The Good News: Now’s a Good Time to Work on Your Pandemic To-Do List

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By Ann Boehm, August 19, 2020

Here we are, in Month Six of the COVID-19 Pandemic, and not much has changed. Many of you are still teleworking. Some are gradually returning to the workplace. Some of you never left the workplace. Regardless of your status, there’s no doubt that the day-to-day existence of your job is different and likely will stay different for a while. That’s why I think it’s a good time to work on a to do list that is specifically focused on the oddities of working through a pandemic. So here goes:

1 – Get moving on performance and disciplinary actions, and investigations. When the virus hit and people were suddenly told not to come to work, many agencies put any performance and disciplinary actions on hold. Same for investigations. The logical thinking was that everyone would be back to work pretty soon, so why not wait until then to move on serious personnel matters. Now we realize that “pretty soon” is still not happening. It’s a bit odd to serve a proposed removal virtually, I realize, but there’s nothing illegal about it. Employees who want an oral reply can do so virtually. And decisions should certainly be issued sooner rather than later. It may seem unkind to remove an employee during the pandemic, but leaving a proposal hanging for too long is hard on everyone – the employee, the supervisor, and the co-workers. Investigations may be different in the virtual world, but technology will allow you to interview people and review documents. We don’t know when this will end, so don’t keep putting things off.

2 – Assess what’s working and what’s not in the virtual world. It’s very possible that the virtual world is making your workers more efficient. Or it may have negatively impacted your office’s ability to perform its mission. It is important for you to do an honest assessment of what is working and what is not. You may have a whole new appreciation for teleworking if you see that your workers are more efficient. And if you demonstrate that some mission requirements just cannot be done virtually, you will be better able to determine which employees need to return to the workplace. The key is to be honest.

3 – Review performance plans. Pandemic or not, employees are still expected to perform. That being said, you need to review the critical elements in your employees’ performance plans to determine whether they are accurate expectations during the pandemic. You may need to do some tweaking to reflect the reality of telework or safety issues.

4 – Be aware of your agency’s return-to-work policies and make sure your employees know about them. CDC guidance. Agency guidance. Department guidance. The safety requirements for returning to work will include things like temperature taking, sanitizing, and of course, the controversial wearing of masks. Find out what policies are out there. Read them. And make sure your employees receive them.

5- If you supervise bargaining unit employees, read what the national unions have said about return to work. The national unions are insisting on strict workplace safety protocols. AFGE, for example, has a list of 10 return-to-work principles posted on its website. It’s important to know what the national unions are saying so that you can work effectively with the local bargaining units to ensure all employees are complying with workplace safety protocols.

6 – Develop a plan for how to handle employees who do not comply with safety protocols. You can pretty much plan on some employees not wanting to wear a mask. Or they may not wear them properly. What are you going to do when that occurs? Figure out a plan. Warnings will probably be a wise first step. And you may need to take disciplinary actions. No one said this would be easy, folks.

7 – Take advantage of any spare time you have and read agency policies you may not have read for a while (like Leave, Misconduct, Investigations, Performance). When I conduct training, I like to remind supervisors, and HR specialists, and counsel to read agency policies. Too often we get complacent and forget to review the policies we think we know so well. If you are still teleworking, use downtime to look over some of the agency policies most relevant to what you do.

8 – Read the OPM guidance on COVID-19 Leave. The Families First Coronavirus Response Act created a new type of leave that is specific to COVID-19. OPM issued detailed guidance about the leave. Your agency may have provided supplemental guidance. You are going to have employees who get COVID-19. You will have employees who need to be quarantined due to exposure to someone with COVID-19. Get ahead of this by reading available guidance on how to handle employee leave if any of this occurs.

9 – Talk to your employees and find out how they feel about their current work situation and return to work. One of the most surprising things to me about the pandemic is how wrong I have been in predicting other people’s perception of danger during the pandemic. Some people who I thought would be very worried are not worried at all, and others I figured would be happy-go-lucky are terrified. You really cannot guess how anyone is feeling about their own personal risks and family member risks. We can assume, based upon what I read in the media, that most people are very concerned about the safety of being at work. It’s important that you find out how your employees feel about returning to the workplace. They may need to come to work despite their fears, but at least you will know in advance about their worries and be better able to manage the situation.

10 – Talk to your supervisor about your concerns and make sure you understand what’s expected of you as the pandemic continues. Pretty much everyone except the President has a supervisor. Our training focuses mostly on how supervisors interact with the employees who work for them. But it’s also important for supervisors to talk to their supervisors about their feelings during the pandemic. Don’t operate in a vacuum. [email protected]

Yellow Donuts, Unnecessary Shopping Trips, FELTG, OPM and Accountability

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By Dan Gephart, August 19, 2020

Please don’t tell my wife this, but she’s almost always right when we debate the best way to get something done. Here’s an example: I realize we’re out of bananas, just as I’m preparing a smoothie. So as I grab my car keys, I holler: “I’m running to the supermarket to get bananas.” She replies: “Don’t we need lightbulbs for the kitchen, too, and batteries for the remote? And while you’re out, what about dropping off the bag of food at …”

I don’t hear that last part because I’m out the door. I have one mission: Getting bananas. I want a smoothie. Why worry about that other stuff? But later that night when I go to turn on the kitchen lights and the last remaining bulb remains dark, I get the look. I storm out of the kitchen and turn on the TV. Click. Click. Nothing. Remote needs new batteries. And then I hear: “You know, you could’ve saved yourself time while you were out …”

She’s right and she understands efficiency. Take the right steps now to make your life easier in the long run. Why make three separate trips to three stores in the same vicinity, when you can do it all in one trip?

We preach a lot about efficiency here at FELTG. I mean A LOT. It’s what we do. But instead of unnecessary car trips, we help rid supervisors of unnecessary actions when it comes to handling performance and conduct issues.

