The Good News: It’s Simple, Proposing Official Should Do Douglas

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By Ann Modlin, October 15, 2024

Quick facts:

  • We are often asked by FELTG customers: Who should do the Douglas factor analysis?
  • We recommend the proposing official cover all 12 factors in the worksheet and attach it to the proposed discipline.
  • The deciding official should review the proposing official’s Douglas analysis and the employee’s response.

It’s time for another edition of “Douglas and the Proposing Official.”  (Why does that sound like it could be a sitcom? I mean, who would have thought Parks and Recreation would be a thing?)

We have written a lot of articles about this topic, but questions still arise regularly about whether the proposing official, the deciding official, or both, should do the Douglas analysis. Here’s the answer:

  • The proposing official should do the Douglas We recommend covering all 12 factors in a worksheet attached to the proposal.
  • The employee then has an opportunity to meaningfully respond to the both the charge(s) and proposed penalty.
  • The deciding official should review the proposing official’s Douglas analysis and the employee’s response, but not create a new, independent Douglas analysis in the decision.

It comes down to our good old friend due process.

Due process entitles the employee to notice of why discipline is being proposed, a meaningful opportunity to respond, and an impartial decision. Penalty is a key aspect of discipline, so due process applies.

The Douglas decision itself, way back in 1981, stated “aggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to the alleged factors . . . .” Douglas v. VA, 5 MSPR 280 (1981) (emphasis added). The Proposing Official should include the Douglas analysis in the proposal so that the employee has an opportunity to reply.

I know some of you are thinking, “But Douglas says ‘aggravating factors,’ and not mitigating factors, have to be in the proposal.”  Um, technically it does say that, but there can be a fine line between aggravating and mitigating factors. Better to include all of them in the proposal, just to be safe.

At one point, even the MSPB got confused about whether due process applied to penalty, so the Federal Circuit expressly stated that due process applies to the penalty part of discipline in Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011). Ward noted “the importance of giving an employee notice of any aggravating factors supporting an enhanced penalty as well as a meaningful opportunity to address ‘whether the level of penalty to be imposed is appropriate.’” Id. (citing Stone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir. 1999)).

There’s also a practical side to all of this. Having the proposing official do the Douglas analysis, with the deciding official reviewing and assessing that analysis, also goes to the heart of what we at FELTG emphasize in ALL of our training – it keeps things simple. If the deciding official agrees with the proposing official’s Douglas analysis, the decision can say, “I have considered the penalty factors identified in the proposal, and I concur.” Done. Case closed.

Easy, right? That’s Good News! [email protected]

 

The Good News: Unions Make Sure You Do Your Job Correctly

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By Ann Boehm, September 10, 2024

Quick facts:

  • It’s the managers’ obligation to handle problem employees who negatively impact the agency’s mission.
  • Union representatives are obligated to ensure problem employees are treated fairly.
  • Learn the processes and take the right steps to handle problem employees.

What do managers, counsel, employee relations specialists, labor relations specialists, employees, and union representatives all have in common? All of them know who the toxic employees are. What’s different is how these folks deal with the toxic employees. Or is it really different?

I recently had the amazing opportunity to train union stewards. Throughout my career, I have spent much more time on the management side than on the union side. This was a tremendous chance for me to learn more about the union perspective.

Early in the training, I discovered the union stewards certainly know who the problem employees are. In fact, the problem employees are not necessarily any nicer to the union representatives than they are to managers.

But here’s the big difference between the managers and the union representatives: The managers have an obligation to the public, and part of that obligation is to handle problem employees who negatively impact the mission. The union representatives are obligated to ensure that even the problem employees are treated fairly and have all available opportunities to challenge management’s actions.

I came out of this experience thinking of the union representatives more like criminal defense attorneys. Most people wonder how criminal defense attorneys can represent an admitted murderer, for example. The common response from those attorneys is that everyone is entitled to their rights under the Constitution and criminal laws. If the police or prosecutors do something wrong to violate those rights, or if the prosecutors cannot prove the commission of a crime beyond a reasonable doubt, then that’s on them.

In the employment context, union representatives may know the employee is a problem and deserves discipline or a performance-based action, but they are going to do their level best to make sure management and agency reps do things correctly.

