So, About that Employee Who Gets Vaccinated AFTER Being Removed

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By Deborah Hopkins, October 20, 2021

In the previous article, Bill Wiley shared the logical process for agencies to use progressive discipline when a Federal employee refuses to be vaccinated and doesn’t qualify for a legal exemption.

There are a couple of other scenarios also worth addressing, as it’s likely they will occur in at least a few agencies. We’ll begin where the employee has received a notice of proposed removal for refusing to be vaccinated.

Scenario A: At the response to a proposed removal, the employee:

  1. Says she was vaccinated after the proposal, or
  2. Says she will get vaccinated if she’s permitted to keep her job.

OPM and the CHCO Council recently issued enforcement guidance that suggested the discipline should “end” if after the proposal notice the employee provides the agency with appropriate documentation that the employee is now fully vaccinated.

If the employee has only received one dose of a 2-dose vaccine, the guidance suggests the agency should “hold any disciplinary action in abeyance pending receipt of appropriate documentation that the employee has received the second dose within the designated 3- or 4-week interval depending on the vaccine received by the employee, even if this means the employee will not be fully vaccinated until after November 22, 2021.”

Under Scenario A.2, though, here’s another thought: The DO could offer the employee a Last Chance Agreement and include a requirement that she provide proof of the first vaccine dose within 5 days (any of the FDA-approved or emergency use authorized vaccines), and proof of a second dose (if applicable) within 21 (Pfizer/BioNTech) or 28 (Moderna) days, depending on the vaccine received. According to the guidance, the employee would need to provide documentation of full vaccination status within 5 weeks.

If the employee does not show proof of full vaccination by the end of that time period, the agency could then remove the employee under the LCA. As a bonus, other parameters written in to the LCA could also allow the agency to remove the employee for any misconduct or less than fully successful performance over the next two years.

Scenario B: The employee is removed, files an MSPB appeal, and gets vaccinated before his MSPB hearing.

In this scenario, the main question for the agency is whether MSPB is likely to uphold the removal since the employee’s condition has changed. Indeed, the nominees for MSPB were asked about this very scenario during their committee hearing on September 22, and demurred on answering this specific question.

There are countless MSPB cases where the Board has upheld discipline for employee insubordination, failure to follow orders, and related charges. See, e.g., Phillips v. General Services Administration, 878 F.2d 370 (Fed. Cir. 1989); Gallagher v. Department of Labor, 11 MSPR 612 (1982); Parbs v. USPS, 2007 MSPB 302 Lentine v. Treasury, 94 MSPR 676 (2003).

And of course, in light of Executive Order 14043, most of us are now familiar with a case where the Federal Circuit upheld an agency’s decision to remove two employees who refused an anthrax vaccine mandate. The Federal Circuit agreed the agency had authority to require vaccines because such action was necessary and appropriate to protect the health of the employees. Mazares, Jr. v. Navy, 302 F.3d 1382 (Fed. Cir. 2002). The MSPB had also affirmed the removal in that case.

The answer on whether removal will be upheld may seem clear. However, remember that MSPB is allowed to mitigate an agency’s penalty if it finds the penalty is outside the bounds of reasonableness. See Payne v. USPS, 72 MSPR 646 (1996). Will the incoming MSPB find a removal is too harsh for an employee who initially refused, but eventually got vaccinated? Doubtful, but possible.

One other fun thought: There are a few cases where MSPB has reinstated a removed employee whose situation has changed, but those tend to deal with non-disciplinary medical inability to perform removals. MSPB has such cases, where an employee’s medical condition improves and  the employee is medically able to work again, as easy to resolve because it would be “manifest absurdity” not to reinstate an employee who was removed for non-disciplinary medical reasons beyond their control. In such cases the appellant must produce evidence of a) full recovery b) prior to the close of the record before the Administrative Judge. See, e.g., Street v. Army, 23 MSPR 335 (1984); Hodges v. DoJ, 2014 MSPB 54. How this would work, if it would work at all, with a two-step vaccine mandate with a government-wide date certain, nobody knows.

FELTG suggestion: Rather than force the issue to litigation, the agency could settle with the employee and offer a reprimand in lieu of a 14-day suspension, if the employee was valuable to the agency and it would benefit the agency to bring the employee back.

Join FELTG November 3 for the brand new virtual event The Exemption Proves the Rule: Reasonable Accommodation, Discipline, and the Vaccine Mandate where we discuss all these matters, and more. [email protected]

Performance Expectations – Getting Performance Plans Right

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By Barbara Haga, October 20, 2021

Last week, I taught two performance classes and have been working on a description of a two-part webinar series that will take place in the spring on the idea of setting expectations for both performance and conduct and using available tools to build in accountability in both aspects of employee management.

