DOP, DP, ODAP, OIP, PIP: Is it Just Me, or Have Performance Monikers Gotten Confusing?

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By Deborah Hopkins, June 17, 2020

There are a few items in President Trump’s May 2018 Civil Service Executive Order Trifecta with which I don’t necessarily agree. But there are a lot of provisions that actually mirror what FELTG has been teaching for two decades. Among the items that I really like is the directive that employees with performance problems (those performing at an unacceptable level on any critical element) should be given a final opportunity to demonstrate acceptable performance, not to exceed 30 days.

After this EO came out, some agencies revamped their performance policies and changed the language from the existing focus on performance improvement by utilizing a Performance Improvement Plan (PIP) to some other moniker that gives the employee a 30-day opportunity to demonstrate he can perform their job at an acceptable level. The demonstration emphasis more accurately mirrors the language of the statute found at 5 USC § 4302(c)(6). An opportunity to improve could go on for quite a long time, perhaps interminably; an opportunity to demonstrate whether you can do the job you were hired to do shouldn’t take more than three or four weeks.

For what it’s worth, “Acceptable” performance is whatever the line is above Unacceptable – so if your agency has a 5-level rating system then Marginal/Minima/Partial standards count as acceptable performance. That’s right, be minimal is the goal. [“Hey, problem employee: We at the agency would consider it acceptable if you would bring your performance up to minimal. If you do that, you get to keep your job forever.” What a target, huh?]

But, I digress.

Back to poor performance. Articulating the acronym “PIP” is easy. It rolls off the tongue and almost everyone knows what it means. But I am trying to break my PIP habit (two years later), and call it something more appropriate. In the textbook UnCivil Servant: Holding Employees Accountable for Performance and Conduct (now in its 5th Edition), Bill Wiley and I call this 30-day opportunity a Performance Demonstration Period, or DP.  But in my travels across the country to agencies near and far (before the pandemic, when I was on a plane almost every week), and my more recent time in front of a virtual training screen, I have learned there are now several permutations to what Federal employees call this DP.

Demonstration Opportunity Period

  • Acronym: DOP
  • Agency using it: USDA

Opportunity to Demonstrate Acceptable Performance

  • Acronym: ODAP
  • Agency using it: HHS

Notice of Opportunity to Demonstrate Acceptable Performance

  • Acronym: NODAP (As far as I can tell, NODAP is an informal acronym and does not exist in writing in the agency’s policy, but it makes sense to me.)
  • Agency using it: DOI

Opportunity Period

  • Acronym: OP
  • Agency using it: OPM. This is unofficial and hasn’t been verified by the powers-that-be, but we have heard rumors from students that the very agency which gave us the term “PIP” now has adopted a more correct moniker.

Opportunity to Improve Performance

  • Acronym: OIP
  • Agency using it: HUD. As far as we at FELTG can tell, this policy has not been changed to reflect the language of “opportunity to demonstrate” rather than the “improve” language its name reflects.

Performance Improvement Plan

  • Acronym: PIP
  • Agencies (still) using it: Commerce, State, DOD, DHS. It’s interesting. If what I am seeing on these agencies’ websites, where the policies are posted, are up-to-date, a number of agencies – headed up by President Trump appointees – seem to be ignoring the EO’s mandate to move away from the improve/PIP mentality.

So, whether you DOP, OP, POP, ODAP, NODAP, OIP, DP, or PIP, remember the purpose is to allow the employee an opportunity to demonstrate acceptable performance per 5 USC §4302(c)(6), and not to allow the employee a perpetual opportunity to incrementally get better. [email protected]

Breaking News: SCOTUS Says Federal Law Protects LGBTQ Workers From Employment Discrimination

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By Deborah Hopkins, June 15, 2020

This morning, the Supreme Court issued a decision in Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, 590 U.S. ______ (Jun. 15, 2020). The 6-3 decision was written by Justice Gorsuch. He was joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan.

The question before the Court was whether an individual’s sexual orientation or transgender status was covered under Title VII’s prohibition against sex discrimination. The Court ruled that “The answer is clear. An employer who fires an individual for being ho­mosexual or transgender fires that person for traits or ac­tions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” (p. 2).

AT FELTG, we’ve reviewed the decision and will be re-reading it to be sure we glean all the relevant information. After the initial read, we’ve pulled out couple of interesting points the Supreme Court discussed:

  • If sex was one but-for cause for discrimination – not the motivating factor or the only cause – then Title VII applies. (p. 6)
  • Employers who seek to avoid liability because they discriminate against men and women who are LGBTQ do not avoid liability – they double their exposure to liability because the language of Title VII talks about discrimination against individuals. (p. 9)

A few takeaways directly from the language of the case include:

