MSPB Quorum Returns After 1,880 Days

, ,

By Deborah J. Hopkins, March 2, 2022

Late yesterday, while the world was focused on the Ukraine crisis and the country discussed the State of the Union address, the Senate confirmed two individuals to the U.S. Merit Systems Protection Board (the Board) by voice vote: Raymond L. Limon, and Tristan L. Leavitt.

While there was not a vote on the third and final nominee, Cathy Harris, two out of three members still makes a quorum, which means we’ll soon see decisions on the 3,600+ Petitions for Review awaiting action. The Board will have its work cut out for it, as decisions will need to be issued on topics including:

  • Whistleblower reprisal allegations
  • New performance requirements in the wake of Santos v. NASA
  • Challenges to Administrative Judge authority
  • Interpretation of the VA Accountability And Whistleblower Protection Act
  • Pendulum shifts in Executive Orders and OPM regulations

We’ve long said that justice delayed is justice denied, and this Senate action, while long overdue, is an important step in the right direction for all the people impacted by the 5+ year lack of quorum at the MSPB. Stay tuned to FELTG for all the latest information, and join us at the end of the month for MSPB Law Week, where we’ll unpack all the latest information from the new Board. [email protected]

Three Things You May Not Know About Nondiscriminatory Hiring

, ,

By Deborah Hopkins, February 15, 2022

Many agencies are in the process of hiring new employees, keeping in mind that the workforce should represent all of America, including traditionally underserved populations.

President Biden’s recent announcement that his pick for the Supreme Court would be an African American woman has also raised questions about what is and is not permitted in the hiring process within the Federal government – something we’ll be tackling in the March 16 virtual training event Nondiscriminatory Hiring in the Federal Workplace. As we await this important event, I wanted to share three items to consider if you’re involved in the hiring process in any way.

  1. Sometimes it is legal to hire someone because of their sex.

Occasionally, a person’s sex can legally be a bona fide occupational qualification (BFOQ). While this only applies in very limited circumstances, agencies can set this requirement if there is a legitimate, business-based reason. See, e.g., Dewey R. v. DOJ, EEOC App. No. 0120142308 (May 20, 2016) (sex was a BFOQ for a correctional officer position that required performing strip searches on female inmates).

  1. It is illegal to refuse to hire someone because of their sexual orientation.

While this has been the law in the Federal government since the July 2015 decision Baldwin v. Secretary of Transportation, EEOC Appeal No. 0120133080, it became law for the rest of the country in the June 2020 Supreme Court decision Bostock v. Clayton County, 140 S. Ct. 1731.

As I say in many classes, just because a law exists doesn’t mean everyone follows it. In a recent EEOC decision, a complainant was discriminated against based on his sexual orientation when he was not hired for an Assistant Fire Operations Supervisor. While the agency claimed non-discriminatory reasons for the nonselection, EEOC found these reasons were pretextual.

For example, the complainant was ranked as the top candidate among seven after a selection panel recommended individuals to hire. However, one of the supervisors involved in the hiring process decided to expand the field to 12 candidates and changed the weight that references held. That supervisor also did not contact any of the references the complainant provided. As a result, the complainant dropped from the top spot to eighth on the list and was not given a second interview. EEOC found this discrimination was motivated by the complainant’s sexual orientation.  Bart M. v. Interior, EEOC Appeal No. 0120160543 (Jan. 14, 2021). [PDF]

  1. Sometimes, the complainant doesn’t even need to apply for the job in order to state a claim of discrimination in the hiring process.

While you might think that applying for a job is a prerequisite to claiming discriminatory nonselection, there are always exceptions. A complainant need not establish that he applied for a job as an element of a prima facie case if he can show that he was actively discouraged by management from applying for the job in the first place, and that discouragement was tied to or motivated by the complainant’s protected EEO category or EEO activity. See O’Connor v. Secretary of Veterans Affairs, EEOC Appeal No. 0120112072 (2011).

We’ve got plenty more, which we’ll be sharing with you in this space and in our upcoming training sessions. We hope to see you there. [email protected].