Let’s face it: Life as a federal supervisor, particularly during a pandemic, is quite difficult. Why make it harder?

My favorite slide that you’ll find in many of FELTG’s materials is what we endearingly refer to as the “dreaded yellow donut.”

Read about the concept of the yellow donut here. Basically, the donut is a reminder to take the minimum steps in performance and conduct actions. The more unnecessary steps you take, the harder it gets, the longer it takes – and the more likely you are to make a mistake.

As we found out in my interview with Dennis Dean Kirk last week, OPM’s Employee Services Team wants to make sure federal supervisors are appropriately “equipped to address performance and conduct issues.” (Sidenote: Oh, how I wish I was interviewing Mr. Kirk about his experiences as a new MSPB member.)

As baseball announcer Mel Allen used to say: How about that? It’s not just a FELTG thing. It’s an OPM thing, too. So go out and grab a donut (and anything else you need while you’re out), then register for the FELTG flagship program UnCivil Servant: Holding Employees Accountable for Performance and Conduct, which will be held virtually on September 9-10 from 12:30 pm – 4 pm ET.

Or if you’re an HR Director, team leader. or attorney advisor, and you want to reach a larger group of supervisors, bring UnCivil Servant: Holding Employees Accountable for Performance and Conduct to your office virtually or onsite. Don’t do it because it’s a FELTG thing, or an OPM thing. Do it because it’s the right thing. [email protected]

Tips from the Other Side: What’s Acceptable During a Pandemic

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By Meghan Droste, August 19, 2020

Last month, the return-to-work efforts at several federal agencies made the news, with employees and some members of the Senate expressing concerns about the safety of these plans.  With the ongoing risks of the coronavirus still present across the country, there will be some significant changes for those employees who transition back to their offices in the coming months. Because we are still in the midst of a pandemic, some of the rules regarding medical exams and medical information are a bit different than usual. I highlighted below some key guidance from the EEOC on what is and what is not acceptable during this time:

  • Agencies may ask employees if they are experiencing symptoms of COVID-19. Normally an employer is not permitted to ask employees if they are sick, but the rules are different during a pandemic. If employees will be in the workplace, agencies may ask if they are currently experiencing the recognized symptoms such as fever, chills, a cough, shortness of breath, and a sore throat. The Commission advises that employers continue to check the CDC’s guidance to stay current on what the known symptoms are. Agencies should also remember that some people with an active infection will be asymptomatic.
  • Agencies may check employees’ temperatures. Temperature checks are medical exams so employers cannot usually require all employees to submit to them before entering the workplace. The pandemic changes things. As long as a fever remains a recognized symptom (something that seems unlikely to change), employers may require temperature checks. But again, the Commission reminds us that not everyone who has COVID-19 will have a fever.
  • An agency may require employees to take a COVID-19 test and provide the results to the agency. While agencies may require COVID-19 tests because the virus poses a direct threat to others in the workplace, agencies may not require employees to undergo antibody testing. The Commission has specifically stated that antibody tests, which do not provide information about an active infection, do not meet the job-related and consistent with business necessity standard.
  • Agencies may order symptomatic employees to go home. An agency may direct an employee who is displaying any of the recognized symptoms of COVID-19 to go home and may require a doctor’s certification before allowing the employee to return. As the Commissions notes, employers should remember that employees may experience significant delays in receiving test results or being able to see a doctor during this time.
  • Agencies may delay start dates for new employees who have COVID-19 symptoms. An agency may also withdraw a job offer if there is a need for the applicant to start immediately and it is not possible to wait the required quarantine period before the applicant enters the workplace. An agency should not, however, delay or withdraw an offer for an asymptomatic applicant who will start working remotely and not report to a duty station.
  • Agencies may not delay a start date or withdraw a job offer simply because an applicant is in a high-risk category. If an applicant in a high-risk category is willing to enter the workplace and has no symptoms, there is no justification to delay a start date or withdraw an offer. Doing so could result in a finding of discrimination based on sex, age, or disability, depending on the specific applicant’s protected category.

For those of you who will be returning to work soon, I wish you good luck and good health.  And for everyone else who will be moving into their sixth month of remote work soon, stay strong! [email protected]

And Now a Word With … Dennis Dean Kirk

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By Dan Gephart, FELTG Training Director, August 11, 2020

I really had hoped and expected that when we conducted an interview with Dennis Dean Kirk, it would be to discuss his new role as Chairman of the Merit Systems Protection Board. As the FELTG Nation knows, President Trump nominated Mr. Kirk more than two years ago for one of the three open spots on the Board. Those three spots remain open because the Senate has not scheduled a vote, and the likelihood of us getting an actual Board anytime soon is, to quote the person who made the nomination: #Sad!

But Mr. Kirk isn’t just sitting around waiting to hear from the Senate. Since being named the Office of Personnel Management’s Associate Director of Employee Services earlier this year, Mr. Kirk has dived deep into his role of developing and administering policy on issues as wide ranging as pay, labor relations, performance management, and more. And now Mr. Kirk and his Employee Services team are focused on implementing President Trump’s executive orders and ensuring that all federal supervisors are appropriately “equipped to address performance and conduct issues.”

As you can imagine, the FELTG team is very interested in Mr. Kirk’s current work. We’ve been providing specific useful guidance on the aforementioned EOs in training since the day after they were signed. And equipping supervisors to address performance and conduct, well that’s kind of our thing. So we’re thrilled to see OPM prioritizing supervisory training and we thought it important that you knew what was going on. So we reached out to OPM and sent our questions to Mr. Kirk. What follows is that Q&A.

DG: Could you tell us briefly about the team you have in place at Employee Services and the priorities you have been working on?

DDK: Our team is a mix of highly qualified and seasoned civil servants and senior political appointees who are experts in their fields. Appointees help lead the department and ensure that our priorities are aligned with the Trump Administration’s policy objectives.