  • [A]n employer who intentionally treats a person worse because of sex— such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discrimi­nates against that person in violation of Title VII. (p. 7)
  • From the ordinary public meaning of the statute’s lan­guage at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it inten­tionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the em­ployer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to dis­charge the employee — put differently, if changing the em­ployee’s sex would have yielded a different choice by the em­ployer — a statutory violation has occurred. (p.9)
  • The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s be­cause it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. (p. 9)
  • [H]omosexuality and transgender status are inex­tricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some dispar­ate impact on one sex or another, but because to discrimi­nate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. (p. 10)
  • When an employer fires an employee because she is homo­sexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individ­ual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that in­dividual’s sex, the statute’s causation standard is met, and liability may attach. (p. 11)
  • We agree that homosex­uality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosex­uality or transgender status necessarily entails discrimina­tion based on sex; the first cannot happen without the sec­ond. (p. 19)
  • In Title VII, Congress adopted broad language mak­ing it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for be­ing gay or transgender defies the law. (p.33)

We’ll be going over this case in much more detail in future training events including an upcoming EEO Refresher webinar entitled The Latest on Sexual Orientation and Gender Discrimination in the Federal Workplace on July 9, and a virtual training session as part of FELTG’s special event Federal Workplace 2020: Accountability, Challenges, and Trends on July 29.

In the meantime, read the full decision yourself here. [email protected]

Consider the Impact of Stress in Workplace Reopening Plans

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By Dan Gephart, June 17, 2020

A glimpse at the Internet during the coronavirus pandemic reveals people cutting their own hair, making their own bread, showing off their TikTok dance moves, and building elaborate Rube Goldberg machines.

Fun, fun, fun.

However, dig a little deeper and you’ll find that much of our nation, if not the world, is besieged by stress. Reports of police brutality, rising unemployment, a volatile stock market, and the continuing pandemic are pushing many to the edge. One professor told Time Magazine that we’re suffering from a “national anxiety.” This is not a flippant remark. It’s the truth, and it’s frightening.

We all know the friend, colleague, or family member who proudly claims: “I perform best under pressure.” Well, that’s great. Go take a seat over there next to Michael Jordan and have fun comparing your stress-filled accomplishments. There are many people, including plenty currently employed by the Federal government, who must routinely perform their jobs under highly stressful situations. And they do it every day. Quietly, without fanfare. I commend them.

However, if you’re not required to take on inordinate amounts of stress, you shouldn’t. Stress is bad for the body. It can cause minor ailments like stomachaches, headaches, heartburn, tension, and it can lead to serious health issues like depression, heart attacks, and strokes. Stress weakens immune systems and makes the body more vulnerable to attacks, such as the one posed by COVID-19. Put simply: If you’re stressing out about the coronavirus, you’re making yourself more at risk for getting it.

Now, think about the amount of stress this pandemic has caused and then try to imagine what that means to those individuals already suffering from anxiety disorders.

Last month, we discussed three issues to consider as you prepare to return employees to the physical workspace – ADA, age discrimination, communication. The previous month, I wrote about the rise in pandemic-related discrimination. This month, I turn the attention to stress and anxiety-related disorders that will make the already difficult transition back to the workplace an even more taxing endeavor for some employees.

Most people get depressed at some time in their lives, especially if they have suffered a loss. But there are others who have clinical depression, which is a much more serious condition that ranges from mild temporary episodes of sadness to suicidal ideation or behaviors.

It’s the same with anxiety. Everyone gets a little anxious at times, such as when our favorite team is just a few yards away from the endzone with a playoff spot on the line, or when we have to make a presentation to our superiors. That anxiety is fleeting. That’s not the case for those with anxiety disorders. An anxiety disorder is a psychological disorder caused by excessive fear or anxiety. It can be severely debilitating, and it affects up to 30 percent of the adult population at some point during their lives.

Common anxiety disorders include panic disorder, phobias, social anxiety, posttraumatic stress disorder, acute stress disorder, separation anxiety disorder, and obsessive compulsive disorder.

Missions will not be accomplished if incapacitating stress runs rampant upon the re-opening of the workplace.

What can you do to address this challenge?

First step: Take care of yourself,  even if you don’t have an anxiety disorder. Shana Palmieri, a licensed clinical social worker, senior vice president of Behavioral Health and co-founder of Xferall, and FELTG Instructor, shared several tips for coping with pandemic-related stress in this newsletter a couple of months ago. Read that article and take it seriously. Personally, I’ve significantly reduced my social media time and rely on only a few reputable sources for pandemic-related news. That has made a huge difference. As Shana said: “We all must do our part to stop the spread of COVID-19 and engage in self-care to keep ourselves and our communities physically and emotionally healthy during these challenging times.”

Next step: Recognize that there is a mental health crisis in America and the COVID-19 pandemic is having a serious negative impact on that crisis. A vaccine, herd immunity, or a flattened curve may signal a close end to the pandemic, but the nation’s mental health crisis will still be here.

With employees’ return to work comes your responsibility to accommodate. Shana and FELTG President Deborah Hopkins will discuss accommodations for all behavioral health issues on the first day of Emerging Issues Week, which runs July 20-24. Some of the simple accommodations for stress are:

  • Allow for longer or more frequent breaks.
  • Provide additional time to learn new task or skills.
  • Allow flexible leave for counseling/ therapy.
  • Consider more frequent meetings with supervisor.
  • Provide stress-reduction programs through Human Resources or EAP services.

