Concerned About Employee Mental Wellness? Here are Some Solutions

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By Shana Palmieri, LCSW, December 6, 2022

The ongoing impact of the pandemic is clear: There are drastic increases in the rates of anxiety and depression and a growing need for access to behavioral health treatment. Prevalence rates of anxiety and depression rose 50 percent and 44 percent, respectively, according to an article in Translational Behavioral Medicine.

This rate was six times higher than in the pre-pandemic year of 2019. The most significant impact was found for those aged 18 to 29, with rates of anxiety and depression jumping to 65 percent and 61 percent, respectively. Also, rates of stress are increasing for Americans. The American Psychological Association reports the top sources of stress include rising prices and inflation (87 percent), supply chain issues (81 percent), and global uncertainty (81 percent). Stress about money is the highest it has been since 2015.

[Editor’s note: Shana will present the 60-minute webinar Grappling with Employee Stress in the Workplace: Improving Performance and Morale in Your Agency on March 23.]

In alignment with the increasing rates of stress and mental health symptoms, there is a critical workforce shortage in healthcare. The country is on track to be short 31,109 psychiatrists within a few years, per an AAMCNews blog post. The clinical workforce shortage was well-documented throughout the pandemic, and we continue to see healthcare staff leave the field altogether.

The average hospital turnover rate is now 25.9 percent – an increase of 6.5 percent, according to the 2022 NSI National Healthcare Retention & RN Staffing Report. 

The American Psychological Association found that a third of individuals reporting mental health symptoms during the pandemic who did not receive treatment believed having treatment would have been helpful. Forty-five percent of these individuals reported access to care (including location, provider availability and timing) prevented them from accessing treatment. Twenty-seven percent of individuals reported the thought of reaching out and trying to find help was too overwhelming.

The impact of rising rates of mental health symptoms and increasing reports of significant stress levels has a critical impact on employers in terms of absenteeism, productivity, and office morale.  Creating a workplace environment that promotes mental wellness and eliminates barriers to accessing behavioral health treatment provides great benefit to the employees and the employer.

Even given the significant challenges, there are a variety of solutions employers can integrate into the workplace as solutions.

Access to care

Finding a behavioral health provider through an employer’s health plan can be tedious and very challenging.  Individuals are often left with a list of psychiatrists and therapists and start calling and leaving messages trying to find someone to at a minimum to return their call and hopefully with a call back and open availability. For an individual already suffering and feeling overwhelmed, trying to navigate this process can be extremely frustrating.

Employers can help in one of two ways:

  • They can provide better resources directly to their employees to help them find a provider.
  • They can contract with a telehealth company in an agreement with specific access to care expectations to ensure their employees can receive timely access to behavioral health treatment.

Contracting with a national telehealth provider that offers access to outpatient therapists and psychiatrists can greatly improve the ease and length of time for employees seeking providers. Platforms, such as Ginger, Lyra Health, and Spring Health, charge insurance premiums plus a per member fee. Array Behavioral Health does not have per-member fees.

Employers can also provide resources directly to their employees. For example, employees can schedule an appointment on the Array Behavioral Health website, find providers through Psychology Today, or access options to book online appointments through Zocdoc.

Stress and mental wellness

Employers seeking an overall approach to improving mental wellness and reducing employee stress levels can consider a variety of resources and programs.

Employers may want to offer employees a mindfulness-based stress reduction program (MSBR). MSBR is an eight-week evidence-based progress secular mindfulness-based training to reduce symptoms of stress, anxiety, depression, and pain. There are also a collection of digital tools available to offer employees such as Calm for Business and Headspace for Work.

Improving access is one critical aspect for employers to address the overall mental wellness of their workforce.  It is also important to maintain a commitment to employee wellness through the workplace culture and environment. Employers’ dedication to employee wellness will lead to a more productive, healthy, and happy workforce.

Important note: In instances of a psychiatric crisis, including suicidal thoughts or thoughts to harm others, there is the 988 mental health crisis line and 911 to access more immediate and emergency assistance.

[email protected]

The Good News: A Letter to Santa 2022

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By Ann Boehm, December 6, 2022

Dear Santa:

I hope you and Mrs. Claus are doing well. Has inflation hit the North Pole? Kind of crazy how it’s hit everyone this year!

Is the staff recovering from the pandemic? Any mass resignations or “quiet quitting” by the elves? I’m sure you’ve always had a great work-life balance up there, but I know it must be tough to do that given your hard and fast deadline every year!

My Christmas list this year is pretty short and in no particular order (although the last one may be the one, I want most!). I think I’ve been very good, so I hope I get my Christmas wishes!

  1. Better recognition by agencies of bad supervisors.

Santa, we here at FELTG teach a lot of classes intended to help supervisors understand how to handle problem employees. I think sometimes agencies forget that there are bad supervisors, and those bad supervisors can even create problem employees. It would be great if agencies could take a close look at their managers and supervisors to see if they are in the good column or bad column.

Signs to look for: excessive turnover in the workplace, frequent grievances or EEO complaints, and generally unhappy staff. If those signs are present, the problem may be the supervisor and not the employees.