Our top priority is assisting agencies in implementing President Trump’s three workforce Executive Orders on employee removals, collective bargaining, and official time. These Executive Orders have tasked agencies to renegotiate collective bargaining agreements to bring them in line with the provisions of the Executive Orders, understand and record the amount of official time that is being billed to the taxpayers within their agency, and rein in extra-statutory impediments to maintaining accountability within their organizations. As a result of the data collected from these efforts, OPM is creating reports on the use of official time, collecting and publishing collective bargaining agreements, developing model collecting bargaining agreement language with the help of the Labor Relations Group, and creating training materials to help managers understand how and when to take adverse actions.

Over the past four decades, the cost of higher education has risen dramatically. In 1978, the average expense of one academic year at a four-year in-state public college was $8,250 in inflation-adjusted U.S. dollars. Today, one year at the same college would cost $21,370 on average. This trend makes the widespread reliance on educational requirements by employers an ever-steeper hurdle to gainful employment for many Americans. For example, among U.S. workers over the age of 25, 26 percent of blacks – as compared to 40 percent of whites – have at least a bachelor’s degree.

President Trump believes that regardless of whether an individual had the ability to pay for a college education, they should have an opportunity to demonstrate whether they have the capacity to perform the duties of a job. The Office of Personnel Management is also implementing the President’s Executive Order on Modernizing and Reforming the Assessment and Hiring of Federal Job Candidates issued this summer to open up the Federal hiring process to job seekers with a much wider set of experiences. This Executive Order requires that agencies develop and offer competency-based assessments – as distinct from self-assessments – for every job advertised in the competitive service. It also specifies that, unless a certain level of education is required for licensure in a certain field, educational attainment cannot be used to bar someone from taking an assessment.

We are setting up listening sessions between private businesses – both large and small – and Acting Director Michael Rigas and our team at OPM to learn from the innovative ways these companies are identifying talent using assessments rather than relying on college degrees. OPM is also supporting the Federal HR community to help them meet the demands of the Executive Order and reviewing our guidelines and policies to assure that education is not used as a barrier to entry.

DG: OPM shared an employee engagement toolkit with agencies earlier this year. What was the goal of that toolkit?

DDK: In October of 2018, OPM issued government-wide guidance and reporting requirements on two President’s Management Agenda milestones. To support agencies with achieving these milestones, OPM developed the employee engagement toolkit for supervisors.The two milestones were the “Workforce of the 21st Century” Cross-Agency Priority Goal, Subgoal 1:”

  1. All major components/bureaus will identify its bottom 20% on the 2018 Federal Employee Viewpoint Survey (FEVS) Employee Engagement Index (EEI) and target a 20% improvement in those units by the end of 2020.
  2. All agencies will have clear standard operating procedures for disseminating the Federal Employee Viewpoint Survey (FEVS) data to all organizational levels

DG: Have you received any feedback on the toolkit?

DDK: OPM has received positive comments from agencies expressing the value of the toolkit. Several agencies have informed OPM they have taken steps to deploy the toolkit within their agency, and they have offered webinars to highlight the toolkit and how to interpret and use FEVS results to improve employee engagement.

DG: While there has been improvement, a majority of employees still responded negatively to the statement on OPM’s Federal Employee Viewpoint Survey: “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve.” Why do you think this is a perennial issue and what can be done to fix it?

DDK: This is why we are making the implementation of the President’s three Executive Orders on accountability and labor relations a top priority. When President Donald Trump issued three executive orders that made it easier to fire poorly performing government employees, the backlash from public-sector unions was fierce. Union leaders did not like it—one called it an “assault on federal employees.” But a poll following the signature of these Executive Orders found that the majority of government workers— 51 percent —support the Administration’s efforts.

Moreover, only 24 percent of Federal employees oppose the recent executive orders, and another quarter are unsure. Some federal employees no doubt take advantage of their insulation from accountability, but most civil servants are hard-working and dedicated — a fact attested to by the 70 percent customer satisfaction rate among those who receive some federal service. The diligent federal workers must pick up the slack for those who do not do their share, only to sometimes be denied opportunities for advancement by the dead weight above them. And, as anyone who has worked in an office environment knows, unmotivated and unruly co-workers can take a heavy toll on morale. So, although a few bad apples may prefer to keep the status quo, it is not surprising most federal employees welcome these provisions of the President’s Executive Orders.

DG: What do you see as the main reason some training is not effective? 

DDK: Over the years and through extensive research, OPM has learned the value of shifting from traditional classroom-based learning to experiential and social learning activities. With experiential and social learning activities, approximately 70 percent of learning takes place on-the-job; 20 percent of learning results from meaningful relationships and coaching; and 10 percent of learning occurs through formal classroom training. OPM’s research also suggests that this approach to employee training is more situated in the context of an employee’s work, providing cost savings opportunities to build and demonstrate the competencies needed for success.

DG: What is the skill you’d most like to see supervisors improve upon over the next year?

DDK: OPM supports Federal agencies to ensure all supervisors develop critical leadership competencies within the first year of appointment and are appropriately trained on performance management, as well as addressing performance and conduct issues.

Additionally, OPM is committed to providing supervisors with best practices, guidance, training, and forums with a focus on employee experience, performance, and continual learning. We also emphasize the importance of succession planning in support of talent management from entry to leadership level.

DG: What is the most critical skill you’d like to see HR improve upon over the next year?

DDK: OPM encourages HR professionals to shift their focus from the traditional functional role to more of a strategic partner within their organization. The Federal Government continually faces unique challenges to meet its mission to effectively serve the American people. HR professionals can support Federal leaders to improve the agility of the workforce, adapt to change, and develop workforce solutions to overcome these challenges.