Lastly, communicate. When sharing plans for workplace reopening, provide facts. The return to work should follow a well-crafted plan with few to no surprises. And be honest. There are still nearly 1,000 deaths a day due to COVID-19, and the number of cases continues to rise. Ignoring the reality of the moment will only exacerbate stress.

Managing this mental health crisis in the workplace will be one of several topics discussed during the encore presentation of Federal Workplace Challenges in a COVID-19 World: Returning to Work During a Pandemic to be held on June 29. Shana and FELTG Instructor Ann Boehm will also cover telework,  leave and flexible work schedules, medical testing, employees who blow the whistle about COVID-19 related issues, reasonable accommodation, and everything else you’ll need to consider as you attempt to return the workplace to some semblance of normalcy. [email protected]

The Employee Who Refuses to Report to Work

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By Deborah Hopkins, June 9, 2020

Back in the day – before COVID-19 – there was a term we used for employees who refused to report to work: AWOL. Or, as our friends in the Navy call it, Unauthorized Absence. The pandemic has created a new scenario though, where a refusal to report to an agency work station might not be considered misconduct, depending on the circumstances.

As agencies start to bring employees back to the workplace, some are understandably wary about leaving the safety (and perhaps comfort) of their own homes and being put back in contact with the public once again. Some employees have more reason to be leery than others, particularly those in high-risk categories.

So, what should an agency consider when an employee expresses concern about returning back to the workplace while the virus is still killing 1,000 Americans each day?

According to OPM, agencies should work with employees and, if applicable, unions, to address return to work concerns even after agency management has determined that it is safe for employees to return. Once an agency has determined that sufficient conditions allow for employees to safely work in a given environment, employees can be expected to report to their worksite unless they are in an approved leave status.

Before issuing an order requiring employees to report to duty onsite, and when considering discipline based on non-compliance with a reporting requirement, agencies are encouraged to consider all facts and circumstances in each case. Among these considerations:

  • An employee’s vulnerability to serious complications if infected with the virus,
  • The presence of an individual in a CDC-identified high-risk category in the home, and
  • Child care or other dependent care responsibilities resulting from daycare, camp, or school closures.

Agencies should determine if other options are appropriate, such as allowing employees to continue to telework or asking them to request personal leave.

If the worksite is in a jurisdiction still subject to restrictions related to COVID-19, agencies should also consider the terms of any such restrictions as well as employee concerns about their safety in the workplace or during commuting, and determine if steps can be taken to mitigate those concerns.

FELTG readers know that federal employees are required to follow supervisory orders, including orders to report for duty, but they may legally refuse orders that would cause “irreparable harm.” These categories, found in MSPB case law, include orders that:

  • Are Illegal, whether the order itself is illegal, or obeying the order would be an illegal act.
  • Are immoral.
  • Require an unwarranted psychiatric examination.
  • Require an employee to forego a Constitutional right.
  • Are unsafe.

We know the first four are not at issue here; safety is the key. The question becomes: What is the balance between working to fulfill an agency’s mission while guaranteeing employee safety and protecting against irreparable harm?

For most employees, contracting COVID-19 would probably not cause irreparable harm. Recent data suggests a large group of the people infected – perhaps even 80% – are asymptomatic. But for a subset of employees in high-risk categories, contracting the virus could very well cause irreparable harm in the form of long-term or permanent health issues. Adding to the complication is that this virus is new, and we don’t have any information about its long-term effects.

So, where does that leave us? If an agency has determined that it is safe to return to the workplace, an employee’s subjective belief that it is not safe – especially if that employee is not in a high-risk category – will probably not be enough to have a disciplinary action for AWOL overturned.

Only time, and cases when we get them, will tell.

I think that agencies should try to be as flexible as possible, as employees are dealing with unprecedented challenges. But at the end of the day, your agency needs to fulfill its mission, and if an employee must be at work in order to do so, and work is a safe place, then the employee should be held accountable to report for duty. For more on this – and other virus-related workplace challenges – join FELTG tomorrow for the virtual training event Federal Workplace Challenges in a COVID-19 World: Returning to Work During a Pandemic. A few spots still remain. [email protected]

And Now a Word With … Chai Feldblum

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By Dan Gephart, June 2, 2020

I’ve attended the EEOC’s EXCEL Conference for several years as a member of the press, which included a pre-arranged sit-down interview with one of the EEOC commissioners. Sometimes I interviewed the Chair, but usually I interviewed whoever was newest to the commission. (Guess they drew the short straw.)

The interviews didn’t usually delve too deeply into federal sector EEO issues, which is understandable. Many of the commissioners came from a non-Federal background and they were still learning the ropes. Most of their attention was on the private sector.

Chai Feldblum (pictured above to the right), however, showed no reticence in talking about nitty-gritty federal sector issues. Despite being on the job for just a few months, she was not only enthusiastic, she was informed, curious, and engaging – the kind of traits that made her a popular professor at Georgetown University’s Law School. And Feldblum was very approachable, which is almost as impressive as her bio.

