Tips from the Other Side: Religious Accommodations for the Nonreligious

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By Meghan Droste, May 19, 2021

This month, I’m wrapping up our discussion of issues regarding religious accommodations.  To recap, we’ve discussed the definition of an undue hardship in the context of religious accommodations (January), how far an agency can inquire into the sincerity of the religious beliefs or practices at issue (February), what an agency must do before raising an undue hardship defense (March), and the difference between a religious practice being part of a sincerely held belief and a voluntary activity that does not require accommodations (April).  For our last look at this topic, we’ll examine a slight twist on the issue — whether people who are not a member of a religious group are entitled to accommodations.

As you know by now, agencies have an obligation to provide accommodations, if doing so is not an undue hardship, to accommodate the sincerely held religious beliefs of employees. Unsurprisingly, we usually discuss accommodations in the context of an employee seeking to practice a specific religion (e.g. Judaism, Buddhism, Islam, Christianity). However, employees who are not members of a specific religion, and whose religious beliefs are that they do not believe in a higher being/divine spirit/god, may also be entitled to accommodations. How can this be? The Commission’s decision in Harmon v. Department of Transportation, EEOC App. No. 01950755 (Feb. 2, 1998), provides a good example.

In the Harmon case, the agency required employees with substance abuse issues to attend a mandatory drug rehabilitation program, specifically 12-Step Narcotics Anonymous (NA) meetings.  The problem for the complainant was that the NA meetings were religious-based; as an agnostic he found that the NA meetings caused him “extreme emotional turmoil and distress.”  In addition to compensatory damages he suffered as a result of the required participation in the NA meetings, the complainant sought an order directing the agency not to use religious-based drug rehabilitation programs for its employees.

In its decision, the Commission noted that an agency’s “duty of reasonable accommodation includes efforts to eliminate any conflicts between an employee’s religious beliefs and employment requirements, and to preserve the employee’s employment status.” The Commission then found that rather than ordering the agency not to offer religious-based rehabilitation programs, the appropriate approach was to offer non-religious programs as an accommodation to those employees, like the complainant, for whom religious-based programs conflicted with their beliefs.

In other words, the agency was required to provide secular programs to accommodate the complainant’s religious beliefs that the existence of god is unknowable or the beliefs of other employees that there is no god. Entitlement to religious accommodations (and freedom from harassment or discrimination based on religion) extend to those who do not identify with any religion — if they didn’t, many employees could be forced to participate in activities that violate their sincerely held beliefs, or treated differently simply because those beliefs do not take the form of a religion. Droste@FELTG.com

OWCP Covers ARPA Steps, Definitions for COVID-19 Workers’ Comp Claims

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By Frank Ferreri, May 19, 2021

With the American Rescue Plan Act (ARPA) looking to make it easier for Federal employees diagnosed with COVID-19 to file workers’ compensation claims, the Office of Workers’ Compensation Programs has put together updated guidance for processing coronavirus-related claims.

In FECA Bulletin No. 21-09, which supersedes Bulletins No. 20-05 and No. 21-01, OWCP addressed the processing of pre- and post-ARPA claims as well as what counts as “exposure,” why a CA-1 is required, and how employees must establish a COVID-19 diagnosis. The following chart highlights OWCP’s latest guidance:

Workers’ Compensation Considerations OWCP Guidance
Previously accepted cases COVID-19 FECA claims that were accepted prior to March 12 are not impacted because coverage for benefits had already been accepted. Because these aren’t ARPA cases, they are not subject to that law’s limitation that no benefits may be paid after Sept. 30, 2030.
Previously denied cases OWCP’s FECA program will review all COVID-19 claims previously denied to determine if claims can now be accepted under ARPA. If so, the employee and agency will be notified that the case will be reopened.
Previously closed cases No action will be taken on cases that are already administratively closed. Any future actions will be taken in accordance with ARPA since the claim had not been formally accepted.
Form-filing process The Employees’ Compensation and Management Portal should be used to file new claims, and ECOMP has been updated.
Use of the CA-1 OWCP considers COVID-19 to be a traumatic injury per 20 CFR 10.5(ee) because it is contracted during a single workday or shift. The agency also considers the date of last exposure prior to the medical evidence establishing the COVID-19 diagnosis as the date of injury.
Codes All cases filed after March 11 for COVID-19 will use the following codes:

·       Nature of Injury – COVID-19 (T9).

·       Cause of Injury – Exposure to COVID-19 (9C).

·       Location of Injury – COVID-19 (ZZ).
Employees covered The claims examiner should determine whether the employee is an employee under 5 USC 8101(1) and whether she was diagnosed with COVID-19 between Jan. 27, 2020, and Jan. 27, 2023. If the employee’s diagnosis does not fall within that date range, routine FECA case-handling procedures apply.
COVID-19 diagnosis To establish a COVID-19 diagnosis, an employee or survivor should submit one of the following:

·       A positive polymerase chain reaction COVID-19 test result.