What’s the lesson to be learned here? No one wants problem employees dragging down the agency or co-workers. If the agency wants to take action, it needs to do things correctly. The union representatives are there to keep a check on the process. It’s their job.

So, agencies learn the processes and follow them. (We at FELTG are here to help!) Understand that the union representatives know who the problem employees are, but they have a job to do. Take the right steps to handle the problem employee. Everyone will benefit. And that’s Good News! [email protected]

Related training:

The Good News: Reassignments Can Work for Everyone!

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By Ann Modlin Boehm, August 12, 2024

Quick facts:

  • Most people end up in a job they don’t like at some point in their careers.
  • Many of those people are afraid of change and typically choose to just stick it out in the unhappy job situation. This can sometimes lead to performance and attitude problems.
  • Reassigning an employee doesn’t have to mean dumping a problem on another manager.

Have you ever been in a job you do not like? I hope the answer is not, “Yes, my current one.” But it could be. If you have ever been in a bad job, you know it is not a fun situation.

Being in the wrong job makes for very long days. The work can be daunting and exhausting. Very often, your performance suffers.

During my career, I had a few jobs I really did not like. Sometimes, I did not like the duties of the job, and sometimes, I did not like my supervisor. (I wonder if any of my former supervisors are reading this and wondering if they fell into that last category.)

I am not afraid of change. When I was unhappy in a job, I started looking for a new one. I searched dutifully on USAJOBS for new opportunities. And sometimes, I searched for a detail or reassignment opportunity within my agency.

Those efforts worked for me, but many people are afraid of change. People who do not like change typically choose to stick it out in their unhappy job situation rather than look for another opportunity.

Supervisors know when an employee is performing poorly or when their bad attitude is creating toxicity in the workplace. What supervisors often miss in those situations is that the root cause of the performance and attitude problems is that the employee just does not like the job.

Too often, supervisors tend to believe this kind of employee will not succeed in any job. That belief may keep them from helping the employee find a reassignment within the agency. There is a fear that they will be dumping a problem on someone else, but that should not be a foregone conclusion.

During my Federal career, I observed several “problem” employees in one environment end up thriving in another environment. Very often, a supervisor with a different personality made all the difference. Or the employee found a job better suited to their skillset.

I encourage supervisors and advisors to think about a reassignment as an option for an unhappy employee. As a first step, it is a good idea to talk to the employee and find out if they like their job, and if not, what other agency jobs might interest them. Then, look around and ask around and see if there is a job opening within the agency.

To avoid dumping a problem, explore a detail. Make it clear to the employee and the receiving supervisor that if the detail is not a success, the employee will return to the original position. If the employee thrives, the reassignment can be permanent. If they fail, you now have an indication that this employee may just be a poor employee. And yes, then the original supervisor will have to deal with that situation.

If a reassignment works, you can go from an unhappy supervisor and unhappy employee to two happy supervisors and happy employee. And that’s Good News! [email protected]

Related Training:

 

The Good News: Smile and Beware, Your Home Office is on Camera

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By Ann Modlin, July 17, 2024

Office space is a home away from home. Or let’s face it, in 2024, your office space very well may be your home. However, a home office can be very visible to your colleagues, and some rules apply to what you display in your home office.

When everyone worked in office buildings, people took great pride in decorating their personal office spaces. Some people created brag walls full of diplomas and awards. Lots of office spaces displayed family and pet photos. Landscapes, artwork, or child-crafted pottery often appeared. Some people without windows put up fake windows on their walls. The goal – make the workspace a pleasant place to spend a good portion of one’s life.

Post-pandemic, a substantial portion of Federal employees work from home one or more days per week. The advent of Zoom and Teams and WebEx enables colleagues to see each other’s workspaces on camera.

A home office can feel more personal, so people may be more careless about what they display. An office in a Federal building is not likely to house an unmade bed. But that can appear in a Zoom meeting. What about someone using their Peloton bike (and wearing workout clothes) during a Teams meeting? Not likely to happen in a Federal building. According to some of my sources, it happened on Zoom.

What guidance is out there regarding appropriate home office displays? Not a lot, quite honestly. But, there are two potential home office minefields that managers, advisers, and employees need to understand.