Demystifying the Individual Right of Action

, ,

By Deborah Hopkins, February 15, 2022

A lot of FELTG training involves how agencies should handle disciplinary actions known as Otherwise Appealable Actions, or OAAs. OAAs are suspensions of 15 days or more, demotions, and removals. OAAs get their name because they are agency actions that by statute the employee may appeal to the Merit Systems Protection Board (MSPB or the Board). You may think OAAs comprise most of the MSPB’s caseload. In reality, only about half of the Board’s cases deal with OAAs.

Generally, if an employee files an appeal to the MSPB over a 10-day suspension, reprimand, or low performance rating, the Board does not have jurisdiction and would dismiss the appeal because these actions, while unpleasant to the employee, are not OAAs. But there’s an exception in which a Federal employee (or former employee) can file an appeal to the MSPB over an action that would otherwise not be within the Board’s jurisdiction. It’s the Individual Right of Action (IRA).

The employee is entitled to an IRA hearing if the employee claims a personnel action (reprimand, short suspension, low performance rating, significant changes to job duties, to name just a few) was motivated by the fact that the employee had:

  • Exercised any appeal right that includes a claim of whistleblower reprisal;
  • Cooperated with an agency’s inspector general or OSC investigators;
  • Refused to follow an order that would require a violation of law, rule, or regulation; or
  • Assisted another employee in the exercise of that employee’s rights.

5 USC 2302(b)(8)-(9).

IRAs aren’t rare. In 2020, 11 percent of the Board’s caseload dealt with IRAs.

The Federal Circuit has been quite busy lately (perhaps because the MSPB has been without a quorum for 1,866 days) handling appeals over the outcomes of Administrative Judge decisions on Board IRAs.

Here are a few recent and notable takeaways:

Smolinski v. MSPB, No. 21-1751 (Fed. Cir. Jan. 19, 2022)

The appellant, a visiting provider at an Army hospital, alleged several instances of reprisal for protected activity. While the court rejected most of the claims, it referenced the abuse of authority standard in whistleblower reprisal complaints: “Although 5 U.S.C. § 2302 does not define the term ‘abuse of authority,’ the court found it appropriate to apply the definitions found in related whistleblower protection statutes … and determined that the alleged conduct … would qualify.”

In addition, the court said that in determining jurisdiction over an IRA appeal, the MSPB is not limited to the four corners of the appellant’s original OSC complaint, and that it may consider other relevant agency evidence that supports the appellant’s allegations.

Gessel v. MSPB, No. 21-1815 (Fed. Cir. Jan. 19, 2022) (NP)

This case involved an Air Force employee’s probationary removal. While probationers don’t have full MSPB appeal rights, they still may file an IRA appeal at the MSPB over the removal if they claim it was motivated by reprisal for protected activity. This employee was fired as a probationer because he lost a key to a government building, and the agency had to pay a large amount of money to have the building rekeyed. The employee claimed his removal was not for the loss of the key but rather because he was a whistleblower who made a protected disclosure. The Federal Circuit affirmed the Board’s dismissal of the IRA and found the disclosures were not protected but were the result of typical workplace conflicts. Reports that his coworker made him “uncomfortable,” was “confrontational and attempt[ed] to supervise or discipline him,” and “often watch[ed] foolish and juvenile rap videos and other material,” did not meet the standard set out in the Whistleblower Protection Act.

Marana v. MSPB, No. 21-1463 (Fed. Cir. Jan 20, 2022) (NP)

The appellant, a nurse at an Army hospital, was removed for conduct unbecoming a Federal employee after he inappropriately disclosed a patient’s personal and health-related information to unauthorized individuals. Several of his claims were dismissed because more than two years had passed between his disclosures and the adverse personnel action for which he requested relief. There is a wealth of case law on the knowledge-timing aspect of whistleblower cases: Costello v. MSPB, 182 F.3d 1372, 1377 (Fed. Cir. 1999) (“A two-year gap between the disclosures and the allegedly retaliatory action is too long an interval to justify an inference of cause and effect between the two . . . .”); Salinas v. Army, 94 MSPR 54, 59 (2003) (the disclosure and the allegedly retaliatory act two years later were “too remote in time” for a reasonable person to conclude that the disclosure was a contributing factor to the action taken).