Let’s talk about performance standards – not so much in terms of case law and regulations, but from a more practical standpoint. When trying to build accountability in performance, the performance plan must measure what is important and do so in a clear, understandable, and reasonable way. Discussing some of my favorite points might be worthwhile.

Measuring results

I am sure most of you have heard this phrase before. We need to measure results. But what does that mean in a practical sense? I believe it means we should be focusing on outcomes – papers written, briefing delivered, meetings participated in, reports prepared, and claims processed – AND what those things meant to the organization.

When thinking about results, let’s look at a couple of things in the list. What did that delivered briefing do? Did it help citizens understand how to tap into government services?  Did it mean that managers were up to date on recent changes in case law? Did it mean that organizations were on notice of pending IT changes that would protect systems from cyber criminals?

What about processing the claims? Were travelers promptly reimbursed? Were questionable credit card transactions identified in a timely manner and appropriate follow-up action initiated? Were injured workers paid compensation within a reasonable period after their continuation-of-pay?

I’ve spoken about attending meetings quite a bit in recent training, because I have seen it in a lot of narratives for high grade positions justifying ratings above fully successful. The narrative is responding to a standard that says something about representing the organization in biweekly meetings.  The narrative sometimes just repeats that – the employee represented the organization in these meetings. So, are we measuring butts in chairs, or should the measure be about contributing something in those meetings? Perhaps the person delivers briefings in these meetings or leads a discussion on an important initiative in the meeting or steps up to lead a workgroup to report back at the next meeting.

Perhaps the employee prepares written notes from the meeting that are circulated to other members of the unit. It seems to me that if a measure is part of a critical element, there should be something more there than taking up a seat.

Complete work

I see a lot of performance standards that stop too soon.  I believe a lot of this comes from guidance about writing measures with numbers in them (and that is just guidance, neither the Federal Circuit nor the MSPB in their decisions interpreting Chapter 43 said you had to have numbers in standards.) Because managers are sometimes uncomfortable with subjective judgments, I see standards that say, “Complete XX of things (reports, documents, transactions, etc.) on time.”

Shouldn’t those things be complete, accurate, and apply up-to-date guidance? Shouldn’t the supervisor be able to hold the employee accountable for effective oral or written communication?

Here’s an example of a standard that I believe stopped too soon – Perform document system integrity checks weekly, monthly, quarterly, annually.

I’d be willing to bet that was copied word for word from the position description. But the purpose of the position description is to assign the work. The purpose of the performance standard is to set what fully successful performance looks like. Should the integrity check be thorough?  Complete? Conducted in accordance with current guidelines? Results communicated to appropriate officials in a timely manner? Those are the measures that need to be in the performance standards.

Standards written at grade

I see performance requirements all too often that are written at a lower level than what they should be for the grade assigned to the job. It could be that management is just not asking for what they could/should require, or it may be that there is a poor performer in the job that the supervisor is allowing to perform below grade. Neither of those are line with this idea of accountability.

If you go to the Classifier’s Handbook [PDF], you will find descriptions of the various factors and how they fit with grade structure. (I’m reaching WAY back to my classification days, but sometimes it’s necessary!)  Factor 2-4 is listed as the typical level of supervisory controls one would find in either a professional or administrative GS-13 position (see pp. 14-15). Here’s a sample description for level 2-4:

  • The supervisor sets the overall objectives and resources available. The employee and supervisor, in consultation, develop deadlines, projects, and work to be done.
  • The employee, having developed expertise in the line of work, is responsible for planning and carrying out the assignment, resolving most of the conflicts that arise, coordinating the work with others as necessary, and interpreting policy on own initiative in terms of established objectives. In some assignments, the employee also determines the approach to be taken and the methodology to be used. The employee keeps the supervisor informed of progress and potentially controversial matters.
  • Completed work is reviewed only from an overall standpoint in terms of feasibility, compatibility with other work, or effectiveness in meeting requirements or expected results. (My italics)

When I see GS-13 standards that talk about detailed review of every document (documents have less than two errors 90 percent of the time), something is wrong.  Standards that indicate that GS-13s escalate what the employee determines to be “complex” matters to higher level officials without any requirement for them to do any background work or make recommendations don’t seem to line up very well with what a GS-13 should be doing.

5 Suggestions for Hiring the Right Person

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By Dan Gephart, October 20, 2021

Here at FELTG, we often get inquiries from HR professionals and supervisors wondering what they can do about their poor-performing and/or misbehaving employees. By the time someone seeks our guidance, the employee has already created havoc and damaged morale or, at the very least, lowered productivity.

As any regular FELTG customer or reader knows, that’s our bailiwick, and we can help you take the steps necessary to rid your agency of the problem.

If you listened to the press and certain politicians, you’d think all these employees were bad people. But that’s not the case. Many times, employees struggle with performance issues (and sometimes conduct) because they are poor fits for the job. And that often goes back to the hiring manager.

