OPM Doesn’t Care if You are Killed

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By William Wiley, July 19, 2017

Regular readers of our newsletter will remember the celebration we had when Congress created a new type of paid leave status back in December: Notice Leave. The problem we’ve been having for several years has been a conflict between two competing interests:

  1. The interest of not paying employees to not work by putting them on administrative leave for months and years, and
  2. The interest in getting potentially dangerous employees out of the work place where they might kill somebody once their removals are proposed.

Here at FELTG, for nearly 20 years, we have come down on the side of the protection of the government’s workplace by using administrative leave during the 30-day notice period that precedes a removal for misconduct or performance. To us, reducing the opportunity for workplace violence is more important than a few days of administrative leave.

Unfortunately, we don’t get to make the rules. The rule makers at OPM and on Capitol Hill have come down on the side of theoretically protecting the federal fisc by ordering that the use of administrative leave be restricted even if it endangers the lives of federal workers and the public. Yes, you’re reading that correctly. OPM’s regulations for many years have said that normally an employee whose removal has been proposed will remain in his regular job during the notice period.

If we need to explain to you why this is foolish, you must be new. Does anyone REALLY think that the employee is going to produce usable work once notified of his impending removal? Is it REALLY a good idea to allow an about-to-be-fired individual to have 30 days of access to sensitive government documents and personal citizen data? Does anyone REALLY believe that a civil servant who is about to be terminated is not under the biggest stress of his life (and we all know what stress does to making sane decisions)?

Congress’s creation of Notice Leave, we wrote, was the best Christmas present any civil servant could have asked for. Finally, we had a method specifically designed to protect federal employees from getting killed by a stressed-out coworker who has a pending removal over his head. With no limitation on how long Notice Leave could be used, we could, for the first time in history, hand the employee a proposed termination, escort him out the front door and bar him from returning, and still protect his right to receive a salary for the duration of the notice period without using administrative leave.

Well, leave it up to OPM to screw up a perfectly fine opportunity. Rather than taking the new law, concluding that when an employee’s removal is proposed it categorically “jeopardizes the government’s interest” (statutory standard) to keep him in the workplace for 30 days, and issuing a regulation to put that into effect, OPM has taken just the opposite approach. Last week it proposed a regulation that will make it nearly impossible for an agency to protect itself by putting a failed employee on Notice Leave.

Here’s what OPM’s policy should say, according to FELTG:

5 CFR 630.1505 Administration of Notice Leave

  • Whenever an agency proposes the removal of an employee, normally it shall place the employee on Notice Leave. Retaining such an employee in a work status jeopardizes the government’s interest in the safety and integrity of the federal workplace. The authority for imposing Notice Leave should be delegated to the lowest reasonable level within the agency.

Here’s what OPM has proposed otherwise. We’ve restructured the requirements for clarity and emphasis on the ridiculous burden that OPM is creating:

5 CFR 630.1503 – 1506

Prior to placing an employee on notice leave the agency may not establish a categorical policy and must document the following for each incident of notice leave:

(1) The reasons for initial authorization of the notice leave, including the alleged

action(s) of the employee that required issuance of a notice of a proposed adverse action;

(2) The basis for the determination that the employee’s retention in a work status would:

(i) Pose a threat to the employee or others;

(ii) Result in the destruction of evidence relevant to an investigation;

(iii) Result in loss of or damage to Government property; or

(iv) Otherwise jeopardize legitimate Government interests.

(3) An explanation of why any of the following options are not appropriate:

(i) Keeping the employee in a duty status by assigning the employee to

duties in which the employee no longer poses a threat,

(ii) Allowing the employee to voluntarily take leave (paid or unpaid) or paid time off, as appropriate under the rules governing each category of leave or paid time off;

(iii) Carrying the employee in absent without leave status, if the employee is

absent from duty without approval; and

(iv) For an employee subject to a notice period, curtailing the notice period if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, consistent with 5 CFR 752.404(d)(1).

(4) When making the decisions above, the agency must document its consideration of:

(i) The nature and severity of the employee’s exhibited or alleged behavior;

(ii) The nature of the agency’s or employee’s work and the ability of the agency to accomplish its mission; and

(iii) Other impacts of the employee’s continued presence in the workplace

detrimental to legitimate Government interests.

(5) When deciding whether an employee’s presence is detrimental to government interests, the agency must document consideration of whether the employee will pose an unacceptable risk to:

(i) The life, safety, or health of employees, contractors, vendors or visitors to a Federal facility;

(ii) The Government’s physical assets or information systems;

(iii) Personal property;

(iv) Records, including classified, privileged, proprietary, financial or medical records; or

(v) The privacy of the individuals whose data the Government holds in its

systems.

(6) And if documenting the rationale for each particular grant of Notice Leave isn’t enough, the agency also has to document:

(i) The length of the period of notice leave;

(ii) The amount of salary paid to the employee during the period of leave;

(iii) The reasons for authorizing the leave:

(iv) Whether the employee was required to telework under during the period of the investigation, including the reasons for requiring or not requiring the employee to telework; and

(v) The action taken by the agency at the end of the period of leave.

In its preamble to these proposed regulatory changes, OPM opines the reason it is requiring that all other conceivable options short of Notice Leave be exhausted and documented rather than simply implementing Notice Leave commensurate with the proposed removal: during the notice period by avoiding Notice Leave if possible, the agency can “continue to benefit from the employee’s skillset and abilities to further the agency’s mission.” Well, that’s just stupid. Think who these people are who have had their removals proposed. They are almost always civil servants who have:

  1. Already engaged in misconduct so bad that their supervisors have decided, after doing a Douglas factor analysis, that these bad hombres should be fired,
  2. Performed so poorly as to be determined to be unacceptable, given a month or better to improve their performance, and still continue to be unacceptable performers, or
  3. Have such bad medical infirmities that they cannot perform their job.

And OPM wants us to keep these people in the workplace “to continue to benefit from their skillset.” We think that somebody at OPM needs a better skillset if they’re going to be drafting regulations in this area.

Here’s another part of the preamble we just love. OPM says that prior to implementing a period of Notice Leave, the supervisor should consult with their human resources office or general counsel. Well, why? I have held each of those positions in my career. Here at FELTG, we have trained thousands of human resources specialists and agency attorneys over the years. And you know what? We have never, ever met anyone in one of these positions who has been trained in how to predict future violent behavior. I was a psychologist before I became an employment lawyer. Any trained mental health worker who claims that he can predict with certainty whether an individual will engage in future violent behavior is engaging in malpractice.

We know better. We read report after report of workplace killings and see that in many (if not most) of them, the perpetrator had no history of violence or mental disorder, and often was well liked by coworkers. Those of you who have lived around the Beltway might remember the workplace killing that happened several years ago at the Lululemon store in Bethesda. There were two young women involved. When Worker A told Worker B that Worker B’s theft of clothing had to be reported to management, Worker B began stabbing Worker A. While conducting the autopsy, the coroner reported over 300 stab wounds in Worker A’s body.  Without exception, Worker B was described by friends and coworkers as mild-mannered, polite and cheerful, with no history with the police or of violence.

