How Do You Address Performance Failures During Emergency Telework?

, ,

By Deborah Hopkins, April 15, 2020

Today as you read this, over a million federal employees are teleworking because of the COVID-19 emergency. Under OPM regulations, during an emergency an agency may assign any work considered necessary without regard to the employee’s grade or title, including assignments that an employee is given while teleworking.

We’ve seen this happen in recent weeks as agencies have issued evacuation orders and sent employees home on telework, even if the employees haven’t previously been cleared to work from home. In fact, a number of federal employees are currently at home, getting paid with nothing to do because they don’t have a computer and, therefore, have no way to telework – but they’re stuck at home because it’s not safe to come to work in virus-stricken areas. If one thing is sure, it’s an unprecedented time in the federal government, the country, and the world.

So, back to that OPM stuff. An agency can assign work the employee doesn’t normally do, but only if the agency knows the employee has the necessary knowledge and skills to perform the assigned work. Let’s use me as an example. I’m an attorney. Maybe while I’m working from home you assign me to attend virtual training classes, or to proofread some documents. That’s just fine. But you can’t assign me to do peer review on a scientist’s research, because I have no clue how to do that.

The assignment of alternative performance requirements raises an important question, though: How can an agency hold an employee accountable for performance while they are on emergency telework, if the performance failure is not covered by a critical element in the employee’s performance plan?

Since the Civil Service Reform Act was implemented in 1979, the law and regulations have set out clear requirements on how federal employees should be held accountable for poor performance. And if you look at 5 CFR 432, you’ll see that an agency can’t take a performance-based action unless the employee performs unacceptably in a critical element, after being given an opportunity to demonstrate acceptable performance.

So what’s an agency to do if it assigns a performance-related task to an employee who is on emergency telework for COVID-19, and the employee doesn’t complete the task, or performs the task poorly? In other words, using me as your hypothetical employee, what can you do if I don’t attend the virtual training or don’t review the documents, if I don’t have a critical element related to either of those things?

Does the agency have to accept poor, or even no, work performance? I think not.

The agency can’t hold an employee accountable under the performance procedures if the assignment doesn’t fit into a critical element, so the agency is now left with the option to take a 5 CFR 752 action, also known as an adverse action, against the employee. This rarely-used option has been permissible under the law for 40 years.

That said, there are a few drawbacks to handling a “performance” problem as an adverse action:

    • The burden of proof is higher (preponderance of the evidence) to take a misconduct-based action, than it is to take a performance-based action (substantial evidence). The exception is the employees covered under the new VA law, where the burden of proof is substantial for misconduct and performance actions.
    • If the failure to perform doesn’t cause significant harm, the agency may need to issue multiple disciplinary actions via progressive discipline, before it can remove the employee for the failures.
    • The agency would be required to justify its penalty in any discipline it issued beyond a reprimand.

So here’s what this situation would look like, if I’m your hypothetical employee:

You: Deb, I’m registering you to attend the three-day FELTG virtual training April 21-23, so you can earn your CLE credits and learn about legal updates while you’re teleworking. You need to attend all sessions.

Deb: Is properly registered for the sessions but doesn’t attend because she is binge-watching Veep.

You: [It’s April 24] Deb, here’s your reprimand for failure to follow supervisory instructions. Now, I need you to review this document, edit it, and have it returned to me by 3:00 p.m. on April 28.

Deb: [It’s April 29] Sorry, I didn’t get a chance to review that document yet. I’ve been busy on other things.

You: Deb, here’s your proposed 3-day suspension (or reprimand in lieu of suspension, if you prefer) for failure to follow supervisory instructions.

Does this make sense? The law doesn’t require an agency to pay an employee to sit at home and do nothing during a pandemic, if there’s work the agency can assign the employee. But if the work doesn’t relate to a critical element, the agency must use the misconduct procedures to hold the employee accountable. Interesting times, aren’t they? [email protected]

The Good News: Fed Circuit Case Clarifies Board Review of VA Penalty Decisions

, ,

By Ann Boehm, April 15, 2020

Since the enactment of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (the Act), 38 USC § 714, questions have remained about its application. We’ve always known that Congress intended to improve the performance of the VA by making it easier to remove employees for misconduct and performance through shortened notice periods and a lower burden of proof (substantial evidence) for misconduct cases. But we were not really sure how the Act applied to the agency’s penalty selection.

The Act says, “[I]f the decision of the Secretary is supported by substantial evidence, the administrative judge shall not mitigate the penalty prescribed by the Secretary.” 38 USC § 714(d)(2)(B). “Shall not mitigate the penalty” sounds like – well – shall not mitigate the penalty.  With no Board quorum since the Act’s passage, we have not had any case law to substantiate that interpretation.