These can be confusing and complicated subjects, and not every personnel action gives the employee the right to file an IRA. For more on OAAs, IRAs, whistleblowing, and related topics, join us virtually for MSPB Law Week, March 28-April 1. [email protected]

3 Things to Know About the Federal Vaccine Requirement’s Injunction

,

By Deborah Hopkins, February 7, 2022

On January 21, a Federal district judge in Texas issued an injunction [PDF] on the vaccine requirement for Federal employees, established last September by Executive Order 14043. The Biden Administration has appealed the injunction and has requested a stay while the appeal makes its way through the system. While we await the outcome, there are a few nuances of which your agency should be aware.

1. Your agency should still collect information about employee and future employee vaccination status.

Though the vaccine requirement is on hold, the information on vaccination status is important to agencies as they determine safety protocols for the physical workplace. Agencies are not prohibited from using information on vaccination status to set guidelines for masking, distancing, testing, travel, and quarantine requirements.

2. Your agency does not need to rescind discipline that has already been issued and completed for failure to comply with the vaccine requirement.

While most agencies have not yet implemented discipline for employees who were not vaccinated by the November deadline, some have. The Safer Federal Workforce Taskforce guidance is clear: During the pendency of the appeal on the injunction, the discipline should remain as issued. That said, the discipline should not be relied upon as an aggravating factor in any new disciplinary actions.

3. If your agency predicated an offer of employment on a vaccine requirement, it should amend the offer and remove the vaccine requirement.

However, because this injunction is not the final disposition on the issues, the Task Force suggests the following language be included in the amended offer:

“To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation, the Federal Government will take no action to implement or enforce the COVID-19 vaccination requirement pursuant to Executive Order 14043 on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. Federal agencies may request information regarding the vaccination status of selected applicants for the purposes of implementing other workplace safety protocols, such as protocols related to masking, physical distancing, testing, travel, and quarantine.”

There’s much more to discuss on this topic, including information on exemption requests, what agencies should do if they are exempt from the injunction, and whether agencies are permitted to establish independent vaccine requirements for their workforce. Join FELTG next Thursday, February 17, at 1 pm ET for the 60-minute virtual event Vaccine Mandate on Hold: What Now for Accommodation, Discipline, and Hiring? [email protected]

Takeaways from OPM’s Proposed Regs on Accountability and Discrimination

,

By Deborah Hopkins, January 18, 2022

Well, FELTG Nation, the changes keep coming. Two weeks ago, OPM issued proposed new rules on 5 CFR Parts 315, 432 and 752, as a result of President Biden’s Executive Order 14003, and also proposed regulations for 5 CFR part 724, the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020.

These are proposed rules and cannot be finalized until OPM considers public comments. You can comment until the first week of February. While you ponder whether you’d like to submit comments for OPM’s consideration, we’ve pulled a few notable pieces from each proposed rule, and have some thoughts of our own.

5 CFR Parts 315, 432 and 752

Performance

If you read the proposed rule, you’ll notice that OPM has a disagreement with the Federal Circuit about the Santos v. NASA case from March 2021. The Federal Circuit ruled that agencies must justify unacceptable performance before placing an employee on a PIP. OPM disagrees that the statute issues this requirement and relies on its own interpretation:

[A]n agency may not take a performance-based adverse action against an employee whom the agency determined was performing unacceptably unless the agency first provides the employee with notice and an opportunity to improve, and the employee continues to perform unacceptably. The determination to be reviewed on appeal to the Board and its reviewing courts is the final determination of unacceptable performance following the PIP, not any interim determination leading to the PIP.

It will be interesting to see what the Federal Circuit thinks about this.

Another interesting item on performance indicates OPM thinks an agency may need (or at least want) to prove they engaged in performance counseling with an employee prior to the initiation of a PIP:

Agencies should also remain mindful that third parties (for example, arbitrators and judges) place a strong emphasis on a supervisor’s effort to assist the employee in improving his or her performance. Evidence that the supervisor engaged an employee in discussion, counseling, training, or the like prior to the opportunity period may assist the agency in developing a stronger case before a third party that the employee was given a reasonable opportunity to demonstrate acceptable performance before a performance-based action is taken. [bold mine]

This has never been a legal requirement. What’s unclear to us at FELTG is if OPM is setting this as a requirement, suggesting it is a good idea, or perhaps supposing this will somehow meet the Santos requirement in a different way.