First, displays of offensive objects can create a hostile work environment under equal employment opportunity laws. The EEOC clarified in its recent “Enforcement Guidance on Harassment in the Workplace” that “conduct within a virtual work environment can contribute to a hostile work environment.” https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace (April 29, 2024). This would include, for example, “racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting.”

Second, the Hatch Act applies to home offices. The Hatch Act prohibits Federal employees from engaging in political activity while on duty. In April 2020, the Office of Special Counsel (the entity that enforces the Hatch Act) issued guidance about the application of the Hatch Act to teleworking employees. Hatch Act Advisory for Teleworking Employees, Office of Special Counsel (April 28, 2020) (Advisory).

The Advisory explains that “[e]mployees participating in virtual work-related conferences are subject to the same on-duty Hatch Act restrictions as when they attend meetings or communicate in-person with others at work.” The Advisory specifically notes that employees “should ensure that any partisan materials, like campaign signs or candidate pictures, are not visible to others during the call.” Also avoid wearing campaign t-shirts or hats while on virtual conferences.

I think practical guidance is worthwhile on this subject, too. If you would not display something in a Federal building, you should not display it in your home office.

An office – whether in a Federal building or a home – should be a place where anyone would feel comfortable. There are lots of ways to do that without being offensive, inappropriate, or in violation of the Hatch Act.  And that’s Good News! [email protected]

Related Training:

The Good News: Reasonable Accommodation Requests Should Not Be Scary

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By Ann Modlin, June 10, 2024

Many supervisors panic when an employee requests a reasonable accommodation because of a disability. It does not need to be that way. Understanding the basics of the reasonable accommodation interactive process can help all involved – the supervisor, employee, and reasonable accommodation experts – do what is best for the employee and the agency.

My employee is claiming to be disabled.  How do I know if the employee is really disabled?

A disability is a physical or mental impairment that substantially limits one or more major life activities. Because of the Americans with Disabilities Act Amendments Act of 2008, the definition of “disability” is broadly construed. If it’s a close call the presumption is that an employee has a disability. If the disability and needed accommodation are not obvious, the employee may need to provide medical documentation to explain the nature of the disability and the functional limitations.

Many Federal employees have medical and physical impairments that meet the definition of disability. A list from the Department of Justice, Civil Rights Division, includes these examples of disabilities:

  • Cancer
  • Diabetes
  • Post-traumatic stress disorder
  • HIV
  • Autism
  • Cerebral palsy
  • Deafness or hearing loss
  • Blindness or low vision
  • Epilepsy
  • Mobility disabilities such as those requiring the use of a wheelchair, walker, or cane
  • Intellectual disabilities
  • Major depressive disorder
  • Traumatic brain injury

If my employee has a disability, do they need a reasonable accommodation?

Not necessarily. An employee with a disability has to be qualified for the position and able to perform the essential functions of the job with or without a reasonable accommodation.

Huh?

This is the important part of the interactive process, especially for supervisors. Many employees with disabilities can perform the essential functions of the job without an accommodation. Some employees cannot.

What are the essential functions of the position?

The EEOC’s regulations on reasonable accommodation explain “the essential functions are the fundamental duties of the position.” 29 C.F.R. 1630.2(n)(1). In our training classes on reasonable accommodation we refer to these at the “outcomes” of the job.

Does the EEOC have any more guidance on essential functions?

The regulations provide a list of reasons that a function may be considered essential:

“(i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.” 29 CFR 1630.2(n)(2).

The regulations also list evidence of whether a particular function is essential: “(i) The employer’s judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs.” 29 C.F.R. 1630.2(n)(3) (emphasis added).

Note the italicized language, above. As a supervisor, your input is significant in determining whether a job function is essential. Make sure you do an honest assessment. It is not an essential function just because you want a job performed a certain way.

My employee has not actually said “I need a reasonable accommodation.” Is it possible they requested one anyway?

It certainly is possible. The employee does not have to use any particular form or even use the words “reasonable accommodation.” What they need to do is let you know they need “an adjustment or change at work for a reason related to a medical condition.” EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, at p. 9 (Oct. 17, 2002) (Guidance).