Now, we have guidance from the Federal Circuit in Sayers v. DVA, Case No. 18-295 (Fed. Cir. Mar. 31, 2020). In this case, the VA argued that section 714 “limits the Board’s review to only the facts underlying an adverse action.” Id., slip op. at 7. The Court disagreed and ruled the Board has to review the penalty, because removing, suspending, or demoting – i.e., the penalty – is necessarily a part of the decision and the Board is reviewing the Secretary’s decision.

Huh? Yep, clear as mud.

What the Federal Circuit really is saying in this case is that “not mitigating” a penalty is different from Board review of whether a penalty is supported by substantial evidence and reasonable. In pages and pages of legalese, it’s my belief that what the Federal Circuit is really saying in Sayers is this — the VA does not have license to fire anyone it wants to based upon any kind of misconduct. The punishment has to fit the misconduct, and if it does not, the Board can reverse the VA’s decision.

Here’s some key language from the decision that explains the Court’s thinking: “[t]he government’s reading — allowing the agency to remove an employee for the tiniest incident of misconduct so long as the agency could present substantial evidence that the trifling misconduct occurred — could ‘gut due process protections’ in a way Congress did not intend.” Id., slip op. at 10. Congress made it easier to remove VA employees, but did not and could not eliminate their basic due process rights, including the right to appeal to the Board.

So now we know.  But before I leave you, I want to tell you a few more interesting things about this case.

    • Sayers appealed to the Federal Circuit after the Administrative Judge sustained his removal. If an employee does not appeal an AJ decision to the Board, the AJ’s decision becomes the Board’s final order and can be appealed directly to the Federal Circuit. This is how an employee can get a quicker decision on an appeal in the absence of a Board quorum.
    • Interestingly, the Federal Circuit really didn’t have to decide the penalty issue in this case. The primary issue in Sayers was whether section 714 applies retroactively. The misconduct for which the VA fired Sayers occurred before the passage of the Act, and yet the VA applied section 714 to Sayers’s case. The Federal Circuit said that was a no-no – section 714 cannot be applied retroactively.

The court vacated and remanded the Administrative Judge’s decision.  End of story, right? Not exactly. The Federal Circuit still wrote a lengthy opinion on section 714’s penalty language. It did not have to do that.

Why did it do that? I think the answer to that question is buried in a footnote in the decision. The Federal Circuit decided a lot of things in this case that it did not have to because THERE IS NO MSPB. Sayers, slip op. at 5 n.3. It’s a problem. So, they are trying to provide guidance in the absence of a functioning Board.

    • Interestingly, this case has some really good language on why it’s easier to remove an employee for performance than for misconduct. According to the court, the agency has a “unique view on how incompetence impacts the agency,” thus performance is reviewed on a lower burden of proof with no penalty mitigation (except, paradoxically, under the Act, where the burden is the same and there is also no penalty mitigation). Folks, remember that language. The agency knows when an employee’s poor performance is hurting the agency. We say it over and over here at FELTG – take care of poor performers, and trust managers when they say an employee’s performance is harming the mission!

So there you have it. I hope you see some Good News in this decision. We have some clarity. We have some good language on performance. Stay safe out there! [email protected]

7 Tips for Coping With the Stress of a COVID-19 World

, ,

By Shana Palmieri, April 15, 2020

The coronavirus pandemic has thrown the globe into a sudden, unexpected and intense trauma.  As a result of the global pandemic, lives for people around the world have changed in an instant. Within the first three months of 2020, our societal structure and lives were dramatically altered, causing our entire population to shift course in ways the majority of people have never experienced.

If you are struggling as a result of these sudden, intense changes in your life, you should know it is an expected and normal reaction to an abnormal and challenging situation.

Some common reactions you may be experiencing as a result of the COVID-19 pandemic include:

  • Disbelief
  • Emotional numbness
  • Sleep disturbance and/or nightmares
  • Anger, moodiness and irritability
  • Forgetfulness
  • Denial
  • Guilt
  • Panic
  • Emotional withdrawal/isolation
  • Crying
  • Grief
  • Questioning typically held faith or religious beliefs

Implementing strategies to manage stress and anxiety during these challenging times will allow you to stabilize your mood, stress level and improve your overall health.  Times of extreme stress are typically those times we call upon our closest friends and family for connection and support. The COVID-19 pandemic creates the added stressor of requiring us to physically distance ourselves away from our social supports and connections.

While physical distancing is currently critical to mitigate the spread of COVID-19, social connection continues to be key to reducing stress and anxiety. It is important to stay connected to key social supports through available technology to help cope with the current crisis. [Editor’s note: Shana is one of several instructors participating in the Emerging Issues in Federal Employment Law virtual training event April 21-23. Her session Strategies for Stress: Effective Coping in the COVID-19 World will provide more guidance on how to manage change and stress for you and your employees. For more information or to register, click here.]