Editor’s note: FELTG’s flagship course UnCivil Servant: Holding Employees Accountable for Performance and Conduct, is just one of our many training programs that empower federal supervisors to confidently and effectively take legally defensible actions to address poor performance and misconduct, and comply with OPM’s 5 CFR 412.202(b) requirements. We can provide this course specifically for your agency. And we’ll be teaching UnCivil Servant: Holding Employees Accountable for Performance and Conduct virtually as an open enrollment over two half-days on September 9-10. [email protected]

Managing Employees With Narcissistic Personality Traits

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By Shana Palmieri, August 4, 2020

Do you have an employee who refuses to accept feedback, is always right, monopolizes the conversation and feels entitled to special treatment within your agency? Are these traits creating a challenge for leadership to engage this employee to collaborate with the team to achieve the mission, purpose and goals?

Individuals with these traits often create a struggle for supervisors and leadership within organizations, the struggle can be even more severe if the individual within the leadership position embodies narcissistic personality traits.

Let’s first review: What exactly is Narcissistic Personality Disorder and how prevalent is it in our society?

Narcissistic Personality Disorder

Narcissistic Personality Disorder is noted to be the least studied of the psychiatric disorders. Patients with Narcissistic Personality Disorder are often known for coming to therapeutic treatment ‘by force’ or as a last resort and often do poorly in therapeutic treatment.

The research indicates that the underlying roots of narcissism are often due to negative developmental experiences such as being rejected in childhood, or, in contrast, excessive praise during childhood leading the individual to believe he has exceptional traits.1 A 2009 study found narcissistic personality disorder was a fairly prevalent personality disorder in the United States, occurring at an estimated rate of 6.7%, with rates in men at 7.7% and in women at 4.8%.2

An individual may have traits of the disorder or meet full diagnostic criteria for the disorder. The typical presentation of Narcissistic Personality Disorder includes:3

  • An exaggerated sense of self-importance.
  • A sense of entitlement and a consistent need for excessive admiration.
  • Expectation to be recognized as superior without achievements that indicate the need for recognition.
  • The individual exaggerates his or her achievements, abilities and talents.
  • The individual has a preoccupation and obsession with success, power, beauty, brilliance or being the perfect mate.
  • The individual believes he or she is superior and only desires or agrees to associate with people he or she views as equally special people.
  • The individual tends to monopolize conversations and belittle others who they perceive as inferior.
  • The individual expects to receive special favors for his or her expectations to consistently be met, and for unquestioning compliance in his or her demands and requests.
  • The individual is unable and unwilling to recognize the feelings and needs of others.
  • The individual is both envious of others and also believes others envy them.
  • The individual behaves with arrogance.
  • The individual insists on having and deserving the best of everything.

Likely the most challenging aspect for employers is that individuals with narcissistic traits or narcissistic personality disorder have an incredibly difficult time accepting feedback or criticism. They often have the following reactions:

  • Become irritated, angry or emotionally distressed when they do not get their way or view themselves as not getting special treatment.
  • Are unable to regulate their emotions and struggle to tolerate stressful situations.
  • May react with rage and then direct their anger toward criticizing others and demonstrating their own superiority.
  • Have frequent interpersonal conflict, especially with the individuals who provide the feedback (perceived as criticism).
  • Significant difficulty adapting to change or adjusting their mindset.

Managing and Setting Boundaries

Employees with these traits can be challenging at best to manage within an organization and ultimately may be toxic to the overall success of the organization. Some of the tips below may help minimize the impact these individuals have on your organization.

1. Check yourself. Prior to assuming the individual you are seeking to manage is narcissistic, take a look at yourself and your approach to ensure your management style is not creating a defensive reaction in your employees. Key tip: If you struggle to manage all your employees and think they all have significant pathological personality problems, it may be an appropriate time for self-reflection.

2. Clearly identify your objectives. What are the goals and objectives you need to accomplish to meet the mission of your agency? In which areas is the employee demonstrating an inability to perform? What needs to change in order for the employee to be successful? Attempt to be objective and separate your own emotional reaction to the employee. What specifically do you need the employee to do/change in order for the organization to be successful?

3. Be concrete and clear with expectations. Engage in all conversations with respect and empathy, but stay focused on what needs to change in order for the employee to meet the goals and expectations of the organization.

4. Align with the leadership team on expectations and boundaries. If the employee is able to go above the supervisor’s head and get an exception or special treatment, the situation will be exacerbated and create further toxicity within the organization. The rules and boundaries must be clear, consistent and aligned with the leadership team.

5. Be consistent. The expectations need to be consistent not only for the employee causing the challenging dynamic, but for all employees. Attempt to keep rules, boundaries and expectations consistent across the board with employees to minimize special treatment and favoritism.

6. Follow through on consequences for not meeting expectations. Ensure goals and expectations are being met. If the expectations are not met, follow up promptly.

7. Stay focused. Do not let yourself be swayed by emotion or manipulation. Stay focused on the facts and the key tasks, objections and goals of the organization. Refer back to the facts and make the decision off the facts, not the emotional persuasion of the employee.

8. Remember your role. As a supervisor or leader, your role is to support the mission, purpose and goals to be accomplished. Stay focused on supporting your employees with the key objective being to meet the goals and objectives of the agency, not the personal goals of individual employees.

9. Be willing to part ways. If the employee is unable to collaborate with the team to successfully perform the functions of the job, be willing to part ways. Excellent leaders and supervisors will provide empathetic, respectful and considerate support to their employees to ensure their success. However, they must also understand the appropriate time when an employee has personality traits that are interfering with success of the organization and may need to make the decision to part ways.