·       A positive antibody or antigen COVID-19 test result together with contemporaneous medical evidence that the employee had documented symptoms of or was treated for COVID-19 by a physician.

·       If no positive laboratory test is available, a COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result is not available.
Covered exposure An employee is deemed to have had exposure if, during the covered exposure period, she carries out one of the following:

·       Duties that require a physical interaction with at least one other person in the course of employment duties.

·       Duties that otherwise include a risk of exposure to COVID-19.
Covered exposure period The evidence should establish manifestation of COVID-19 symptoms or a positive test result within 21 days of the covered exposure.
Teleworking employees An employee who is exclusively teleworking during a covered exposure period is not considered a “covered employee.” In that case, routine FECA case-handling procedures apply.
Death claims In death cases, the FECA program will ask for evidence and records to support that the death was the result of COVID-19 or that COVID-19 was a contributing cause of death.
CA-16 When an employee uses ECOMP, the agency will be prompted to provide a CA-16 if they do not substantively dispute the employee’s description of cause and nature of injury. Issuing the CA-16 will allow the employee to obtain the necessary test to confirm COVID-19 and receive medical treatment.

 

EEOC Hearing: Pandemic Created Civil Rights Crisis for Many Employees

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By Michael Rhoads, May 19, 2021

As Meghan shared this month, on April 28, 2021, the EEOC held a Hearing on the Civil Rights Implications of the COVID-19 Pandemic. Several experts weighed in on how the EEOC can assist workers and employers as we move forward toward reopening the physical workspace and addressing the civil rights crisis exacerbated by the pandemic.

The experts who gave testimony touched on an array of topics, such as helping caregivers return to the workforce, increasing empathy in the workplace, sexual harassment during the pandemic, predictions as to when employees will return to the physical workplace, and how to help teleworkers.

In her opening statement EEOC Chair Charlotte A. Burrows stated: “The purpose of today’s hearing is to examine the workplace civil rights implications of the COVID-19 pandemic. The past 12 months have been frankly, incredibly difficult for the American people. It’s been clear for some time that the pandemic is not only a public health and economic crisis, but truly a civil rights crisis. While every single one of us has experienced challenges during this pandemic, it’s important to recognize that the pandemic hasn’t impacted everyone in the same way. The COVID-19 crisis has exposed and intensified existing inequalities in our society. As employers seek to juggle telework, keep employees safe and stay up to date with the latest public health announcements, to name just a few of the challenges, we should help them as much as possible to understand specific equal employment opportunity issues arising due to COVID-19.”

Returning caregivers to the workplace

Childcare providers have been especially impacted by the pandemic causing them to leave the workforce or reduce the number of working hours.  Commissioner Andrea R. Lucas asked Ms. Fatima Goss Graves, President and CEO, National Women’s Law Center, to address these concerns by asking her directly: “What best practices do you recommend employers implement to handle applicants with extended gaps in employment either due to the pandemic or caregiving obligations in general?”

Goss Graves pointed to a current trend where some employers have outsourced their hiring process using AI technology, which would automatically eliminate applicants with employment gaps.  This may have a disparate impact on women who may have needed to take time off during the pandemic to care for a child, spouse or other family member.

“One in six childcare providers left during this pandemic and have not yet fully come back,” Goss Graves said. So if you have a rule that’s going to have a disparate impact on women outsourcing. It is not a solution.”

Harassment during the pandemic

Commissioner Keith E. Sonderling asked Goss Graves about the “new and unique types of harassment” are appearing as a result of the pandemic.

“What we have found is that in our intake at the TIMES’S UP Legal Defense Fund, is that about 7 out of 10 people report that when they experience harassment, they are also experiencing retaliation when they try to use their employer’s systems,” Goss Graves said. “But I do think it’s important to speak to what harassment is looking like in the context of COVID. People might be under the misimpression that just because people are working virtually that harassment doesn’t occur. It’s occurring, it just happens virtually.”

A more empathetic workplace

Johnny C. Taylor, president and CEO for the Society for Human Resource Management said American workforce us facing “an empathy deficit today … that significantly impairs our ability to provide every American worker equal opportunity to work and to do so free from harassment and discrimination.”

He continued, “Think about it. We’ve had laws on the books forever about sexual harassment and other workplace forms of discrimination. But at the of the day, it is empathy that keeps us all doing the right thing.  Building our empathy muscles will be critical to economic and business recovery because empathetic workplace cultures retain the best and perform the best.”

Taylor predicted there will be two waves of workers returning to the workplace.  The first will be after the July 4 holiday and the second will be after Labor Day.

He predicted the second wave, after Labor Day, will be larger, “because presumably children will be going back to school and there’ll be less childcare concerns for our employees who are having to take care of their children who can’t find the appropriate childcare and or schooling.”

Supporting teleworkers

While the pandemic has necessitated working from home for those with job flexibility, some employees have felt isolated and depressed without the daily interaction that occurs in the workplace.