Look, we all know hiring someone into the Federal workforce can be a long and patience-trying process. And we know that if you’re in the market for a new employee, you’re likely short-staffed and working hard to pick up the slack. You probably feel like you don’t have enough time or energy to focus your full attention on the hiring process.

Who knows, maybe you get lucky and hire a star. But more likely, failure to go all in on the hiring process will probably result in you reaching out to FELTG within a few years to ask us how to handle your “problem employee.”

In the most recent Federal Employee Viewpoint Survey, 79 percent of employees agreed that their supervisor was committed to a workforce representative of all segments of society. That’s a solid C+. Let’s just say that there is a lot of room for improvement.

Here are 5 tips to help you navigate the hiring process successfully:

1 – Prepare. If you’re just going through the motions to get to the interview, you are miscalculating greatly. As Barbara Haga will explain in her December 7 virtual training Successful Hiring: Effective Techniques for Interviewing and Reference Checking, “the time invested in preparation pays huge dividends.” The pre-interview part of the hiring process includes writing the position description and job announcement and preparing interview questions.

Skipping over any of these parts will come back to haunt you at some point. So closely review the job description to ensure it’s up to date, and that all the duties and functions are specified, and the required skills and abilities are included. Make sure the job announcement gives a full and accurate description of the job. Nobody should be surprised about the job they’re taking on. Also, the major duties and responsibilities should match the essential functions of the job, which should be measured by critical elements. Doing this now will help you later. 

2 – Make sure your selection criteria is job-related. Once you get to the candidates with the minimum qualifications, it’s onto the selection criteria. These criteria are often unique to the specific position and will be key to selecting the most-qualified candidate.

Ensure your selection criteria is equally applied to all job candidates and beware of the subjective. It’s OK to be subjective. In fact, it’s often necessary. But if the criteria is not job-related, you could be on shaky ground. For example, in Varley v. Attorney General, EEOC Appeal No. 01972338 (1998), the agency selected a polygraph examiner based on his “people skills.” But these skills were not in the guidelines. Good judgment, self-motivation and – get this folks — ability to work well alone were in the guidelines. People skills should not be a consideration for someone who works alone.

Applying subjectivity to criteria that is not strongly job-related could lead to discriminatory decisions, which leads us to our next tip.

3 – Beware what you ask. You’re going to ask a lot of questions before you know if you have the right person. But those questions should only be asked if they are providing information “essential for determining if a person is qualified for the job.”

Agencies can get into trouble when requesting information that touches on protected categories. Those categories are race, color, national origin, religion, sex, and reprisal/retaliation, age, genetic information, and disability. Not only should you not ask about these categories directly, be careful that your questions don’t indirectly elicit answers that you give information about protected categories. Read the next article by Michael Rhoads for more on this topic. And join Katherine Atkinson on October 26 for a half-day virtual training on Nondiscriminatory Hiring in the Federal Workplace.

4 – Avoid the first impression trap. Three years ago, I wrote about a brand-new professional sports mascot whose introduction to the public went completely haywire. The initial reaction to Gritty’s first press conference was so incredibly negative, it’s hard to believe that the Philadelphia Flyers’ furball made it to a second day. But he did. And, as I noted in the article, he started to grow on people. I mean that positively, not in a “I have a rash that won’t go away” way.

First impressions are formed within milliseconds and are based heavily on our biases. Relying on that “initial gut feeling” will lead to poor hiring decisions as well as a staff that looks and thinks a lot like you.

By the way, Gritty has come a long way in the last three years. The one-time laughingstock is now one of the most recognized and popular mascots in all of professional sports. In fact, Business Insider Magazine recently ranked Gritty the top professional mascot out of 110 in American professional sports leagues, a spot ahead of his neighbor the Phillie Phanatic. Sadly, mascots are all us Philly fans have to cheer these days.

5 – Make effective use of the probationary period. During the probationary period, the employee’s MSPB appeal rights are limited. Consider those first 12 months, depending on the position, as part of the hiring process. Most employees will be on their best behavior when they start a new job. If, during that probationary period, it becomes clear to you that the employee is not able to do the job, remove the person. It’s that simple and it’s only fair to you, the employee and the team.

Oh, and one final bonus suggestion. If your applicant pool is looking like it’s always looked, then it’s time for you to find new places to recruit. As FELTG Instructor Marcus Hill told virtual attendees earlier this year, it’s time to “go where the candidates are.” Consider social media and online forums. Visit colleges and universities that haven’t been a part of your usual search and include technical schools if you haven’t already. Have you looked at community programs or non-profit organizations as sources for recruits?