OPM’s draft regulations, by referring the matter to untrained attorneys and human resources practitioners for advice, is taking the decision away from the person in the best position to make the decision: the immediate supervisor. That supervisor also happens to be in a position where she is most likely to be the victim of any workplace violence that results from a proposed removal. Years ago, I had a supervisor-client in an agency who called me in tears. I had advised her to put the employee on administrative leave once she issued the proposed removal. Unfortunately, when she tried to put that in the draft proposal letter, the human resources specialist advising her told her that he “would not let her do that,” that he “could tell who was going to be violent,” and then went back to the HR office where he was safe behind two locked doors.

I have never felt closer to whacking an HR specialist in my life.

We cannot imagine what public good is served by OPM’s placement of these significant limitations on an agency’s authority to impose Notice Leave. It cannot be the saving of tax dollars. The employee gets paid whether at work or on Notice Leave. So that isn’t it.

Maybe it’s the perceived value of having the employee’s work product during the notice period; work product from someone who is either a) medically unfit, b) a proven non-performer, or c) a rule-breaker. With that, let’s play a little mind game:

  • First, based on your experience in the civil service, place some dollar value on the work product you estimate you’re going to get from someone who falls into one of these three categories, after you’ve told him that he probably will be fired within 30 days. Put that number here and call it Value A: $__________.
  • Next, place some dollar value on your life. And the lives of the other employees in the immediate vicinity of your office. And the members of the public wandering around your facility. And the super-secret information maintained by your agency in your data files. And avoiding the disruption to government operations that might be caused by workplace violence. Place that number here: $___________. Now, multiple this last number by a percentage that represents the likelihood, in your opinion, of violence erupting from an employee who gets a proposed removal (e.g., 1%, 5%, 50% … whatever). Put that number here and call it Value B: ________.

If your Value B is larger than your Value A, you will agree with FELTG’s proposed optional regulation that would allow immediate supervisors to impose notice leave with the least constraints possible under the law.

If your Value A is larger than your Value B, you have an exceedingly unique view of life, and you should apply to work at OPM, if you do not already.

OPM! For god’s sake, this is life and death stuff we’re talking about here!

Did you not hear about the coworker murders in the rampage at the Washington Navy Yard not long ago? Are you ignorant about the history of people like Nidal Hasan, the psychiatrist who shot 43 coworkers in a government workplace in 2009? Are you unaware that the Bureau of Labor Statistics says that every week day in America, two people kill a coworker?

These proposed regulations were drafted by someone who either:

  1. Has never spent any time in a federal workplace, or
  2. Doesn’t care that they are putting lives in danger for the sole benefit of … I have no freaking idea.

Here’s a reality check. In our FELTG seminars, this topic often comes up when we are working with a group of supervisors. We have never met a supervisor who thought it was a good idea to hand an employee a proposed removal, then keep the employee in the workplace for another 30 days. Certainly, that would not happen in a private sector company. OPM, if you care at all about the lives of federal employees and do not agree with what we’ve written here, check it out for yourself. Pull together a group of front-line supervisors from agencies throughout government. Ask them two simple questions: “How many of you think it is a good idea to keep an employee at work once his removal is proposed?” Then, “How many of you think that an employee should be removed from the workplace once she receives a proposed removal?” We guarantee you the answers you get will support what we’re saying here.

Here’s another reality check. Congress passes laws that control the civil service. Yet, very few members of Congress have ever worked as civil servants or really know much what it’s like to try to run a federal agency at the front lines. We can’t expect them to appreciate all the nuances of what we are trying to do and what life is really like out here in the trenches.

But we should expect that from OPM. As I understand government, that is the agency that is supposed to take laws passed by Congress and build regulations based on them that actually work, consistent with the flexibilities within the law. OPM has not done that here, and instead is in the process of creating a dangerous workplace that could never have been the intent of Congress when it created Notice Leave. We cannot move toward the goal of increasing the accountability of the civil service if OPM issues regulations that make supervisors fear for their lives when they try to fire a bad employee. That is EXACTLY what these proposed regulations will do.

Your comments are due to OPM by August 14, https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf [PDF].  Union folk, form the picket lines at 1900 E Street, NW; FELTG will march with you. Email: [email protected].  When submitting comments via this email address, place in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section(s) of the regulations you are providing comments on.

It’s your life. Decide how much effort you want to put into defending it. [email protected]

Important Development from OFO Regarding Calculation of Compensatory Damages Awards

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By Deryn Sumner, July 19, 2017

The Civil Rights Act of 1991 amended Title VII to, in relevant part here, allow successful complainants to recover compensatory damages for the emotional and physical impacts of workplace discrimination.  The Act placed a cap on how much can be recovered, and employers with more than 500 employees face a maximum payout of $300,000 for compensatory damages.  Once the EEOC’s Office of Federal Operations began considering cases where compensatory damages were available as a remedy a few years later, the Commission developed the framework still in place today: consider the nature, duration, and severity of harm to determine the appropriate award of non-pecuniary compensatory damages, and then make sure that award is not “monstrously excessive” on its own and is consistent with the amount awarded in cases with similar harm.

This formula worked well until more and more time passed since the 1991 effective date and, with inflation, the statutory cap of $300,000 became worth less and less.  Also, those amounts awarded in similar cases started to become less appropriate over time, if the cases relied upon were issued more than a few years prior.  Sure, the complainant in a 2007 case had similar evidence of harm and got $50,000.  Shouldn’t my client in 2017 get more than that given that it’s ten years later?  That argument has been made for years by attorneys for complainants and it finally got a foothold in a decision issued on June 9, 2017.

The Commission exercised its authority to issue a sua sponte decision reopening and reconsidering a prior decision in Lara G. v. USPS, Request No. 0520130618 (June 9, 2017).  Way back in 2009, an administrative judge issued a decision finding the agency subjected the complainant to retaliatory harassment.  Along with other remedies, the administrative judge awarded $100,000 in non-pecuniary compensatory damages.  After the agency issued a final action accepting the finding of retaliation but rejecting the award of remedies, the case came to the Office of Federal Operations on appeal. The complainant argued that the award should be adjusted to reflect present-day dollar value of the precedent cited in support of the award.  In a 2011 decision, the Commission found the administrative judge acted appropriately in awarding $100,000. The complainant then requested reconsideration arguing, “the Commission’s policy of requiring [Administrative] Judges to issue awards consistent with prior Commission cases works an injustice to present-day complainants due to the inflationary devaluation of prior awards.”  In March 2012, the Commission denied the request for reconsideration.

However, after the complainant alleged that the agency failed to fully comply with the Commission’s Order, the case came back to the Office of Federal Operations as part of a Petition for Enforcement.  After that, the Commission notified the parties in October 2013 that it intended to reconsider the case on its own motion.  A mere three and a half years later, the Commission issued its decision and given the importance of its holding, I’m including a block quote of its analysis:

Some courts, when considering whether to reduce compensatory-damage awards, have considered the present-day value of awards in comparable cases. For example, in EEOC v. AIC Security Investigations, Inc., 55 F.3d 1276 (7th Cir. 1995), the court determined that a $50,000 compensatory-damage award was not excessive when compared to prior awards of $40,000 and $35,000. Noting “that those awards were several years ago, and thus the current value of those awards is considerably greater,” the court stated that the “[c]omparability of awards must be adjusted for the changing value of money over time.” Id. at 1286. See also Deloughery v. City of Chicago, 2004 WL 1125897 at 7 (N. D. Ill. 2004) (in decision reducing jury’s $ 250,000 compensatory-damage award to $175,000, court noted that older comparable award “should be converted to current dollars”), aff’d, 422 F.3d 611 (7th Cir. 2005) (district court acted within its discretion where remitted award was sufficiently comparable to awards in other cases in the circuit).