  1. Better employee understanding of what a hostile work environment really is.

Santa, too many employees think that being unhappy at work equates to a hostile work environment. That’s just not true. Harassment is very real, sadly, but the EEOC cannot get to the legitimate cases quickly because it has to deal with lots of non-meritorious hostile work environment cases that bog down the whole system.

So how can you help, Santa? Employees need to know that a hostile work environment is unwelcome verbal or physical conduct; based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (40 and over), disability, or genetic information; that is so severe or pervasive to alter the terms and conditions of employment.

  1. Better collective bargaining negotiating by agencies to avoid agreeing to collective bargaining agreement (CBA) language that gives the union more rights than the labor statute requires.

Santa, in 1978, Congress passed the very detailed Federal Service Labor-Management Relations Statute. Bargaining unit employees and their unions have lots of rights through the statutory language. It always makes me a bit sad when I see a provision in a CBA that gives the union and employees more rights than the statute requires. For example, requiring agency investigators to tell bargaining unit employees about their Weingarten rights is not a statutory requirement, but the requirement is in far too many bargaining agreements.

  1. Better efforts by unions and agencies to sincerely work together and put the public interest above their individual interests.

Santa, sometimes unions and agencies act like toddlers in playroom:  They each hold tight to their “toys” and refuse to share. Good preschool teachers help little kids understand the value of sharing. You are pretty good with the whole “toy” thing. Maybe you can help unions and agencies figure out that it’s better to put individual interests aside and work toward a common ground that results in the best service to the public.

  1. More in-person training.

Santa, virtual training is working well, but in-person training is my favorite. As we continue to emerge from the crazy COVID world, I hope that we get back to more in-person training. I asked for this last year, and we did have more in-person training this year than in 2020 and 2021. Employees seem to be enjoying the interactions that in-person training provides.

  1. A pony.

Santa, I’m not getting any younger. I’m going to keep asking …

Merry Christmas! Happy Holidays! Happy New Year!  Ann. [email protected]

Clean Record Agreements: You Can Use Them Now, But Should You?

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By Barbara Haga, December 6, 2022

With issuance of OPM’s final regulations covering Parts 315, 432, and 752 on Nov. 10, 2022 (87 FR 67765), the prohibition on clean record agreements will end.  Effective Dec. 12, you are free to hide the dirty laundry to your heart’s content. With this new regulation, you can agree to remove the information and let the employee – who, by the way, was so bad you were going through the time, paper, and process to fire or demote him or her – walk out the door with a record that says he or she was fine.  You can do it, but to me the important question is: Should you do it?

Under the microscope

Some may think the Trump EO 13839 prohibition on these agreements came out of the blue. That is not the case. The MSPB has been talking about issues related to these agreements for years. The Federal Circuit has said some not very favorable things about them for 25 years. In Pagan v. VA, 170 F.3d 1368, (Fed. Cir. 1999), the Fed Circuit repeated what they said earlier:

Settlement agreements may serve a useful purpose in terminating disputes without the necessity for further administrative or judicial proceedings. The incorporation into such agreements of a “clean record” requirement has proven to be a source of problems — problems that necessitate the very administrative or judicial proceedings sought to be avoided. As a result, this court has expressed its concern with agency settlement agreements that allow an unsatisfactory employee to resign in exchange for a personnel record clear of all charges and adverse actions. See Thomas v. Department of Housing & Urban Dev., 124 F.3d 1439, 1442 (Fed. Cir. 1997) (“It may well be that it is virtually impossible for agencies to ensure that settlement agreements such as this. . .can be performed to the letter … Perhaps as a matter of sound governmental administration such agency agreements should be prohibited.”). Indeed, such agreements invite trouble. The employee expects, perhaps unrealistically, that with a “clean record” potential employers will be unable to find out about adverse actions taken by the former employer. The former employer, when asked, must either outright lie, or attempt some artful evasion which, because other employers now recognize what these agencies do, in fact fools no one.

The decision went on to say:

Although reasonable settlement of employment disputes is commendable, when the agency is required to give no information or an agreed-upon “neutral” reference, “the practice of one government agency palming off an unacceptable employee on another government agency by withholding material evidence concerning the employee’s conduct hardly serves the public interest.” Holmes v. Department of Veterans Affairs, 58 F.3d 628, 634 (Fed. Cir. 1995).

Even OPM wasn’t telling agencies they should do it. In response to those who opposed lifting the ban, OPM stated they weren’t saying agencies should do it, just that they were not prohibited from doing it.

We are simply rescinding a rigid regulation that, upon reflection and further consideration, we deem impracticable, unrealistic, and unhelpful because it absolutely prohibits agencies from altering or removing information about performance or misconduct as a condition to resolve or settle a complaint or challenge to a personnel action, even where doing so furthers the best interests of an effective and efficient Government and the interests, voluntarily expressed, of both parties to personnel litigation. OPM’s rescission does not take a position on whether any particular case should be settled, and does not prohibit settlements, which through lessening a penalty or permitting resignation, may in certain circumstances lessen the risk of outright reversal with its high costs without benefit, or may otherwise adversely affect governmental interests.