In addition to staying socially connected while maintaining physical distancing, here are a few additional tips to help manage stress and anxiety through the crisis:

TIP 1: Allow yourself the time and space to feel the emotions caused by this sudden change. It is important to give yourself permission to process emotions related to this current crisis.  Repressing your feelings can, in the long run, create further anxiety, stress, and cause pressure to build.

TIP 2: Socially connect to positive supports and/or schedule a telehealth visit with a therapist. Connect with your friends, family and, if needed, a therapist to talk. Social supports can be helpful to create a community going through a shared difficult experience in unison. It can also be helpful to engage in social connections (while physically distancing) that include conversations or shared activities that are not related to the current crisis to maintain elements of your normal life. (Have dinner together over video chat, play a game over video chat, have a Netflix party.)

TIP 3: Develop a new routine. The majority of society experienced a sudden and dramatic change in their routine.  Kids were sent home from school, workers were furloughed or sent home to telework, all non-essential businesses were closed and the majority of the country has been mandated to stay at home. With the entire family now at home 24/7, it is important to develop a new routine and healthy boundaries in the household. Think about and implement a routine that will help you reduce stress.

TIP 4: Exercise. The gyms are closed and depending on where you live, getting out for exercise can be a challenge. However, exercise is key to reducing stress and anxiety. Consider running/walking outdoors if that is an option, or taking an online workout class.

TIP 5: Limit watching the news to a specific amount of time each day for updates. Constant news watching can increase anxiety and stress. Create a plan to get the needed news updates and information and limit the times spent watching the news. Please remember that Facebook and similar social media sites are not valid sources of the news. Get the facts from a valid source.

TIP 6: Eat nutritious meals. It is well-documented that unhealthy eating habits have a significant impact on poor mental health, including depression and anxiety. Eating nutritious meals will improve your mental health and keep your immune system functioning well.

TIP 7: Engage in healthy sleep habits. Sleep is critical to keep stress and anxiety levels low. Sleep has numerous benefits, including keeping a healthy immune system, reducing the risk of chronic disease and helping with weight loss. A good night’s sleep should include 8 hours a night. Develop a positive sleep routine that is consistent.

The COVID-19 pandemic has presented our society with an unprecedented crisis in modern times. While we must physically distance ourselves, we must also continue to unite to support each other, our families and our communities to reduce the spread of the virus and mitigate the emotional toll of the crisis.

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. [email protected]

*There are situations in which individuals experience serious complications from a stress reaction and have symptoms such as thoughts to harm themselves, aggression towards others, and paranoia/psychosis. If you experience any serious symptoms, please reach out immediately to a mental health professional for assistance. The suicide hotline can be reached at (800) 273-8255.

Flatten the Curve on Virus-related Workplace Harassment

, ,

By Dan Gephart, April 15, 2020

As the grim realities of the COVID-19 pandemic began to spread across the country in mid-March, so did discrimination, harassment, and the unfair treatment of some Americans. Spurred on by references to coronavirus as the “Chinese Flu” and, even more disgustingly, “Kung Flu,” the unfair treatment took many forms with one commonality – those on the receiving end were thought to be Chinese.

The California-based Asian Pacific Policy & Planning Council received nearly 1,200 reports of harassment during a two-week period in mid-March. Most were reports of verbal harassment. In one case, a young woman was screamed at and spat upon on as she walked down a San Francisco street. It’s not limited to California. Across the country, numerous Asian Americans and Pacific Islanders have experienced everything from microaggressions and racial profiling to violence.

The biased treatment has taken on economic forms as well. While Americans bemoaned the lack of toilet paper, rolls upon rolls of the desired bathroom tissue sat on shelves in Korean and Chinese groceries across the country. Chinese restaurants saw a significant drop in customers even before restrictions on restaurants were put in place.

Recent reports optimistically suggest that social distancing efforts may be flattening the curve of the virus. But they do not suggest a flattening of this ignorance that leads to discriminatory actions. Bias may appear to be dormant now as the majority of employees work from home. However, you need to be aware that it could erupt anew when employees return to the physical workplace.

Employees are protected from harassment and disparate treatment based on national origin. National origin is a protected category and it’s broadly defined. The law protects employees against discrimination based on an individual’s place of origin, as well the origin of an individual’s ancestors. It protects individuals who have the physical, cultural, or linguistic characteristics of a national origin group. The law protects those who are married to a person of a national origin group, have a name closely associated with a national origin group, or belong to an association that promotes the interest of a national origin group. In its 2016 guidance, the EEOC noted that a lot of national origin discrimination tends to be intersectional, which means the individual is discriminated against based on national origin and another protected basis, such as race or religion.

Another important point: Employees are also protected from discrimination based on perceived national origin, which seems to be the case with much of the virus-related harassment.