“As extended remote work continues for some personnel, and we are doing that, we are seeing gains in the percentage of employees across industries, experiencing depression, hopelessness, feeling of failure and reduced concentration.” Taylor said. “All of that obviously directly impacts an employer’s product and/or services. EEOC’s partnership in establishing best practice guidance when safely returning employees to physical work sites, safety standards, and vaccination education are areas where the EEOC could assist stakeholders during their operational analysis.”

FELTG instructor Shana Palmieri will tackle this on July 21, 1:00-4:30 PM ET in Dealing With Employee Mental Health Challenges During and After the COVID-19 Pandemic.

In a press release, Chair Burrows concluded: “Today’s testimony makes clear that, while the pandemic continues to have serious impacts on public health and our economy, it has also created a civil rights crisis for many of America’s workers.  All of us have a critical role to play in our economic recovery. We must come together to ensure that all employees can work free of discrimination and that everyone who wants to work has equal employment opportunities.”

We here at FELTG will give you up to date information from the EEOC and provide training that will support your agency’s mission.

Stay safe, and remember, we’re all in this together. rhoads@feltg.com

Two Words for MSPB AJs Mitigating Removals to Demotions: Please Stop

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By William Wiley, May 3, 2021

President Biden recently nominated Cathy Harris as Chair of the Merit Systems Protection Board, and hopefully soon he will nominate two other individuals who will provide us with a full Board. And you can bet that on behalf of The Nation, good old FELTG will have some recommendations for the new leadership to consider.

One of them is a cure for a complaint we’ve long expressed in this newsletter over the years, and which we will re-surface every chance we get. We were reminded of the problem in a court decision earlier this year, Lowe v. Navy, Fed. Cir. No. 2020-1564 (Jan. 11, 2021). That non-precedential decision contained nothing legally spectacular within itself, and resulted in the affirmation of the administrative judge’s decision in Lowe v. Navy, No. DC-0752-19-0053-I-2, 2019 MSPB LEXIS 4415 (Dec. 2, 2019). The problem that we hope the new Board leadership will correct is found in the AJ’s decision.

The Navy fired Mr. Lowe from the position of a GS-13 supervisor based on two charges. Finding one of the charges not proven, the AJ mitigated the removal to a demotion to a non-supervisory GS-12. And that’s what the new Board leadership should stop AJs from doing — mitigating removals to demotions. Here’s why:

We know nothing about the specifics of the work situation in which this appellant was employed. Theoretically, however, it could be a small organization, as would be the case in which any individual is fired from government. There is nothing in the record to show that when ordering the mitigation of the removal to a demotion, the AJ gave any consideration to the needs of the agency, its organization, and the availability of work for the appellant to perform once he is reinstated to a lower grade. It is conceivable that there actually is no GS-12 work available for the restored employee to perform in the organization from which he was removed.

To comply with the AJ’s mitigation order, the agency has to either find a vacant position elsewhere within another organization within the agency or create work that doesn’t actually need to be performed at the GS-12 level in the original organization. Perhaps there is an available GS-12 position within the agency, but at a location hundreds of miles away, thereby requiring that the employee be physically moved, perhaps against his will. Or, perhaps worst of all, assign the restored appellant to do lower-graded work while being paid at the GS-12 level, thereby violating all the rules of position classification and good government common sense.

Sure, the Navy is a big agency potentially with lots of available positions or work to be done that is not yet organized into a position. But what if the employing agency had been a much smaller one with limited work to be done? What if the appellant in this case had been located in a remote Navy facility, thereby necessitating an agency-funded PCS move to another work location to find GS-12 work? A board AJ is in no position to assess these organizational factors when ordering a demotion in lieu of a removal and should not mitigate a removal to a lower-graded position.

So, what should the new Board leadership direct AJs to do in a situation in which the judge decides, for whatever reasons, that some penalty is warranted, but the appealed removal penalty is too severe and demotion might be more reasonable? Ah, fortunately for humanity, we here at FELTG have a few options to recommend that the AJ can do:

1. Set aside the removal and restore the appellant to his old position. The agency has said, “This guy deserves to be fired because of the following reasons.” When it does not prove those reasons, then it loses. It would then be left up to the agency, upon restoration, to decide if a new penalty was warranted. If that new penalty was within the Board’s jurisdiction, the employee could file a new appeal. That would parallel what is done when a criminal prosecutor brings a charge of murder, but does not prove that the killing was premeditated or otherwise fully comports with the legal definition of murder. The jury doesn’t get to step in and rule that the individual should instead be found guilty of some separate charge that was not brought.

2. Set aside the removal and remand to the agency to reconsider the penalty in light of the AJ’s conclusions. The AJ could set a time limit for the agency to act and retain jurisdiction to review any new proposed disciplinary action to see if it is within the bounds of reasonableness. Upon finding that it is (or remanding again until it is), the judge would issue a decision that would be appealable to the Board, as is usual.