Practical effect

I deliver training sessions on conducting effective interviews and reference checks. The course includes a segment on asking applicants direct and pointed questions about their experience and another segment aimed at helping managers ask the same types of questions of past employers.  As a reference, I use the September 2005 MSPB report Reference Checking in Federal Hiring:  Making the Call.  The report focuses on hiring issues stemming from managers not fully or effectively checking out applicants.

[Editor’s note: Contact Dan Gephart at [email protected] to bring Barbara and this course to your agency.]

Interestingly, that report contains a discussion of the problem of getting good information on candidates who have clean record agreements. That report cites the same information from the Federal Circuit that I included earlier in this article.  The Board wrote that in spite of the problems with such agreements, they continue (and likely will begin again in a few days).

Where does that leave the supervisor who is trying to do a good job and fully vet a potential applicant?  Sometimes they run into a brick wall.

The former supervisor will not answer questions about an individual’s performance and/or conduct on the job. Two things can happen then – 1) the hiring supervisor elects not to hire this applicant because they could not verify the information in the resume, or 2) the hiring supervisor decides to take the risk and hires without verification. The hiring manager may regret that decision.

In Pagan, the USPS hiring supervisor declined to hire.  The former supervisor at the VA, Mr. Lopez, took an interesting approach to responding to the USPS questionnaire.  In answering the question about whether the employee would be rehired, Lopez added as asterisk and wrote, “Due to circumstances beyond my control no coment [sic] can be made at this time.”   “Another question asked Lopez to rate Pagan’s attendance, work performance, behavior, and attitude using an excellent to unsatisfactory scale. Lopez crossed out the whole scale without rating Pagan in any of the above categories.” When the Postal Service told Pagan there were no more jobs available, he filed a petition for enforcement with the Board.

The Federal Circuit found fault with the supervisor.  The question about rehiring obviously presented a problem for the supervisor and there was nothing in the agreement that specified what kind of reference would be given.  Lopez could have responded “yes”, which he knew not to be true, or he could have answered “no”, which was an honest response. His option would certainly lead a potential employer to believe there was an issue with Pagan.

Crossing out the entire rating scale might look like a better choice. The Federal Circuit didn’t think so. “Although the agency did not promise to provide a favorable reference, or even any reference at all, it was required to act, in matters relating to Pagan, as if he had a “clean record.” The act of crossing out the portion of the USPS questionnaire asking that Pagan be ranked according to his attendance, work performance, behavior, and attitude, and then returning the form in that condition would have strongly suggested to any recipient of the form that Pagan did not have a “clean record” with the DVA.”

So, Now Putin Can Claim Whistleblower Reprisal and Get an MSPB Hearing?

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By Deborah J. Hopkins, November 28, 2022

The MSPB’s most recent precedential decision deals with a Federal contractor (Abernathy) who made a protected disclosure in 2012 when he alerted the agency’s Inspector General that agency officials had misappropriated funds. A few weeks later, Abernathy applied and was not selected for a career position within the agency, so he contacted the U.S. Office of Special Counsel, and after exhausting that potential remedy, filed an Individual Right of Action appeal at the MSPB, claiming his nonselection was in reprisal for his whistleblowing activity under 5 USC 2302(b)(8).

As you might imagine, the agency argued there was no MSPB jurisdiction because Abernathy wasn’t an employee or applicant at the time he made the disclosure; the Administrative Judge (AJ) agreed and dismissed the appeal for lack of jurisdiction.

On Petition for Review the Board, saw it differently: “[The] appellant’s disclosures are not excluded from whistleblower protection simply because he was not a Federal employee or an applicant when he made a protected disclosure,” relying on Greenup v. USDA, 106 M.S.P.R. 202, ¶¶ 8-9 (2007), which said the statute does “not specify that the disclosure must have been made when the individual seeking protection was either an employee or an applicant for employment.” This principle was again iterated in Weed v. SSA, 113 M.S.P.R. 221, ¶¶ 8-12 (2010). Despite three nonprecedential decisions from the Federal Circuit which conflict with this reasoning, the Board chose to follow its own precedent and disregard the Federal Circuit, as its NP decisions are not binding on the Board.

In addition, the Board held, “This holding is not limited to Federal contractors, but applies to any individual who makes a whistleblowing disclosure at any time before becoming a Federal employee or applicant for employment.” Abernathy v. Army, 2022 MSPB 37 (Nov. 15, 2022). (bold added)

I was discussing this case with FELTG Founding Father Bill Wiley and he made an astute observation. “Abernathy has the potential to open up a big new world of whistleblower reprisal. A smart person (e.g., Vladimir Putin) could go public with a reasonable belief that some Federal manager has violated a law, then apply for a Federal job for which he ultimately is not selected, and THEN take advantage of the discovery procedures of his MSPB appeal to dispose all sorts of cool management officials.”