And you can just ignore this advice. Then I’ll expect to hear from you in a couple of years. [email protected]

I Wouldn’t Ask That if I Were You: Pre-employment Questions to Avoid

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By Michael Rhoads, October 20, 2021

Executive Order 14035 on Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce charges agencies with identifying “strategies to advance diversity, equity, inclusion, and accessibility, and eliminate, where applicable, barriers to equity, in Federal workforce functions, including: recruitment; hiring … and onboarding programs.”

Because the Federal government will be going on a hiring spree in the next several months, it might be a good time to consider what you can and cannot say during the hiring process. (Also see Training Director Dan Gephart’s article 5 Suggestions for Hiring the Right Person.)

Pre-employment inquiries are a critical stage where the wrong question, whether on an application, in an interview, or on a reference check, can lead to legal action if the applicant is not selected for the job. When seeking information from an applicant, ask yourself: “Does the information pertain to an essential job function?”

For example, if a person is applying for a warehouse position where most packages weigh up to 30 pounds, it is appropriate to ask an applicant if they can lift 30 pounds on an application form.

In Prohibited Employment Policies/Practices, the EEOC advises:

As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.

The EEOC also has some notable advice when it comes to the gray areas regarding an applicant’s race, marital status, or disability.

Race

It is prohibited by law to consider a person’s race when applying for a job. At the same time, agencies and employers are asked to keep track of demographic information, including race, that is reported to the EEOC. The EEOC advises to keep this information separate from the applicant’s information.

One example of this would be to use a “tear-off” sheet when collecting demographic information, and file it separately.

Marital status, children

Our personal relationships are an intricate part of our private lives, but these relationships are off limits when it comes to pre-employment questions. Typically, these questions have been used to discriminate against women. Yet, an agency is not off the hook if the same question is asked of both men and women. EEOC’s short list of topics to avoid related to marital status and children are:

  • Whether applicant is pregnant.
  • Marital status of applicant or whether applicant plans to marry.
  • Number and age of children or future child-bearing plans.
  • Child-care arrangements.
  • Employment status of spouse.
  • Name of spouse.

Disability

This is one topic where EEOC’s guidance is cut and dry. “Employers are explicitly prohibited from making pre-offer inquiries about disability.”

There are some pre-offer questions related to reasonable accommodation that are permitted, however. If an applicant has an obvious or voluntarily disclosed disability or need for accommodation, an agency may ask limited questions related to how to accommodate the applicant.   A full list of recommendations on these and other pre-employment inquiries can be found on the EEOC’s website at EEOC Prohibited Employment Policies/Practices.

Once a conditional offer is extended to an applicant, the rules change slightly.

To get a better understanding of what you need to know throughout the hiring process, join Katherine Atkinson on October 26 from 1:00-4:30 ET for Nondiscriminatory Hiring in the Federal Workplace: Advancing Diversity, Equity, Inclusion and Accessibility.

Stay safe, and remember, we’re all in this together. [email protected]

 

A Few Takeaways from the 2021 ‘Issues of Merit’

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By FELTG Staff, October 20, 2021

A few weeks ago, the MSPB issued a report assessing, among other things, telework effectiveness and employee engagement. A few points to consider:

  • Telework and employee engagement are closely related: 65 percent of Federal employees who agreed that their supervisor encourages and supports telework were reported to be engaged in their agency’s work, compared with only 31 percent of employees who disagreed.
  • Unsurprisingly, workplace flexibilities played a significant role in ensuring employees were able to meet work and family responsibilities during the pandemic. The flexibilities included telework, children attending virtual school from home, and liberal use of flexible schedules and leave.
  • The use of post-pandemic telework may increase in Federal organizations based on the experience they gained with this workplace flexibility during the pandemic. Our guess at FELTG is that the agencies who permit continued flexibilities will see a higher retention level than those who don’t.

Check out the full report here [PDF].

How is the Federal Personnel Manual Related to Vaccine Refusals? … Or 10 Suggestions for Implementing the Vaccination Executive Order, Part I

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By William Wiley, October 12, 2021

This is the first of a two-part article.

Ah, the good old days. As a fresh-faced lowly Navy Civilian Personnel Intern back in the 70s, one of the jobs that fell to me periodically was to update the Federal Personnel Management guidance. For those of you too young to have had the experience, here’s a quick history lesson. The US Civil Service Commission, followed in 1979 by the US Office of Personnel Management, published and maintained a many-volumed three-ringed-binder set of hands-on guidance relative to all the various federal laws and regulations related to managing a federal workforce. Throughout the week, every personnel office in government received by mail sheets of three-hole punched CSC/OPM guidance updates that had to be filed (CORRECTLY!) in the proper volume (I think there were about 20 volumes). In addition, each agency (and many times agency subcomponents) also issued similar to-be-filed guidance adding a specific tweak or exercising a flexibility in the overall government-wide personnel guidance.