Feldblum graduated from Harvard Law School and clerked for Supreme Court Justice Harry Blackmun. She was legislative counsel for the ACLU’s AIDS project, where she played a key role in drafting the Americans with Disabilities Act. She provided legal counsel on the Employment Non-Discrimination Act and other efforts to prohibit discrimination on the basis of sexual orientation and gender identity. She founded Georgetown’s Workplace Flexibility 2010 campaign. And she was the first open lesbian to serve as EEOC commissioner.

She served on the commission from 2010 to 2019 and was even nominated for a third time by President Trump before conservative Utah Senator Mike Lee, a longtime opponent of LGBTQ rights, blocked the nomination.

Feldblum is a partner at Morgan Lewis and director of the firm’s Workplace Culture Consulting & Training, which helps employers implement preventive strategies to eliminate harassment and enhance workplace productivity.

At the EEOC, Feldblum forged successful working relationships with her fellow commissioners, especially then-Chair Victoria Lipnic. This led to some ground-breaking actions, such as a wide-ranging report on workplace harassment and the Commission’s ruling that sexual orientation and transgender discrimination are forms of sex discrimination under Title VII.

With many of us waiting for the Supreme Court’s decision on Zarda, Bostock, R.G. & G.R. Harris Funeral Homes — which will either affirm or reject the EEOC’s approach to sex discrimination — we thought it was an ideal time to catch up with Feldblum. She opted not to share her gut feeling about how the Supreme Court would rule, but, as always, she was thoughtful and informative in her responses.

DG: You spent nine years at the Commission. What do you think is your legacy there?

CF: I feel my legacy falls into two broad categories, substantive and procedural. On the substantive side, I feel the Commission made huge strides in protecting LGBT people under Title VII by ruling that sexual orientation and gender identity discrimination are forms of sex discrimination; in advancing employment rights for people with disabilities by reinvigorating the affirmative action requirements for federal agencies under Section 501 of the Rehabilitation Act; and in protecting pregnant women by issuing guidance that ensured they could receive light duty work when needed, which was adopted in part by the Supreme Court. I feel grateful that I was able to play a leadership role in those substantive areas.

On the procedural side, I enjoyed digging into the logistics of the EEOC and helping with strategic planning for the agency. The digital charge system, as well as the respondent and charging party portals, have enabled the EEOC to continue working well during this COVID-19 pandemic. I will always be proud of the contribution I made towards those advancements in technology for the agency.

DG: What is the biggest difference you see between the private and federal organizations when it comes to EEO issues?

CF: I have been struck more by the similarities than by the differences. In both private and federal organizations, I have met incredibly committed people who care deeply about EEO issues. In both types of organizations, I have met people who are interested in going beyond EEO compliance to broader workplace culture change. And in both private and federal organizations, I have seen people struggle with similar challenges, whether it is a limited amount of resources or skepticism from some quarters as to the utility of investing in workplace culture change. This is probably why it is good that I’m an optimist. I believe that the utility of robust EEO compliance and workplace culture change, in both private and federal organizations, will carry the day.

DG: It’s been almost four years since the Select Task Force on the Study of Harassment in the Workplace was released. Is there anything you would add, take out, or clarify if you were in charge of updating it now?

CF: I believe the Report of the Co-Chairs of the Select Task Force on the Study of Harassment has stood the test of time. It remains a very useful document for anyone wishing to understand the prevalence and scope of workplace harassment, the reasons for under-reporting of harassment, and new ideas for “rebooting harassment prevention.” I do not think there is anything I would take out of the Report. But together with my colleague Sharon Masling [former Chief of Staff for Feldblum at the EEOC], who joined me at Morgan Lewis as a Co-Director of Workplace Culture Consulting, we have built on and expanded the work and the ideas of the Report. Over the course of a year here at Morgan Lewis, we have created a quantitative survey on assessing culture, developed a system for a qualitative assessment of workplace culture, and refined a Respectful Workplaces training. All of this work builds on the research and insights of the Report.

DG: Are you seeing an increase in discrimination and harassment in the workplace and/or in the public space as COVID-19 has taken over the globe?

CF: The evidence is pretty clear that Asian-Americans have been the victims of increased harassment and hate crimes during the COVID-19 pandemic. The Asian Pacific Policy and Planning Council has collected data of over 1,700 incidents of verbal harassment, shunning and physical assaults against Asian Americans since March 2020. These reports come from 45 states and Washington DC and over a third of the incidents happened in public venues. I am sure workplaces are not immune from the possibility of discrimination and harassment against Asian Americans. I feel that the employers I have been able to work with over the past year are well-positioned to stop this form of discrimination and harassment from permeating their workplaces. But we need this to stop everywhere.

DG: What should the EEOC’s approach be to cases involving sexual orientation and gender identity in the federal workplace as we await the Supreme Court ruling?

CF: Keep going until the Supreme Court rules. The EEOC has continued to accept charges from LGBT employees and applicants who allege employment discrimination on the basis of sexual orientation and gender identity. That is precisely what the agency should do, since it has not voted to change its position on this issue. The question is whether the Supreme Court will read the law as the EEOC did. That is what we are all waiting to see.