While we at FELTG aren’t sure exactly how far these protections might reach, and we hope it wouldn’t extend to someone like Putin, we can only wait to see this challenged in future litigation – perhaps the Federal Circuit will have something precedential to say one day. In the meantime, join us December 5-9, for MSPB Law Week where we’ll have a more in-depth discussion on this case plus all the new Board cases that matter most. [email protected]

A New Aggravating Job Type Under Douglas Factor 2

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By Deborah J. Hopkins, November 15, 2022

A brand-new precedential MSPB decision has led me to ask FELTG readers: What charge would you draft, and what penalty would you assess, in this case? Here are some facts:

The appellant, a GS-9 Supervisory HR specialist, made several comments and engaged in conduct toward two subordinates over an 18-month period which made them uncomfortable, including:

  • Calling them “sexy” or “beautiful”
  • Commenting on what a subordinate was wearing, including “you look nice,” and you “should wear dresses more often because [she] has nice legs.”
  • Leering
  • Staring at a subordinate’s rear end
  • Continuing to make comments even after the subordinates told him he had crossed a line
  • Making advances and “hitting on” them

In addition to the above, the appellant spent hours in his office, with the door closed, “with a particular female subordinate employee, reportedly engaging in conversations that were personal in nature, and that he, as a supervisor, should have recognized that his actions could be construed as favoritism and were disrupting his office.” This caused a disruption because the appellant “was often unavailable to assist other [employees].”

A few of the aggravating factors identified in the case:

  • One subordinate employee would hide out of sight in a co-worker’s office when the appellant was around
  • The appellant’s supervisor spoke to him “numerous times” about his inappropriate behavior
  • A 13-day suspension a few years previously for sending pornographic emails using his government-issued computer to another female subordinate employee
  • Disruption in the workplace

And mitigating factors:

  • His length of service and “good performance”
  • The appellant’s claims that he was suffering from stress and tension in the workplace due to his relationship with his supervisor
  • The appellant’s claims that he was suffering from depression

The agency removed the appellant for conduct unbecoming a supervisor, with two specifications — one for his unwelcome conduct toward his subordinates including calling them “beautiful” and “sexy” and the other for his closed-door conduct in his office with the subordinate.

Despite upholding both specifications and thereby affirming the charge, the AJ found removal too severe and mitigated the penalty to a 14-day suspension and demotion, primarily because the conduct did not include “more serious charges such as sexual harassment, making sexual advances, or inappropriate conduct” towards female subordinates.

On PFR, the Board disagreed with the AJ’s characterization of the misconduct and held the AJ “erred in limiting the specification to two instances of the appellant calling female subordinates ‘beautiful,’ and in doing so, trivialized the severity of his behavior.”

The appellant’s misconduct actually spanned several months and went well beyond two instances.

In its review, the Board looked at Douglas factor 2, job level and type, holding in line with MSPB precedent that “because supervisors occupy positions of trust and responsibility within an agency, the agency has a right to expect a higher standard of conduct from them.” Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010). But then it continued:

Furthermore, while the appellant’s misconduct would be serious in any context, when considered in the context of the appellant’s position as a Supervisory Human Resources Specialist, we find his misconduct to be exceptionally serious. The importance of a healthy and effective human resources department for an agency cannot be overstated … Human resources employees, such as the appellant, play crucial roles in maintaining the quality of public service, because it is the responsibility of the human resources component of an agency “to retain Governmentwide approaches, authorities, entitlements, and requirements” in areas including “[a]ccountability for adherence to merit system principles” and “[e]mployee protection from prohibited personnel practices.” [bold added]

The Board held that the appellant’s conduct was “antithetical” to his responsibilities as a Supervisory Human Resources Specialist and “strikes at the very core of his job duties to assist in protecting the merit systems principles and prevent prohibited personnel practices.” Therefore, removal was within the bounds of reasonableness. Thomas, IV v. Army, 2022 MSPB 35 (Oct. 20, 2022).

The big takeaway from this case is that in addition to supervisors, LEOs, and SESers, HR employees may also be held to a higher standard under Douglas factor 2.

We discuss this case and others in detail during MSPB Law Week, December 5-9. [email protected]

The Good News: Douglas Factor 5 is Your Chance to Tell the Story

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By Ann Boehm, November 15, 2022

Anyone who has taken my training or read my articles knows how much I like the Douglas factors, established by the Merit Systems Protection Board (MSPB or Board) way back in 1981: Douglas v. VA, 5 MSPB 313 (1981). The Douglas factors serve as a logical tool that enables proposing and deciding officials to figure out a defensible, reasonable penalty for an employee who engages in misconduct.

For proposing officials and deciding officials, it is necessary to understand the importance of Douglas Factor number 5: “the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties.”  Douglas, 5 MSPB at 332. It is your chance to tell the story!

I acknowledge that it is well-settled in Board law that the most important Douglas Factor is number 1. MSPB cases repeatedly state, “[i]n selecting a reasonable penalty, the Board must consider, first and foremost, the nature and seriousness of the misconduct and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated.” But what is often overlooked is the significant weight the Board gives to Douglas Factor 5.

Cases from the long-awaited newly-quorumed (yep, I know that is not a real word) MSPB substantiate the importance of Douglas Factor 5. In Sheiman v. Department of the Treasury, the Board agreed that the employee’s continued use of sick leave to play golf justified removal, highlighting that it was “clear from the deciding official’s testimony that his loss of trust and confidence in the appellant played a major role in his decision,” and “[t]he deciding official’s loss of trust is an aggravating factor.” MSPB No. SF-0752-15-0372-I-2, at 15 (May 24, 2022) (NP).

