivil Servant training class [Editor’s note: Don’t miss our next UnCivil Servant class February 12-13, 2025], we received a number of questions about the process of disciplining a career SES, so I thought I’d share an overview with the FELTG Nation. As you’ll see there are some similarities between SES and non SES discipline – and a few significant differences. OPM has a helpful fact sheet on the topic.

An agency may take disciplinary action against a career SES member (covered by subchapter V of chapter 75 of title 5 of the U.S. Code) only for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.

Unlike unacceptable performance cases, which rather than removal provide the SES with placement rights into another position, any career SES removed for disciplinary reasons has no placement rights.

How it’s the same 

Probationers. A probationary career SES member who was not covered by 5 U.S.C. 7511 immediately before SES appointment may be removed (in this context removal means fired) for misconduct. The employee must be notified in writing, and the action must be effective before the end of the last scheduled workday in the probationary period. For removals over conditions arising before appointment to the SES, the agency must provide advance written notice (the proposal letter) stating specific reasons for proposed removal, an opportunity to reply, and a written decision showing reasons for the action and the effective date.

Procedures for non-probationers. For suspensions greater than 14 days and for removals, the SES is entitled to advance written notice, at least 7 days to respond, the right to a representative, an impartial decision, and the right to appeal the action to MSPB.

How it’s different

Nexus. The “efficiency of the service” standard used for non-SES employees does not apply in SES discipline. However, if an agency wishes to take disciplinary action based on the appointee’s off-duty actions or misconduct, the agency must demonstrate a direct connection between the off-duty actions and the appointee’s ability to carry out the assigned responsibilities of his/her/their position.

No short suspensions. The law is silent on short suspensions for SES. OPM’s interpretation is that because there is no statutory authority for such action, agencies may not suspend an SES member for 14 days or fewer. However, agencies are not restricted from issuing a written reprimand for an offense that does not warrant a suspension or removal.

No demotions. By law, there are no demotions in the SES. That said, an agency is allowed to reduce the pay of a career SES appointee by up to 10 percent as disciplinary action for misconduct.

If the agency chooses this route, the SES must be:

  • Provided written notice at least 15 days in advance of the effective date,
  • Given at least 7 days to respond,
  • Given the opportunity to have a representative,
  • Given a written decision containing reasons for any pay reduction, and
  • Given an opportunity to request reconsideration by the agency head within 7 days of the decision.

There is no third party review of this type of pay reduction. Sometimes, in lieu of a pay reduction, an agency will remove the SES member for misconduct, and then appoint them into a GS-15 or 14 position.

I hope this helps clarify the specifics on disciplining an SES. Next time, we’ll tackle SES performance. Hopkins@FELTG.com

Position Descriptions and Performance Plans – Part I

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By Barbara Haga, May 19, 2021

If one more supervisor says to me, “If it’s not in the performance plan, I won’t be able to hold the employee accountable for this,” I’m going to scream. There are a lot of things that employees are expected to do or requirements that they are expected to meet that aren’t performance plan matters. Performance plans are likely much more visible to employees and managers because they are reviewed a couple of times each year at a minimum. But position descriptions are the foundation for many human resource decisions, and well-crafted ones can help your organization in many ways.

This month, we are going to look at what position descriptions are supposed to be and how to get that foundation firmly in place. We’ll address how the position description ties in with the performance plans in a future column.

 According to OPM’s FAQs on classification, a position description (PD) is “… a statement of the major duties, responsibilities, and supervisory relationships of a position. In its simplest form, a PD indicates the work to be performed by the position. The purpose of a PD is to document the major duties and responsibilities of a position, not to spell out in detail every possible activity during the workday.” The position description describes not only the major duties and responsibilities, but it also describes the conditions under which that work is performed, such as the when the employee has the latitude to apply judgment to interpret guidelines. It explains what kind of supervisory review is expected.

Up to date and accurate

Having an up-to-date and accurate position description is important. They are not necessarily fun to write, but they are the underpinning for multiple issues supervisors have to deal with. For example:

  • Position descriptions provide information that is used to determine qualifications for the position – knowledge and experience and physical (and sometimes mental) standards that must be met. For example, criminal investigator positions require emotional and mental stability in addition to the requirements for dexterity, vision, and hearing, etc.
  • Position descriptions establish special requirements, such as the need for a security clearance, necessity for holding certain licenses or certifications, extensive travel, significant amounts of overtime, and more. While some of these are not qualifications per se, they are necessary for successful performance in the position.
  • The position description should be the beginning of the selection process. When you are developing questions for the applicant and the references (yes, plan out questions for the current and past supervisors, too) you should be referring to the position description. This isn’t just to ensure you covered the major duties in your questions, but also that you covered how the work got done. Let’s look at your HR Specialist, GS-13 position: What kind of review did your supervisor conduct of your disciplinary letters? Did you have authority to contact your headquarters to obtain an opinion on a complex topic or were you required to raise these issues with your supervisor first? For a reference you might ask, when Mr./Ms. ______ prepared disciplinary letters, what kind of review did you conduct?
  • The position description should be the first step in the interview. Assuming you have an in-person interview, I recommend having the employee read it outside the interview room before you ever begin asking questions. (Please don’t ask them to read it while three people on the panel watch them.) This aids the applicant in understanding what your job is all about, so he provides more responsive answers to your questions. Also, he may have missed some of those special requirements that were mentioned in the job announcement, such as extensive travel, a certain license or certificate, or the ability to walk around the campus on foot to attend meetings. When the applicant sees those in the job description, he may ask questions about that and potentially withdraw if that doesn’t work for him.
  • Employees who occupy positions with physical requirements can be ordered in for physical examinations to determine if they meet the requirement(s) (See 5 CFR 339.203). Physical requirements are set for specific positions. They have to be essential for successful job performance and they must be clearly supported by the actual duties of the position and documented in the position description.  Perhaps you have a group of eight Contract Specialists, GS-12.  Only one of them has to provide service to a group located at a remote site 80 miles away. There’s no reasonable way to get there except to drive, so the individual has to be able to maintain a driver’s license and must also have the capabilities to safely operate a government vehicle. That person could be ordered in for a physical to make sure they could safely perform that function, even though the other seven contract specialists would not be subject to such a requirement.
  • It’s late on Friday, and your friendly HR Specialist left for the day. You’re a manager and you’re not sure if one of your employees is in the bargaining unit. You need to conduct a pre-action interview and you don’t know if you should observe the Weingarten provisions in your contract. Where can you find the information? Normally it’s on the cover sheet of the position description identified as a Bargaining Unit Status (BUS) Code. Or, you just found out about a rush project that needs to be taken care of on Saturday. You offered one of your employees compensatory time if she would come in on Saturday and take care of it, but she declined. Now you’re trying to figure out whether you can require that employee to work extra hours for comp time.  But, you need to know if the employee is Exempt or Non-Exempt to make that decision. That’s conveniently included on the position description cover sheet, too. These decisions depend on what kind of job it is, the authority it has, the controls it operates under, etc.

I could go on, but I think you can see that there are myriad things that position descriptions accomplish. I’m not exaggerating about that being the foundation.  We all know what happens when you have a faulty foundation

4 Tips to Prepare for Increase in Requests for Accommodation, Telework

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By Dan Gephart, May 19, 2021

As we careen toward the eventual return to workplace normalcy, it’s a good time to take stock of where we are as a workforce after more than a year of pandemic-enforced remote work.

Although not geared to the federal workforce, a recent survey of US- and UK-based employers conducted by Arizona State University and the Rockefeller Foundation provides a great snapshot.

Let’s start with the good news. Most employers say that employee engagement and productivity are up. Even better, 44 percent of employers surveyed say morale has risen as well.

The bad news? Employers are seriously concerned about mental health. Half of those surveyed have increased the use of available company resources related to mental health since the pandemic began.

I surmise three points from the survey:

  1. Telework was more successful than many thought it would be.
  2. There will be a significant increase in reasonable accommodation requests by employees dealing with mental health challenges, and many of those will likely be for anxiety disorders.
  3. Many of those accommodation requests will be for telework.

As the moderator for many FELTG webinars and virtual training events, I relay your questions to our presenters. So I know that few things cause more anxiety for federal supervisors as reasonable accommodations and, more specifically, requests for telework. But here’s the thing: If you’re too worried to address employee anxieties and other mental health issues, then that increase in engagement and morale is going to sink faster than an Elon Musk comedy skit on Saturday Night Live. So I’m offering four tips for you to keep in mind for the upcoming months:

  1. Don’t delay the interactive process, and take the right approach. Let me repeat: Do not delay. I can’t tell you how to feel, but if you’re seriously trying to avoid this process, then you may be in the wrong position. The law requires prompt action. This is the stuff that being a federal supervisor is made of. The employee has the best information about his/her/their functional limitations. You, presumably, have the best knowledge about the work. Go into the process with an open mind and work with the employee to find the most effective accommodation.
  2. Don’t be afraid to ask for medical documentation, and ask for the right information. Agencies are entitled to medical documentation as part of the reasonable accommodation process. But that information must be related to determining the existence of a disability and the necessity for an accommodation. Anything beyond that is not necessary. Remember there are two reasons you may want medical documentation. Yes, you want to substantiate the need for accommodation. But the medical documentation can also help you understand the functional limitations. Keep in mind that supervisors don’t generally handle medical documentation, so check your agency’s policy on who is responsible for these requests.
  3. Don’t automatically rule out telework, and ensure there is accountability. Look, skepticism about telework may be warranted at times, but it’s about as fashionable as socks and sandals on a middle-aged man. Remember the study at the top of this story? Productivity is up while employees work en masse from home. Depending on the job, many people can work from home. Maybe the problem is you? Out of sight should not mean out of mind. Find the best way to monitor the work and stay engaged with the employee. And if performance slips, hold the employee accountable using the FELTG tools, just as you would if the employee worked in a cubicle outside your office.
  4. Don’t get frustrated, and get some training. As always, FELTG has multiple opportunities for you to get up to speed on these issues. Here are a few:
    • June 2: EEO Challenges: COVID-19 and a Return to Workplace Normalcy. In this half-day virtual training, attorney Katherine Atkinson will provide guidance on a whole host of challenges involving vaccines, pandemic-related harassment, and more. She’ll also provide a framework for handling these challenges that you can apply to other yet unforeseen challenges.
    • July 13: Disability Accommodation in 60 Minutes. During this installment of our annual Supervisory Webinar Series, FELTG President Deborah Hopkins will cover the requests for accommodation, the interactive process and much more, all in one hour.
    • Starting July 15: Reasonable Accommodation in the Federal Workplace. This five-webinar series will tackle several reasonable accommodation challenges, including specific sessions on Accommodating Invisible Disabilities (July 22) and Telework as a Reasonable Accommodation (July 29).
    • July 21: Dealing With Mental Health Challenges During and After the COVID-19 Pandemic. During this half-day virtual training, Licensed Clinical Social Work Shana Palmieri will de-stigmatize the truth about “mental illness” and will explain the impact various mental health conditions have on individuals, and those with whom they work. She’ll also provide strategies for effectively supervising and managing employees with these conditions, whether they’re in the office or working remotely. [Editor’s note: Read Shana’s article Impact of COVID on Stress, Mental Health]
    • July 26-30: The Post-Pandemic Federal Workplace: Managing Accountability and EEO Challenges. This weeklong event (each day of training runs from 12:30 – 4 pm ET) offers the most timely and up-to-date accountability and EEO training you’ll find. And it culminates on the last day, when you get to apply everything you learned earlier in the week about managing conduct, performance, leave issues and EEO in a telework setting.

Keep an eye out for other upcoming FELTG webinars and virtual training events. Gephart@FELTG.com

Impact of COVID on Stress, Mental Health

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By Shana Palmieri, May 19, 2021

A comparative analysis completed by the NHIS and U.S. Census Bureau shows an increase of 11 percent of adults reporting symptoms of an anxiety or depressive disorder in January-June 2019 compared to 41.1 percent in 2021. A variety of stressors as a result of the pandemic contributed to this increase and continue to impact stress levels including:

  • Financial stressors
  • Social isolation
  • Fear and uncertainty of the future
  • Remote school learning
  • Loss of loved ones to COVID

As the stressors continue, the initial acute stress experienced as a result of the pandemic can transition into chronic stress causing a lasting impact with serious symptoms for many.  Chronic stress is a prolonged state of stress that does not give the body an opportunity to activate the relaxation response.  There are numerous negative consequences from a constant state of physiological arousal caused by the body maintaining a chronic stress response.

Symptoms of chronic stress include aches and pains, decreased energy, insomnia, fatigue, difficulty with concentration, gastrointestinal problems, headaches, anxiety, depression, decreased immune response, irritability, nervousness, feeling a loss of control and helplessness.

If chronic stress is left untreated, it can turn into more serious conditions including major depressive disorder, anxiety disorder(s), diabetes, heart disease, high blood pressure, hyperthyroidism, ulcers and weight changes.

[Editor’s note: On July 21, Shana will present Dealing With Employee Mental Health Challenges During and After the COVID-19 Pandemic.]

Returning the body to a state of relaxation is pertinent for the healing process to begin. Healing the body from the impact of chronic stress takes consistent effort and the constant practice of healthy habits.  Stress reducing habits to heal from chronic stress include:

  • Healthy sleep patterns – at least 7-8 hours a night
  • Daily exercise
  • Yoga/mindfulness meditation practice
  • Healthy diet
  • Connection through healthy relationships
  • Setting boundaries to maintain work/life balance
  • Talking with a therapist

Keeping the body in a healthy, relaxed state through the practice of healthy habits will create a state within the body better able to fight illness and will reduce the physical and mental symptoms of chronic stress. If you are a loved one are experiencing suicidal ideation, help is available at the National Suicide Prevention Lifeline at 800-273-8255. Info@FELTG.com