A MAJOR New Requirement in Excessive Absence Cases

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By Deborah J. Hopkins, May 13, 2024

We haven’t had many precedential MSPB cases this year, but the eighth one was BIG, involving a new requirement for removals under a charge of excessive absence. Excessive absence removals can be a little weedy, but if you ever handle these kinds of cases for your agency, please take five minutes to read on, or save this article and come back when you have time.

A general principle is the agency cannot take an adverse action against an employee for absences it has approved. It wouldn’t make sense (or be fair) for an employee to be disciplined for a situation where the supervisor had granted discretionary leave, or the employee had an entitlement to the leave (such as sick leave).

However, sometimes approved leave can extend so long that it causes an issue for the agency – most often in situations of extended Leave without Pay (LWOP), and sometimes including copious amounts of sick leave and/or annual leave. In rare circumstances, an agency may remove an employee for excessive absences, even if the employee has been on approved leave, but to justify doing so, the agency must prove the following elements:

  1. The employee was absent for compelling reasons beyond his control;
  2. The absences continued beyond a reasonable time, and the agency warned the employee that an adverse action would be taken unless the employee became available for duty on a regular basis; and
  3. The position needed to be filled by an employee available for duty on a regular basis.

Cook v. Army, 18 M.S.P.R. 610 (1984).

In the precedential case that brings us together today, the Board added a significant amendment to how an agency determines what absences can be tabulated to meet the “beyond a reasonable time” standard:

We hold that, to prove a charge of excessive approved absences, an agency cannot rely on absences that predate the warning… It would be a stretch to consider a notification of potential discipline as a “warning” to the extent that the notice was given after the underlying conduct already occurred.

Williams v. Commerce, 2024 MSPB 8, ¶6-7 (Apr. 23, 2024).

Up until Williams, agencies would typically send the warning letter after hundreds, if not thousands, of hours of absences and then remove the employee fairly shortly after the warning was issued if the employee did not return to work or still had significant absences after he returned to work.

Does Williams mean the agency cannot rely on any of the absences leading up to the warning to return? Not exactly. The Board said, “Prewarning absences may still be relevant for other purposes, such as evaluating medical evidence or determining whether the absences have a foreseeable end. However, they cannot be used to support the charge itself. Rather, a charge of excessive absences will only be sustained when the post-warning absences were themselves excessive.” Id. at ¶8.

In Williams, the absences still amounted to 1,109.25 hours in the one-year period after the agency warned the appellant to come back to work, so the Board held the agency proved its case even after discounting the prewarning absences.

This case raises the question, of course, about what the Board will consider to be “excessive” post-warning. Does existing Board case law still stand, given that until now the pre-warning absences could be counted, or will a new line of cases give us updated parameters?

Fortunately, the Board has indicated at least some past precedent is still good law. In Williams, it cited Gartner v. Army, 104 M.S.P.R. 463, ¶ 10-11 (2007), a case where the agency proved an excessive absence charge when an employee was absent 333.5 hours during a 6-month period (about a third of the time). So, we may not be looking at additional multiple years beyond the warning letter, but we can guess it likely requires several absences over the course of a few months, at a minimum.

We are going to hash this out, along with any other new cases on excessive absence, during next month’s Absence, Leave Abuse & Medical Issues Week, June 2-6, 2025. Hope you can make the time to join us! [email protected]

P.S. You can read the full Williams [PDF] opinion here.

The Good News: EEOC Issues Superb Guidance on Harassment

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By Ann Modlin, May 13, 2024

On April 29, the EEOC issued “Enforcement Guidance on Harassment in the Workplace.” Trust me. You want to read this guidance.

I’m always happy to praise Federal agencies when they do something well – something that really helps. This guidance does that.

I could spend time summarizing the guidance, but I do not need to because it is a very usable document. Instead, I’ve decided to highlight my favorite things.