Similarly, in Purifoy v. DVA, the Board found removal for AWOL to be reasonable, noting “[t]he deciding official’s loss of confidence in the appellant and his concern that the appellant’s misconduct conveyed a negative message to other employees are also aggravating factors.” MSPB No. CH-0752-14-0185-M-1, at 8 (May 16, 2022) (NP). Specifically, “the deciding official testified that he did not think that the appellant ‘was going to come back and be a good employee’ and, according to the Douglas factors worksheet, which the deciding official considered in imposing the appellant’s removal, his supervisors ‘lost all confidence in his ability to perform his assigned duties’ because he was not present to perform them.” Id.

(Can we pause for a moment to appreciate that last sentence? The supervisors lost confidence in his ability to perform his duties because he was not there – he was AWOL. Hahaha. Makes sense to me.)

Supervisor confidence can also benefit an employee. In my experience, I have seen instances where an employee really messed up with some major misconduct, but the supervisor’s continued confidence in the employee resulted in a penalty less than removal.

And that is ultimately my point about Douglas Factor 5. Supervisors know their employees. They know the impact misconduct has on their office and their mission. They are the only ones who know that. The Board understands this.

Tell your story. The Board will listen. And that’s Good News! [email protected]

No Debate Necessary: Accommodating Employees Who Had Strokes

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By Dan Gephart, November 15, 2022

I watched my no longer undefeated Philadelphia Eagles take on the Washington Commanders on Monday Night Football. I am usually a wreck watching my Birds, and the last few weeks have been more anxiety-filled than ever. Despite the loss, the game was less stressful. The reason? I wasn’t forced to watch dozens of political ads during the game.

Regardless of where you are on the political spectrum or how you feel about last week’s results, I think we can all agree on saying good riddance to these dark, poorly produced, truth-averse, fear-mongering commercials. This past election season took awfulness and ugliness to a new level.

As losing candidates and parties continue their post-mortems this week, I’d like to conduct one, too. But I don’t want to discuss issues, votes, winning, or losing. Let’s talk about reasonable accommodation.

As the Pennsylvania primaries rolled to an end, the campaign for Senatorial candidate John Fetterman announced that he had suffered a stroke. Fetterman still won the Democratic primary, then stayed off the campaign trail for weeks as he recovered.

A major party candidate for the Senate recovering from a stroke seemed like an anomaly. It’s not. Former Illinois Senator Mark Kirk suffered a severe stroke and still campaigned for reelection in 2016, although he eventually lost to Tammy Duckworth. Two current Senators – Ben Ray Lujan of New Mexico and Chris Van Hollen of Maryland – have suffered strokes since they’ve been in office. More than 795,000 people in the United States have a stroke each year, according to the CDC.

Fetterman’s campaign announced he had auditory processing difficulties, a common occurrence after a stroke. Fetterman’s first big foray back in public, other than a few small rallies, was a televised high-stakes debate with his opponent Mehmet Oz. Fetterman had requested and received an accommodation of closed captioning.

Despite the accommodation, Fetterman stumbled over some words, struggled to find others, and spoke haltingly. Critics and opponents called his debate performance “painful to watch,” “disastrous,” and “cringe-worthy.”

As Federal HR and EEO practitioners and supervisors, what can we learn from all of this?

  1. A communication disorder is not a reflection on an individual’s brain capacity or his/her/their ability to do a specific job. This should be obvious to everyone, but it isn’t always. For years, people have assumed that someone who struggles communicating — whether it’s a speech impediment or aphasia — lacks intelligence. Research has consistently shown that is not always the case.
  1. Accommodations are highly individualized. Just because another employee who had a stroke received a certain reasonable accommodation doesn’t mean that accommodation will be successful for someone else who suffered a stroke. There are a wide variety of stroke-related limitations. And people experience these limitations in different ways. The Job Accommodation Network suggests asking the following questions during the interactive process:
  • What limitations is the employee experiencing?
  • How do these limitations affect the employee and the employee’s job performance?
  • What specific job tasks are problematic as a result of these limitations?
  • What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?
  • Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?
  • Do supervisory personnel and employees need training?
  1. Not every reasonable accommodation will be effective. Closed captioning is a potentially effective accommodation for someone who processes visual information better than auditory information, such as Fetterman. “But during a debate,” Disability Policy Expert Adam Fishbein wrote in an opinion piece for the Philadelphia Inquirer, “where multiple people were speaking rapid-fire, it would be difficult for Fetterman to integrate what he needed to read in order to process what was being said.” Fishbein and his cowriter Susan Paul, a certified speech/language pathologist, said a more effective accommodation would’ve been to allow Fetterman extra time to digest what he read and formulate his response, not starting the clock on his response until he started talking. Work closely with the employee and communicate often about the effectiveness of the accommodation.
  1. Have patience with the employee, but don’t delay accommodation. Not only are the limitations for individuals who have had strokes highly individualized, so is the recovery time. Taking your time to find the right accommodation doesn’t mean letting the situation play out. Jeffry R. v. USPS, EEOC App. No. 0120180058 (EEOC 2019) offers a great example: After a city carrier had a stroke that caused partial paralysis, he requested a spinner knob on his vehicle. The agency failed to provide one for three years. The agency argued that the carrier was not qualified because he took too long to complete his route. However, the EEOC found the agency only gave the carrier one month to reacclimate to delivering mail and to his route – he was able to do it within four months.