Note: Shana will cover personality disorders and several other topics during Managing Employees With Mental Health Challenges During the COVID-19 Pandemic on August 26, 1-4:30 pm ET. [email protected]

1 Mitra, P. (2020, April 15). Narcissistic Personality Disorder. Retrieved July 20, 2020, from https://www.statpearls.com/kb/viewarticle/27055

2 Stinson, F., Dawson, D., Goldstein, R., Chou, S., Huang, B., Smith, S., . . . Grant, B. (2008, July). Prevalence, correlates, disability, and comorbidity of DSM-IV narcissistic personality disorder: Results from the wave 2 national epidemiologic survey on alcohol and related conditions. Retrieved July 20, 2020, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2669224/

3 Narcissistic personality disorder. (2017, November 18). Retrieved July 20, 2020, from https://www.mayoclinic.org/diseases-conditions/narcissistic-personality-disorder/symptoms-causes/syc-20366662

Workers’ Comp Rules for COVID-19 Depend on Job Type

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By Frank Ferreri, Special Guest Author, July 28, 2020

If anything in recent history has proven to be the ultimate “disruptor,”  COVID-19 certainly makes a strong case for top billing. Among the many changes the pandemic has brought are new approaches to workers’ compensation across the country, including within the federal government.

So, what’s changed? For some federal employees who contract COVID-19, the nature of their employment will cause the Office of Workers’ Compensation Programs to accept that their exposure was work-related without the usual showing of evidence.

High-risk Employees

As OWCP explained in guidance, federal workers who must have in-person and close proximity interactions with the public on a frequent basis, such as members of law enforcement, first responders, and front-line medical and public health personnel, will be considered to be in “high-risk employment” and have a more direct path to compensation.

As a result, and as the U.S. Department of Labor spelled out in FECA Bulletin No. 20-05 (DOL 03/31/20), if: 1) a COVID-19 claim is filed by a high-risk employee; 2) the employing agency supports the claim; and 3) Form CA-1, Notice of Traumatic Injury, is filed within 30 days, the employee is eligible to receive continuation of pay for up to 45 days.

Under the “old normal,” workers generally weren’t entitled to benefits for exposure to infectious agents without the occurrence of a work-related injury. COVID-19 has shifted OWCP’s focus, particularly for high-risk employees.

“The new procedures … call the adjudicator’s attention to the type of employment held by the employee, rather than burdening the employee with identifying the exact day or time they contracted the novel coronavirus,” OWCP’s guidance explained.

What’s needed for a “high risk” COVID-19 claim under the Federal Employees’ Compensation Act? OWCP requires the following evidence:

  • Exposure. If an employee meets the “high risk” criterion, OWCP will confirm the nature of employment based on the position title and confirm with the agency that the position is considered high risk. With this confirmation, the employee’s COVID-19 infection will be presumed to have come from work-related exposure.
  • Medical. The employee must provide medical evidence establishing a COVID-19 diagnosis. The factual and medical background must include the physician’s recognition that the employee is engaged in high-risk employment that included exposure to COVID-19 while in federal employment.

Other Federal Employees

Acknowledging that not all federal positions are at heightened risk of COVID-19 exposure, OWCP also spelled out what happens for claims from non-high-risk employees. In short, it’s not unlike other workers’ compensation claims.

The employee must provide a factual statement and available evidence concerning exposure. The employing agency is expected to provide OWCP with information regarding the alleged exposure and indicate whether it is supporting or controverting the claim. As with high-risk employees, if the agency supports the claim and a CA-1 is filed within 30 days, the employee is eligible for COP for up to 45 days.

In non-high-risk positions, the employee must provide evidence of the duration and length of occupational COVID-19 exposure. This evidence may include information such as a description of job duties, which agency the employee worked for, and the location of the work. OWCP advises employees to provide a “detailed statement” on:

  • The nature of employment.
  • How long they were exposed to the virus.
  • When the exposure most likely occurred,
  • How long and often they were exposed.
  • Where and how the exposure occurred.
  • From the agency, OWCP will seek information about occupational exposure including relevant agency records. This may include:
  • Comments from a knowledgeable supervisor on the accuracy of the employee’s statements.
  • Whether the agency concurs.
  • Confirmation of an actual positive COVID-19 test result.

Additionally, regarding medical evidence, a non-high-risk employee must show that the diagnosed COVID-19 was aggravated, accelerated, precipitated, or directly caused by work-related activities. This requires a qualified physician’s opinion, based on a “reasonable degree” of medical certainty, that the employee’s COVID-19 was causally related to employment conditions.

“Employment conditions” may include employment-related travel. In such a case, OWCP noted that the employee and agency would have to “describe in detail” the travel and potential exposure.

What’s Not Covered?

Outside of work-related travel, OWCP explained that COVID-19 exposure that occurs while going to or coming from work — such as might happen on public transit — is not compensable, as it does not arise out of and in the course of employment.

Similarly, an employee who’s exposed to COVID-19 while on vacation or leave has not experienced a compensable injury because the exposure must occur in the performance of duty.

[email protected]

The Good News: Federal Labor Law Doesn’t Have to be (and Shouldn’t be) Political

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By Ann Boehm, July 15, 2020

Nice article title, Ann. How can Federal labor law not be political? Isn’t everything political these days?

I will acknowledge that the three-member Federal Labor Relations Authority, like the Merit Systems Protection Board, is usually comprised of two members of the President’s political party, and one member of the opposing party. (The Federal Service Labor-Management Relations Statute (Statute) actually says it is composed of “three members, not more than 2 of whom may be adherents of the same political party.” 5 U.S.C. 7104(a).) I will also acknowledge that over its 42-year history, FLRAs during Republican administrations have tended to be more pro-agency, and FLRAs during Democratic administrations have tended to be more pro-union.

Currently, I think we can say pretty conclusively that this FLRA is listing to the pro-agency side. One union recently filed a lawsuit and alleged unprecedented FLRA bias in favor of agencies. Federal Education Association v. FLRA, Civil Case No. 19-284 (RJL) (D.C.D.C. March 30, 2020).

Personally, I’m not sure that this FLRA’s decisions in favor of agencies are all bad. Some of the decisions correct past FLRA pro-union bias.