Also, the request for an accommodation does not need to come from the employee. Someone else, like a relative or health care provider or friend, may make the request. Guidance, at p. 10.

How quickly do I need to address a request for reasonable accommodation?

The employer needs to act promptly! An undue delay can be disability discrimination. Guidance, at p. 17. If an employee requests reasonable accommodation, contact your reasonable accommodation coordinator immediately and get the process started.

Does my employee get to decide the reasonable accommodation?

The key word here is “reasonable” accommodation. The employee’s choice is considered, but as long as the accommodation is effective, it does not have to be the gold standard. Guidance, at 16.

The information provided here should help alleviate any panic associated with a request for reasonable accommodation. Remember that disability discrimination is illegal. As a supervisor, you are not expected to be an expert on reasonable accommodation, but you need to participate in the reasonable accommodation interactive process. Your agency has reasonable accommodation experts to help with this process. A reasonable accommodation request is not scary. And that’s Good News! [email protected]

[Editor’s note: FELTG’s annual webinar series on reasonable accommodation comes back summer 2025. Check out the first event here.]

The Good News: EEOC Issues Superb Guidance on Harassment

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By Ann Modlin, May 13, 2024

On April 29, the EEOC issued “Enforcement Guidance on Harassment in the Workplace.” Trust me. You want to read this guidance.

I’m always happy to praise Federal agencies when they do something well – something that really helps. This guidance does that.

I could spend time summarizing the guidance, but I do not need to because it is a very usable document. Instead, I’ve decided to highlight my favorite things.

  • The guidance is structured based upon how a harassment case is analyzed. How logical!
    • Covered bases and causation – What are the protected statuses and how is the alleged harassment tied to the protected status?
    • How did allegedly harassing conduct impact on a term, condition, or privilege of employment? – What constitutes a hostile work environment?
    • Employer liability – What makes an employer liable for the conduct?
  • The guidance has 77 (yes, 77!) examples of what is or is not harassment.
    • By golly, these are really, really helpful.
  • The guidance is very readable.
    • I get that I am a lawyer, but I firmly believe any non-lawyer can read and understand this guidance.
  • The guidance gets to the point efficiently. For example, regarding what constitutes a “prompt investigation,” the EEOC gives the parameters up front:

“An investigation is prompt if it is conducted reasonably soon after the employee complains, or the employer otherwise has notice of possible harassment. Clearly, an employer that opens an investigation into a complaint one day after it is made has acted promptly. By contrast, an employer that waits two months to open an investigation, absent any mitigating facts, very likely has not acted promptly. In many instances, what is “reasonably soon” is fact-sensitive and depends on such considerations as the nature and severity of the alleged harassment and the reasons for delay. For example, when faced with allegations of physical touching, an employer that, without explanation, does nothing for two weeks likely has not acted promptly.

(You have to admit this is exactly what we need to know about what “prompt” is and what it is not!)

  • If you need to skim the guidance, the EEOC has presented key information in highlighted blue boxes.
    • Examples:
      • “Harassment must be based on an employee’s legally protected characteristic.”
      • “These are key questions that typically arise in evaluating a hostile work environment claim and whether it amounts to unlawful harassment . . .”

I hope supervisors, advisors, and employees will read and use this guidance. I especially hope employees will use it. Hostile work environments still exist, and they should not. But a hostile work environment is not just, “my boss does not like me.” Anyone filing or defending against a harassment allegation will benefit from this guidance.

Thank you EEOC for this helpful document. Hey, the government did something good. That is good news! [email protected]

P.S. On a related note, did you know you can schedule FELTG for the 60-minute training Dealing with “Other” Harassment: It’s Not Always About EEO?

The Good News: A Meeting CANNOT Be a Formal Discussion AND a Weingarten

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By Ann Modlin, April 15, 2024

I teach a lot of classes where we discuss when a union representative has the right to attend a meeting between a representative of the agency and one or more bargaining unit employees. The statutory guidance on meetings is in 5 U.S.C. § 7114(a)(2). There are two different types of meetings that the union may attend – formal discussions (§ 7114(a)(2)(A)), and Weingarten meetings (§ 7114(a)(2)(B)).

In training sessions, I regularly present meeting scenarios and ask participants if the meeting is a formal discussion or a Weingarten meeting. Far too often, the response from participants is “both.”