Similarly, when determining an award of non-pecuniary compensatory damages, the Commission may consider the present-day value of comparable awards. Thus, an AJ who is awarding damages should consider the amounts that the Commission awarded in prior cases involving similar injuries and should determine whether circumstances justify a higher or lower award. The AJ should adjust the award upward or downward according to the relative severity of the complainant’s injury. The AJ may then take into consideration the age of the comparable awards and adjust the current award accordingly.

In this case, the AJ determined in October 2009 that Complainant’s injury was comparable to that of a complainant who was awarded $95,000 in September 2003. The AJ awarded Complainant $100,000, which is $5,000 more than the comparable award. It is not clear whether the AJ, in reaching her determination, took into consideration the time that had passed since the $95,000 award. Given the nearly six-year interval between the comparable award and Complainant’s award, we find it appropriate to increase Complainant’s award by an additional $10,000. Therefore, we find that Complainant should receive $110,000.00 in non-pecuniary compensatory damages. Accordingly, we will modify the ordered remedy to reflect this increased award.

So a mere 18 years later, the complainant received an additional $10,000 in non-pecuniary compensatory damages.  Was it worth it to the individual complainant?  Likely not.  However, expect to see this case heavily relied upon by complainants’ counsel in arguing for upward adjustments to compensatory damages awards. [email protected]

Learn to Avoid Unjustified Gambles

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By William Wiley, July 19, 2017

So many questions, there are. This month, we got a good one from a long-time reader about the use of Letters of Warning. The writer was being advised (accompanied by legal citations) that a Letter of Warning was considered as prior discipline by MSPB, although we teach in our fantastic FELTG seminars that it is not.  Here’s our response:

Dear Poorly-Advised FELTG-Constitute:

In each of the three cases cited by your advisor as evidence that a Warning is prior discipline, the letter of warning considered as prior discipline is a “letter of warning in lieu of suspension.” These are effectively suspensions, not simply administrative letters of some type. USPS is the defendant agency in these cases and has wisely bargained for this particular type of punishment in its national labor agreement. MSPB has found these letters to be prior discipline in other agencies besides USPS, but only IF they are developed through agreement with the employee and the employee specifically accepts them as alternative discipline constituting prior discipline for the purpose of progressive discipline. Otherwise, they are referenced in disciplinary letters for establishing notice (Douglas factor 9) and nothing else. They simply are not discipline.

Discipline was defined for us in Bolling v. Air Force, 9 MSPR 335 (1981). In that decision, the Board said that to be countable as discipline for progressive discipline purposes, the instrument must be in writing, stored in a system of agency records such as the OPF, and grievable. Back in 1981, the only widely accepted instrument that did that was the Reprimand. Letters of Caution, Letters of Warning, Letters of Expectation, etc., were used in varying ways by some agencies with many agency policies not allowing them to be grieved, and usually not storing them in the OPF. Therefore, the Reprimand developed universally as the first step in progressive discipline.

Of course, nothing stops an agency from coming up with an instrument, calling it anything it wants to call it (e.g., a Bad Day Memo), defining it as a disciplinary act in a policy statement, and ensuring that it meets the Bolling criteria. However, few if any have done that because there really is no legal benefit to adding to the list of disciplinary tools; Reprimand, Suspension, and then Removal are perfectly adequate for holding employees accountable and sooooo much simpler than trying to deal with poorly defined, confusing, additional discipline tools.

In a related arena, the courts have had to decide whether letters like Warnings and Cautions are “personnel actions” for an individual to be able to claim whistleblower reprisal. Well, sometimes yes and sometimes no, depending on the specific language, not the title of the document. They do not rise to the level of being a personnel action if they only admonish the employee to act in a particular manner, do not accuse her of anything wrong, and do not restrict her behavior. Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015). Otherwise, they do. If a Letter of Warning accuses the employee of misconduct, it is a personnel action for a whistleblower reprisal claim. However, if there is no policy allowing it to be grieved or retained in a file system like the OPF, then it is not discipline.

Isn’t this crazy?

By far, the best approach is to stop doing Warnings, Cautions, Counselings, or anything else that smells like discipline, but may or may not be. They have NO value in progressive discipline and they confuse those who do not know our law. More dangerously, they may inadvertently become something we must defend against as a personnel action for reprisal purposes, all the way through MSPB (discovery, depositions, hearings, petitions for review) to federal court.

Here at FELTG we strongly recommend that you get the word out and stop doing warnings or cautions. They are an unjustified gamble. If you want to put the employee on notice of his misconduct (Douglas factor 9), do it in an email without calling it anything. Emails in general are not grievable nor do they have much potential to become “personnel actions” if there are no threats or accusations. If you want to discipline, use a Reprimand. Nothing less. Hope this helps. [email protected]

Accommodating Employees with Disabilities During Litigation

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By Deryn Sumner, July 19, 2017

When we think of accommodating employees with disabilities, we often think of it only in the context of what accommodations the employee needs to perform the essential functions of his or her job at work.  However, when employees with disabilities file EEO complaints, it often reasonably follows that these individuals need accommodations to participate in the litigation of their EEO complaints.  The EEOC’s Administrative Judge’s Handbook (available at https://www.eeoc.gov/federal/ajhandbook.cfm) notes that “[a] party, witness or representative appearing before the Commission may be entitled to a reasonable accommodation for a disability. The Administrative Judge may order the agency to provide the accommodation.”  But what recourse does a complainant have when he or she is not provided an accommodation during litigation of a case?

The EEOC’s Office of Federal Operations considered such a situation in Davina W. v. Social Security Administration, EEOC Appeal No. 0120162615 (January 18, 2017). There, the complainant worked as an attorney for SSA in Atlanta, Georgia and had previously settled a prior EEO complaint in 2009 that allowed her to work at an alternate duty station on certain days and have a flexible start time due to her disability.  This didn’t appear to improve the complainant’s work situation, as she subsequently filed two more EEO complaints.  After the agency completed an investigation and the case was before an administrative judge, the agency sought to depose complainant.

The complainant requested that as a reasonable accommodation for her disability, the deposition begin in the afternoon, that she be granted frequent breaks, and given the late start time and need for frequent breaks, noted that the deposition could be conducted over two days.  The complainant stated she needed these accommodations due to medication she took in the morning that took five hours to kick in and resulted in severe abdominal pain and retching and her need for frequent restroom breaks.  According to the decision, the agency declined to start the deposition at a later time or conduct it over two days, and alleged that that the complainant refused to cooperate with the agency’s attempts to depose her.