For more guidance on accommodation, join Attorney at Law and FELTG Instructor Katherine Atkinson November 17 for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency. [email protected]

Can Agencies Drug Test Injured Workers?

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By Frank Ferreri, November 15, 2022

Let’s say an employee who is going about her business on the job slips and falls, resulting in an injury for which she files a claim for workers’ compensation benefits. Someone at the agency thinks that it wasn’t work that caused the spill but the fact that she was under the influence of drugs at the time of the injury.

The agency, wanting to get the record straight, decides the employee needs to undergo drug testing. Can the agency do such a thing and what sort of considerations apply when an agency has made the call to test for drugs?

The following breaks down what Congress, the Office of Workers’ Compensation, and the Employee Compensation Appeals Board (ECAB) have had to say about drug testing for workers injured on the job.

First off, while it isn’t the law it should be pointed out that Executive Order 12564, signed into effect by President Reagan in 1986, maintains that Federal employees are required to refrain from the use of illegal drugs. The EO charges agencies with establishing programs for drug testing. So, Federal employees shouldn’t be using drugs in the first place, and agencies have the authority to take action against those who do.

In the specific context of workers’ compensation, under 5 USC Sec. 8102(a), Congress has declared that agencies are not required to pay workers’ compensation benefits for a disability or death that is proximately caused by the intoxication of the employee. Unlike Reagan’s EO, it’s not just illegal drugs that are a problem. That’s because on the regulatory side of things, in 20 CFR 10.220, OWCP clarified by implication that the “intoxication” referred to under the statute is “intoxication by alcohol or illegal drugs.”

In 2009, OWCP released Publication CA-810, which, among many other things, spelled out that an agency defending against compensating an employee must present a record that establishes the extent to which the employee was intoxicated at the time of the injury and the particular manner in which the intoxication caused the injury.

So, while the work doesn’t stop by proving that an employee was under the influence of illegal drugs or alcohol, it is a necessary first step to controverting a claim.

The 2009 publication emphasized that an agency looking to proximately link an injury to an employee’s intoxication does not have “any additional authority to test employees for drug use beyond that which may exist under other statutes or regulations.”

An agency claiming the employee’s intoxication as a defense should, per the FECA Procedure Manual, obtain a statement from the physician and hospital where the employee was examined following the injury that describes the extent to which the employee was intoxicated and the manner in which the intoxication affected the employee’s activities. As part of this, the manual directs agencies to obtain “the results of any tests made by the physician or hospital to determine the extent of intoxication.”

Contours of the law

To see how the law plays out in the real world, it’s necessary to look at ECAB decisions that have weighed in on the issues of injured employees, their intoxication, and agency-employed drug testing.

Here’s a look at a few cases for insight on those subjects:

N.P. and U.S. Postal Service, 2011 WL 4499581, No. 10-952 (ECAB July 26, 2011)

What happened? A letter carrier alleged that she injured the left side of her head, broke her left elbow, and scraped her left knee when she fell after making a delivery.

The agency’s argument. The agency controverted the claim, asserting that she was intoxicated at the time of the injury due to her consumption of narcotics and, therefore, did not sustain an injury in the performance of duty, which is a required showing for an employee to obtain benefits.

The drug testing issue. Because the carrier appeared to be intoxicated – allegedly she was slurring her speech and falling in and out of consciousness and another patient expressed concern that the carrier had been driving — the hospital where she received treatment for her injuries administered the test, which came back positive for opiates. Further analysis revealed the presence of “an extremely high concentration of morphine and a significantly elevated level of oxycodone.”

How the ECAB ruled. According to the board, the evidence, including the drug test, wasn’t “clear” that the carrier was intoxicated at the time of her fall and did not establish that intoxication was the proximate cause of the accident. “The evidence establishes only the possibility that [the carrier] was intoxicated … at the time of injury.”

T.F. and U.S. Postal Service, 2008 WL 5467738, No. 08-1256 (ECAB Nov. 12, 2008)

What happened? A mail carrier alleged that she experienced an injury while driving for work when she hit an embankment of gravel, which caused the vehicle to hydroplane and led to a spinal injury.

The agency’s argument. Drug testing came back positive for marijuana and opiates, the agency denied the carrier’s claim.

The drug testing issue. The test was administered two full days after the accident, and the report indicated that the tests were “all … unconfirmed” and noted that no chain of custody was maintained on the specimens received.

How the ECAB ruled. The agency didn’t meet its burden to establish the affirmative defense of intoxication because it did not provide any discussion of why intoxication was the proximate cause of the accident. Instead, the evidence established that “at the time of her injury [the carrier] was delivering mail on her usual mail delivery route.” Accordingly, the carrier sustained an injury in the performance of duty.