If employees create a hostile work environment for a coworker because of his/her/their national origin based on some uneducated reasoning attached to COVID-19, it’s your responsibility to promptly investigate and correct those actions. You shouldn’t take action just to meet your legal obligations. Taking action inspires the trust of your employees and generates their confidence that you will take all allegations seriously.

To show that you’re serious, take corrective action that:

    • Is designed to stop the harassment.
    • Includes disciplinary measures that are proportional to the seriousness of the offense.
    • Doesn’t adversely affect the victim of harassment.
    • Addresses harm, such as reinstatement, expungement of disciplinary records, restoration of leave and other appropriate remedies, including an apology from the harasser.

You’ll learn more when you attend Preventing and Correcting Discrimination: A Focus on Race, Color, and National Origin on Thursday, April 23.  The presentation by FELTG Instructor Ricky Rowe, the former National EEO Manager for the Department of Veterans Affairs, is one of nine live instructor-led events taking place during the FELTG Virtual Training Institute’s three-day Emerging Issues in Federal Employment Law event, April 21-23.

While the country has always rallied to meet its great challenges, our sad historical tendency has also been to find a target to blame. This has led to numerous horrors, such as Japanese internment camps or the lingering discrimination against American Muslims. Don’t let it happen in your workplace. [email protected]

Tips from the Other Side: Practicing Employment Law Virtually

, ,

By Meghn Droste, April 15, 2020

Much  has changed since our last FELTG newsletter. Many of us are staying at home now and with that, far more employees are teleworking than probably any other time before.  All of this teleworking brings new questions, more challenges, and a lot of differences in how we all work. In light of all of these changes, I have compiled some tips and pointers to consider as you move your practice into the virtual world.

First, before you follow any of my tech suggestions, please check with your agency to ensure that these options are approved and available to you.  Security issues and other concerns vary from agency to agency, and your agency may already have technology in place that can be used to address some of these issues.  For example, if your agency already uses Microsoft products exclusively, you may have access to Teams for meetings and calls, while another agency might rely on Google products and, therefore, have access to Google Meet.  (If none of these terms are familiar to you, I strongly recommend checking with your manager and/or IT team to determine what resources you can tap during this time.)

With that disclaimer out of the way, here are some things you may want to consider to keep your cases moving. One thing that might not change for you much is how often you are on the phone. For those who regularly interact with witnesses, opposing counsel, and others in different locations, you may be used to doing much of your work by phone rather than in person. The challenge may be in how to do so if you do not have an agency-issued phone that you can use at home. I prefer not giving out my personal cell phone number for work calls so I created a free Google Voice account, which gives me access to a local number that I can use through my cell phone. It allows me to make and receive calls without having to give out my regular number.  You might also want to consider using Zoom, Microsoft Teams, or Google Meet without the video option for calls.

And that brings us to the now ubiquitous video chats. It really does seem that everyone is doing them (including some preschool play groups – the one to two-year-old set is now getting in on the fun!). Video calls can seem overwhelming right now, but they can be very helpful for preparing witnesses for depositions or hearings, and for conducting depositions. It’s not the same as being in the same room with the witnesses, but as the Commission has recognized, being able to see a witness can be crucial to gauging credibility. Of course, video meetings can come with some risks. (Type “zoombombing” into your search engine of choice if you don’t know what I’m referring to.)  You can minimize if not eliminate these risks by ensuring that you require each caller to use a password to enter the chat, require the host to initiate the call and individually approve attendees to enter the virtual room, and disable features like recording so that there are no recordings stored on cloud servers.

As state and local governments across the country extend their stay-at-home orders, we may have to address some of these issues in conducting hearings before the EEOC as well. Since 2006, the Commission has prohibited administrative judges from conducting hearings entirely by phone except when circumstances make in-person or video testimony impossible, or both parties request it. If you have a hearing scheduled in the next few months, I encourage you to explore options for video testimony that do not require participants to travel to locations with VTC equipment.

Finally, be sure to take confidentiality concerns into account when you are using phone or video calls to conduct interviews, depositions, and possibly hearings. I know it can be hard to find a private space when everyone is at home, so you may want to invest in a white noise machine or a white noise app for your phone to make sure no one else can hear you as you talk.

Good luck out there and be sure to take some mental health breaks when you can to stay sane during these challenging times! [email protected]

Re-shape the Way You Think About Performance Conversations

, ,

By Anthony Marchese, April 15, 2020

There are few expressions within the nomenclature of the workplace more effective at generating a physiological reaction than “performance review” or “performance feedback.” For supervisors and individual contributors alike, the mere mention of these words have a tendency to invoke a lot of feelings including: anxiety, frustration, confusion, apathy, resentment, gratitude, or even pleasure. How do you feel about performance feedback? How do your employees feel?