The complainant filed an EEO complaint alleging that the agency failed to provide her an accommodation or engage in the interactive process with her regarding her deposition, and the agency discriminated against her when an agency official suggested that she consider disability retirement if she required a reasonable accommodation for her deposition.

The Commission found that these allegations should not have been considered separate complaints, but they should have been addressed by the presiding administrative judge in her case, noting its concern that the administrative judge “did not address Complainant’s clear request for an accommodation during her deposition.”  The Commission noted that the administrative judge has a duty and obligation to accommodate parties and witnesses and remanded the complaint for a hearing.

I share the Commission’s concern that the administrative judge did not address the complainant’s clear request for accommodation.  The complainant was not seeking to be excused from deposition entirely, but rather to have the deposition start late enough in the day and provide enough restroom breaks to accommodate her medical condition, which appears reasonable and would have met the agency’s goal of obtaining the complainant’s deposition testimony.  Instead of being required to file a separate EEO complaint to address the issue, the administrative judge should have considered it as part of overseeing processing of her existing EEO complaints. [email protected]

 

Psychiatric Examinations, the MSPB, and the EEOC

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By Barbara Haga, July 19, 2017

Last month I began recounting the case of Ms Doe, whose employer the Pension Benefit Guaranty Corporation (PBGC), was concerned about her “unusual and inappropriate behavior.”  We pick up the case with the documentation of the issues with Ms Doe’s behavior and the medical review of that information.  Some of the specifics below come from the subsequent EEOC decision issued earlier this year, Marya S. v. PBGC, EEOC Petition No. 0320160066 (2017).

Documentation

Between February and May 2009. the agency had evidence of multiple exchanges that depicted several instances of behavior that seemed to indicate that there was an issue with her mental status.  These were recorded in e-mails and statements from those who participated in them.  They included the following:

  • Ms Doe sent an e-mail to the Deputy IG claiming her home had been broken into several times since she released information to the IG office. Doe asked if any member of the Deputy IG’s staff had been in her home without her consent.
  • Ms Doe sent an e-mail to her supervisor accusing the supervisor of harassing her and alleging that the supervisor had called a transit officer the previous evening and provided him with the number of the train car in which Ms Doe was riding. She went on to say that “I pray that whatever stronghold has you captive will set you free.” She copied EEO, the CIO, the DCIO, and the OIG on this e-mail.  Ms Doe went on to say that according to the rumor mill the supervisor was trying to get rid of her.
  • In a meeting with her supervisor, Ms Doe accused the supervisor and another official of listening to her conversations and stated that she knew about the “ear piece”. Following the meeting, Ms Doe sent an e-mail to her supervisor in which she said that she hoped the supervisor had presented herself well in front of the hidden camera.

Medical Reviews

After the meeting with the supervisor in May 2009, the supervisor consulted with HR regarding the situation. HR forwarded the information to Federal Occupational Health (FOH) and an FOH physician completed a worksheet indicating he had spoken with HR regarding Ms Doe’s paranoid behavior and would recommend a fitness for duty examination (FFDE).  That physician had contact with Dr. Hibler, a psychologist, who would ultimately conduct the FFDE stating that the real issue was whether Ms Doe was a danger to herself or others.

On May 28, 2009 PBGC ordered Ms Doe to undergo a fitness for duty exam with Dr. Hibler, and placed her on administrative leave pending the results.  Dr. Hibler’s report of the examination stated that Ms Doe was experiencing a psychotic delusional disorder and was unfit.  He recommended that Ms Doe “not be considered for potential return to the workplace until a treating practitioner advises that she is stable and has the resources sufficient to perform her duties.”  He also suggested a follow-up FFDE at that time to objectively determine her emotional status and readiness to perform her duties.

Enforced Leave

Upon receipt of Dr. Hibler’s medical determination, PBGC utilized indefinite suspension procedures to put Ms Doe out of her own sick leave.  The action issued on June 29, 2009 stated that the condition which would end the enforced leave was that she submit documentation from her health care provider confirming that (1) her condition had stabilized, (2) she was no longer a danger to yourself or others in the workplace, and that (3) she was fit to return to work.

Ms Doe replied to the proposal asking for administrative leave for another two to three months so that she could locate a new primary care physician and make an appointment with a psychiatrist.  The agency declined to grant further administrative leave and put her on enforced leave in August 2009.

Medical Clearance to Return to Work

Ms Doe submitted a report in September 2009 from Dr. Schell (a psychiatrist) which stated she “… does not have a history of being a threat to others and is not a present danger to herself or others.  She is able to return [sic] to work without restriction.”  PBGC removed Ms Doe from enforced leave status and placed her on administrative leave pending Dr. Hilber’s review of Dr. Schell’s report.

Dr. Hilber’s letter dated September 14, 2009 regarding his review of the submitted documentation, stated, “Dr. Schell’s report does not contain details and an explanation that would be needed to sufficiently understand [the appellant’s] fitness for her return to work (whether with or without accommodation).”  Dr. Hilber recommended that Ms Doe be reevaluated by an independent medical examination sponsored by PBGC so that the perspectives offered by Dr. Schell are considered by an evaluator of the same professional discipline.

PBGC did as Dr. Hilber suggested and notified Ms Doe that she had two options:  1) to submit medical information that cured the deficiencies in the report Dr. Schell submitted or 2) submit to a follow-up examination with Dr. Hilber and a psychiatric evaluation with Dr. Allen.  Ms Doe chose the first option and submitted a progress note from Dr. Schell. Dr. Hilber reviewed the note and found that it did not address the deficiencies noted earlier.  On October 1, 2009 PBGC ordered Ms Doe to undergo the evaluation with Dr. Hilber on October 8, 2009 and an appointment with Dr. Allen on October 9, 2009.

Ms Doe attended the appointment with Dr. Hilber.  He found that she was still evidencing severe mental illness.  He went on to say that she was “too fragile to be safely returned to the workplace.”  Ms.Doe did not attend the appointment with Dr. Allen.

PBGC followed up with a notice to Ms Doe advising that she had two options, 1) to give consent for Dr. Hilber to consult directly with Dr. Schell to resolve the deficiencies in the medical report and evaluate her for return to work, or 2) undergo the psychiatric evaluation with Dr. Allen.  Ms Doe was given a deadline of November 6, 2009 to advise HR or her choice of option.  She was notified that if she did not elect one of the options and timely notify HR her status would be changed to AWOL.  Ms. Doe did not comply and her status was changed to AWOL beginning on November 9, 2009.

What Came Next?

Ms Doe filed two MSPB appeals, one on the enforced leave action and the second on her placement in AWOL status.  She later filed an appeal with the EEOC of the MSPB decision which found that there was no disability discrimination or retaliation in the PBGC’s actions.  We will review the decisions next time, and return to the issue of the problem with the OPM medical examination regulations.

Reality Check for the New Political Overlords

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By William Wiley, July 11, 2017

We get so many good questions. This one comes from a class participant in our fabulous FELTG FLRA Law Week (next offered in Washington, DC November 13-17):

Dear FELTG Labor Law Semi-Experts (I say “semi” because as you teach, no human on Earth really understands federal labor law)-

I took your FLRA class last spring in Washington, D.C.  (It was very helpful, thanks!)  I’m pretty sure that at some point during the course, you offered that we could send you a question afterwards. I’d like to take you up on your kind offer.