Misconduct

President Trump’s 2018 Executive Order 13839 included guidance on penalty determination for agencies, and OPM’s regs which became effective in November 2020, adopted much of that language. In the newly proposed regulations, language about penalty determination and comparator employees will be removed completely. These principles are still in MSPB caselaw but will not be in the updated regulations. OPM seems to want to leave these decisions up to individual agencies.

General Observations

  • The term “business day” will no longer exist in OPM regulations, as that was derived directly from Executive Order 13839. As a result, the timeline for decisions on proposed disciplinary actions is not a hard deadline. It is being left up to agencies. OPM still encourages agencies to act promptly.
  • Clean record settlements are back. The regulation prohibiting agencies from removing discipline from an employee’s OPF is being removed. OPM’s justification for this is, among other things, “the prohibition of clean record agreements hampers agencies’ ability to resolve informal and formal complaints at an early stage and with minimal costs to the agency.”
  • Agencies will no longer be required to provide mandatory notification to supervisors at 30 months and one month before the end of an employee’s probationary period. OPM pointed out that agencies are still encouraged “to notify supervisors that an employee’s probationary period is ending, [but] OPM believes the frequency and timing of notifications should be left up to the discretion of each agency.”
  • The regs are FINALLY being updated to include the dual status technicians in the National Guard who gained coverage under the 2018 NDAA.
  • Agencies no longer need to notify OPM if they extend an employee’s notice period beyond 30 days.

5 CFR part 724

The Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020 went into effect Jan. 1, 2021. The new law modifies the No FEAR Act and places requirements on agencies related to findings of discrimination.

According to OPM, the proposed regulations will require an agency to:

  • Provide notice, in an accessible format, of a finding of intentionally committed discriminatory (including retaliatory) acts on the public internet website (linked directly from the home page) of the agency after all appeals have been exhausted.
  • Submit the annual report in an accessible, electronic format prescribed by the Director of OPM.
  • Submit a disciplinary action report, in an accessible, electronic format, to the Equal Employment Opportunity Commission (EEOC).
  • Establish, or leverage, a system to track each complaint of discrimination; and
  • Provide a notation of any adverse action taken under section 7512 of title 5, United States Code, for a covered act of discrimination (including retaliation) in the personnel record of an agency employee found to have intentionally committed discriminatory (including retaliatory) acts, after all appeals are exhausted.
  • Update No FEAR Act training to comply with the new provisions of the Statute.
  • Train new employees within 90 calendar days of appointment, including employees who transfer from one Federal agency to another.
  • Train all existing employees on a training cycle of no longer than every two years.

We can help you with those training requirements. You know where to find us! [email protected]

The State of the Civil Service: 2022 Edition

, , ,

By Deborah Hopkins, January 11, 2022

It’s now 2022, and over the past 12 months there have been significant changes in the Federal civil service – common any time there’s a change in administration, but more so in this past year than any other year I can recall. As I’ve done for the past several Januarys, I’d like to share some highlights and happenings (and, unfortunately, non-happenings) in the world of Federal employment law.

Vaccine Requirement

On September 9, President Biden issued Executive Order 14043, which required all Federal employees to be vaccinated against COVID-19, unless they qualified for a legal exemption. These exemptions only apply when employees have a medical condition or sincerely held religious belief that prohibits them from being vaccinated. Even then, exemptions will only be granted if doing so does not cause an undue hardship on agency operations. The deadline to be “fully vaccinated” was November 22.

In December, the administration issued guidance telling agencies to wait until the new year to take any disciplinary actions involving a loss of pay (suspensions, demotions, or removals) for employees who fail to be vaccinated and don’t qualify for a legal exemption.

Now that it’s 2022, agencies are free to move forward with the steps of progressive discipline as set forth in the guidance.

This EO has gone largely unchallenged, whereas the vaccine requirement for Federal contractors, and those for employees outside the Federal government, have seen numerous Court challenges and injunctions.

Executive Orders

President Biden issued 77 Executive Orders in 2021, many within his first few days in office. Below are just a few that directly impact Federal employees.