As a lover of all things leadership, my own research and experiences reveal that supervisors (and those whom they manage) have less than favorable things to say about the nature of how feedback is provided, and how often it is provided. They even question the overall usefulness of that which is provided. Interestingly, many non-governmental organizations have eliminated the annual performance review process entirely. Instead, they require managers to have ongoing performance-related conversations throughout the year.

Feedback is intended to recognize and reinforce positive behavior and to act as a catalyst to correct poor performance. The ability to provide feedback that generates the best from employees is not supernaturally imbued upon us during our first day as a supervisor. Most learn of its importance and what works/doesn’t through trial and error. Many supervisors describe struggling with (and even dreading) feedback of any kind, as they may have a firm grasp of the performance management “process” but have little confidence in their skills to translate the process into positive employee performance. In other words, how do I as a supervisor communicate my expectations and provide ongoing support so that my employees have all they need to be successful?

Conversely, employees may complain to colleagues that they don’t know what their supervisor wants or aren’t sure what they think about their work. They feel frustrated after spending a lot of time on a task only to learn that it didn’t meet expectations and must be redone. Like emotional intelligence, providing feedback effectively is a skill that can – and should – be developed. It is possible to reshape how both you and your employees feel about performance conversations. Here are two tips that can help:

Consider your own behavioral style and that of your employee(s) BEFORE providing feedback. Most of us speak one of four distinct languages that are evident by our normal behavior: Results/Outcomes, Analysis/Data, Energy/Creativity, and Relationships/Collaboration. Knowing this information can help you provide feedback that is better understood and useful to your employee.

Make constructive feedback impactful. Don’t assume that your employee knows how to respond to constructive feedback, even if you think your observations and follow-up requests are clear. Changing behavior (or developing new expertise) is a process. Learn how the three F’s (Focus, Feedback, Fix) can make all the difference!

For more information, join me for the webinar Providing Performance Feedback that Makes a Difference on Tuesday, April 28, 2020 from 1-2 pm ET. Click here to register for the webinar.

Due Process Challenges in a COVID-19 World

,

By Deborah Hopkins, April 7, 2020

When it comes to due process in federal sector employment law, the steps are as easy as 1-2-3. Let’s take a hypothetical where the employee has violated agency purchase card restrictions, and the agency is ready to propose his removal. Here are the three steps that provide Constitutional due process to the employee – mandatory steps if he is a career Title 5 or Title 42 employee and no longer a probationer:

  1. The agency provides the employee with a proposal notice containing the proposed action (removal), the charge (misuse of an agency purchase card), the penalty justification (Douglas factors worksheet), and boilerplate rights, plus any materials relied upon.
  2. The employee is given a minimum of seven days to respond orally or in writing, and to be represented.
  3. The Deciding Official issues an impartial decision based only on the information in the proposal, and the employee’s response.

This is all fairly straightforward, though by no means do all agencies do it perfectly. But now that we are living in a COVID-19 world, there are some new questions that agencies are facing as it relates to providing due process. Let’s take a look.

The employee is working from home and we usually hand-deliver proposal notices, but the employee is on telework. What are our options?

In this case you have two options:

    • You can hand-deliver the proposal to the employee at his home. This is currently not advised, as many of us are under social distancing and stay-at home orders. I suppose if you were pulled over by the police on your way to the employee’s house you’d have a pretty good argument that this delivery is mission-essential.

Here is the better option:

    • Mail the letter to the employee, email it to the employee, or both. When an employee is teleworking, there’s a presumption of receipt of an email sent by a supervisor. What’s more, the folks in IT can check and see exactly when the employee opened the email. And if you think emailing proposed discipline is frowned upon by MSPB, then check out Korb v. MSPB, MB-1221-14-0002-W-1 (March 2, 2016) (ID), where an MSPB supervisor emailed a proposed adverse action to an employee. You can also send the letter via U.S. mail, where there is a presumption of receipt after 5 days.

Watch the timelines here, because the clock on the notice and response period starts on the day the employee receives the notice. If you only use the mail, you’ll be waiting a few extra days to start the notice period.

The employee needs access to files at the agency in order to prepare his response, and the building is closed because of COVID-19. Do we have to wait until the building re-opens to issue the proposal?

No, you do not need to delay your action. At this point in the process, the employee is not entitled to any agency files to prepare his response – unless your union contract says otherwise. Once the removal is issued and the employee files an appeal, he can request relevant files through discovery and the agency must produce the information. At the proposal stage, however, there is no entitlement. Don’t take my word for it; check out Kinsey v. USPS, 12 MSPR 503 (1982), a foundational Board case that settled this question in the early days of the Civil Service Reform Act.

The employee has requested an in-person response but the Deciding Official is teleworking and does not want to risk being exposed to the virus. Does the agency have to grant the onsite response meeting?