Wrong answer. It cannot be both. If you do not trust me, please trust the FLRA.

Way back in 1985, the FLRA provided a thorough analysis of two different types of meetings in 5 U.S.C. § 7114(a)(2). Dep’t of Health and Human Services, Social Security Administration, 18 FLRA 42 (1985) (HHS). The FLRA explained that “section 7114(a)(2)(A) and section 7114(a)(2)(B) provide respectively that ‘(a)n exclusive representative . . . shall be given the opportunity to be represented at – (A) any formal discussion . . . or (B) any examination . . . in connection with an investigation . . ..’ The use of the conjunction ‘or’ to separate these sections indicates a Congressional intent that the right to union representation at formal discussions in section 7114(a)(2)(A) be separate from the right to union representation at an examination contained in section 7114(a)(2)(B).” Id. (emphasis added).

I rest my case.

In case you still need additional explanation, the HHS case did that by looking at the legislative history of section 7114. The FLRA noted that the representation right at formal discussions was intended “to apply to union representation at certain formal discussions between representatives of an agency and unit employees concerning grievances, personnel policies or practices or other general conditions of employment” and NOT “meetings which are ‘highly personal, informal meetings.’” Id.

By contrast, the legislative history regarding section 7114(a)(2)(B) Weingarten right establishes a representation right in a very narrow situation – an examination of a unit employee in connection with an investigation. The FLRA highlighted that “such a right will only attach where the employee who is being examined reasonably believes that the examination may result in disciplinary action and the employee requests representation. The requirement that the employee request representation further highlights the distinction between the right to representation under section 7114(a)(2)(A) and section 7114(a)(2)(B) respectively.” Id. (emphasis added). The FLRA continued: The “right to union representation under section 7114(a)(2)(A) is not contingent upon an employee’s request for such representation at formal discussions although it is a requirement for representation” at Weingarten meetings. Id.

There you have it, folks. A meeting cannot be both a formal discussion and a Weingarten meeting. That matters because the processes are different.

Make sure you assess the different meeting parameters for a formal discussion and a Weingarten meeting when considering whether the union can be present. Following this guidance will enable you to know when to and when not to allow the union’s presence in meetings between management and bargaining unit employees. And that’s Good News! [email protected]

[Editor’s note: Looking for more guidance, register for FLRA Law Week, which runs May 5-9, 2025, or schedule the 60-minute event The Union Doesn’t Get to Attend Every Meeting.]

 

Good News: We Answer Your Questions About Misconduct Investigations

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By Ann Modlin, March 11, 2024

If you have ever taken an investigations course taught by me, you have likely heard me say that investigations training is my favorite class. I know I shouldn’t have favorite classes, but I have a good reason for this favoritism. In my humble opinion, a good investigation is the foundation for effective discipline in the Federal government.

Many of our customers understand the value of a good investigation, and we get a lot of interesting questions on the topic. This month, I want to answer some commonly asked questions about misconduct investigations.

Who should conduct misconduct investigations? Employee Relations Specialists? IG investigators? Supervisors? A special cadre?

This answer is surprisingly simple. Anyone properly trained in Federal misconduct investigations should conduct misconduct investigations. It really does not matter where the individual works, but the proper training matters. It is up to agency policy and practice to determine who handles investigations.

Should investigators provide recommendations to disciplinary officials?

This is also an agency policy call, but I think there is great value in having investigators serve solely as evidence gatherers – not fact finders. The best investigators are impartial and unbiased. As I typically advise, investigators should allow themselves to be surprised throughout the investigation. Recommendations do not take away the impartiality, but it does move the investigator into more of a fact-finding role.

Is there a recommended order for interviewing employees involved in an alleged misconduct case?

The preferred order for interviewing witnesses is accuser, witnesses, accused. It’s best to have as much information as possible before interviewing the accused.

In harassment investigations, can we keep the name of the alleged victim confidential?

Fortunately, the EEOC itself has guidance on this question:

An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis.