My question is whether (or when?) a local CBA always “trumps” an Agency policy, or if that holding is limited to “localized” policies.  I’m looking at cases such as Broadcasting Board of Governors v. AFGE (66 FLRA 380), that seems to indicate this is well settled.  But, in an environment (such as we have here at my agency), where we have unions that have National Consultation Rights (NCR), I’m trying to reconcile these rulings with my basic understanding of the Union’s very limited rights in NCR, and that the Agency is permitted to make universal policies at a national level as long as they go through NCR (local CBAs be damned).

In other words – if, at a local field center, the local management agrees to terms on, say, office workspace, with their local union, enter into a CBA articulating those provisions, and then later on, the national agency management comes up with a national level policy on office workspace, that is inconsistent with the terms of the CBA, but properly goes through the NCR process.  Which policy controls at the local field center?  The national level Agency policy?  Or the local policy as articulated in the CBA?  It just doesn’t make sense to me that a local manager’s actions at the local level (in signing the CBA) could essentially prevent national management from having a universal policy.

Any thoughts on this?

And our FELTG response. Sad!

Dear FLRA Law Week participant-

Very nice to hear from you. As for your question, the union agreement always trumps an agency’s new policies – even when there are national consultation rights – with only two exceptions:

  1. The agency can demonstrate that the new policy is related to the “necessary functioning” of the agency and the change is in response to an “overriding exigency.” See SEC v. FLRA, 568 F.3d 990 (D.C. Cir., 2009).
  2. The new policy is implementing a new law (the incontrovertible law part of the new policy is effective right away; the agency still must bargain I & I and any flexible parts of the law).

As for your hypothetical, as much as it makes our eyes burn, if local management agrees to office space of a specific size, and the agency head later decrees that office space will be less than that, the agency is obligated to continue the bargained-for office space if and until it can bargain its way out of it.

The example we sometimes use in class is from NIH, one of our favorite clients. Years ago, the Secretary of HHS declared through a new policy that the work spaces within HHS would be smoke-free. He reasoned that given the word “health” in the name of his agency, he should prohibit things that by their very nature are not healthy. Great reasoning for the new policy. However, it conflicted with several local CBAs, including NIH, which had old provisions allowing designated smoking areas. There’s a big billboard-size sign as you enter the NIH main campus outside of DC that says, “Welcome to NIH, a smoke-free environment.” Every time I walk past it, I want to add an * and a footnote that says, “*Unless you’re in the bargaining units for law enforcement officers or fire fighters.”

Deb and I recently taught a program at the Naval Medical Center, Camp Lejeune. Same scenario. Years ago, the Secretary of Defense issued a policy prohibiting smoking in the health care facilities within DoD. Well, the CBA employees at Camp Lejeune are still smoking away because it’s been in their contract forever. Hey, it’s North Carolina. They’ve got to do something with all that tobacco.

The theory is this: When your local management agrees to certain office space terms in the CBA, it is actually acting on behalf of the agency head when doing so. And that agreement controls any later agency heads who come along who would like to see another policy. That’s one of the Big Deals we have to deal with when we get a new administration like we are in the processing of doing now. The new politicals come in thinking that they can shake things up (making America great again) and guys like us have to tell them that Congress passed a law 40 years ago that limits that authority in a unionized environment. The most we can do is propose changes either term or mid-term, then take them to FSIP when the union impasses us. There, at FSIP, President Trump’s seven political appointees – who serve at the pleasure of the President – will no doubt conclude that the agency head’s new policy will be the new CBA provision for office space.

What’s that? You’re telling me that the President recently fired all the FSIP members and has not yet replaced them? Oh, well. I’m sure he’ll get around to it eventually. Because you can’t implement the new policy from on high until you bargain your way out from under it. And you can’t complete bargaining without agreement until we get at least four new FSIP appointees.

The fact that there are national consultation rights does not diminish the obligation to negotiate. Consultation and negotiation are two different things, as you point out. The law is specific as to what must be negotiated (not consulted about). If the new policy included any changes to negotiable working conditions, they must be negotiated.

Not the answer you wanted, not the answer we necessarily want to give. But until Congress does something (Ha!), this is our world. [email protected]

Mandatory Spanking

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By William Wiley, July 5, 2017

Sometimes an analogy helps us think about the law. Let’s try that by imagining that you live in a small town and that you’ve made the same mistake as has this author of having children (????).

You received an email earlier today from your fourth-grader’s teacher informing you that little Sophia has once more, for the second time this year, forgotten to do her homework. The email says that you should take “appropriate action.” You’ve already decided that when the homework-skipper gets home from her piano class, you’re going to give her a real talking to. Then, the phone rings:

You:     Hello, Smith residence.

Caller: Mrs. Smith, this is Officer O’Reilly. I’m the Discipline Officer here at Trump Elementary where you daughter, Sophia, is a student.

You:     Yes, Officer. What can I do for you?

Caller:  This just a routine call to make sure that you got the notification about your daughter’s misconduct today and to make sure that you plan to spank her before she goes to bed tonight.

You:     Why, Officer, I have no intention of spanking Sophia. All she did was forget to turn in her homework.

Caller:  I’m sorry, Mrs. Smith, but you’ll have to spank your daughter, at least three swats. You see, this is her second offense this term and Trump’s Table of Punishments calls for a minimum of spanking in a situation like this.

You:     But I don’t want to spank my daughter. I’m sure that I can get her to obey the rules some other way.

Caller:  Sorry, Mrs. Smith. I’m afraid you’ll have to spank her. All the other parents spank their children for a second offense. And our records show that two years ago, you spanked your son Jacob the second time he was late returning from recess. Our goal is consistency of punishment.

You: Consistency of punishment?

Caller:  Yes, that’s right. Punishment consistency has been declared to be the main goal of the Trump discipline program. I’m afraid that either you’ll have to spank her or we’ll have to send someone out to spank her for you.

You: You would do that? Even if I think I can correct her behavior otherwise?

Caller:  Of course. We’re interested in punishment consistency. We’re not interested in what you think might work with your child. We want to make sure that all children are treated the same, whether they need to be, or not. You don’t have a problem with that, do you? Because if you do, I just might have to refer to the Parental Table of Punishments to see if there’s something in there we need to do with you.

Pretty scary hypothetical, isn’t it, this idea that you have to punish your misbehaving kids at some preordained level for the sole purpose of consistency? Who made up this requirement that punishment must be consistent to be fair? Doesn’t it make more sense to let parents decide for themselves how to try to correct their child’s behavior, even if they choose a different method than their neighbors might use? Aren’t we really more interested in the conduct being corrected than in whether various parents use the same methods of correction?

Apparently, Congress is not. In an effort to micro-manage how federal agencies run themselves, the House recently approved HR 2131, a bill that would require DHS to take specific action to “improve” consistency in employee discipline throughout the 22 various departments and agencies that comprise DHS. As far as we can tell, it has done this without any proof that discipline is now being administered inconsistently or that consistency of penalty will somehow improve the performance of DHS employees. Some would say that it appears to have passed a bill that “sounds good,” but in fact has no value and will create an additional burden for DHS supervisors trying to hold employees accountable for their misconduct.