3. Set aside the removal and remand to the agency with specific options. The AJ’s initial decision could conclude with language like this, “Having found that removal exceeds the bounds of reasonableness, I hereby direct the agency to place the appellant into a non-supervisory GS-12 position within the same geographic area now employed, if one is available. If such a position is not available, then I find that the maximum penalty for the sustained charge is an X-day suspension.” That way, the agency gets to consider its organizational needs and work availability when deciding which penalty makes the most sense.

Position management decisions should not be made by Board judges. Reinstated employees should not have to be reassigned geographically to comply with an AJ’s reversal of a removal. The new Board members should develop another option for AJs to implement when they determine that the removal of a supervisor is beyond a reasonable penalty, other than demotion. Wiley@FELTG.com

Answering Questions on the New PIP Requirement, Post-Santos

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By Deborah Hopkins, April 27, 2021

A couple weeks ago, Bob Woods and I held a webinar on the new PIP justification requirement issued by the Federal Circuit in Santos v. NASA, No. 2019-2345, (Fed. Cir. Mar. 11, 2021), that undid more than 40 years of case precedent. In case you missed the news flash, the law now requires agencies to have substantial evidence of poor performance before they can place an employee on a PIP – and they must present that evidence as part of their case in chief before the MSPB, should there be a performance-based removal. If you haven’t yet read the article, I wrote about it last month. You’ll want to take a look at that first before you keep reading: Say Goodbye to 40 Years of Case Precedent: Agencies Must Justify PIPs.

And if you didn’t attend the webinar, we’re holding a live encore webinar May 11, where we get into all the necessary details, requirements, and takeaways. Because this is the most significant case on performance since the very early days of the Civil Service Reform Act, it’s one you can’t afford to miss.

In the meantime, I thought I’d give you a preview of the kinds of questions that Bob and I received during the webinar. Please keep in mind that 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.

Q: How long does an agency need to show the employee was performing at an unacceptable level, prior to implementing a PIP?

A: The Santos case doesn’t give any indication about a minimum time period, it requires the agency show substantial evidence of unacceptable performance. Sometimes one mistake on one day could equal unacceptable performance; other times it might take a month or two for an employee to reach a certain number of exceptions to a standard, that causes their performance to become unacceptable.

Agencies shouldn’t feel obligated to come up with an arbitrary number of days to satisfy the requirement (we’ve heard some agencies advising anywhere from 30 to 90 days or more – eek!), but instead should look at the performance standards to be sure the unacceptable performance the supervisor has seen, actually matches the written standard for unacceptable. As soon as that happens, the PIP can be justified.

Q: Can the notification of unacceptable performance be part of the PIP? Our standard PIP normally includes language like “This is to information you that your performance is unacceptable” and gives examples. Is this adequate?

A: Yes, it sounds adequate. While FELTG recommends including the justification document as an attachment, this approach you’ve detailed should also satisfy the Federal Circuit’s requirement post-Santos to document pre-PIP unacceptable performance.

Q: For the “roller coaster” employee who, for example, “passes” the initial 30-day PIP, and receives notification that they passed, if they then later dip in performance and their performance warrants removal, is it necessary for the agency to provide another notice that the performance has dipped before removal? Without an intervening notice, the only notice the employee would receive before the removal is that they passed the PIP.

A: There’s no requirement in the law to provide notice, but we recommend at the conclusion of the PIP, to issue a “Performance Warning Letter” that lets the employee know they will be removed at any time between now and X date (the end of the one-year period, with Day 1 of the PIP starting the year) if their performance becomes unacceptable on the critical element(s) from the PIP.

If the employee falls back into unacceptable performance after successfully completing the PIP within the one-year period, the only notice they receive at that point is the notice of proposed removal, which will articulate their unacceptable performance that the proposed removal is based on.

Q: What are your thoughts regarding employees who, at times, perform “other duties as assigned” and are then placed on a PIP based on unacceptable performance on those ODAA? Is it still OK to place an employee on a PIP based on the observed unacceptable performance or is it better to stick to the critical elements outlined in the performance plan?

A: A PIP may only be used for unacceptable performance related to the critical elements in the employee’s performance plan. If the ODAA relates to a critical element, the agency is free to PIP. But if it’s something unrelated to any critical element, for example a special assignment because the employee is on covid-related telework, it would be inappropriate to place an employee on a PIP. Such a situation could be handled with the Chapter 75 procedures. We have a webinar on this topic May 13, Handling Teleworker Performance and Conduct Challenges, if you need more details.

Good luck with this new requirement. Let us know how it’s going out there. 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.

Are You a Microaggressor?

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April 20, 2021

With deep sadness, we note the recent death of Ernie Hadley. Ernie was a founder and the first President of FELTG, and was a beloved instructor. He served the Federal employment law community for more than 30 years as a strong advocate for employee rights, and authored more than a dozen foundational legal texts in the field. Those of us fortunate to know him appreciated his quick wit, broad intellect, and compassionate heart. Ernie will be greatly missed.