  • 13985: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
  • 13988: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
  • 14003: Protecting the Federal Workforce (this EO rescinded President Trump’s three Federal workforce EOs from 2018, plus the EO on Schedule F designation)
  • 14043: Requiring Coronavirus Disease 2019 Vaccination for Federal Employees

MSPB

Last year, President Biden nominated three individuals to serve as members of the Merit Systems Protection Board.

In October, the nominees were voted out of committee, which means the next and final step is a vote from the Senate, where a simple majority could confirm the nominees.

As of this writing, that vote has not been scheduled and we have no indication when, or if, a vote will occur.

The last time there was a quorum at the MSPB was Jan. 7, 2017. The backlog of Petitions for Review has now reached over 3,600. If and when the nominees get confirmed they will have a LOT on the agenda besides the backlog, including:

  • Assessing cases under new performance requirements, as a result of the March 2021 Federal Circuit decision Santos v. NASA
  • Challenges to Administrative Judge authority, as a result of Lucia v. SEC
  • Interpretations on the newish VA accountability law
    • This includes the burden of proof in misconduct cases, as a result of the August 2021 Federal Circuit decision Rodriguez v. VA
  • Untangling the timeline in cases involving several Executive Orders and OPM regulations that were issued first under the Trump administration and then rescinded under the Biden administration

We can only hope these confirmations will occur soon. If so, we should start getting MSPB decisions in time for MSPB Law Week, March 28 – April 1. Register soon and save your seat.

EEOC

The Equal Employment Opportunity Commission has been very busy over the past twelve months, in the Federal sector and beyond. In addition to taking on an integral role in President Biden’s inclusion agenda, the Commission has also regularly provided updated guidance related to the COVID-19 pandemic and related EEO issues.

More recently, the EEOC cautioned employers against illegal reprisal related to vaccine exemption requests. We’re tackling that in the January 19 webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace.

For more, join us for EEO Counselor training later this month or EEOC Law Week in April. And be sure to check out Dan Gephart’s recent interview with EEOC Chair Charlotte Burrows about what agencies can expect in the world of EEO in 2022.

FLRA

The MSPB isn’t the only agency dealing with a backlog. The Federal Labor Relations Authority has several hundred Unfair Labor Practice cases pending review. In addition, two nominees for Authority members are still awaiting Senate confirmation. Sound familiar? Of course, the significant difference between these confirmations and the MSPB confirmations is that there are currently Authority members in acting positions, so there’s a quorum and decisions can still be issued.

In addition to quickly overturning President Trump’s union-related EOs, the Biden Administration has also taken several steps to increase the visibility of, and employee participation in, Federal unions. OPM issued management directives in October 2021 that instructed Federal agencies to highlight collective bargaining rights for Federal employees.

Plus, there have been numerous precedent-altering decisions over the past year that may be impacted after the anticipated change from a Republican majority to a Democratic majority. On top of that, we’re still waiting for the Senate to confirm the first permanent FLRA General Counsel in more than four years.

Join us for FLRA Law Week May 10-14, where the entire world of Federal Labor relations will be discussed in depth. By then, a lot of these issues should be much clearer.

OPM Regulations

Last week, OPM issued proposed new rules on 5 CFR Parts 315, 432 and 752, as a result of Executive Order 14003. Comments are open for the public until February 3.

OPM also proposed regulations for 5 CFR part 724, the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020, and comments on these regs [PDF] are due by February 4.

Next week, FELTG’s News Flash will share the takeaways from these proposed regulations.

Closing Thoughts

2022 looks to be quite interesting with a continued pandemic, anticipated returns to the workplace, and expanded telework for hundreds of thousands of employees. As always, we’ll keep you up to date when ever anything noteworthy occurs. [email protected]

No, Asymptomatic COVID-19 is NOT a Disability

, ,

By Deborah Hopkins, January 11, 2022

Last month, EEOC released updated guidance on whether COVID-19 meets the definition of “disability” under the law. Which raises the question, is a person who has contracted COVID-19 a qualified individual with a disability for the purposes of reasonable accommodation (RA) under the Americans with Disabilities ACT (ADA) and related laws?

It depends.

COVID-19 itself is not automatically a medical condition that rises to the level of a disability because most cases are transitory and minor. According to the guidance:

A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks — with no other consequences — will not have an actual disability within the meaning of the ADA. However, depending on the specific facts involved in a particular employee’s medical condition, an individual with COVID-19 might have an actual disability…

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, N.2.