A conflict between an employee’s desire for confidentiality and the employer’s duty to investigate may arise if an employee informs a supervisor about alleged harassment but asks him or her to keep the matter confidential and take no action. Inaction by the supervisor in such circumstances could lead to employer liability. While it may seem reasonable to let the employee determine whether to pursue a complaint, the employer must discharge its duty to prevent and correct harassment. One mechanism to help avoid such conflicts would be for the employer to set up an informational phone line which employees can use to discuss questions or concerns about harassment on an anonymous basis.

As an investigator, how do you determine if the evidence will meet the “preponderance of the evidence” burden of proof?

Preponderance of the evidence is “more likely than not”— in other words, 51% of the evidence supports a finding of misconduct. As evidence gatherers, investigators should keep the burden of proof in mind and strive to investigate thoroughly. To do so, you need to understand the substance of the misconduct – what rule(s) the employee allegedly broke. You also need to work hard to find corroborating, and sometimes, conflicting evidence. The great part about being an impartial evidence gatherer is that ultimately, you do not have to decide if the burden of proof is met. But it would be best if you did your darndest to interview witnesses with knowledge of the matter and gather any documentation or other evidence you can find to help the eventual fact finders determine whether the burden of proof was met.

I know agencies have an obligation (from EEOC and Supreme Court guidance) to promptly investigate harassment allegations based upon protected status under the anti-discrimination laws. Does that apply even if the alleged harassment is not connected to the employee’s protected status?

A prompt investigation is the best investigation, period. Why is that? Memories fade quickly. In any misconduct situation, agencies want the most accurate version of what actually happened. The sooner investigators interview witnesses and gather other evidence, the better. Plus, most agency anti-harassment policies have very tight timelines related to investigations, so be sure you know your policy in advance of the investigation.

These questions may just be the tip of the iceberg. Let me know if you have more! We here at FELTG are here to help. And that’s Good News! [email protected]

[Editor’s note: Join FELTG April 29 – May 1, 2025 for Conducting Effective Harassment Investigations.]

Good News: We Answer Your Questions About Medical Documentation

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By Ann Modlin, February 20, 2024

I heard from some readers that last month’s Q&A on medical inability to perform removals was timely. Yay!  I also had some follow-up questions regarding medical documentation. No time like the present to address those issues.

If an agency is considering a removal for medical inability to perform, who may have access to medical documentation?

Agency employees, such as reasonable accommodation coordinators or health officers, are often reluctant to share medical documentation with supervisors or other decision-makers. Their instincts may be noble, but also incorrect.

A supervisor cannot make a decision about a medical inability to perform without, well, knowing about any medical issues and the impact of those issues on the employee’s ability to perform the essential functions of the job. So, what can be shared?

Our friends at the EEOC have guidance on their website about the confidentiality of medical documentation and who can access that information.

This EEOC guidance explains “[t]he ADA requires employers to treat any  medical information obtained from a disability-related  inquiry or medical examination (including medical information from voluntary health or wellness programs), as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.”

How is an agency supposed to store a confidential medical record?

It is very important for an agency to properly store confidential medical records. The ADA addresses this, and agencies can be liable for violating this statutory language: “information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.” 42 USC 12112(d)(3)(B) (emphasis added).

Note the emphasis added here: Do not store confidential medical information in a disciplinary or other personnel file.

What about HIPAA – the Health Insurance Portability and Accountability Act of 1996? Does it apply?

Since everyone who has ever been to a medical professional is acutely aware of the privacy protections under HIPAA (forms, forms, and more forms), there’s a belief that HIPAA applies to employers. But nope, that’s not the case.

For this, we turn to our friends at the Department of Health and Human Services for assistance (they are the HIPAA people).

“The [HIPPA] Privacy Rule does not protect your employment records, even if the information in those records is health-related. In most cases, the Privacy Rule does not apply to the actions of an employer.” But HIPAA does apply to health care providers. HHS explains, “if your employer asks your health care provider directly for information about you, your provider cannot give your employer the information without your authorization unless other laws require them to do so.”

Also remember this: You do not need the employee’s entire medical file – just information related to the employee’s medical inability to perform. Diagnosis, prognosis, and functional limitations should be the focus.