  • The guidance is structured based upon how a harassment case is analyzed. How logical!
    • Covered bases and causation – What are the protected statuses and how is the alleged harassment tied to the protected status?
    • How did allegedly harassing conduct impact on a term, condition, or privilege of employment? – What constitutes a hostile work environment?
    • Employer liability – What makes an employer liable for the conduct?
  • The guidance has 77 (yes, 77!) examples of what is or is not harassment.
    • By golly, these are really, really helpful.
  • The guidance is very readable.
    • I get that I am a lawyer, but I firmly believe any non-lawyer can read and understand this guidance.
  • The guidance gets to the point efficiently. For example, regarding what constitutes a “prompt investigation,” the EEOC gives the parameters up front:

“An investigation is prompt if it is conducted reasonably soon after the employee complains, or the employer otherwise has notice of possible harassment. Clearly, an employer that opens an investigation into a complaint one day after it is made has acted promptly. By contrast, an employer that waits two months to open an investigation, absent any mitigating facts, very likely has not acted promptly. In many instances, what is “reasonably soon” is fact-sensitive and depends on such considerations as the nature and severity of the alleged harassment and the reasons for delay. For example, when faced with allegations of physical touching, an employer that, without explanation, does nothing for two weeks likely has not acted promptly.

(You have to admit this is exactly what we need to know about what “prompt” is and what it is not!)

  • If you need to skim the guidance, the EEOC has presented key information in highlighted blue boxes.
    • Examples:
      • “Harassment must be based on an employee’s legally protected characteristic.”
      • “These are key questions that typically arise in evaluating a hostile work environment claim and whether it amounts to unlawful harassment . . .”

I hope supervisors, advisors, and employees will read and use this guidance. I especially hope employees will use it. Hostile work environments still exist, and they should not. But a hostile work environment is not just, “my boss does not like me.” Anyone filing or defending against a harassment allegation will benefit from this guidance.

Thank you EEOC for this helpful document. Hey, the government did something good. That is good news! [email protected]

P.S. On a related note, did you know you can schedule FELTG for the 60-minute training Dealing with “Other” Harassment: It’s Not Always About EEO?

ECAB Ruling: Specialist Fell in Performance of Duty on ‘Premises’

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By Frank Ferreri, May 13, 2024

The Employees’ Compensation Appeals Board could have helped me  and, more importantly, FELTG newsletter readers if it had published a recent decision ahead of the publication of the April issue’s “going & coming” rule story.

Not to worry, though, here’s what happened in A.S. and Department of Homeland Security, Transportation Safety Administration, No. 21–1143 (ECAB March 21, 2024), a premises rule case involving a worker’s stumble in an employee parking lot on his way in to work.

A TSA specialist filed a CA-1 [PDF], alleging he fractured his left arm in the performance of duty. According to the specialist, he tripped and fell in the lot on his way to work. The agency controverted the claim, asserting the specialist was injured before his shift began. OWCP agreed and denied the claim based on its analysis that the parking garage was not part of the agency’s premises.

Under the Federal Employees’ Compensation Act (FECA), the injury must be sustained in the performance of duty, and any disability or medical condition for which compensation is claimed must be causally related to the employment injury.

If an employee has fixed hours and place of work, injuries that occur on the employer’s premises while going to or coming from work, before or after working hours, or at lunchtime are compensable. This is the premises rule. It is applied to cases where it is affirmatively demonstrated that the employing establishment owned, maintained, or controlled the parking facility, used the facility with the owner’s special permission, or provided parking for its employees.

Even if an agency does not own or control the place of injury, the place may still be considered part of the “premises.” ECAB and courts will make the determination on a case-by-case basis.

ECAB uses these factors to determine if a parking area is part of an agency’s “premises:”

  • Whether the agency contracted for exclusive use of the parking area for its employees.
  • Whether parking spaces were assigned by the agency to employees.
  • Whether the parking areas were checked for unauthorized cars.
  • Whether parking was provided without cost to employees.
  • Whether the public was permitted to use the garage.
  • Whether other parking was available to employees.

The specialist met his burden of proof to establish the trip and fall occurred in the performance of duty, according to ECAB. It found the lot was the agency’s “constructive premises” because:

  • The agency arranged for the use of the lot and provided subsidies for its employees to park there.
  • The lot was restricted to employees. The public did not have access.
  • The specialist was responsible for displaying a parking pass, and the area was routinely monitored for compliance.
  • The agency paid a monthly fee for the specialist to park in the lot, and he was entitled to one unreserved space there.
  • The CBA confirmed the agency had determined that providing full parking subsidies for its bargaining unit employees at their airport duty station was necessary to attract and retain qualified security screening personnel and to avoid significant impairment of its operating efficiency at the nation’s airports.

ECAB also explained that the specialist was engaged in activities that may be described as incidental to his employment because he had fixed hours and a fixed place of employment. The fall occurred at 12:35 pm in advance of his 1 pm shift.

ECAB sent the case back to OWCP to analyze and develop the medical evidence in determining what, if any, benefits were due to the specialist.