[Editor’s Note: The Supreme Court decision in Zarda, Bostock, R.G. & G.R. Harris Funeral Homes will be discussed in the session The Latest on Sexual Orientation and Transgender Discrimination during FELTG’s weeklong conference-like virtual training event Federal Workplace 2020: Accountability, Challenges, and Trends July 27-31, 2020. Register for one, several or all sessions. And EEO counselors and investigators can learn more about the topic and earn refresher hours during the July 9 webinar The Latest on Sexual Orientation and Gender Discrimination in the Federal Workplace.]

[email protected]

Failure to Follow Instructions: A Charge That Seems Particularly Fit for 2020

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By Barbara Haga, May 20, 2020

Ensuring that employees comply with work procedures and requirements has taken on a new characteristic with the pandemic. As agencies prepare to bring employees back into the workplace, there could be new problems with failure to comply with the precautions being set in place to try to minimize spread of the virus.  Let’s look at a couple of scenarios.

Back in the building after testing positive

Some of you who have been in classes with me have heard me use the phrase, “No good deed goes unpunished.”  Here’s an example: In this situation, the agency had done everything one could reasonably expect, but things still went wrong. An employee was working in an office job where they were still reporting to their building. The employee reported to duty exhibiting symptoms and was instructed to leave and get tested.  The employee tested positive for COVID-19.  Other employees in the area were instructed to leave and a deep cleaning was performed.  So far, so good.

That night, the employee came back to the building to pick up a laptop and files.  She said she wore a mask and used gloves and wiped things down that she touched while in the office, etc.  Management was furious.

At the time I spoke to the agency, I asked a lot of questions, such as whether the employee used public transportation to come back after the positive test result and whether the employee had contact with anyone else in the building such as security folks at the desk. I asked: Was there some critical deadline that the employee was trying to meet in spite of being ill, and did other people come into the spaces unaware that the employee had been back in there? Without that information, it is difficult to get terribly specific about a penalty.

Could you show that the employee failed to act reasonably under the circumstances? I think so.  Back to our discipline model from last month’s column, we need these things:

1- Establish a valid rule.

2 – Inform the employee of the rule.

3 – Prove the employee broke the rule.

Is it a valid requirement to send employees away from work if they appear to have the symptoms of COVID-19? Certainly. Would you have to have told the person to stay away as long as she was sick? I don’t think so.  That’s one of those commonsense rules that I think you could establish by referring to CDC guidelines, public service announcements, or something in your agency guidance. In this case, the employee told the agency that she was in the building, so proving that would be simple. Obviously, she knew there was risk; that’s why she volunteered that she wore the mask and gloves and wiped things down.

I wouldn’t expect, in this scenario, that an agency propose an adverse action, assuming the employee was an otherwise good employee.  Management was very unhappy that cleaning had to be done over and other employees’ work was potentially impacted by delays in returning to the workplace, but I’m not sure that would add up to enough under Douglas to outweigh a number of years of good service and potential for rehabilitation. [Editor’s note: It could be argued, however, that the harm, or potential for harm, of the employee bringing her known germs into the workplace outweighs the fact that she’s a good employee].

Refusing to comply with precautions

Your agency has set conditions that will allow employees to return to the worksite.  This includes, among other things, taking temperatures. These precautions are included in the CDC guidelines for businesses for reducing transmission of the virus in the workplace.

The EEOC guidelines on medical evaluation were updated in March to cover the COVID-19 situation. Here is the EEOC guidance:

During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever? 

Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.

However, employers should be aware that some people with influenza, including the 2009 H1N1 virus or COVID-19, do not have a fever.

Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.

Employees were notified of these conditions by e-mail and given a return to work date.  However, one of your employees reports, but refuses to have his temperature taken.  The rule was reasonable, it was communicated, and the employee refused to comply.

What kind of charge?

“Failure to follow instructions” is a charge that covers a variety of situations. It has been used when an employee failed to submit required medical documentation. Archerda v. DoD, 121 MSPR 314 (2014). It was sustained when an employee refused to report to a new duty station. Jones v. Department of Justice, 98 MSPR 86 (2004).  It has been used for situations related to misuse of credit cards, failure to cooperate in investigations, and many other things. This charge goes to the heart of the ability of agencies to direct work and the workforce.

In Pedeleose v. DoD, 109 FMSR 200 (2009), aff’d, 343 F. App’x 605 (Fed. Cir. 2009), the Board wrote about the charge of failure to follow instructions:  “The rule involved in this case has long been recognized as one that is necessary to an agency’s ability to effectively manage the workplace. The rule generally requires an employee to comply with an agency order, even where the employee may have substantial reason to question it, while taking steps to challenge its validity through whatever channels are appropriate.”

This charge seems like a good choice in both scenarios outlined. In the first scenario, the misconduct would all have been in the past, so that one is not as complicated.  For the second scenario, the employee won’t be allowed in the workplace without the temperature check.  What would the action look like? The employee would have to be sent home on admin leave just like any other situation where you have an employee who reports not ready, willing, or able to perform work. The admin leave would extend until you could get your notice of proposed action completed. At that point, the employee would be on notice leave while waiting for the reply and decision. Because the COVID-19 situation is an emergency, you could likely shorten your reply periods on short suspensions, which is where I am assuming most would be with this scenario.