Again, the answer is no. The employee is entitled to an oral response, not a face-to-face response. Telephone or video conferencing are routinely used for the oral response, even when a pandemic is not consuming the globe. As long as the deciding official is able to hear the employee’s response, the legal requirement in 5 USC § 7503 has been met.

The Deciding Official receives an email from the employee’s former supervisor, encouraging the DO to remove the employee. Must the Deciding Official tell the employee about this email?

If the DO considers the information in the email at all in making her decision, then the employee is entitled to notice of this information, commonly known as a Ward letter. The agency would then need to give the employee the statutory minimum of seven days to respond to the email before the DO could implement her decision.

If the DO does not notify the employee of this new information, and the employee or judge finds out, the agency will automatically lose the case on a due process procedural violation – even if the agency has 50 witnesses, a public confession, and a video recording of the entire act of misconduct. Regardless of the evidence, due process violations are losers for the agency every single time.

In fact, most agencies lose cases because of due process violations, rather than on evidence. It’s a tricky area so for that reason, we invite you to join us next week on April 16 for a 60-minute webinar Due Process Violations: How One Mistake Could Cost You the Case. Until then, be safe and take care. [email protected]

Managing the Workplace During the Coronavirus Pandemic

, ,

By Dan Gephart, March 19, 2020

First, it was the guidance from the Office of Personnel Management less than two weeks ago. And then as last week ended, the White House recommended that agencies ensure continuity of operations and keep their employees safe by expanding telework and leave options. We are looking at a new federal workplace reality for, at least, the near future.

Here are some suggestions for managing the workplace, while protecting your employees, in this new reality.

Get over your issues with telework. It’s been 10 years since the Telework Enhancement Act was signed by President Barack Obama. Your agency should have a plan, even if that plan was scaled back over the last couple of years. One of the reasons telework was touted so strongly once upon another Administration is because it’s an agency’s best tool to ensure the continuity of its essential functions.

It’s hard to imagine a situation that aligns itself more with the use of telework. You have seemingly healthy employees who can work, but because of their contact with a person who may be symptomatic, they are quarantined out of the workplace.

Earlier this month, OPM sent out the following guidance:

“For an employee covered by a telework agreement, ad hoc telework arrangements can be used as a flexibility to promote social distancing and can be an alternative to the use of sick leave for exposure to a quarantinable communicable disease for an employee who is asymptomatic or caring for a family member who is asymptomatic. An employee’s request to telework from home while responsible for such a family member may be approved for the length of time the employee is free from care duties and has work to perform to effectively contribute to the agency’s mission.”

Most agencies would agree that telework is not the right option for employees who are taking care of children at home during the workday. And that was the standard practice – until recently. OPM suggested that agencies loosen up their policies to allow employees to telework even if they’re caring for children at home due to school closings.

Once this health crisis is in the rearview mirror, I hope the Administration, OPM and agencies reassess the value of telework and expand programs so they are better prepared for future emergency situations. And it doesn’t hurt that telework will also help agencies recruit and retain employees, increase productivity, reduce government spending, and accommodate some employees with disabilities.

Hold employees accountable for performance and conduct. A telework assignment is not an offer to Netflix and Chill. Remember this: Work is not a place, it’s a thing you do. And now, more than ever, you need employees who are doing their “thing” as best they can.

Follow these best practices as you manage teleworkers:

  • Review your employees’ telework agreements.
  • Communicate your expectations.
  • Model expected behavior, especially if you are also teleworking.
  • Support your employees. Be available to them.
  • Don’t over-monitor.

What about asymptomatic employees who were struggling with performance before telework became an option? If an employee is currently in the middle of demonstration period and is placed on telework, that demonstration period should continue as scheduled, whether there is a week, two weeks, or more left.

However, if an employee isn’t eligible for telework while they are quarantined, then it’s a different story. If the employee is on sick leave or  weather and safety leave, their approved time off cannot be used against them. Re-start the demonstration period when their leave ends and they return to the physical workplace.

Authorize weather and safety leave. Wait up, did I just say weather and safety leave? Are we expecting a late winter Snowmaggedon?

Not at all. OPM and the White House suggest that weather and safety leave be used for those asymptomatic employees who are “subject to movement restrictions” and aren’t a part of the telework program. 

Per OPM: “This determination is based on the significant safety risks for other employees and the general public that would be incurred if such an employee were allowed to travel to and perform work at the employee’s normal worksite.”

There is this disclaimer in OPM’s guidance: “The use of weather and safety leave would not be appropriate in cases of communicable diseases that have not been designated as quarantinable by public health authorities.”

Weather and safety leave isn’t the only option. Review OPM’s guidance for information on the use of sick leave, annual leave, and more. And you’ll be sure to get answers when you join us for Absence, Leave Abuse, and Medical Issues Week June 8-12 in Washington, DC.