What concerns me as a long-time watcher of FLRA law is how the political shifts continue to happen. I haven’t done a statistical study, but it’s fair to say that the Obama Administration FLRA was a bit (maybe more than a bit) pro-union. This FLRA then comes in and reacts by being pro-agency. Next time there’s a Democratic administration, we will likely see a swing back toward the unions. And so on, and so on.

The thing is, it shouldn’t be political. Let’s start with the premise expressed by Congress in the very first lines of the Statute. To paraphrase: Congress stated that the right to organize, bargain collectively, and participate in unions is in the public interest. 5 U.S.C. 7101(a). Federal sector labor relations activities are supposed to benefit the taxpaying public. I’m not sure that’s always the case — and that’s the fault of both unions and agencies.

Congress also drafted a very comprehensive statute that directs how labor-management relations are supposed to work. The FLRA has now had 42 years to interpret the language of the Statute. And the U.S. Courts of Appeals for every circuit but the Federal Circuit (that Circuit handles MSPB cases and not FLRA cases), and even the U.S. Supreme Court, have contributed to the case law interpreting the Statute.

But the political motivations continue to rear their ugly heads. We all have biases. Some people are more pro-union leaning, and some are more pro-agency. The key is managing the biases and trying just to comply with what Congress directed.

I worked at the FLRA during the Clinton Administration. I feel very fortunate to have worked there under Chair Phyllis Segal. She had this crazy concept: she did not want FLRA decisions to be overturned by the courts. She wanted the FLRA to issue decisions—get this—based upon a careful analysis of the facts, the issues, the Statute, and legal precedent. Lo and behold, when I defended those decisions in the courts (including the Supreme Court), we prevailed most of the time. The courts appreciated the careful analysis of the law by the body entrusted to interpret its own Statute – the FLRA.

Which brings me to a recent court decision. The FLRA issued a decision altering its own precedent regarding the meaning of “conditions of employment” and “working conditions.” DHS, CBP and AFGE, 70 FLRA 501 (2018). The FLRA overturned an arbitrator’s award and issued a decision in the agency’s favor. The union appealed to the U.S. Court of Appeals for the District of Columbia Circuit.  On June 9, 2020, the D.C. Circuit vacated the FLRA’s decision and remanded the case to the FLRA for further review. AFGE v. FLRA, Case No. 19-1069 (D.C. Cir. June 9, 2020).

Here’s the real problem with what the FLRA did in its decision and why the court vacated the decision. The FLRA “failed to explain its departure from precedent.” Id. It looks like the FLRA issued a decision for the agency based more on pro-agency bias than careful legal reasoning. And that’s too bad.

It’s possible the FLRA may have been able to overturn that precedent. But it needed to do so based on careful legal analysis and not a desire to make a pro-agency result.

It’s not just the current FLRA that acted in this way. It’s been done before and will be done again, mostly because of politics and bias. It’s too bad that the cycle continues on.

Maybe future FLRAs will just try to ensure that their decisions comport with statutory construction and legal precedent, and they will focus on how labor-management relations can benefit the taxpayer. Maybe it’s a crazy concept, but I think it can be done. It doesn’t have to be political. It really doesn’t. And if we ever get to that point, it’ll be Good News. [email protected]

Supreme Court: Employer Who Fires Individual for Being Gay or Transgender Violates Title VII

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By Meghan Droste, July 15, 2020

You’ve probably heard the phrase “model employer” in connection with the federal government.  Although the phrase comes from the Rehabilitation Act, the idea is now broader than just the area of disability rights — the federal government should set an example for all other employers when it comes to being an inclusive employer and in rooting out harassment and discrimination.

The federal government has been just that in the area of LGBTQ rights. The EEOC ruled in 2012 that Title VII prohibits discrimination on the basis of gender identity, and in 2015 that it prohibits discrimination on the basis of sexual orientation. Last month, the Supreme Court agreed.  Following the Court’s decision in Bostock v. Clayton County, Georgia, private and public sector employees across the country now have the same protections federal employees have had for years.

The Court’s decision in Bostock was the result of three consolidated cases: Bostock and Altitude Express, Inc. v. Zarda addressed the question of whether Title VII prohibits discrimination on the basis of sexual orientation; R.G. & G.R. Harris Funeral Home v. EEOC focused on whether gender identity discrimination is prohibited. The Court concluded that discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination and, therefore, is impermissible.

The Court’s decision turned on the “ordinary public meaning” of the word “sex” in Title VII.  Looking to the definition and usage of the word in 1964, the Court concluded that it referred to “biological distinctions between male and female.” From there, the Court found that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  As the Court illustrated in several examples, an employer cannot look to an employee’s sexual orientation or gender identity without taking into account the employee’s sex.  As a result, any employment action based on either sexual orientation or gender identity is inherently because of sex, and therefore is not permitted under Title VII.

The Court provided several examples to explain its point. In one that I found most helpful, the Court considered a company that has a policy firing gay or lesbian employees because of their sexual orientation. In the hypothetical, the company has a model employee with whom the company has no issues. The model employee then introduces a woman as the employee’s spouse at a company party. The question of whether the employer will fire the model employee turns on the employee’s sex. If the model employee is a man, the company will not take any action. If the model employee is a woman, the company will fire her based on its policy of not employing anyone who is a lesbian.  The Court noted that although the company’s intention is to fire the model employee because of the employee’s sexual orientation, the company will intentionally treat the employee worse because of her sex in order to achieve its goal.

The Bostock decision is great news for employees everywhere—now private and public sector employees enjoy the same protections, and federal sector employees know that their rights will not change or be undermined. [email protected]

The Algorithms of Civil Service Law

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By William Wiley, July 15, 2020

For 20 years now, FELTG has been presenting teaching the how-to of civil service law. We start with the theory and the law, and then share the steps, tips, and tricks of applying the law. You leave a FELTG seminar with not only an understanding of the legal principles and requirements, but also the details of exactly how to do things, such as what to wear when negotiating, where to put the commas and periods in a disciplinary document, and when to offer a poorly performing employee the chance to accept a voluntary demotion.