As you regular readers will remember, MSPB got sucked into the penalty-consistency trap back in 2010 when it issued The Terrible Trilogy, three lead decisions that for the first time in the history of our republic held that penalty consistency was the most important aspect of deciding whether a removal should be affirmed on appeal. From 2010 to 2014, the Board routinely and sometimes on its own motion demanded to know whether anyone else at the removing agency had ever done anything similar to the misconduct which was the basis for the firing on appeal. If there was, and the supervisor of that comparator had chosen not to fire the employee, the removal on appeal was set aside. Thank goodness that Sole Remaining Board Member Robbins rejected that view when he was appointed in 2012, realizing the untenable burden that mandating penalty consistency places on management officials. Under his leadership, and with the help of the changing mind of one of the other Board members, the Trilogy has been significantly undermined. Experienced practitioners know that today we are back to just about where we were before the Trilogy: as long as removal is a reasonable penalty, it will not be set aside solely because some other supervisor at the agency did not remove his employee who did the same thing.

Too bad that member Robbins isn’t Congressman Robbins. Perhaps if he were, he could have talked some sense into those who voted for HR 2131 because it “sounded good.”

I’m starting to appreciate how lucky we employment law practitioners have been for the past 40 years. In 1978, Congress passed the Civil Service Reform Act, a unified and comprehensive legal structure defining the rights of civil servants and the authority of supervisors in the executive branch to actually run their agencies. Since that time, Congress has done little to change that basic structure, save for the perennial expansion of whistleblower protections (Congress loves them whistleblowers).

Lately, however, Congress seems to have decided that the executive branch agencies are not being run very well, and that Congress knows how to make that branch of the government work better: reduced official time for union representatives, shorter time limits for appeals, no MSPB review of the termination of senior executives, allowing employees to disobey lawful orders if the employee believes that the order violates some rule or regulation, extension of probationary periods, annotation of adverse findings into departed-employee’s records, reduction in an agency’s ability to use administrative leave, clawing back previous cash awards. And now, mandatory penalty consistency. Each of these changes has either already occurred legally or is being talked about as possibly occurring in the future.

This is a stupid way to run a government. Setting aside for a moment the impracticality of some of the recent legislative “fixes” that Congress has considered, it’s just not the way they taught us in high school civics that things were supposed to work. Congress, you’re supposed to provide the governmental goals and the resources to attain those goals. Then, those in the executive branch will do their best to attain those goals, and the judicial branch will decide whether the executive branch has done that fairly. A very neat and tidy system that does not work when a branch of the government without the responsibility to actually do things tries to manage the branch that actually has to provide government services.

Geez, I didn’t intend for this observation about another poorly thought-out piece of civil service legislation to evolve into a rant about the foundations of governmental responsibility. But it is what it is, as the kids say. So take from it what you will, and remember what you are paying for it. Maybe one of you smart readers out there will actually figure out what to do about it. Until then, email your senators and warn them about HR 2131. Hey, if they’re going to try to screw up the civil service one bill at a time, we’ll just have to fight back in the same way. The stakes are too high to do otherwise.

[email protected]

Everybody is a Mitigator

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By William Wiley, June 27, 2017

If you are a repeat-reader of the FELTG newsletter, you know that we believe that agency managers should run the government. Not human resources specialists, not agency counsel, and certainly not some MSPB lawyers ensconced in a governmental ivory tower in Washington, DC (OK, it’s just a red brick six-story building, but you get the point). If we’re going to expect government managers to be held accountable for the government’s work, we should be letting them decide when removal of an employee is warranted, except in the most outlandish cases of over-reaction. In different words, that’s for the most part what the Board’s seminal penalty decision said. See Douglas v. VA, 5 MSPR 280 (1981).

When we see a case in which we think that the Board has over-reached to mitigate a removal, we are fast and furious to beat them up as best we can in a free newsletter. For example, we think that it was crazy for MSPB to require the Postal Service to reinstate a fired employee who had spent her lunch break smoking crack cocaine and marijuana and getting arrested instead of returning to work. And to this day, we do not understand how progressive discipline for an employee who has previously received 7-day and 14-day suspensions should result in a removal mitigated to a 5-day suspension for a third offense (if you need cites for these, come to our seminars). We’re relatively certain that our outspokenness about penalty mitigation has gotten us taken off MSPB’s Christmas party attendee list.

Well, now we’re probably going to be dropped from the mailing list for the Federal Circuit’s Holiday Ball. It seems that those who wear the black robes just off Lafayette Square in DC feel that they are in the better position to decide who deserves to be fired than those line managers held responsible for agency performance. The employee in a recent case before the court was an agency Chief of Police – a supervisory law enforcement officer (LEO). He directed one of his subordinates to misuse a government vehicle by running a personal errand for him. Although he initially lied about the misconduct, he eventually admitted it. The agency and the Board concluded that removal was warranted. However, the Federal Circuit Court of Appeals decided that removal was unreasonable and remanded for the Board to decide a lesser penalty. Tartaglia v. DVA, Fed. Cir. 2016-2226 (June 8, 2017).

In all fairness, DVA and the Board screwed up. They thought that the employee had only four years of service with DVA when he actually had 14 years of service, preceded by 5 years of military service. OK, that’s a mistake, perhaps even a significant mistake, relative to half of Douglas Factor No. 4: Work Record. However, there are 11 ½ other Douglas Factors in play, some of them seriously aggravating:

  1. Supervisors and management officials can be disciplined more seriously than non-supervisors. Cantu v. Treasury, 88 MSPR 253 (2001), Edwards v. USPS, 116 MSPR 173 (2010).
  2. Law enforcement officers can be disciplined more seriously than non-LEOs. Hanker v. Treasury, 73 MSPR 159 (1997).
  3. LEOs who engage in dishonest conduct that results in discipline may become Giglio impaired, thereby reducing or eliminating their ability to testify as witnesses in criminal trials. See Taylor v. Air Force, MSPB No. DC-0752-12-0296-I-1 (NP)(2013).

Does a 15-year mistake in consideration of the individual’s employment history mean he should not be fired for directing his subordinate to engage in illegal behavior? Well, here at FELTG, we do not claim to know. But with all due respect, neither do the three judges who heard this appeal in the Federal Circuit. We do know that a plain old run-of-the-mill non-supervisory federal employee is supposed to get a minimum 30-day suspension for the statutory misuse of a government vehicle. If that is the base line, what do we go up to for a Police Chief who lied about his misconduct initially, and engaged a subordinate employee in an illegal act? Given that long suspensions are harmful to the agency as often as they are to an employee, and given that a long suspension is no more likely to curtail future misconduct than a shorter one, what in the world is the court thinking is appropriate in this situation? The court’s remand expressly provides that removal is an excessive penalty. What does the court think is left?

For whatever it’s worth, we’ve argued for several FELTG years that when the Board or court finds a penalty to be excessive, rather than trying to apply Douglas factors after some of the specifications have failed, the case should be remanded to the agency for redetermination of the penalty given the facts remaining in the case. As some of the charges and specifications fell out on appeal, that’s what should have been done in this case, in our humble opinion.