Below, we share an article Ernie originally wrote and published in this newsletter in 2013. As you’ll see, with microaggressions now a major training point, Ernie was years ahead of the curve. Originally published in 2013 by the Federal Employment Law Training Group. Written by Ernie Hadley.

Several years ago, we took a family trip to Costa Rica. It was a great trip. We hiked, saw some extraordinary birds, walked on suspension bridges through the canopy of the cloud forest, visited a coffee plantation and, with my son Luke and daughter Mairead, I went zip-lining. (Not entirely sure I could be talked into the latter again.)

Part of the success of the trip was, no doubt, Costa Rica itself, but some was probably due to the fact that we knew with my daughter Jasmine leaving for college in the fall, this was likely to be last the vacation for the whole family in quite a while.

We reentered the U.S., in Miami as I recall, and approached the Customs and Border Protection checkpoint, passports in hand.  The officer, a young man probably in his early 30s, dutifully looked at each of our passports and, in turn, each of us. He asked each of the kids a few questions: What’s your birthday? What’s your home address? He stamped the passports and handed them back to me.

He then told the rest of the family that they could go but asked me to stay behind a few minutes. My wife asked if she could stay, as well, and with his assent, we sent the kids off to find our luggage.

“I didn’t want to embarrass your son in front of everybody,” he said, “but I can’t help but notice that he looks different from the rest of you.”  Well, you don’t really need to have the deductive powers of Sherlock Holmes to figure this one out. Luke stretches out to all of 5’2” and I doubt he’d eclipsed 5’ at that point. He has brown skin, very dark brown eyes and black hair.

You’ve probably guessed from the photo that sometimes accompanies these articles, that he doesn’t look like me at all — so much the better for him — or like my wife or his two sisters.  There was never any great debate over telling Luke he was adopted.

At the time, I wasn’t sure how to react. Part of me was relieved that he didn’t ask in front of Luke and his sisters. Part of me was offended because I believed the only reason for asking the question was the color of Luke’s skin.

To be honest, I don’t think our daughters, both of whom are biological, look particularly alike. Jasmine has brown hair and her mother’s height, which is to say not much, and my features. Mairead has blonde hair, my height and her mother’s features.  Obviously, the answer to the question had no bearing on our reentry into the country as our passports had already been stamped and returned to us.

The reason I write about this is that I recently learned there’s now a term for events like this — they’re called “microaggressions.”  As with all things these days, there’s even a website.   Microaggressions are the subtle and often subconscious ways that we use stereotypes.

Now, I don’t think that the agent who asked the question had any bad motive; certainly, not one that he conveyed. But it goes to the heart of a notion that we’ve tried very hard to convey to our kids. “Family isn’t about how you got here. The mere fact that you’re here makes you part of the family.”

Fast forward to just a few months ago. Luke was in Ireland studying at the Burren College of Art and I went to visit him. We were, as of course one must do in Ireland, sitting in a pub, sipping on a Guinness and listening to music. An older man, aptly named Declan and about three sheets to the wind, asked if he could sit at our table. No problem. After looking at Luke for a while, he asked “What’s a young guy like you doing with an old guy like him?”

“He’s my dad,” Luke said.

“Then your mom must be the one who’s Hispanic.”

“No,” Luke said.  “She’s not.”

“Oh, then he’s not your real dad.”

Luke then explained to Declan that, yes, he knew there were two people out there that’s he’s biologically related to but I was his dad and there was no real issue about it, just his dad plain and simple. Declan eventually wandered off into the night, no doubt confused by Luke’s insistence that he did not have a “real” set of parents and, presumably, a “fake” set but just a mom and dad like many other folks.

The Microaggressions blog gives several other examples:

H&R Block employee when my best friend (who’s black) and I went to get our taxes done together: “Employed?”

Me: “Yes.”

H&R: “Any children?”

Me: “No.”

H&R, turns to my friend: “Okay, and you. Employed?”

Him: “Yes.”

H&R: “Any children?”

Him: “No.”

H&R: “Are you sure?”

Him: “Um…”

H&R: “Just checking.”

Him: “Yes, I’m sure.”

I was at the bar with several new coworkers when I was approached by a white guy who told me I was beautiful and asked what my nationality was. I told him I was African-American and he asked, “But what are you mixed with? Who is white? Your mom or your dad?”  This made me feel angry and sad. It’s a shame that some people think black people must be mixed or biracial to be attractive.

Me: Hey, should I go to a steakhouse or to a sushi place for dinner with my family?

Friend: I think you should go to the steakhouse because you guys know how to make sushi, right?

Often when I have dinner at people’s houses, they ask me if I would prefer chopsticks, regardless of the meal!

I’m fine with gay people as long as they aren’t gay around me.

The gay couple who moved in next door are not as comically flamboyant as the gay people on TV. It’s like they’re not even trying.

I’m sure you can think of plenty of other examples, just as I’m sure that I’ve engaged in some microaggressions of my own.