Sometimes we have called what we teach strategies. Other times we talk about checklists or recipes. Whatever description we use, the objective is to point out that the best way to approach this business is by following certain pre-determined steps rather than by trying to reason through every situation every time. We’ve had the current fundamental civil service law for over 40 years. Most workplace situations have come up before, and to one degree or another, someone already has figured out how to handle them legally and efficiently. We learn from these prior successes and mistakes by reading case decisions, then incorporating those lessons into what we teach at FELTG.

Since your Most Humble Author has taken senior status with FELTG, I now have more spare time. One of the things Ihave done with that luxury, mainly to impress my whiz-kid grandson, is to learn how to solve a Rubik’s cube. Anyone can do it. There are how-to videos online that demonstrate the steps to resolution. While involved in this stimulating project, I have learned three important lessons:

  1. You can’t just peel off the little stickers and rearrange them so that the sides are all the same color.
  2. No human wi
    th an IQ less than 165 has any hope of figuring out how to solve the darned thing.
  3. The only practical approach is to learn the solution steps figured out by someone who has gone before, then apply those steps in a very particular order. The smart kids call each of these steps an “algorithm.”

An algorithm, for all you Luddites out there, is simply a step-by-step procedure for solving a logic problem. The Google tells us that a good everyday example of an algorithm is a recipe. You use an algorithm to go from a state of chaos (e.g., a kitchen full of cooking supplies) to a predefined outcome (e.g., a pot of gumbo). An algorithm often is made up of several smaller algorithms (e.g., first, you make a roux) that eventually take us to the desired outcome. If you try to figure it all out on your own, or start taking un-algorithmic steps along the way, you stand a good chance of messing things up big time.

As I learned the algorithms for solving a Rubik’s cube, it dawned on me that what FELTG does in our seminars is to try to teach class participants the algorithms of civil service law practice. We learned the steps in the algorithms we teach by evaluating thousands and thousands of legal decisions from MSPB, FLRA, and EEOC – as well as from their reviewing courts – to tease out the tricks and tips of our business. We learn when practitioners make mistakes just as much as when practitioners do something correctly. By putting all this legal history into context, we try to demonstrate the safest, most efficient, legally-defensible strategies for dealing with problem employees while simultaneously honoring employee rights. Comply with the FELTG civil service law algorithms and we can guarantee that you will be successful. Start playing around with other approaches, or tweaking an algorithm in some manner that we don’t recommend, and you run the risk of making a HUGE mistake.

With that said, let’s take a look at a couple of semi-recent court decisions that reinforce several elements of the algorithms FELTG teaches relative to taking a disciplinary action against a federal employee. There’s no new law in these two decisions. In fact, they rely on principles we’ve been presenting since our very beginning. However, we feel the need to emphasize them because too many supposed “specialists” in our business don’t take the time to learn from history, to apply the algorithms, and instead try to figure out things for themselves. In no particular order, here are three FELTG-algorithm elements for your consideration:

Charges must be specific:  When proposing to take an adverse action against an employee for disciplinary reasons, the employee’s supervisor issues a Proposal Notice to the employee. That notice should contain the “specific reasons” for the proposal, i.e., a description of the misconduct specific enough that the employee can defend himself should he choose to respond to the proposal. That description is usually labeled as a “Charge” and the Charge is often accompanied by one or more “Specifications” that give the details of the misconduct. If the supervisor crafts a Charge that is vague, the employee’s due process rights have been violated, and on appeal the adverse action will be reversed.

In a recent case bringing home this important part of the adverse action algorithm, the agency crafted the Charge as, “Possible misuse of protected information available to you as an EEO counselor.” The information that was supposedly misused was not specified. The manner in which it was alleged to have been misused was not spelled out. On appeal, the court had no problem at all in deciding that this Charge was “certainly” too vague to provide the specificity demanded by due process. “The employee must be given enough information to enable him or her to make a meaningful response to the agency’s proposed [adverse action].”

Were this aspect of the case controlling of the outcome, the court would have ordered the removal set aside and the appellant reinstated with backpay. Fortunately for the agency, because it’s employee relations practitioners properly adopted another aspect of the FELTG adverse action algorithm, the removal was affirmed. See below:

Supporting documentation should be attached to the proposal notice: The law says that when proposing an adverse action, an agency must provide the supporting documentation to the employee “upon the employee’s request.” 5 U.S.C. 7513(e). A number of agency counsel we have had in our seminars over the years tell us that their offices take a minimalistic approach to this requirement and require that the employee actually request the supporting material rather than the supervisor simply providing it along with the Proposal Notice. Well, if you are familiar with the caselaw, you know that waiting for the employee to request the information is asking for trouble, and a risk easily avoided by just giving the employee the materials as an attachment to the Proposal Notice.

There are a number of reasons for using a supporting-materials attachment that we discuss in our classes. One of those reasons came into play in the recent case that is the subject of the above section. The agency got itself into big trouble by mistakenly drafting a vague charge. However, the court upheld the removal in spite of the charge-framing mistake because the documents attached to the Proposal Notice provided the critical specificity lacking in the charge itself. Had the practitioner who drafted the Proposal Notice NOT attached those documents, as we have recommended in the FELTG algorithm since the cooling of the Earth, the court would have reversed the removal for a failure of due process. Willingham v. Navy, No. 2019-2031 (Fed. Cir., Apr. 8, 2020).