In the Navy, that meant we got instructions from the Department of Defense, the Department of the Navy (on blue paper, of course), and then for me at the San Diego Naval Hospital, occasional additional instruction from the Navy’s Bureau of Medicine and Surgery (BUMED). All had to be filed in the correct topical-index order in the correct date order or be prepared to suffer the wrath of senior personalists who couldn’t find something. Yep, if we need to know the proper size font to use in a Letter of Reprimand, there was guidance on that and every other detail one might need to make a personnel office hum.

Then came Al Gore.

In the early part of the Clinton administration, the White House became convinced that the reason that personnel work in government (now called, affectionally, human resources) was so slow and ponderous was because of all that darned guidance. So, the President directed OPM to stop issuing or maintaining the FPM. VP Gore had the fun of setting on fire a collection of those volumes of government guidance, thereby freeing agencies to do whateverthedevil they wanted to do, constrained only by the law and the federal Code of Regulations. Yes, finally, no more updating work for the interns to do and no more detailed, front-line guidance on implementing a legal and regulatory effective human resources program. Of course, with the freedom to do whatever came the freedom to make mistakes, and the freedom not to do anything or to do it slowly because without guidance, whothedevil really knows what to do?

Since the abolishment of the FPM in the early 90s, OPM has done what it could to provide agency guidance beyond the CFR. Some years it did a better job than others. This past year OPM has provided quite helpful baseline advice to those of us in the federal employment law field. For example, on September 9, the White House mandated by Executive Order that all federal employees must receive their last dose of vaccine against COVID-19 by November 8, or be fired. In implementation of that directive, OPM now maintains a “Safer Federal Workforce” website that, among other things, tells agencies how to handle employees who decline to comply with the EO and get vaccinated. Separately, a week or so ago, OPM issued a detailed question-and-answer document entitled “Guidance on Enforcement of Coronavirus Disease 2019 Vaccination Requirement for Federal Employees – Executive Order 14043”. We may not be back in the good old FMP three-ring-binder update days, but we are pleased to see OPM in the game.

If FELTG can claim any modicum of success from these past 20 years, and if it has made any contribution at all to a successful civil service, it is that FELTG has taught forever the straightforward way to get things done, legally, fairly, and expeditiously. With that goal in mind, and in consideration of all the good work done so far by OPM, here’s a nice little 10-step how-to FELTG Checklist for you to follow to implement the COVID-19 vaccination Executive Order:

1. First, your agency will benefit greatly from an agency-wide policy regarding the mandate. As FELTG President Deb Hopkins has said, if we leave the decisions up to individual supervisors as is done under most all agency disciplinary policies, we’re going to have a really inconsistent mess on our hands. Normally, FELTG would argue for managers to be able to make individual disciplinary decisions without someone outside of the organization telling them what to do. This EO requiring removal government-wide for a very particular act of misconduct is not a normal disciplinary situation.

2. The policy should identify a Vaccine Mandate Coordinator (VMC). That office should be responsible for oversight of the program and other responsibilities enumerated below. Depending on the agency’s size, the responsibilities of the VMC might be collateral to existing duties or might be best served by the short-term employment of a full-time coordinator (a re-employed annuitant or two might be perfect). In any case, the VMC should have expertise in and receive consultation from human resources, the disability accommodation office, and the general counsel’s office.

3. The agency policy should require, initially, that the employee be notified of the required information regarding the benefits of vaccination, the ways to obtain the vaccine, and a warning that getting vaccinated is required to maintain federal employment. For evidentiary purposes, the information should be provided in a documented manner such as an email to the employee; maybe even more than once.

4. The notification also should set a deadline for the employee to provide the acceptable documentation and certification to the employee’s supervisor. OPM recommends that date be November 8. On November 9, the supervisor should forward all documentation and certifications to the agency’s VMC. If any employees have not provided the required documentation, the supervisor should identify those employees for the VMC.

5. Within 24 hours, the VMC should initiate the formal enforcement process with counseling and education. “What?!? Only 24 hours later? Around here, we can’t get out an invitation to a birthday cake cutting in the break room in fewer than three days.” Well, get better. You need to move promptly to comply with the deadlines in the EO. You can do this by centralizing the process, with the added benefit of relieving the immediate supervisor of a requirement for confronting the employee. Plus, the more time you give the employee to comply before you have to initiate a removal, the fairer you are to the employee.

OPM calls this step “counseling and education.” Here at FELTG, we would have taken the more traditional step of issuing the employee a formal reprimand. While a counseling has the appeal of sounding a bit more friendly, a reprimand is more formal, better documented, and less ambiguous. Plus, it might well engage the employee’s union representative in the discussion, perhaps adding a dose of rationality to the employee’s thinking process.