In the Matter of Elaine Hegstrom and U.S. Postal Service, 2000 WL 1285967, 51 E.C.A.B. 539 (ECAB June 5, 2000)

 What happened? A USPS employee died after sustaining a broken neck in a motor vehicle accident that occurred while he was delivering mail. Before he died, the employee was cited for driving under the influence. 

The agency’s argument. The agency invoked the affirmative defense of intoxication, claiming that it removed the employee from the performance of duty.

The drug testing issue. Upon arrival at the hospital after the accident, the employee’s blood alcohol level was tested at nearly twice the legal intoxication limit in the state where the accident occurred.

How the ECAB ruled. Based on the blood alcohol level and a doctor’s opinion, the ECAB held that the employee’s intoxication removed him from the performance of duty as it was the proximate cause of his injury.

B.B. and Department of Justice, Bureau of Prisons, 2015 WL 5306843, No. 14-2000 (ECAB July 9, 2015) 

What happened? The widow of a Bureau of Prisons correctional officer filed a claim for survivor’s benefits, alleging that the officer was “murdered [by] gunshot” on the job.

The agency’s argument. In response, the agency alleged that the officer died in a hotel as the result of a gunshot wound inflicted by a fellow correctional officer in activities that were not job-related, part of which involved illegal drug use.

The drug testing issue. A toxicology report indicated that the officer had Methlenedioxypyrovalerone – better known as “bath salts” – in his system. The report also indicated the presence of Lidocaine, which is used as a “cutting” agent for drugs of abuse.

How the ECAB ruled. According to the board, “the employee’s ingestion of mind-altering drugs would not be reasonably expected by the employing establishment as a travel-duty activity, and it constituted a deviation from the normal incidents of his employment such that he was removed from the performance of duty.” Thus, the widow was not entitled to survivor’s benefits.

The takeaway

What does it all mean?

Based on statutes, regulations, agency decisions, and guidance, agencies should get the results of drug testing in hand when faced with a claim for workers’ compensation benefits, particularly if something like a doctor’s concern or a coworker’s observation raises the suspicion of possible drug or alcohol use on the job.

However, the legal key to asserting a defense based on an employee’s substance use is that intoxication must be the proximate cause of the injury for OWCP to deny benefits to a worker. Thus, the agency must provide evidence showing that the employee’s illegal drug or alcohol use removed her from the performance of duty.

It can be a tough case because, in certain circumstances, the ECAB might say that even if the employee was intoxicated, the injury would have happened anyway, and so would be compensable. [email protected]

EEO Reprisal is (Unfortunately) Alive and Well

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By Deborah J. Hopkins, November 15, 2022

Reprisal, or retaliation, is alleged in about half of all EEO complaints. It is the most common basis of discrimination in findings against agencies. Let’s look at a few situations where the EEOC has issued findings of EEO reprisal: reassignment, discipline, and retaliatory harassment.

Reassignment

An agency is permitted to reassign an employee for any legitimate, business-based reason, such as employee performance or agency business needs. But reassigning an employee that management views as a problem because of her EEO activity is not permitted under the law.

A Federal Bureau of Prisons medical officer complained about harassment “in the form of harsh supervision, denial of adequate staff assistance, daily intimidation, differential treatment, inappropriate schedule changes, and desecration of her religious practices.” According to the Commission, management reprised against the complainant when they told her she was “the problem” and “the one causing all of the drama” and that “problems always surround her.”  The AJ also found the complainant was subjected to reprisal when management reassigned her to a different work location. Gwendolyn G. v. BOP, EEOC Appeal No. 2021001396 (Oct. 18, 2021).

Disciplinary action

An agency is permitted to discipline an employee for misconduct as long as there is a nexus between the misconduct and the efficiency of the service, and provided the discipline is not motivated by that employee’s protected category or activity.

A program analyst filed an EEO complaint against two supervisors alleging hostile work environment harassment on Aug. 12, 2016. On Aug. 29, the supervisor reprimanded the complainant for discourteous behavior that occurred between the complainant and her supervisor on Aug. 10. The supervisor never put the reprimand in the complainant’s eOPF despite her statement she intended to do so.

The EEOC found a causal connection between the complainant’s protected activity and the agency’s disciplinary action because of the “close temporal proximity” between the two events. The AJ concluded, and the EEOC agreed, the reprimand was issued for the purpose of chilling the complainant’s EEO activity. Karolyn E. v. HHS, EEOC Appeal No. 2021003151 (Oct. 19, 2021).

Retaliatory harassment

Creating a hostile work environment because a complainant engaged in protected activity also violates the EEO statutes.A supervisory criminal investigator claimed retaliatory harassment when he was warned he “better be careful” and that if he continued to file EEO complaints “they will come after him.” An agency management official also confirmed that she informed the complainant about the comments and management’s attempts to legally “stop” his EEO activity. On top of that, another management official stated he believed the complainant’s EEO complaints were “ridiculous.” Also, agency management failed to timely approve or acknowledge the complainant’s leave requests, denied his telework request, and issued him a counseling memorandum without following the agency’s discipline policy. The EEOC found this conduct was motivated by the complainant’s protected activity and constituted unlawful retaliatory harassment. Terrance A. v. Treasury, EEOC Appeal No. 2020002047 (Sept. 13, 2021), request for reconsideration denied, EEOC Request No. 2022000139 (Feb. 9, 2022).