The Douglas factor penalty-selection analysis should be a separate document. In my years as Chief Counsel to the Chairman of MSPB, I participated in the drafting and adjudication of thousands of Board opinions. Based on that experience, I can say with a high degree of certainty that if a court or the Board bothers to mention a fact in its decision, it was important to the adjudicators who decided the case. The fact may not have been determinative of the outcome. However, if the adjudicator goes to the trouble of mentioning it, the fact most likely had an effect on the adjudicator’s consideration of the arguments and issues.

In a recent decision issued by the Federal Circuit, the court went to the trouble of noting that the Proposal Notice contained a separate, detailed “written Douglas factor analysis.” The court stated that this document  “provided [the appellant] with an opportunity to respond orally and in writing” to the Proposal Notice. To the inexperienced reader, this might seem like a routine throwaway line of legal chatter. However, it is significant to those who know the FELTG adverse action algorithm. That’s because a number of practitioners we’ve worked with over the years mistakenly believe that the Decision Notice rather than the Proposal Notice should contain the detailed Douglas analysis. Or, alternatively, an uninitiated HR specialist or attorney will cast the Douglas factor analysis as part of the body of the Proposal Notice, written in a run-on narrative format rather than the 12-part worksheet that we teach. Organize the factors in 1 through 12 format, keep the discussion of each factor specific to that particular factor, and do all of this on a separate document attached to the proposal. Your case may not be won or lost on this element, but doing so will tilt your case toward being more winnable than if you do it otherwise.

By the way, as a bonus, the court mentioned that the Proposal Notice got the employee out of the workplace immediately by placing her on paid leave during the 30-day notice period. That element, as well, is part of the FELTG algorithm. The practitioner who built this case for DoD did it the FELTG-Way© and we are honored if that is because of attendance in one of our programs. Noffke v. DoD, No. 2019-2183 (Fed. Cir. Apr. 8, 2020).

No matter how smart you are or the number of fancy degrees you have earned, please don’t try to figure this stuff out from scratch. Read the decisions, come to the FELTG classes, learn our algorithms. This is not always a commonsense business. Take advantage of those with more experience and you are most likely to come away from the appeal process with a winner rather than with a bill for back pay and a restored disgruntled employee.

Our next seminar that presents the adverse action (and unacceptable performance) algorithms will be offered virtually September 21-25. Hey, what the heck. Register for MSPB Law Week and who knows, maybe a FELTG instructor will demonstrate the Rubik’s Cube algorithm, just in case that you, too, have a smarty-pants teenager that needs to be taught that his parents are not quite as dimwitted as he might think. [email protected]

Is There a Legal Path to Fire Dr. Fauci?

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By Deborah Hopkins, July 15, 2020

Here’s a hypothetical. Let’s say you have a U.S. President who is in office during a global pandemic, and that president gives an interview to a news outlet and says that the country is in “a good place” with how it is handling said pandemic.

Now let’s say that there’s a high-level career federal employee who works in infectious diseases who makes a statement to a different media outlet that goes something like this: “As a country, when you compare us to other countries, I don’t think you can say we’re doing great. I mean, we’re just not.”

Of course by now you know I’m not speaking in hypotheticals. As it goes with media sensationalism, one of the stories over the past few days surrounds the legality of the President firing Dr. Anthony Fauci, the head of National Institute of Allergy and Infectious Diseases (NIAID). Most FELTG readers are probably aware that Dr. Fauci’s statements on the COVID-19 pandemic have differed somewhat from those of the White House.

The question that is being asked on cable news, in media publications, and perhaps around dinner tables across the country: Can the president have Dr. Fauci fired?

The answer, based only on the evidence available to the public, is probably not. The President himself doesn’t have the authority to fire Dr. Fauci, who is a Title 42 employee and not a political appointee. But were the President to hypothetically order an official at HHS to fire Dr. Fauci, in order for the removal to be legal there would have to be cause — Dr. Fauci would had to have engaged in removable misconduct or poor performance.

Disagreeing with a President most likely does not fall into poor performance or misconduct. In fact, it is a prohibited personnel practice to make an employment-related decision because of a career employee’s political activities. While it may be acceptable for political appointees to be removed for differing opinions than those of their president, the fact that Dr. Fauci does not agree with the President about COVID-19 is NOT a valid reason to fire him.

We don’t know the details of Dr. Fauci’s work at NIH, so we can’t speak specifically to his performance or conduct on the job. However, misconduct, loosely defined, is the violation of a valid workplace rule.

Is a statement made in contradiction with the President misconduct? Probably not. Dr. Fauci doesn’t appear to have violated a workplace rule, as he has authorization to speak to the press about NIAID matters.

What about the list of the times Dr. Fauci “has been wrong on things,” recently compiled by White House. Do these statements rise to the level of poor performance? Without seeing Dr. Fauci’s performance plan, I cannot say for certain.

If Dr. Fauci is fired for any reason, whether it appeared to be legally valid or not, he could appeal his removal to the MSPB and let the Board (if we ever get one, that is) decide whether he engaged in misconduct or poor performance.

In case you’re wondering how Title 42 employees have civil service protections, here’s a brief lesson from Lal v. MSPB, Fed. Cir. No. 2015-3140 (May 11, 2016). Title 42 says that individuals may be “appointed” under Title 42 without regard to the civil service laws. A different statute gives agencies dealing with certain non-Title 42 employees the authority to “appoint[ ]…and remove[ ]… without regard to the provisions of title 5…” Reasoning that Congress saw a significance in the latter situation to include the authority “to remove” and that Congress did not specifically include the authority “to remove” in Title 42, Congress did not intend for Title 42 removal authority to be without regard for civil service protections. So, in sum Title 42 employees are hired under special authority but when it comes to being fired, they get the same protections as most of you in the FELTG Nation. And that includes Dr. Fuaci.

Interesting times, aren’t they? I’ve got some ideas for follow-up discussion and would love to incorporate your thoughts and questions into the content. So, what’s on your mind? [email protected]