Don’t get hung up on sick notes. OPM wisely allows agencies to be liberal with doctor note requirements for sick leave of three days or more requirement. (Quick reminder for future non-COVID-19 days: Agencies may require medical evidence for which sick leave is granted for fewer than three days if it determines the evidence is necessary.)

The government doesn’t want someone who has had contact with the coronavirus to be in the workplace, possibly infecting others. But tests for the virus are hard to come by so far. For that reason, OPM asked agencies to be “mindful about the burden and impact of requiring a medical certificate.”

“An agency may consider an employee’s self-certification as to the reason for his or her absence as administratively acceptable evidence, regardless of the duration of the absence.” [email protected]

Generic Standards that Fail to Measure Performance Effectively

, ,

By Barbara Haga, March 19, 2020

I’ve written about conduct issues making it into performance plans when those matters should be dealt with through other means, but there are other problems that we should address. This month, I’ll address generic standards.

I am not suggesting that agencies shouldn’t use generic standards. I am actually a fan of the concept – if they are written well. Unfortunately, there are a lot of examples of standards that are very difficult to use because they cover too much in one standard.

Here’s an example: In this system, the manager sets the elements and then applies these generic standards. So, the manager develops the “what” that’s being measured by these words. This is a Fully Successful standard that would apply to all jobs, no matter what the grade.

The employee demonstrates consistently successful performance that contributes positively to organizational goals. The employee effectively applies technical skills and organizational knowledge to deliver results based on measures of quality, quantity, efficiency, and/or effectiveness within agreed-upon deadlines, keeping the rating official informed of work issues, alterations, and status. The employee successfully carries out regular duties while also handling any special assignments and identifying opportunities to improve organizational operations/results that consider stakeholder perspectives. The employee plans and performs work according to organizational priorities and schedules. The employee communicates clearly and effectively and works effectively with others to accomplish organizational objectives.

Let’s review sentence by sentence.

The employee demonstrates consistently successful performance that contributes positively to organizational goals.

The first part just repeats the definition of Fully Successful. I’m not sure the second part is something for which we hold employees accountable. That’s on management to set measures that support agency goals.

The employee effectively applies technical skills and organizational knowledge to deliver results based on measures of quality, quantity, efficiency, and/or effectiveness within agreed-upon deadlines, keeping the rating official informed of work issues, alterations, and status.

This is the diamond in this standard.  This is what employee measures should have in them, and it should be universally applicable.

The employee successfully carries out regular duties while also handling any special assignments and identifying opportunities to improve organizational operations/results that consider stakeholder perspectives.

I would like to review this one in two parts.

I view the first part related to special assignments as a problem. First, just being on a special assignment shouldn’t be the measure. The quality of the work in that assignment is what should be measured. However, it should be measured based on the same criteria that apply to other assignments – applying technical skills and organizational knowledge and the other criteria in the second sentence. Secondly, special assignments shouldn’t outweigh the bulk of an employee’s work, which hopefully would be the normally assigned duties. And, often the employee has no control over what special assignments they are given. What we don’t want to create is perpetual volunteers who think that having some special project gets them a higher rating than the coworker who is plugging away doing the work of the unit. Third, not every job has these kinds of opportunities.  They may be jobs in remote locations, lower grade jobs, etc.

“Identifying opportunities to improve organizational operations/results that consider stakeholder perspectives” is written at a very high level. Not every employee is going to have these kinds of opportunities either.  It might be more reasonable to ask for well-thought out input regarding work procedures. That might be attainable for a lot more grades and types of jobs. You also want to qualify this, so it’s not just a lot of ideas, but they are ideas you could actually implement.

The employee plans and performs work according to organizational priorities and schedules.  

This one is reasonable for a lot of jobs that have the ability to decide what is performed when. However, lower-graded positions may have little control in this regard, so it may be difficult for the manager to use as a measure.

The employee communicates clearly and effectively and works effectively with others to accomplish organizational objectives.

Before jumping in with this portion of the standard, let’s think about designing elements that work effectively.  The way I explain it is that you would want to get all of the work that requires the same skills and abilities in one place.  You could have someone who is very good technically but whose writing and speaking skills are not very good. You could have someone who is very good technically who is a pain in the butt to work with.

I would suggest that you hold people accountable for these things but to do it in a separate element. There are two reasons:

  • A generic standard like this usually is applied to some technical aspect of a job. It’s common to see HR Specialists in our business with an element on ER work and an Element on LR work (I am not saying that’s good, but it’s common). With this element description, the manager would have to assess if the employee communicated effectively on ER matters and then separately address the effectiveness of LR communication, and then make that same assessment on all of the other elements. It makes it very tough for the supervisor.
  • The other issue I see with this is that the aspect of communicating effectively should really be critical by itself. Can someone succeed in our line of work if they can’t do these things? Isn’t that the issue that time and again we hear about from customers that HR doesn’t respond, doesn’t clearly explain, doesn’t provide options, etc. I doubt that HR is necessarily unique in this aspect of performance.  I would think that similar issues come up in other lines of work.