The takeaway: To get to his job, the specialist parked where the agency designated for him to park and paid for him to do so. If it’s something that the agency requires or makes available so that a worker can get to her job, chances are it will be within the scope of the “premises rule.” [email protected]

 

The Why and How of Starting Misconduct Investigations

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By Dan Gephart, May 13, 2024

There’s a buzz at your agency about potential misconduct taking place. It’s been suggested you perform an administrative investigation. This is somewhat new to you, and you have questions, mostly:

  • What’s the goal of the investigation?
  • How do I get started?

You’ve come to the right place. However, if you are currently enveloped in an investigation and have more advanced questions, you should check out Ann Boehm’s recent Good News column, where she addressed several inquiries she’s received when doing investigations training. (If you don’t see your question, send it to Ask FELTG.)

For now, we’re going to focus on the two aforementioned questions. Let’s start with the goal of investigations: Why should you investigate?

Agency administrative investigations are usually conducted because of potential misconduct or civil rights discrimination. (Sidenote: To be clear, discriminating against or harassing employees is itself misconduct.)

For misconduct investigations, you need to know who did what and when so that management can determine the proper course of action; and if that action is discipline, to ensure that it can withstand third-party review.

This is serious stuff. As Ann wrote in Good News: “A good investigation is the foundation for effective discipline in the Federal government.”

So, there’s your mission. What you’re about to embark on is important. It’s no surprise then, that a key to a successful investigation is preparation and planning. Let’s take a look at what you need to know to get started:

  • Legal rights and obligations that apply to Federal employees who are witnesses.
  • Procedures necessary for management to take a disciplinary action.
  • Categories of actionable conduct.
  • What constitutes evidence, and how to gather it.
  • The concept of employee affirmative defenses.
  • How to properly document, store and safeguard evidence gathered during the course of an investigation.

You’ll need patience. This probably isn’t something you’re going to wrap up in a day or two.

It goes without saying that objectivity is critical. However, our brains are wired to make quick judgments on what we’ve seen. Resist the urge to jump to a conclusion, at the very least until you have every bit of evidence you can collect.

Where do you go next? How do you learn all the stuff you’re supposed to know? Ann will present Misconduct Investigations: Get Them Right from the Start on July 24. Want to dive in even further? FELTG’s Workplace Investigations Week will run Aug. 19-23. Good luck out there. [email protected]

Indefinite Suspensions: When Employees Engage in Criminal Conduct

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In the first of a series of three articles focusing on indefinite suspensions, we’re looking at indefinite suspension because the agency has reasonable cause to believe the employee has committed a crime that could result in imprisonment. Learn more.

Read more

Agency Investigation Reveals Supervisor’s Improper Sexual Conduct with His Subordinate

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Allegations of workplace harassment often rise to the level of misconduct, regardless of whether there is a finding of a hostile work environment or a violation of an agency’s anti-harassment policy or Title VII. Read more.

Read more

‘Mere Flirtation’ with 16-Year-Old is NOT a Defense to Sexual Misconduct

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By Deborah J. Hopkins, April 15, 2024

Buried in the trove of MSPB’s case inventory are hundreds of cases involving discipline of Federal employees. Maybe it’s because the Board members are working through an unprecedented backlog and are issuing cases at a dizzying pace but, regardless of the reason, I’ve noticed some highly disturbing conduct in recent cases.

The good news is the agencies employing these individuals are almost always taking the conduct seriously. Most have removed offending employees for egregious misconduct. Below are summaries of three cases dealing with removable sexual misconduct in the workplace.

The English Professor Whose Discussion Went Beyond Literature

Fleming v. Navy, PH-0752-18-0457-I-1 (Jan. 26, 2024)(NP)

The appellant was a tenured professor at the U.S. Naval Academy who taught a Rhetoric & Introduction to Literature class. The agency removed him for Conduct Unbecoming a Federal Employee with seven specifications because he:

  • Referred to students as “right-wing extremists.”
  • Made comments about and discussed anal sex, oral sex, and transgender surgery.
  • Emailed partially clothed photos of himself to students after having been counseled that doing so was inappropriate and agreeing to refrain from doing so.
  • Touched students without their approval.
  • Referred to his own sexual experiences.
  • Repeatedly mispronounced an Asian-American student’s name despite being corrected several times.
  • Made demeaning, sexually related comments about a child and her mother because of how they were dressed.

Id. at 2-3.