The guidance reminds agencies that in cases where long-haul COVID is experienced by an employee, each and every reasonable accommodation request needs an individualized analysis to determine if the employee has a physical or mental impairment that substantially limits a major life activity and qualifies for the RA process.

Here’s an example of COVID-19 rising to the level of a disability:

“An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.”

And here’s an example where COVID-19 does NOT rise to the level of a disability:

“An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.”

Id. at N.4.

So, even if an employee gets a severe case of COVID-19 with a high fever, perhaps even hospitalization, unless there are long-term effects or symptoms generally lasting longer than six months, then the individual does not have a disability and, therefore, is not entitled to the RA process.

The guidance also cautions agencies to be aware of situations where a COVID-19 infection, even one that does not rise to the level of a disability, may worsen underlying conditions or even create medical conditions that rise to the level of a disability:

  • An individual who had COVID-19 develops heart inflammation
  • During the course of COVID-19, an individual suffers an acute ischemic stroke
  • After an individual’s COVID-19 resolves, the individual develops diabetes attributed to the COVID-19

Id. at N.9.

We’ll be tackling all this and much more during the upcoming and updated-for-2022 Virtual Training Event Managing COVID-related EEO Challenges in the Federal Workplace on February 8. Hope you’ll make the time to join us. [email protected]

A Letter of Caution Can Equal Reprisal – or, Another Yellow Donut Case

, ,

By Deborah Hopkins, December 7, 2021

We have long taught that issuing a letter of caution, warning, expectation, concern, and the like can cause more problems for agencies than it’s worth. A supervisor can caution, warn, set an expectation, or express concern for an employee verbally, then follow it up in an email, and achieve the same purpose, while lessening the likelihood of a grievance or complaint being filed. At FELTG, we refer to these types of documents as lesser letters, or more memorably, the yellow donut.

There are too many cases where agencies have spent hundreds of thousands of dollars, plus time and years of effort, defending these documents before various third parties. These documents don’t have any legal substance or definition and don’t even count as disciplinary actions. Just to get you started, see, Meaghan F. v. SSA, EEOC Appeal No. 0120152932 (November 2, 2016); Huddleson v. USPS, EEOC No. 0720090005 (2011) Massie v. DoT, 2010 MSPB 106; Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015).

A few days ago, I came across a fairly recent EEO case that confirms the above: Will K. v. USPS, EEOC Appeal No. 2020000109 (Oct. 26, 2020). Among other claims raised, a USPS Operations Industrial Engineer alleged retaliation for protected activity after his supervisor discussed with him several performance concerns. The supervisor issued a Letter of Concern (LOC), which recapped the discussion. If you’re thinking that an LOC is not discrimination or reprisal and the supervisor did nothing wrong here, you’re correct in general. But it all depends on what is in the LOC. If the content includes a mention of events related to previous protected activity, the agency has a big problem.

In this case, the LOC contained a list of areas where the supervisor was concerned about the complainant’s performance, including:

  • Mentioning that the complainant “claimed work-related illness/injury for stress” [which is an employee’s right, under workers’ compensation laws];
  • References to a previous EEO settlement agreement; and
  • An indication that the complainant “claimed discrimination and harassment at work, currently being investigated.”

The AJ granted summary judgment to the agency. On appeal, the EEOC found the reference to the Complainant’s protected activity was per se retaliation. Including this type of information in a Letter of Concern is “reasonably likely to either deter Complainant or others from engaging in the EEO process. Therefore, although Complainant ultimately has not demonstrated that the LOC itself was unwarranted, the Agency is still liable for per se retaliation with regard to some of the language used in the LOC.”

With exemption requests to the COVID vaccine requirement indicating protected activity under the EEO categories of disability and religion, we want to help your agency handle these cases properly and avoid even the hint of retaliation.

So, send all your supervisors, HR and EEO staff to the January 19 webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace, and we’ll show you how. [email protected]

Updated Guidance on Vaccine Refusals – Just in Time for the Holidays

, ,

By Deborah Hopkins, December 7, 2021

While the federal mandate for COVID-19 vaccination had a compliance rate of more than 97% from civilian and military personnel as of the end of November, there are still a number of personnel who have not complied with the Executive Order or requested an exemption. The deadline for compliance of civilians was November 22. Until a few days ago, the guidance from the administration had been that agencies should begin the process of counseling, then quickly disciplining, employees who refused to comply.