Although not a reprimand, we believe that the counseling should be documented, to add seriousness to the situation and to create defensive evidence for the agency down the road. The counseling can be very simple: “Previously, you were notified of the benefits of and government-wide requirement for federal employees to be fully vaccinated by November 21, 2021. You were given until November 8 to provide documentation that you have complied with this requirement. You have failed to meet this deadline. Therefore, you are being counseled to impress upon you the importance of this requirement. Should you fail to provide documentation of compliance within the next five days (by November 14), you will be subjected to discipline, including removal from federal service.”

You can issue the counseling by email. No need for a signed-as-received hard copy. No need to provide grievance rights (in most agencies) because you have not entered a document into the employee’s official personnel file. Be sure to include links in the counseling to the educational components relative to getting vaccinated that are available on the web.

The second part of this article, including steps 6-10, will appear in the October FELTG Newsletter next week.

Novel Coronavirus Workplace Challenges: You Already Have the Tools to Do This

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By Deborah Hopkins, October 5, 2021

The novel coronavirus has brought about numerous novel challenges in the Federal workplace. It can be tempting to allow all these “new” issues to feel completely overwhelming. But let me share something with you that I first heard from Katie Atkinson, one of FELTG’s instructors and our resident specialist in all things related to COVID-19 and EEO. “You already have the tools to do this. Apply the facts to the existing legal framework” to get the answer you need.

I can think of a couple of areas where this is especially important both now and when return to the workplace orders are implemented.

Reasonable Accommodation

Your agency probably hadn’t received requests for disability accommodation related to a global pandemic before 2020. Now, when you receive a covid-related RA request, you should give the request the same individualized analysis as any other RA case.

1. Does the employee have a disability?

2. Is the employee a qualified individual with a disability?

3. Did the employee request accommodation?

4. Did the agency engage in the interactive process to determine potential accommodations?

5. If an accommodation is denied, is it because the accommodation would not be effective, or would be an undue hardship?

A person with a back problem who requests an ergonomic chair will benefit from the same step-by-step process as a person with asthma or diabetes who is susceptible to severe covid infection if exposed in the workplace.

The facts are new; the process is not. You already have the tools to do this. (If you need a refresher, join FELTG for on the virtual training event The Exemption Proves the Rule: Reasonable Accommodation, Discipline, and the Vaccine Mandate November 3 and we’ll show you how.)

Employee Misconduct

Agencies have been disciplining employees for misconduct under the civil service systems for more than 100 years. The facts related to the misconduct might change, but the framework does not. Whether you have an employee who misuses an agency purchase card, falsifies a timecard, refuses to wear a mask in a Federal building where there is a mask mandate, or refuses to provide proof of vaccination, the misconduct case should be handled according to law and regulation.

FELTG’s Five Elements of Discipline© will get you there:

1. Is there a rule?

2. Does the employee know the rule exists?

3. Does the agency have evidence the employee broke the rule?

4. Can the agency justify the penalty?

5 . Did the agency provide due process?

The facts are new; the process is not. You already have the tools to do this. (If you need a refresher, join FELTG for the webinar series Navigating the Return to the Federal Workplace in October and we’ll show you how.)

A reporter recently asked me if I thought the Federal government was prepared to handle the challenges that are anticipated with return to the workplace orders, and I didn’t hesitate when I said: “They absolutely are prepared. The facts are new but the process is not.” Whether you realize it or not, if you have taken training with FELTG you already know how to do this. And if you need a little refresher or a primer, we’ll be happy to help. [email protected]

Three Questions About the Vaccine Requirement for Feds

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By Deborah Hopkins, September 20, 2021

Executive Order 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, is currently the basis of a lot of conversations in the Federal employment law world, and beyond. I know it’s a potentially divisive topic, and most people have strong feelings about it. However, FELTG’s focus is not on feelings, but rather on the legal issues related to the EO.

Below are three recent questions – and our best attempt at answers based on what we know so far. Please keep in mind the guidance has been changing every few days, so we’ll keep you posted if anything new comes up.

1. What are the “exceptions as required by law” referenced in the Executive Order?

There are two primary areas where legal exceptions might be granted: as reasonable accommodation for disability, and as reasonable accommodation for religion. It’s important to understand the differences between disability accommodation and religious accommodation, as the processes and requirements are entirely different. (Join us October 12 for Handling Pandemic-Related Reasonable Accommodation Requests and Medical Documentation, the first webinar of our three-part series Navigating the Return to the Federal Workplace.) And just because someone has a valid medical reason to not get the vaccine or has a sincere religious belief or practice that prevents them from receiving the vaccine, this DOES NOT mean the agency must waive the vaccine requirement. It merely means the employee is entitled to the RA process to determine whether a reasonable accommodation is available without causing an undue hardship. (Be prepared to address whether allowing an unvaccinated worker to report for duty could cause a direct threat by putting the employee, or co-workers or members of the public, in harm’s way, which is likely an undue hardship.)