Perhaps the employee will agree to the check after receiving a proposed action. If so, then you could take that into account and consider reducing the number of days of suspension or revert to a reprimand. You might really need the employee performing the work of the position so it may be in the agency’s interest to not suspend if the employee complies and shows potential for rehabilitation.

What if the employee continues to refuse? Take a second action for another offense. This one would probably be a proposed removal.

At FELTG, we realize many of you are being confronted with issues that none of us ever conceived of before. Please keep sharing your questions/issues. We can get through this much more successfully if we put our heads together!

To Err Is Human — And Maybe Also a Reason to Change a Personnel Record?

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By Meghan Droste, May 20, 2020

As many of you are aware, the work of negotiating settlement agreements became more difficult on May 25, 2018, with the issuance of Executive Order 13839. Section 5 orders agencies not to “Erase, remove, alter, or withhold form another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records … as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.”  Up to that point, clean records — taking out proposed or final actions from an employee’s OPF — had been a valuable tool for both agencies and complainants in negotiating settlements.

OPM subsequently issued guidance clarifying how to apply the EO.  According to the guidance, agencies “are permitted to take corrective action on information contained in a personnel record that is not accurate or records an action taken by the agency illegally or in error.”  See Haywood C. v. Dep’t of Homeland Sec., EEOC App. No. 2019003137 (March 3, 2020). (For more discussion of the OPM guidance, check out Bill Wiley’s comments from October 2018.)

Agencies and complainants have been struggling to understand the application of the EO when it comes to settling cases.  What exactly constitutes an error? Is it OK to include the removal or change of documents in a settlement agreement if the agency decides there was an error? The Commission recently tackled a case involving these questions, and while it did not provide clear guidance, there are some interesting breadcrumbs for us.

In Haywood C., the complainant alleged that the agency was in breach of a settlement agreement because it had not removed documents related to a proposed removal from his OPF. The agency argued that it could not do so because of the EO. In looking at the case, the Commission cited both the EO and the OPM in its decision. And then it decided that it was not going to determine whether or not the EO or the OPM guidance applied to the specific agreement at issue. This isn’t exactly helpful for other cases, but I do think it is interesting and noteworthy that the Commission specifically pointed to the OPM guidance, even though it decided not to determine whether or not the guidance applied. I might be reading too much into this, but I think the Commission’s decision to draw attention to the guidance might be a signal that it would apply it in the future and uphold settlement agreements that remove or change documents if the parties agree the agency put the documents in an OPF in error or they contain incorrect information. [email protected]

If You Leave an Intercontinental Ballistic Missile Unguarded, You’re Probably Getting Fired

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By Deborah Hopkins, May 20, 2020

A few weeks ago, I wrote an article about progressive discipline, and explained how a time-tested approach to discipline in the federal government provides for a “three strikes and you’re out” mentality, at least when it comes to minor workplace misconduct. There are times, however, when an employee engages in misconduct so egregious that the agency skips the first two steps in progressive discipline – typically a reprimand and a suspension – and jumps right to a removal. After all, an underlying tenet of progressive discipline is that, by disciplining an employee with increasing degrees of punishment, the employee is given the opportunity to learn from his mistakes. Castellanos v. Army, 62 MSPR 315, 324 (May 4, 1994). There are times, though, an agency determines the employee has done something so bad, he should not be given such a chance.

Let’s look at a few of those cases.

You were warned

Sometimes agencies choose to issue warnings to employees, rather than issue formal discipline. A warning is an aggravating factor that is most commonly used under the Douglas factor for clarity of notice: How clearly was the employee on notice that there was a workplace rule in place?

Take, for example, the GS-12 attorney with a discipline-free record who was removed based on two charges: Disruptive Behavior (two specifications) and Making Inappropriate Remarks (seven specifications, including referring to his supervisor’s writing as “crap,” making unseemly accusations, and using a sarcastic or intemperate tone). The agency had issued “four express warnings” and the employee still did not correct his behavior, so the agency proposed removal.  This appellant argued that he didn’t understand the warnings because the language used by the agency regarding “maintaining his composure” was confusing. Nice try, but that expression was an aggravating factor that expressed a lack of remorse. A GS-12 attorney should know what maintaining composure requires, so the MSPB upheld the removal. Pinegar v. FEC, 2007 MSPB 140.

One strike and you’re out

Some charges, by their very nature, have been recognized to be removal offenses even if there is no prior discipline. One such charge is Failure to Cooperate in an Investigation. Take a look at the following cases which all involved some version of an employee refusing to participate in agency-authorized investigations: Weston v. HUD, 724 F.2d 943 (Fed. Cir. 1983); Negron v. DoJ, 95 MSPR 561 (2004); Hamilton v. DHS, 2012 MSPB 19. Also check out Sher v. VA, 488 F.3d 489 (1st Cir. 2007) (Courts have repeatedly held that removal from employment is justified for failure to cooperate with an investigation).