Some of you may recall that I wrote recently about an EEOC African American Workgroup Report that concluded, among other things, that “[u]nconscious biases and perceptions about African Americans still play a significant role in employment decisions in the federal sector.” And, of course, that doesn’t apply to just African Americans. That just happened to be the focus of the workgroup.

It is the cutting edge of our field. Blatant discrimination still exists but, more often, it is being replaced by far more subtle forms of discrimination; forms that are harder to identify and, as a result, harder to correct.

So, let’s leave you with something a little more upbeat. For Luke’s sixth birthday, we had all the boys in his class over for a party.  Most of you can probably imagine what a herd of six-year-old boys can do to a house in a very short period of time, but that’s neither here nor there. They were all sitting around the table eating cake and Luke made mention of something we call Adoption Day.  It’s the day Luke’s adoption was finalized here in the United States and we celebrate it as a family holiday. It’s a low-key kind of celebration, usually marked by going out to dinner. Anyway, one of Luke’s friends looked at him wide-eyed and said, “Luke. You never told me you were adopted.”

These behaviors don’t come to us naturally.  We learn them.  And that gives me hope. Info@FELTG.com

The Golden Doodle Who Wouldn’t Nuzzle: A Service Dog, or Not?

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By Deborah Hopkins, April 20, 2021

While preparing the materials for an upcoming training session Ricky Rowe and I are presenting at FELTG’s annual Emerging Issues in Federal Employment Law virtual forum, I came across a case that I thought prudent to share – especially because, as return to work orders are issued in the coming months, agencies are likely to see an uptick in requests for service animals and emotional support animals in the workplace.

In a recent case at the Department of Veterans Affairs, the complainant suffered from PTSD, depression, anxiety, and panic attacks. Because of her medical conditions, she requested an accommodation to bring her trained service dog, a golden doodle, to work. She informed the agency that her dog was scent-trained to recognize chemical shifts in her body when she was escalating into anxiety or panic attacks. The dog was trained to alert and calm her before she reached the panic stage. The complainant explained to agency management that her dog might bark in the process of alerting her to her escalating symptoms, as that was the dog’s alert mechanism.

The agency approved accommodation for a 30-day trial. During a meeting shortly thereafter, the dog repeatedly barked and was disruptive for more than 30 minutes. Because of the disruption,  management began considering removing the interim accommodation, but did not take action.

The dog became even more disruptive in a subsequent meeting. According to agency management, the dog appeared impossible to handle. During the meeting, it continually barked, and jumped on the complainant multiple times, and she was unable to calm it down.

The complainant explained the dog’s behavior was an alert to her oncoming anxiety attacks. She said that the dog was trained to stand in front of her, put her paws on her shoulders and nuzzle her to calm her down. Agency management’s account of the events was that the dog was not nuzzling the complainant, but jumping on her and others in the workplace, and was uncontrollable.

As a result, the agency terminated the interim accommodation, stating that the dog was too disruptive and impossible to handle in the office. The agency invited the complainant to discuss alternative accommodations, including liberal use of leave when she was experiencing symptoms, but she maintained that other than having her service dog, there was no other useful accommodation.

The agency denied her request to keep the dog in the workplace, so she filed a complaint and the FAD found for the agency. On appeal, EEOC looked at the facts and said the agency was not obligated to allow the service dog in the workplace because the complainant “failed to provide evidence to adequately establish the need for the presence of her dog in order to assist her in performing [her] essential functions.”  EEOC also said they “cannot reasonably conclude that the Agency’s decision to terminate its trial approval constitutes an unlawful failure to accommodate.” Kathie N. v. VA, EEOC No. 2019003312 (Sep. 22, 2020).

So remember, if an employee wants to bring a service animal into the workplace, having a disability is not enough. The employee must establish the need for the specific use or presence of the service animal as accommodation, and that no other accommodation would be effective. For more on this, join us for the session Barking Up the Wrong Tree? Service and Therapy Animals in the Workspace, part of Emerging Issues in Federal Employment Law, April 28. Hopkins@FELTG.com

The Good News: OPM is Back (I Think)!

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By Ann Boehm, April 20, 2021

A mere two years ago, a move was afoot to abolish the Office of Personnel Management. You know, OPM – the entity created by the Civil Service Reform Act of 1978 that “serves as the chief human resources agency and personnel policy manager for the Federal Government.”

At the time, I wrote an article suggesting that abolishing OPM might not be a bad thing. I reflected on a time, early in my career in the 1990s, where one could call OPM experts and get outstanding advice. And I reflected on how that greatly changed by the end of my career in 2018. OPM stopped being the go-to entity for Federal personnel advice, particularly in the area of hiring federal employees.

Not to bore those of you who read the article then, but my anecdote is worth mentioning again.

I could not fill an Employee Relations Specialist position. Two years of advertising the position resulted in no hires. I went to OPM’s website to see if there was anything there that could help me. The website highlighted OPM’s hiring reform concept. I was prepared to be the manager who could be creative and hire more effectively.