So far, we’re looking at about two years of back pay with interest, plus what will no doubt be a substantial (and well-deserved) lawyer fee claim. With the Board down to only one member, who knows when the remand decision will be issued that actually results in a ruling on an appropriate penalty. The back pay will continue to accrue for many months.

Hey, DVA; we love you guys. If you were to ask us for advice (which you haven’t because we charge excessively outrageous fees for our opinions), we’d suggest that you cancel the removal, reinstate Mr. Tartaglia immediately, and forget about waiting for a remand decision from the Board on some lesser penalty. Cut your losses. Get some work out of the guy in exchange for the money you’ll have to pay him anyway. Yes, you got scrogged by the court. But did we give up when the Germans bombed Pearl Harbor? (Warning: link contains language NSFW). Heck no we didn’t. Just put this one on the cases-we-shouldn’t-have-lost list and move on. Soon, you’ll have a new discipline system, and you’ll never have to worry about mitigation again. [email protected]

 

 

 

A View of the Future (Some Might Say a Dark View)

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By William Wiley, June 20, 2017

It has begun. Congress and the White House (and a large group of our fellow citizens) seem to think that it is too hard to fire a bad federal employee. From the pages of this newsletter over the years, you’ve heard us shouting from the rooftops that it really isn’t that hard, if you know what you’re doing. And here at the Federal Employment Law Training Group, we’ve done everything we can, short of compulsory servitude, to help you guys know what to do.

Unfortunately, our efforts fell short. Even though the Civil Service Reform Act of 1978 gave agencies terrific tools to hold bad employees accountable while honoring civil servant rights and protections, Congress has felt the need to change those tools, at least at one agency. And it has been widely reported by those inside Capitol Hill that if Congress comes to conclude that these changes actually make accountability easier, Congress will be acting to make these new rules apply to everybody – at least everybody currently a civil servant appointed under Title V.

Last week, the President signed into law the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. That piece of legislation in large part grew out of Congress’s frustration with the apparent inability of the Secretary of Veterans Affairs to remove and otherwise punish DVA employees who allegedly caused veterans to suffer because of poor management within the veteran’s health care system. The law is supposed to “fix” some of the systemic problems in the oversight of discipline in DVA, based in part on a belief by Congress that MSPB has done a poor job of defending our veterans and neglecting to uphold the disciplining of certain senior executives.

Here at good old FELTG, we don’t agree with this premise, but our opinions are worth exactly what you pay for them.

Everybody in our business, or even interested in our business, needs to know the changes that this legislation has created. Even though most of us do not work at DVA and will not be directly affected by the new law, what we see in this act might very well soon be applicable to the entire federal service. So, never send to know for whom the bell tolls; it tolls for thee (that’s John Donne, in case you were wondering).

There are new requirements that will apply to DVA besides the ones we identify below. For example, DVA will have to establish its own internal whistleblower protection unit with a Presidential appointee running it, independent of OGC. But in this article, we’re comparing the procedural changes that apply for those of us down here in the weeds trying to hold employees accountable. If you need more details than we are providing, make yourself delirious reading the new law, found at https://www.congress.gov/bill/115th-congress/senate-bill/1094/text.

Before we get into the details, we have to point out an amazing bit of word-twisting in this legislation (thanks to an astute participant in our MSPB Law Week seminar we just finished in San Francisco). Whereas nearly every other piece of legislation ever written relative to the civil service speaks of “days” (by common understanding to mean “calendar days”), this act sometimes specifies “business days” (b-days) and at other times simply specifies “days” (for purposes of this article, to be known as c-days.) In the charts below, we’re going to harmonize days for comparison purposes, so that we’re comparing apples to apples. You purists out there can do you own conversions from c-days to b-days, if that makes you happier.

So why the added confusing of specifying b-days sometimes and c-days at other times? Ah, my little Pollyannas. Welcome to the world of politically-created reality. If I say that something has been reduced from 30 days to 15 days, that sounds like a lot of reduction. However, if I say that something has been reduced from 22 days to 15 days (30 c-days are 22 b-days), not so much. It appears to this writer that someone wanted it to look like a greater change was being made by this new law than is really being made. We leave it up to you to come up with a better theory.

Procedures for Removing Bad Federal Employees; a Comparison

  Current Procedures DVA SES DVA GS
Notice of proposed removal All evidence and a right to representation Same Same
Minimum response to proposal period 5 b-days 7 b-days 7 b-days
Minimum time to implement removal 22 b-days 15 b-days 15 b-days
Maximum period to decide to remove None 15 b-days 15 b-days
Appeal MSPB DVA grievance MSPB
Time to file appeal 22 b-days [not specified] 10 b-days
Evidence burden Preponderance (51%) [not specified] Substantial (±40%)
Time to decide appeal 120 c-days (goal) 21 c-days 180 c-days (firm)
Mitigation authority? Yes [not specified] No
Challenge to appeal Fed Circuit Court Fed District Court Fed Circuit Court

There are some amazing little nuggets tucked away in here, if you know what to look for. As an example, by using the confusing b-day language, the law actually increases the minimum response time for a removal (and also for a short suspension). Dollars to donuts that was not the intent of the drafters. Separately, the language placing a time limit on MSPB’s review of an appeal by a GS employee refers to the decision by the “administrative judge.” Well, what about the time required for the three Board members to consider the petition for review of the AJ’s decision? Or, does the law’s language that the 180 c-day time limit applies to “a final and complete decision” of the AJ mean that there is no AJ decision review by the Board members?

From an employment law position, one of the most significant changes here is the reduction of the agency’s burden of proof in a misconduct removal from a preponderance of the evidence to the lower substantial evidence standard. Yet even if legally significant, a quick review of the reversed DVA cases that got Congress all riled up does not reveal a problem with the preponderance standard of proof. For example, in Graves v. DVA, CH-0707016-0180-J-1 (2016), an SES demotion case, the judge believed DVA’s evidence and upheld the charge. However, she found the penalty to be unreasonable because a superior to the appellant did the same thing that the appellant did, and he was not disciplined. I’m running stupid as to how lowering the evidence standard from preponderance to substantial would have caused the judge to reach a different conclusion. The judge agreed with the facts, but did not agree with DVA’s judgment about what to do with the facts.

By far, the most significant change for those of us on the front line is the no-mitigation of the penalty change. Probably half of the effort that goes into a removal case these days is defending the penalty. The stupid disparate-penalty Terrible Trilogy philosophy that the Board members dreamed up in 2010 has scared us all so much that agencies have become afraid to fire people because some other employee somewhere else in the agency did the same thing and was only suspended. Apparently, the Douglas Factors will no longer apply. Or, will they? Since the Board can no longer mitigate a penalty, will it just start setting aside the removal altogether if it disagrees with the seriousness of the charge? Or, will it uphold a removal for a five-minute tardy, outstanding performer, 20-year clean record, if DVA concludes that removal is the proper penalty? So many questions to be answered as the case law develops.

And that won’t be happening anytime soon because the Board decision-making machinery has been inoperable since the first week of the year. If we have usable precedent by this time next year, I’ll be amazed.