Perhaps, as a direct result of requests for delay by labor unions, the Safer Federal Workforce Task Force updated its guidance on discipline for vaccine refusals, encouraging agencies to counsel and educate employees on the benefits of vaccination for an “appropriate period” of time rather than the 5 days previously recommended.

In an email to agencies, OPM more closely defined that time period by advising agencies to refrain from suspensions until after the holidays. This timeline aligns more closely with the January 4 deadline the administration set for federal contractors to be fully vaccinated against COVID-19.

The Task Force guidance also included a new suggested step in the disciplinary process of noncompliant employees — the reprimand.

If the employee does not demonstrate progress toward becoming fully vaccinated through completion of a required vaccination dose or provision of required documentation by the end of the counseling and education period, agencies may issue a letter of reprimand, followed by a short suspension (generally, 14 days or less).

Reports from the end of November revealed that some agencies were already beginning the disciplinary process for employees who did not comply with the vaccine requirement. Most of those actions will likely be held in abeyance, but the email from OPM does not say agencies are prohibited from disciplining certain noncompliant employees before the end of the year.

According to a November 29 article by Government Executive, OPM’s email said “We understand that your agencies may need to act on enforcement sooner for a limited number of employees, such as where there are additional or compounding performance or workplace safety issues under consideration, but in general, consistency across government in further enforcement of the vaccine requirement after the start of the new calendar year is desired,” they wrote. “We believe this approach is the best one to achieving our goal of getting the federal workforce vaccinated.”

I’m sure this is frustrating for some of you who had already begun work on the disciplinary process and is welcome news to others who are inundated with discipline issues. Wherever you might be, and however you might feel about the vaccine requirement, FELTG thanks you for your service to the American people and promises we will keep you posted as new developments arise. [email protected]

Is Removing Fed for Lack of Vaccination a Potential Due Process Violation?

, ,

By Deborah Hopkins, November 17, 2021

Executive Order 14043 requiring all Federal employees to be fully vaccinated against COVID-19 by November 22, unless the employee qualifies for a legal exemption (disability or religious belief), it’s all but certain your agency is currently dealing with a significant number of exemption requests. And with that deadline fast approaching, agencies will soon be disciplining employees who fail to provide proof of full vaccination by that date.

OPM and the Safer Federal Workforce Task Force recently put out guidance about the progressive discipline process agencies should generally use in instances where employees refuse or fail to be vaccinated as required by EO 14043.

In a recent training class, a student brought up this question:

The guidance says that employees who fail to comply with the vaccine mandate should be counseled, and then suspended, and if they continue to refuse to be vaccinated, they should be removed. Isn’t this a due process issue since the discipline is pre-decided in these cases?

And our FELTG answer:

It’s wise to be thinking of these potential concerns before the disciplinary process begins en masse. Fortunately, if Deciding Officials are sufficiently prepared and understand their limited role in the process, due process violations can easily be avoided.

The steps of due process in agency disciplinary actions under 5 CFR § 752 are:

  1. Notice to the employee of the charge(s), the proposed penalty, and the material the agency relied upon in the proposal;
  2. Employee’s opportunity to respond, with the assistance of a representative if desired; and
  3. An impartial decision, where the decision is made based ONLY on the proposal and the employee’s response.

While the guidance says generally employees should be removed for failing to comply, the Deciding Official has the final say. And even if every DO ultimately decides to remove an employee who does not get vaccinated (and does not qualify for an exemption), as long as the DO can credibly testify that she did not make her decision until after the employee’s reply, then there is no due process violation.

Think of a few of statutory penalties that exist for Federal employees: minimum 30-day suspension for misuse of a GOV; 3-day suspension for a first offense of whistleblower reprisal under 5 USC 7515; removal for Treason. These do not raise a due process issue if the DO considers the employee’s response before making the decision about the proposed discipline. The same principle applies here.

We’ve been busy at FELTG helping agencies prepare for these processes. If there’s anything we can do to help you, please don’t hesitate to let us know. [email protected]