I wrote an email to the address on OPM’s website. Instead of getting some legitimate guidance from OPM, the OPM contact forwarded my email to the Human Resources Director for my agency and indicated that I needed help. I was mortified. What OPM did not only failed to help me, but also embarrassed me with my agency, just for trying to think outside the box.

In 2019, the Trump Administration proposed moving OPM to the General Services Administration and the Office of Management and Budget. Congress placed that action on hold and commissioned a study by the National Academy of Public Administration (NAPA) on the wisdom of this proposal. The findings of that study, issued in March, recommended against dismantling OPM. Elevating Human Capital: Reframing the U.S. Office of Personnel Management’s Leadership Imperative, National Academy of Public Administration, March 2021 (NAPA Report).

The study also highlighted years of OPM failures, particularly failing to provide greater flexibilities to hire. It noted the constant turnover at OPM – from the position of Director on down through the ranks. And it stated emphatically that OPM needs to “focus on strategic human capital management and performance.” NAPA Report at p.22.

Now for the good news. Even before the issuance of the NAPA Report, the current administration signaled support for the mission of OPM.

Just a few days after the Inauguration, on Jan. 25, the Biden Administration identified a new OPM leadership team. On Feb. 23, 2021, President Biden nominated Kiran Ahuja to be OPM Director. Her nomination is pending in the Senate. OPM has been without a Senate-confirmed Director since Dale Cabaniss left abruptly in March 2020, and leadership is important.

Most recently, on April 9, OPM indicated it is ready to improve its management of human capital. It launched the Federal Workforce Competency Initiative (it even has an acronym, FWCI, which we know is a big deal in the Federal government!) to Build Stronger Federal Workforce Capability.

The first phase of the FWCI will be a survey of Federal agency employees and supervisors. The purpose of the survey is to identify competencies and tasks relevant to Federal jobs. Hmmm. Sounds like a good start (and yes, I know, OPM has done stuff like this in the past to no avail. But I’m always hopeful).

Here are some more good signs. We know that OPM worked quickly to issue guidance to agencies on the implementation of Biden Executive Order 14003. I’m also hearing that OPM is happily taking phone calls and providing advice.

Folks, this is a big deal. The Federal workforce is essential to this country. Agencies need support managing the workforce – from hiring to firing. OPM is supposed to help. And maybe, just maybe, help is on the way.

Think good thoughts, my friends. I’m looking forward to a renewed and improved OPM that can result in a better Federal government for all! That would be Good News! Boehm@FELTG.com

Being a Member of Protected Class Is Not a Free Pass to Harass Others

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By Meghan Droste, April 20, 2021

It’s hard to believe it’s been more than a year since I’ve been able to teach a class in person. I’m so grateful that we live in a time when technology makes it possible for us to continue teaching and learning in a virtual environment. Even in this past year of dramatic changes, there have been a few constants — my cat still demands treats regularly, the weather in New England remains unpredictable (I’ve received reports from friends that it is snowing there today, and yes, it’s mid-April as I write this), and many people still have questions and concerns about holding an employee accountable when there is the possibility the employee might file an EEO complaint.

I get the hesitation. Who wants to invite a complaint, and the time and effort it requires to respond to one, if there is a way to avoid it? That’s an understandable concern. But as a recent Commission decision reminds us, not holding an employee accountable can lead to consequences as well. In Zora T. v. Department of Justice, EEOC App. No. 0120171654 (Mar. 23, 2021), the complainant alleged that a coworker harassed her repeatedly based on her sex.  The harassment included following the complainant in what multiple employees perceived as a stalking manner, physically blocking the complainant from leaving a room, repeatedly invading the complainant’s personal space, and grabbing the complainant from behind and lifting her off the floor in a “bear hug.”  The agency verbally reprimanded the coworker and proposed a five-day suspension that it mitigated to one day. Despite this, the harassment continued. The complainant’s supervisor testified that management was afraid to discipline the coworker because she served as the LGBT Program Manager.

The case was before the Commission on an appeal from the administrative judge’s grant of summary judgment in the agency’s favor.  The Commission noted that summary judgment was not appropriate in part because there was a dispute of fact as to whether the agency took appropriate corrective action against the coworker. From the facts presented in the decision on the appeal, it seems clear that the agency’s actions were not sufficient to avoid liability, if for no other reason than that the harassment continued. While management may have been concerned that the coworker would have filed a complaint of sex discrimination if they took more severe disciplinary action, that concern does not change the agency’s obligations to the complainant. Regardless of whether the harasser might subsequently file a complaint, an agency still has an obligation to take prompt and effective corrective action when it learns of harassment.

Sometimes, despite your best efforts, employees will file EEO complaints. That’s their right and there is nothing inherently wrong with that. What is wrong is failing to act simply because you are concerned that a harasser will file a complaint if you hold her accountable. Droste@FELTG.com

Director of EE Oh No: When HR Practitioners Fail to Perform Part III

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By Barbara Haga, April 20, 2021

This third column will focus on how discipline might fit with the situation described first in the February column.