Finally, there are some statutory “fixes” in here that make no sense. For example, the act says that, “A covered individual so demoted may not be placed on administrative leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the covered individual reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave.” Well, gee willikers, we never placed employees on administrative leave in that situation anyway. Might as well pass a law that says, “Things that fall must fall down, not up.”

It appears to us here at FELTG that the drafters of this legislation do not understand our system. I mean no disrespect by that statement as ours is a complicated statute. However, if we’re going to see any new big across-government legislative fixes to federal employment laws, for the good of our country, let’s all hope that the staffers on Capitol Hill who draft legislation like this take the time to figure out what changes will really make a difference. This is not something to gut-out and do what feels good. This is something crying out for professional thought and deep experience.

Operators are standing by: 1-888-at-FELTG. The first six minutes of consultation are free. [email protected].

Good News, Y’all: Sometimes Telework is NOT a Reasonable Accommodation

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By Deborah Hopkins, June 14, 2017

Out of all the training classes we present here at FELTG, maybe the biggest area where we get questions, comments, complaints, and yes even tears of frustration, is the discussion of telework as a reasonable accommodation for disability. Telework is often an effective accommodation to allow someone to perform the essential functions of her job; it’s just fabulous when it works.  Sometimes, though, telework is not a good option, yet agencies are afraid to say “no” to someone who brings in a doctor’s note that says “Employee X needs to telework because of a medical condition” because they fear getting in trouble if they deny the request or ask for more information.

Does this sound familiar? If so, then it’s time to rejoice, because I have a few points to share that will help you legally deny telework as accommodation:

  1. When the employee does not have a medically-documented disability. If an employee claims to have a disability and requests telework as accommodation, that employee must provide medical documentation that says they have a physical or mental impairment that affects their ability to perform an essential function of the job. The employee must also explain to the agency how the accommodation (in this case, telework) would allow him to perform that essential function from home. If the person does not provide medical documentation, then you do NOT have to grant him telework because he is NOT qualified. In other words, if he refuses to provide specific medical documentation (diagnosis, prognosis, functional limitations), then he waives his entitlement to the reasonable accommodation process. See Complainant v. DLA, EEOC Appeal No. 0120114081 (2013) (employee’s medical documentation was vague and did not describe the limitations on her essential functions, so the agency was not obligated to accommodate her request). No documentation, no disability. No disability, no accommodation.
  2. When telework is not an effective accommodation. Some jobs can’t be done from home because the essential functions require the person to be onsite. In those cases, telework is not an effective accommodation and should not be granted. See Humphries v. Navy, EEOC Appeal No. 0120113552 (2013) (telework was not an effective accommodation because face-to-face interaction with clients was an essential function of the employee’s job); Gemmill v. FAA, EEOC Appeal No. 0120072201 (2009) (telework was not an effective accommodation because the employee needed to access computer systems and confidential documents that were kept securely at the agency facility). If an essential function of the job requires the employee to be at work to do something, and the employee can’t be at work to do the thing, and no accommodation at work will allow the employee to do the thing, the employee is not a qualified individual.
  3. When an employee has a performance problem. Some employees just can’t be successful while teleworking. If an employee is having performance problems in the workplace with direct supervision, you can easily see how granting telework, where the employee does not have direct supervision, might make that performance issue even worse. See Yeargins v. HUD, EEOC Petition No. 0320100021 (2010) (agency properly denied telework as accommodation because the employee, an EEO specialist, lacked sufficient knowledge of civil rights laws to work independently). EEOC has also upheld agency denials of telework as accommodation because of past performance issues that occurred while the employee was teleworking. See Robinson v. DOE, 586 F.3d 683 (9th Cir. 2009) (agency properly denied telework as accommodation after the employee demonstrated an inability to satisfactorily perform her job while teleworking; in 477 hours of telework the employee only completed a half-page document work product).
  4. When another accommodation is effective. More good news: the agency, and not the employee, gets to choose the accommodation, as long as it is effective. See, e.g., Don S. v. BOP, EEOC Appeal No. 0120141175 (2016). Sure, a lot of employees request telework as accommodation, but if the employee can perform the essential functions of the job with an accommodation in the workplace, the agency has fulfilled its obligation and is not required to grant telework. See Complainant v. Army, EEOC Appeal No. 0120122847 (2014) (though the employee requested telework, the agency effectively accommodated her disabilities at work by providing her with a wheelchair, a special parking spot, and a change in minor job duties she could perform within her medical restrictions); Dennis v. Department of Education, EEOC Appeal No. 0120090193 (2010) (an enclosed work area was reasonable accommodation for an employee with perfume allergies); Gilbertz v. CDC, EEOC Appeal No. 0120110026 (2012) (providing the employee with a quieter work area was an effective accommodation for the employee’s hearing problem).

Now that you know there are times you can deny telework as accommodation, we warn you not to go too overboard with your Telework Denied stamp. There are few things to keep in mind:

  1. Telework does not have to be all or nothing. In many cases, telework is an effective accommodation some of the time. If an employee has a job that requires some contact with customers onsite, but other essential functions can be done at home, granting a few hours of telework per week is a reasonable accommodation. See Petzer v. Department of Defense, EEOC Appeal No. 01A50812 (2006) (sixteen hours of telework per week was an appropriate accommodation because the employee needed the remainder of the workweek to access databases that were only available at the agency); Skarica v. DHS, EEOC Appeal No. 0120073399 (2010) (telework for two hours per day was an effective accommodation because it permitted the employee to use his own private restroom to self-administer a catheter for his medical condition).
  2. Telework as reasonable accommodation falls outside general agency telework policies. Telework as reasonable accommodation, in essence, trumps your agency’s general telework policy. For example, if your telework policy says employees are only eligible for telework after they complete a probationary period, but you have a probationary employee who requests telework as disability accommodation, you can’t just say no because he’s a probationer and the policy prohibits him from telework; you have to consider whether telework is an effective accommodation. If there is no other accommodation available, and telework will allow him to perform the essential functions of his job, then you must grant him telework as an accommodation. EEOC Fact Sheet: Work at Home/Telework as a Reasonable Accommodation. See also Dahlman v. CPSC, EEOC Appeal No. 0120073190 (2010) (agency permitted an exception to its telework policy and allowed a new employee to telework one day per week if, after 30 days, she demonstrated her ability to work independently).
  3. The agency’s obligation is to accommodate the qualified employee and nobody else. Only qualified individuals with disabilities are entitled to reasonable accommodation. An agency does not have an obligation to accommodate a non-disabled employee who requests telework so she can better take care of a family member who has a disability. See Key-Scott v. USUS, EEOC Appeal No. 0120100193 (2012) (Agency did not violate the law when it denied an employee’s request for telework so she could take better care of her disabled son).

Note: please keep in mind that if no other accommodation except telework is effective, a conservative approach that will check the “good faith” box might be to grant the employee a 30-day Telework Trial to see if the employee is capable of successful performance while working from home. With the recent decisions coming out of the EEOC, you just might want to show that you did this before you use that Telework Denied stamp.

There’s lots more on this topic (including what your obligations are in accommodating a disabled employee’s commute) next week during the 90-minute webinar Telework and Leave as Reasonable Accommodation, so if you’re interested please sign up. [email protected]