Reprisal is something easily avoided if you have the proper training and awareness. We’ll be teaching EEO counselors how to identify potential reprisal during our Calling All Counselors: Initial 32-Hour Plus EEO Refresher Training Jan. 23-26, 2023. [email protected]

Weingarten and Performance Counseling Don’t Mix

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By Barbara Haga, November 15, 2022

Last month, my colleague Ann Boehm wrote a great article The Good News: With Weingarten, The Law Is Enough. I cheered as she discussed the various elements of the Weingarten right and when she suggested that agencies should not agree to anything beyond what the law requires. How is it in management’s interest to add additional notice requirements? If the statute says annual notice is good enough, then, like Ann, I am all about complying with just that.

The basics

Understanding the reasoning behind the Weingarten right helps make it clear when it applies and when it doesn’t.  In Department of Justice, Bureau of Prisons, Safford, AZ and AFGE, Local 2313, 35 FLRA No. 56 (FLRA 1990), the Authority quoted from the legislative history of the Civil Service Reform Act (CSRA), where Congress adopted the same framework regarding representation for Federal employees in disciplinary situations that applied under the National Labor Relations Act.

In Weingarten the Court noted that “[a] single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors.” Id. at 262-63. In such circumstances, the Court concluded that “[a] knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.” Id. at 263. In support of its conclusion that representation could be beneficial to the employer as well as the employee, the Court quoted from an arbitrator’s award that described the representation process as contemplating “that the steward will exercise his responsibility and authority to discourage grievances where the action on the part of management appears to be justified.”

Performance evaluation issues

When leading training sessions for various agencies, I hear some managers say they allow union representatives to participate in performance discussions and performance counseling sessions because they believe it is required. Perhaps, their agencies agreed to such a provision in contract negotiations, or it has become a past practice over time, or perhaps they are allowing the representatives even though their advisors would say it is contrary to their policies.

However, the situation the Supreme Court addressed in Weingarten — a lone employee being questioned by management about events that could lead to a disciplinary action — is quite different than discussions between a supervisor and employee about missing information in a report or whether the employee applied the wrong per diem rate in a travel reimbursement.

The FLRA’s view 

The question of whether Weingarten extended to performance conversations arose early after passage of the CSRA. The Authority issued decisions in 1981 and 1982 that clearly indicated that Weingarten was inapplicable to these types of situations.

In Internal Revenue Service, Detroit, MI and National Treasury Employees Union and NTEU, Chapter 24, 5 FLRA No. 53 (FLRA 1981), the Authority dealt with the case of an annual performance review. Mr. Goff was a GS-11 revenue officer whose work was subject to a 100 percent review by his manager. This was a normal process which had occurred in prior years. It included preparation of a form identifying the findings of the manager and then a meeting with the employee to discuss those findings. After prior such evaluations, Goff had to make adjustments on some cases. Prior to the meeting at issue, Goff requested that a union representative be present at the meeting.

The manager denied Goff’s request. As Goff expected, the manager criticized his work and gave him a “critical elements” letter, which was essentially a PIP notice.

The union filed an unfair labor practice charge. The ALJ who heard the case found no violation and the Authority adopted the ALJ’s findings. The ALJ found that the performance review meeting was not an examination and that there was no reasonable basis to conclude that disciplinary action could arise from it. It was noted that the “critical elements” letter was not a disciplinary action, but instead, “… identifies serious work performance deficiencies and does advise the employee what is expected to improve performance to an acceptable level within a specified period of time, at the end of which there will be a further evaluation of the employee’s performance on these identified elements.”

Roughly one year later, the Authority issued its decision in Department of the Treasury, Internal Revenue Service and National Treasury Employees Union and NTEU, Chapter 22, 8 FLRA No. 72 (FLRA 1982). In a similar set of circumstances, Mr. Kotofsky’s cases were reviewed. He had received several written counseling notices that year about deficiencies in his work. His supervisor told him a branch chief was coming in to hold a discussion with him and the supervisor about the unacceptable work results. Kotofsky asked for a representative, which was denied. Kotofsky was not asked to provide responses on any of the case reviews. In fact, neither the branch chief nor the supervisor took notes during the meeting.

The ALJ in this case found that there was no right to representation under the circumstances. The decision includes the following finding:

“The purpose of the meeting was to generally highlight these known deficiencies to the employee and tell him how to raise the level of his performance to expected standards. This was nothing more than a pure counseling session and was remedial in nature; without the requisite investigatory element it did not qualify as an ‘examination of an employee . . . in connection with an investigation,’ even though the employee asked to be represented by the union. The Statute does not provide a right to representation under these circumstances.”

Bottom line  

In the situations described in these cases, the Authority found that Weingarten did not apply. If union representation is being allowed in performance meetings, it isn’t because Weingarten makes it so. So, please allow me to echo Ann’s message from last month: Agencies don’t need to go beyond what the law provides. And please make sure your managers know what the limits are.