Notably, teleworkers and remote workers are NOT exempted from the vaccine mandate. According to updated guidance from the Safer Federal Workforce Task Force (issued last week), “Employees who are on maximum telework or working remotely are not excused from this requirement, including because employees working offsite may interact with the public as part of their duties and agencies may need to recall employees who are on maximum telework or working remotely.” Also, note that political beliefs or personal feelings do not provide a valid reason for legal exemption.

2. Must an employee’s religion explicitly forbid the COVID-19 vaccine for an employee to receive a religious exemption?

Fellow instructor Katie Atkinson and I discussed this topic in a recent FedUpward podcast, and we believe this is going to be an emerging area where agencies will suddenly be inundated with requests; previously religious accommodation requests have not been very common or complicated. In fact, in most agencies there’s not a designated team to assist in religious accommodation requests. We suggest that your agencies train a point person or team to be ready to handle these requests, as such exemptions must be requested by November 22. And because religious accommodation is different than disability accommodation, don’t assume your existing RA team has experience with religious accommodation requests.

Now on to the answer. No doubt you’ve seen media reports of pastors offering religious exemption certificates in exchange for donations to the church, and discussions about whether mainstream religions really forbid the covid vaccine.

For example, Pope Francis publicly stated that the Catholic Church does not forbid the COVID-19 vaccine. He called getting vaccinated “an act of love.” So, here’s an example of what you might see: a request for exemption from an employee who claims their Catholic religion forbids them from receiving the vaccine. Is that a sincere belief even though it’s contrary to mainstream Catholic Church’s stance?

No doubt we will have EEOC cases in the coming years focused on this topic, but here are a few things we already know:

  • Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief.” The definition of religion is broad and includes not only traditional, organized religions, but also religious beliefs that are new or uncommon, or that seem illogical or unreasonable to others.
  • A religion does not have to be an organized, formal religion, and may include moral and ethical beliefs as to what is right and wrong that are sincerely held with the strength of a traditional religious view. 29 CFR §1605.1.
  • Social, political, or economic philosophies, as well as mere personal preferences, are not ‘religious’ beliefs protected by Title VII. EEOC Compliance Manual, Section 12-I, A-2.
  • Agencies should ordinarily assume that the employee’s religious beliefs are sincerely held unless there is “an objective basis for questioning either the religious nature or the sincerity of particular belief.” 29 CFR 1605; EEOC Compliance Manual 12-I. (bold added)
  • Factors that may indicate a belief is not sincere include:
  • Whether employee has behaved in a manner markedly inconsistent with the professed belief
  • Whether accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons
  • Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons)
  • And whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons

EEOC Compliance Manual, Section 12-I, A-2.

As you can see, this area is ripe for potential exploration, perhaps specifically on the sincerity of beliefs. Join us in October for Navigating the Return to the Federal Workplace.

3. If employees refuse the vaccine and don’t qualify for a legal exemption, must agencies use progressive discipline?

I can’t count the number of times in recent days I have seen reports that agencies will or should employ progressive discipline for employees who refuse to get the vaccine. Is progressive discipline (reprimand, suspension, removal) a tool agencies may use in these cases? Yes. Is it mandatory? Unless there’s an agency policy that says so, no. The Task Force guidance says that in cases of employee refusal to be vaccinated agencies “should pursue disciplinary measures, up to and including removal from Federal service.”

As we’ve discussed previously, employees who refuse a mandate to get vaccinated may be removed, even for a first offense. See Mazares, Jr. v. Navy, 302 F.3d 1382 (Fed. Cir. 2002). But some agencies may take the approach that a reprimand and/or suspension should come first, as an attempt to give the employee a chance to correct his misconduct before a removal is proposed.

Be mindful of the charge your agency uses when disciplining an employee for not being vaccinated. Will the agency go with a charge such as “failure to follow instructions” or “refusal to be vaccinated against COVID-19,” or will it choose to look at these cases as “failure to maintain a condition of employment”?

We’ll keep you posted as things continue to develop. Don’t miss the last call for registrations for Federal Workplace 2021: Accountability, Challenges and Trends, where we’ll talk about all this and more. [email protected]

Now that Vaccines are Mandated for Federal Employees, Can You Ask an Employee to Provide Your Agency with a Copy of Their Vaccine Card?

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By Deborah Hopkins, September 14, 2021

Stories about falsified vaccination cards are now peppering my newsfeed, including government seizure of fake vaccine cards at the border, and highlights of people who got caught attempting to travel to Hawaii with fake vaccination cards in attempt to and avoid mandatory quarantine. The woman whose card said she received a “Maderna” vaccine and the father who presented with vaccine cards for his 5- and 6-year-old children – far too young to be eligible for the vaccine – are the most memorable.