Another charge where there’s not always another chance for the employee is Threat, or some version thereof (such as Making Disruptive Statements). In one such case, an appellant’s conditional threat that he would cut off his supervisor’s head warranted his removal despite a lack of prior discipline and four years of service. The agency successfully argued that such behavior affected the agency’s obligation to maintain a safe work place for its employees, thus impinging upon the efficiency of the service. Robinson v. USPS, 30 MSPR 678 (1986), aff’d., 809 F.2d 792 (Fed. Cir. 1986) (Table). A note to practitioners: If you’re going to charge Threat, you’re going to need to be sure you have evidence to support the Metz factors. Come to FELTG’s Workplace Investigations Week in Denver August 24-28 if you’d like to learn more about that.

Multiple specifications are aggravating 

Sometimes an employee engages in an act of misconduct several times, but has no disciplinary record because the agency hasn’t yet issued discipline (which, as a side note, contradicts my colleague Bill Wiley’s mantra “Discipline early, discipline often”). In those cases, the agency may choose to discipline the employee, and show the egregiousness of the conduct by listing multiple specifications, thereby justifying the penalty of a removal for a first offense of misconduct. A fairly recent case provides a perfect example of such a strategy: A first-offense removal was upheld because there were 10 specifications of continued sexual misconduct that occurred after appellant was asked to stop his inappropriate behavior. Adkins v. DoD, SF-0752-16-0294-I-1 (2016)(NP).

Harm or potential for serious harm

The Air Force has a rule: A Division 1.3 explosive must be attended at all times by its driver or a qualified representative of the motor carrier that operates it. One of our most-discussed-in-class cases at FELTG seminars involves a WG-09 Motor Vehicle Operator with 28 years of outstanding service, who left a truck with an intercontinental ballistic missile unguarded in a motel parking lot (keys in the ignition, doors unlocked) for 45 minutes, and then lied about to his supervisors when they confronted him. Though 28 years of service is a mitigating factor, and a discipline-free record is generally an asset, leaving a missile containing 66,671 pounds of explosive propellant unguarded was egregious enough to warrant a first-offense removal. Dunn v. Air Force, 96 MSPR 166 (May 24, 2004).

Remember, the goal of discipline should be to prevent future misconduct from occurring. But sometimes, employees go over the line and there’s no coming back. As long as your Douglas factors analysis supports removal, and the penalty is not grossly disproportionate to the offense, you’re free to remove an employee with a discipline-free record. For more on discipline, join FELTG for the Virtual Training Institute’s Taking Defensible Disciplinary Actions, June 1-3, or Developing & Defending Discipline, June 23-25 – from wherever you’re working. [email protected]

The Good News: You Can Still Boost Employee Morale Virtually

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By Ann Boehm, May 20, 2020

In this strange COVID-19 world, we are struggling to see the bright side of the situation and trying to avoid the constant barrage of bad news. Actor John Krasinski is providing Some Good News and multiple news outlets are providing Good News updates. Unlike Krasinski, I can’t get the cast of Hamilton to entertain you. Nonetheless, as the oddities of social distancing, telework for all, and virtual meetings continue to drag on, I think it’s important to try to find a bit of good news in the Federal workplace. So here goes.

You can boost employee morale virtually. And you really, really need to try to do so now.

Following last year’s government shutdown, I developed a list of Boosting Employee Morale Do’s and Don’ts for Supervisors. If you’ve attended my training, you have heard them. They’re based mostly on how to avoid being like bad supervisors and more like the good ones. I’ve modified them to fit the current COVID-19 situation.

Don’t be a jerk

I know what you are thinking. I’m not a jerk. But you may not realize behaviors that end up making you seem like a jerk to your employees.

The first thing you need to do to avoid being a jerk to your employees is to honestly assess how you are handling extended isolation and supervising in a teleworking world. Or, if you are not among those teleworking, assess how you are handling the daily stressors and fears you have about your health and safety. Acknowledge your own frustrations and satisfactions. Some people are thriving in the teleworking world – thrilled to be avoiding long commutes and chatty co-workers. Others are missing the workplace and social contact. Different people are handling things differently. Some people are happy to have a job and income; some are very worried about their personal risk. Try to be sensitive to those differences.

Also remember that communication is different in the virtual world. Read your emails carefully to make sure the tone you intend is what is coming through in writing. Understand that your employees may need some assistance with that as well.

Focus on mission requirements and employee performance without getting stuck on bureaucratic 9:00 to 5:30 work hours. Understand that people are dealing with cranky spouses, children, and other family members in their care. If they need to get some work done from 5:00 a.m. to 7:00 a.m., and the rest done from 4:00 p.m. to 10:00 p.m., assess whether that is adversely impacting on your mission or whether it is fine, even if it is different than the norm.

Ultimately, if you stay mission-focused and open-minded, you will avoid being a jerk. And this will boost employee morale.

Do say thank you

Employees may be feeling a bit lost right now, and the best way to give them a sense of belonging is to thank them for continuing to work for the public. Some of you may be supervising essential workers who are not teleworking. Don’t take them for granted. If you send a thank you email to an employee, I can almost guarantee they will share it with some family member or friend. Every employee likes to get praise.