Our Employee Relations Week class June 15-19 in Denver, CO, will include much more discussion on writing good standards.

Do You Believe These Myths About Leave?

, ,

By Deborah Hopkins, March 19, 2020

If you are part of the FELTG Nation, you probably already know that federal employees have significant rights to various types of leave. In fact, starting this fall, most will receive even more leave entitlements, in the form of paid family leave. That said, leave is not always an entitlement. Today I want to discuss some of the myths surrounding federal employee leave.

Myth: Employees always have the right to dictate their leave status if they have leave on the books.

Here’s the scenario: Your employee doesn’t come in to work one day when she’s scheduled, and doesn’t request leave or otherwise notify the supervisor she won’t be in. The next day, she comes in and tells the supervisor to put her on annual leave for yesterday. She has 32 hours of annual leave on the books. Must the supervisor grant the annual leave?

No. Annual leave is not an entitlement, and the supervisor may deny the request so long as the denial is reasonable. Is it reasonable to deny a leave request after the fact, when there is no entitlement, and the employee did not follow proper leave procedures? You bet. The employee who doesn’t come to work when scheduled is not on approved annual leave, she is AWOL.

In addition, there’s also a potential second disciplinary charge for failing to follow leave procedures. If you need good aggravating language, look no further than Yartzoff v. EPA, 38 MSPR 403 (1988). This case discusses how an agency is “doubly burdened” by an unscheduled absence; once for the loss of the employee’s services, and again for the loss of the opportunity to plan for the absence.

We’ve said it before, and we’ll say it again: Federal employees do not have the legal right to place themselves on leave. There is a three-step procedure that must be followed according to the law regardless of the type of leave requested, and if you’re not doing things this way, you are needlessly making your life more difficult.

  1. Employee submits a leave request according to agency procedures
  2. Supervisor considers the request
  3. Supervisor either grants or denies the request.
    • Sometimes the supervisor must grant the leave; other times it’s discretionary.

That’s the law.

Myth: If an employee is at work, she can’t be charged AWOL.

I think we all know that just because someone is at work, doesn’t mean she is actually working. Since the beginning of time – or at least since the beginning of the Civil Service Reform Act – employees who are on the clock but not doing government-related-work can be charged AWOL, or unauthorized absence if that’s what your agency calls it. A few cases to get you started:

  • An agency may charge an employee with AWOL for conducting personal business while on duty. Mitchell v. DoD, 22 MSPR 271 (1984)
  • Sleeping on the job; wasting time. Golden v. USPS, 60 MSPR 268, 273 (1994)
  • If an employee is insubordinate and is told to leave the work site until he agrees to follow directives, he is not on approved leave; he is AWOL. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

Myth: An employee may only use sick leave if he, or a close family member, is incapacitated for duty.

Not long ago, I had a federal employee in my class whose sister had recently died. The employee requested sick leave to attend the funeral, and her supervisor denied the leave request. Well, that denial was absolutely wrong.

Under 5 CFR § 630.401(a)(4), an employee is entitled to use up to 104 hours (13 days) of sick leave each leave year for family care and bereavement, which includes making funeral arrangements or attending the funeral of a family member. The definition of family member in these instances covers a wide range including spouse; parents; parents-in-law; children; brothers; sisters; grandparents; grandchildren; step parents; step children; foster parents; foster children; guardianship relationships; same sex and opposite sex domestic partners; and spouses or domestic partners of the aforementioned, as applicable. Check out OPM’s full list of Definitions Related to Family Member and Immediate Relative for Leave Purposes.

The supervisor in this case could have legally denied the sick leave request only if the relative did not meet the definition of family member, if the employee had already used 104 hours of sick leave on family-related care that leave year, or if the employee did not have accrued sick leave. Otherwise, the leave was an entitlement and should have been granted.

There are also a few other areas where an employee may not be sick but has an entitlement to sick leave (e.g., routine dentist appointment), so you’ll want to be sure to read the regs if you’re not familiar with those.

Myth: The agency may dictate the employee’s pay status during FMLA.

A lot of supervisors miss this one, but the employee who is on FMLA gets to decide if the time off will be recorded as sick leave, annual leave, LWOP, or any combination of the three. Yes, that means an employee can
use LWOP during FMLA and keep all his annual leave and sick leave during FMLA, and save it for a rainy day. The agency has no choice in the matter, so don’t even try to force an employee to use accrued leave. The law is on the employee’s side.

If you like these leave topics, we have an entire training week on Absence, Leave Abuse and Medical Issues in Washington, DC, starting March 30 – or if you’d prefer to wait a few months to travel, September registration is also open. If you find this information helpful, you’re welcome to join us. We’d love to see you there.  [email protected]