FELTG readers are likely aware of President Biden’s Executive Order 14043 last week requiring all Federal employees to be vaccinated against COVID-19. (FELTG instructor Katie Atkinson and I recently discussed the new vaccine requirement on an episode of the FedUpward podcast.)

This new EO reflects the administration’s increased push to get all eligible Americans vaccinated, and on Monday the White House set the vaccination deadline as November 22. The EO follows a July requirement that employees attest to their vaccination status, otherwise be mandated to weekly testing, limits on official travel, wearing face masks, and physically distancing, plus following other protocols the CDC recommends for unvaccinated people in the workplace.

New! On September 16, 2021, updated guidance was issued:

Q: Must agencies require documentation from employees to prove vaccination status?

A: Yes, agencies must require documentation from employees to prove vaccination, even if an employee has previously attested to their vaccination status. Employees may provide a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card, a copy of medical records documenting the vaccination, a copy of immunization records from a public health or state immunization information system, or a copy of any other official documentation containing required data points. The data that must be on any official documentation are the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). Employees must certify under penalty of perjury that the documentation they are submitting is true and correct.

Employees may provide a digital copy of such records, including, for example, a digital photograph, scanned image, or PDF of such a record that clearly and legibly displays the information outlined above. In requesting this information, agencies should comply with any applicable Federal laws, including requirements under the Privacy Act and Rehabilitation Act of 1973.

Q: Are there penalties for providing false information on the vaccination attestation form?

A: Federal employees who make a false statement on the Certification of Vaccination form could be subject to an adverse personnel action, up to and including removal from their position. It is also a Federal crime (18 U.S.C. § 1001) for anyone to provide false information on the form. Falsification could also affect continuing eligibility for access to classified information or for employment in a national security position under applicable adjudicative guidelines.

The Task Force will be releasing additional guidance on vaccination requirements later this week, and we’ll be sure to keep you informed. In addition, we’ll be dealing with this topic and more in the October 26 webinar Post-Pandemic Accountability: Handling Employee Performance and Misconduct in a COVID-19 World. That webinar is the final session of the three-part series Navigating the Return to the Federal Workplace, which begins October 12 and includes discussion on EEO issues related to vaccines, reasonable accommodation, and more. [email protected]

The Good News: LR Statute Doesn’t Say Unions are Always Right

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By Ann Boehm, September 14, 2021

In a recent training session, an attendee raised this scenario: “A political appointee is close friends with an agency union official, and we are pretty much being told to do whatever the union wants. Do you have any advice for how a labor relations specialist can effectively deal with this situation?”

Yes, in fact, I do. And I’m going to start with a little history lesson.

The Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. Chapter 71, was passed as part of the Civil Service Reform Act of 1978. In 1978, Democrats held significant majorities in both the House of Representatives and the Senate. President Carter was a Democrat. President Joe Biden was a Democratic Senator at that time.

Historically, Democrats tend to be more pro-union than Republicans. If we presume that the leaders who created the Statute leaned pro-union, then we have to consider why they bothered to create a Statute that carefully outlines rights and obligations for both agencies and unions.

In section 7116, the Statute establishes what constitutes an unfair labor practice by an agency, and also what constitutes an unfair labor practice by a union. So, the Democratic leadership in 1978 acknowledged that unions are not always right. They may even commit unfair labor practices.

Section 7114(a)(2)(A) explains that the union has a right to be present at any “formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.” Note that it does not say the union has a right to be present any time management meets with employees. Congress created limits.

The Statute established management rights, expressly providing in section 7106(a) management rights that are outside the duty to bargain with unions. There is also a whole section (section 7120) that establishes “Standards of conduct for labor organizations.”

I won’t bore you by going through all the provisions of the Statute, but I promise you that it is full of limitations on what Federal employee labor unions can and cannot do. The Statute, created by Democrats, does not say that unions can do whatever they want during Democratic administrations.

I acknowledge that this Administration is setting a pro-union tone. I read an article that called President Biden the most pro-union president since Lyndon Johnson. So, there’s that. I also acknowledge that the last Administration was pretty darn anti-union.

There is a shift going on here. But it does not mean that agencies must do whatever the union wants.

My advice, then, to those of you who may be dealing with a scenario like the class attendee is this:

Educate the leadership. Explain that the Statute guides all things Federal sector labor relations. Congress did find in 1978 that unions are in the public interest (section 7101(a)). But in so finding, Congress also stated this (section 7101(b)):

“It is the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government. The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government.” (emphasis added)

Keep that language handy. Sometimes unions have good ideas, and they can help employees and agencies work efficiently on behalf of the American people. When they do not contribute to an effective and efficient Government, they are not doing what the 1978 Democratic leadership intended. Make the leaders aware. And remember, you have a lovely guidebook that does not care about the political party in charge – the Statute. That’s good news. [email protected]