By Deborah Hopkins, February 14, 2018

A few days ago, I got an interesting hypothetical question from a long-time FELTG reader, and it was such a good one I thought I’d share it with the rest of you. It’s something I hope is always hypothetical and you never have to deal with in real life. Here we go:

Hi FELTG,

I have attended many of your trainings and your instructors have even been out to my agency to train our lawyers and HR personnel.  I have a hypothetical strange case that I was hoping I could bounce off of you all.

Hypothetically, what should an agency do if it has an employee who is bringing bed bugs into the office? Let’s say the agency has already paid for an exterminator once and the exterminator confirmed that this employee’s office was the source of the infestation.  Let’s also say that the employee’s supervisor has talked with the employee to notify her of the problem (if she wasn’t already aware), and she told management that she would address it.

Now let’s say it’s a few weeks later and there are still bed bugs in the office, and it’s so bad that other employees are getting bit. Because coworkers getting bit by the bedbugs, this is hypothetically creating a massive morale issue in the office. What do you think a hypothetical agency should do in a case like this? Here are some thoughts:

  1. Do I give him an order and then discipline him if he doesn’t follow that order?  Is my order “Do not bring bed bugs into the office”?
  2. Do I indefinitely suspend him until such time as he can prove to the agency that he has addressed the problem at his home?
  3. Do I put him out on enforced leave (I don’t like this option)?
  4. Do I allow him to come to work but separate him from everyone else and force him to bring a change of clothes each day that is in a sealed plastic bag?

I’m assuming that someone must have dealt with something like this before.  Do you have any thoughts?

And here’s the FELTG response:

Dear well-thought-out FELTG reader,

What an interesting hypothetical you’ve presented to us. While this person’s behavior clearly involves employee safety and health, it’s also misconduct – and as you know from being a long-time FELTG reader, charging misconduct is fast, easy, and free. You give her an order, thereby making it her problem to resolve, and “Do not bring bed bugs into the office” is a clear, understandable order. Of course, you’ll document this conversation with her.

If you’re not going to fire her when she violates the order (if you determine the misconduct does not rise to the level of removable misconduct under Douglas) you can even do an indefinite suspension until she demonstrates medically she is free of the little critters, see, e.g., Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1997); Moe v. Navy, 2013 MSPB 43 (June 14, 2013), which don’t deal with bedbugs but say that an agency can indefinitely suspend an employee, pending inquiry, for psychological or other medical reasons if the agency has a sufficient objective basis for doing so. We never have to tolerate unsafe or, for lack of a better term, unsanitary, conduct in the workplace.

No need to do enforced leave, and (not legal advice, just personal advice) I wouldn’t do Option 4 because the plastic bags might not work, and it would just drag out the inevitable.

Thanks for the note, and good luck if a case like this ever presents itself in real life! 😉

Hopkins@FELTG.com

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