Just a quick recap: An IG investigation resulting from an OSC complaint found that the head of the EO Office at an Air Force Base had “… actively discouraged employees from filing EEO complaints, improperly modified and rejected EEO complaints and allegations, provided false and misleading information about the EEO process, and failed to identify conflicts of interest by management during the EEO mediation process.”

As a result of the OSC action, the Air Force reassigned the EO Officer to another office with no involvement and influence over EEO filings and issued a Letter of Counseling.

Let’s look at performance errors handled through conduct procedures.

Performance Errors and Conduct

As noted last month, there is nothing mentioned in any of the documents posted on the OSC website that indicated the EO Officer gave this bad advice for some nefarious reason or received any benefit from doing so. I read the report to say that the person believed that her actions were proper. She was wrong. These are terrible errors. When there are performance errors, we might think of performance procedures as the proper remedy. However, sometimes a performance approach doesn’t make sense. The risk of allowing the person to continue to perform the work after discovery of such errors in my mind is unacceptable.

Performance errors don’t have to be intentional to be actionable under conduct procedures.  Negligence and failure to follow procedures are types of charges that might be used when performance errors are so serious that the agency would find a performance opportunity period intolerable. I wrote a series of columns on this topic in September, October, and November 2017.

752 Cases and Performance Errors

The cases I discussed in the prior columns dealt with actions that, for the most part, threatened people’s safety and well-being. All resulted in removals. One was a paramedic who failed to check the drug box to make sure it was properly filled and secured before departing for the day.  Unfortunately, later that day, she needed a drug that should have been usable but wasn’t there. Providence intervened because another truck had responded to the call and their drug box was intact so the drug could be administered to the patient. In this case the paramedic had prior discipline for failure to follow procedures. Publicover v. Navy, DC-0752-15- 0003-I-1 (2016) (ID).

A second case involved a VA technician who did not properly sterilize instruments even after being recently counseled about proper procedures. The problem here should be obvious to all – the danger of infection through use of dirty instruments. The instruments that were not properly sterilized made it all the way into an operating room before they were discovered. The VA had to discard $1,000 worth of supplies that had been exposed to the dirty instruments, and there was a delay in being able to perform the surgery.

The Board decision includes an interesting discussion of remorse and potential for rehabilitation in this type of circumstance. Mr. Williams was very sorry, but that didn’t convince the Board to allow the AJ’s mitigation to stand. Williams v. VA, 94 FMSR 5623 (1994), affirmed without opinion Fed. Cir. October 18, 1995.

In Hunter v. Navy, DC-0752-11-0325-I-1, (2011) (ID), a police officer was removed for failure to follow procedures related to responding to a call. He was not dispatched to respond to the scene and the situation was not an emergency (high probability of death or serious injury) under their procedures. Hunter responded using lights and sirens, which was also against established procedures. In the process, his vehicle was involved in an accident and totaled.

Negligence and Similar Charges

Negligence is a subset of poor performance. Negligence in performance of official duties is a failure to exercise the degree of care required under the particular circumstances, which a person of ordinary prudence in the same situation and with equal experience would not omit. Board decisions tell us that where an act of carelessness or negligence results, or could result, in serious injury, a more severe penalty may be warranted.

Similarly, charges of failure to follow established procedures or careless workmanship could also result in severe penalties. Many actions that Federal employees perform from law enforcement work to medical treatment have horrible consequences if not performed correctly. But what about jobs that have legal responsibilities?

What happens when an employee fails to follow a law that applies to her assignment?  What if the person has the proper training but still fails to uphold the provisions of that law? What would happen if a contracting officer failed to follow contract law in awarding a contract?  What if an NLRB employee failed to enforce labor law in a case involving a private sector company or an FLRA employee failed to enforce 5 USC 71 in a Federal agency case?  What if a budget officer violated appropriations law in approving use of funds? Assuming we could prove that the law was violated, I think that most of us would come to the conclusion that there would be serious consequences.  

According to the OSC press release, this Air Force EO Officer was found to have “… improperly and unlawfully handled complaints involving sexual harassment and discrimination.”

Does such a finding warrant disciplinary action? I believe an argument could be made that it does. When I first read an article about this case, I thought I was reading about an actual removal not a reassignment. I certainly didn’t expect to read about issuance of a letter of counseling.  What purpose did that serve? If the person was no longer in the position and had no involvement in EEO work, how could she repeat the infraction?

There are cases where an HR official has been disciplined when that individual failed to carry out responsibilities properly. There are several OSC cases where HR officials violated veterans’ preference and were disciplined.  A GSA GS-15 HR director was removed for fabricating three discontinued service retirements Hathaway v GSA, DA-0752-92-0689-I-1, (1993). The answer this time, however, was different. C’est la vie.