It’s important to properly handle confidential medical information, but it’s also important to have access to that information in a medical inability to perform case. There is a lot of solid guidance out there from the EEOC and HHS – and that’s Good News. [email protected]

Good News: We Answer Your Questions on Medical Inability to Perform

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By Ann Modlin, January 17, 2024

Ann Modlin Boehm HeadshotIn the past year, I have seen an uptick in questions regarding how to remove an employee based upon medical inability to perform.

Removal based upon medical inability to perform is an effective, and probably underutilized, process. To help you good folks out there, I decided it would be an opportune time to answer some of these questions.

Is a medical inability to perform removal a 5 U.S.C. chapter 75 action?

Yes. A removal for medical inability to perform is an “adverse action,” so removal must promote the efficiency of the service. The removal may be appealed to the Merit Systems Protection Board (Board).

Is a Douglas factor analysis required in a medical inability to perform removal?

No. Like a furlough, a removal for medical inability to perform is not disciplinary, so Douglas does not apply. See Brown v. Dep’t of the Interior, 2014 MSPB 40 (Douglas analysis not required “because of the nondisciplinary nature of the agency’s action.”)

If Douglas does not apply, how does the agency prove removal is appropriate?

The Board explained in Brown, “the correct standard to be applied in determining the penalty for a removal based on [medical] inability to perform is whether the penalty of removal exceeded ‘the tolerable limits of reasonableness.’” Id.

Um OK, so how do we show removal did not exceed “the tolerable limits of reasonableness”?

The first step is to “prove a nexus between the employee’s medical condition and observed deficiencies in his performance or conduct, or a high probability, given the nature of the work involved, that his condition may result in injury to himself or others.” Clemens v. Department of the Army, 2014 MSPB 14.

Huh?

The Board expected this follow-up question: “In other words, the agency must establish that the appellant’s medical condition prevents him from being able to safely and efficiently perform the core duties of his position.” Id.

What are the core duties of the position?

Clemens is instructive on this point. “The core duties of a position are synonymous with its essential functions, i.e., the fundamental job duties of the position, not including marginal functions.” Id. The Board relies upon the EEOC’s regulations regarding essential functions.

Factors to consider: “the reason the position exists is to perform that function, because of the limited number of employees available among whom the performance of that job function can be distributed, or because the function is highly specialized so that the incumbent is hired for his or her expertise or ability to perform the particular function.” Id.

What evidence should the agency provide to show the essential functions of the job?

The Board, like the Equal Employment Opportunity Commission, will consider “the employer’s judgment as to which functions are essential, written position descriptions, the amount of time spent performing the function, and the consequences of not requiring the incumbent to perform the function.” Id.

What are some examples of supporting evidence?

If you haven’t figured this out, yet, Clemens is a great case to read if you are pondering a medical inability to perform removal. The employee was a supervisory public safety dispatcher who had a significant loss of speech ability after a stroke.

His position description included essential functions of the position related to speech. This included providing “emergency police, fire and medical services to the public by answering emergency 911 calls and responding with appropriate personnel and equipment” and “Advanced Emergency Medical Dispatch Life Support through pre-arrival instruction to callers;” spending “25% of his time on duties related to caller interrogation, including ‘crisis intervention with distraught emergency callers during high-risk situations’ and ‘dispatch[ing] a variety of emergency equipment.’” Id. Also, “a knowledge requirement for the position was ‘the ability to communicate orally.’” Id.

Does the agency have to provide a reasonable accommodation before removing based upon medical inability to perform?

If the employee does not request a reasonable accommodation or desire to return to work, as in Clemens, the agency is not obligated to provide an accommodation. If the employee does request an accommodation, the Board would consider a reasonable accommodation, so long as one exists that “would enable the appellant to safely and efficiently perform those core duties.” Id.

But, to simply prove the charge of medical inability to perform, “the agency is not required to show that it was unable to reasonably accommodate the appellant by assigning him to a vacant position for which he was qualified; whether it could do so goes to the affirmative defense of disability discrimination or the reasonableness of the penalty.” Id.

What’s the Good News here?

The Board has long held that “removal for physical inability to perform the essential functions of a position promotes the efficiency of the service.” Id. (citing D’Leo v. Department of the Navy, 53 M.S.P.R. 44, 51 (1992)). If you have an employee with medical issues legitimately impacting on their ability to perform their core duties, this removal process is one you should contemplate using. [email protected]