Do include employees in planning

Take the time to look at whether your mission and your employees are matching up. And get employee input on this. Think about those projects you and employees never have time for, and see if this is a good time to get them moving.

Analyze what is working well with teleworking and what is not. Some employees are going to get very used to teleworking. Start thinking now about what is going to happen when the workplace reopens. NASA has a re-entry program for astronauts for a reason. Change is hard. Getting people used to coming into an office will be an adjustment. The best way to create an effective workplace is to plan ahead, to the extent possible, and involve your employees in the planning.

Do talk to employees

Talk to your employees. Yes, really talk to them in some format — call, WebEx, Microsoft Teams, FaceTime, whatever. But talk to them.

I spoke with a friend the other day (an IT guru) who said he was just tired of the sound of Zoom meetings. The beeps when people click in and out. The computer audio. Ask your employees how they are dealing with these kinds of things. It will make them feel better if you just let them talk freely.

Another thing to consider is sending out some sort of weekly or bi-weekly email to your employees that tells them how you are handling the impact of the virus, how you value them, how your organization is staying mission focused, and any other fun information you think they would like to hear. Sometimes employees forget that supervisors are human too. Tell them if you have started a new exercise routine, discovered a great book or Netflix series, learned to play an instrument — you get the idea.

Remind employees that it’s a good time to be a federal employee

This is a new addition to my do’s and don’ts list. Just a year ago, with the government shutdown, federal employment didn’t seem like such a great thing.  But as unemployment skyrockets, federal employees need to be thankful for their jobs. It’s my belief that the desire for federal jobs is going to go through the roof in the next few months. Use this to motivate people. They are now the truly fortunate ones who have jobs. They can be proud of their federal service, even as they may be frustrated with the daily existence in COVID-19 world. In the final analysis, maybe this is the really Good News for now.

Stay strong and stay safe. [email protected]

The Employee Who Can’t Perform the Essential Functions Because of a Disability

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By William Wiley, May 20, 2020

At FELTG, we love a good hypothetical Q & A, especially a hypothetical that comes from a nice student who has attended one of our classes. Here’s an example of just such an exchange:

Greetings, I am an attorney who recently attended MSPB Law Week training. One of the key features of the training was information on how to remove an employee based on performance, and how this method was under-utilized and which the mechanics of doing so were often misunderstood.

In my office, a regular hypothetical scenario that I encounter is cases where workers are unable to perform the essential functions of their position because of physical ailments or difficulties, and a reasonable accommodation will not work because of the nature of the work involved.

What do you think about removing these employees under a performance rubric, using 5 USC 4303? Is this doable? Removing these types of employees for “Inability to Perform the Essential Functions” does not seem to have the same legal authority that a performance removal does.

Any thoughts that you have on this subject would be greatly appreciated.

And here’s our FELTG response:

Very nice to hear from you. As for your question, you have a relatively common hypothetical situation and the legal road is clear cut. It is possible to remove someone for unacceptable performance if they have a medical condition that is preventing them from performing acceptably. However, doing so adds a step beyond what you have to do to remove the person for Medical Inability to Perform.

In other words, to an employee with a disability for Unacceptable Performance, you have to prove everything you would have to prove to fire that employee for Medical Inability PLUS you have to meet all the requirements of a 432 performance removal, with no additional benefit. I would suggest just going with a Medical Inability 752 removal to avoid the extra work and the extra risk in litigation.

To remove an employee for Medical Inability to Perform, you need to prove:

1 – The employee cannot perform at least one essential function of the position. This is usually easy to do because the employee often presents medical evidence from his own physician that says he cannot perform in some way. Even a backwoods lawyer such as myself stands a good chance of winning when the evidence comes from the employee’s own health care provider.

2 – The agency considered ways to accommodate the employee in his current job so that he can perform the essential functions; e.g., reasonable accommodation. In my experience, the supervisor can usually document this consideration with a one-hour documented evaluation of the work and the reason that the function is not subject to such modification.

3 – The agency, through testimony of its disability program coordinator or a staffing specialist, documents that it looked for vacant positions being recruited for within the agency for which the employee is professionally qualified and in which the employee can perform acceptably even with his medical limitations (including consideration of  whether the position can be modified to accommodate the employee’s disability). The job search should be initially at the employee’s current grade. If none are found at that level, then at lower grades.

Assuming the job search comes up empty, at this stage you can initiate a Medical Inability to Perform Removal. Were you to instead pursue an Unacceptable Performance removal, you’d still have to do all of the above to prove that you attempted to accommodate the employee’s disability PLUS you’d need to prove that you properly initiated an opportunity to demonstrate acceptable performance period (DP), that the supervisor met with the employee to assist him during the DP, that the employee indeed performed unacceptably during the DP, and that the agency’s performance plan was approved by OPM. There’s no reason to take the performance route when the medical inability route works just as well.

For more on this, you may want to consider enrolling in FELTG’s next virtual seminar that addresses medical issues like yours, Absence, Leave Abuse & Medical Issues Week, July 13-17. Good luck out there. [email protected]