The administrative judge (AJ) overturned the removal, (surprisingly) finding the agency did not prove any of the specifications, but the Board disagreed and reinstated the removal because all seven specifications of the conduct were unprofessional, and the deciding official’s penalty was within the bounds of reasonableness.

The FBI Agent Who Harassed Young Women

Ybarra v. DOJ, CH-0752-17-0422-I-2 (Mar. 21, 2024)

The appellant, a GS-13 special agent at the FBI, specialized in working cases involving crimes against children. The agency removed him for professional off-duty conduct after learning he made “persistent and inappropriate advances toward two female employees at two different stores … both of whom had separately complained to the local police about the appellant’s conduct.” Id. at ¶2. One of the employees was only 16 years old.

Although the conduct was off-duty, the AJ found the agency “established nexus because the appellant’s misconduct contravenes the agency’s primary mission to protect people…. [and] the appellant was specifically tasked with enforcing Federal statutes to protect children under the age of 18.” Id. at ¶8. She also found nexus because the conduct adversely affected his supervisors’ trust and confidence, as well as that of local law enforcement. The appellant argued his conduct did not establish nexus because it was “mere flirtation,” Id. at ¶9, but the AJ and the Board disagreed.

The Board upheld the removal, finding the penalty reasonable especially because only three months before the events in this case, local police warned the appellant about bothering a young cashier at a grocery store. In addition, the appellant had a previous 45-day suspension for making sexually inappropriate remarks to female colleagues. While the suspension had occurred 14 years earlier, it was still an aggravating factor given the similarity in the conduct.

The agency’s investigation revealed the appellant had engaged in additional misconduct, but it declined to charge him for the below instances, listed in ¶2:

  • Failure to report police contact related to the two store employees,
  • Lack of candor in the same incidents involving the two store employees,
  • Making several unwanted sexual advances toward colleagues,
  • Engaging in a profane outburst during firearms training,
  • His role in a domestic disturbance between his son’s mother and a female neighbor with whom he was having a relationship, and
  • Unauthorized use of an FBI database to obtain the telephone number of a former female investigation subject.

The Board held that while the agency “took an unusual approach to its disciplinary action … assessing each charge in isolation and proposing the appellant’s removal based solely on what it considered to be the most serious one,” the removal for the charged misconduct alone was still warranted. Id. at ¶15.

The Supervisor Who Had an Affair with a Married Subordinate

Riley v. USPS, DC-0752-16-0465-I-1 (Feb. 20, 2024)(NP)

The appellant, a postmaster, was removed for Improper Conduct after he admitted to having a sexual relationship with a subordinate, who was married at the time of the affair. His proposed removal notice also indicated he sent inappropriate text messages to, inappropriately touched, and/or pursued a sexual relationship with other female subordinates.

The appellant argued that the relationship with his married subordinate was consensual and personal and did not constitute improper conduct, because it did not result in favoritism or an unsafe work environment. The agency countered that favoritism was not an essential part of the charge and that the conduct was improper regardless of whether it was consensual, because of the appearance of impropriety or favoritism to other employees who learned of the affair.

Regarding his conduct with other employees, which included attempting to have sexual relationships with them, the Board also found improper:

  • A text message the appellant sent to a subordinate, telling her that she was his favorite and that he would be on her “like a cheetah on a gazelle.” at 6.
  • The appellant put his hand up a different subordinate’s shirt and unhooked her bra. at 7.

Agencies have long taken actions involving sexual misconduct seriously, and it’s a good thing because this type of conduct is one of the most effective ways to make a workplace unsafe and drive away good employees. The Board clearly sees things the same way. [email protected]

The Good News: A Meeting CANNOT Be a Formal Discussion AND a Weingarten

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By Ann Modlin, April 15, 2024

I teach a lot of classes where we discuss when a union representative has the right to attend a meeting between a representative of the agency and one or more bargaining unit employees. The statutory guidance on meetings is in 5 U.S.C. § 7114(a)(2). There are two different types of meetings that the union may attend – formal discussions (§ 7114(a)(2)(A)), and Weingarten meetings (§ 7114(a)(2)(B)).

In training sessions, I regularly present meeting scenarios and ask participants if the meeting is a formal discussion or a Weingarten meeting. Far too often, the response from participants is “both.”

Wrong answer. It cannot be both. If you do not trust me, please trust the FLRA.

Way back in 1985, the FLRA provided a thorough analysis of two different types of meetings in 5 U.S.C. § 7114(a)(2). Dep’t of Health and Human Services, Social Security Administration, 18 FLRA 42 (1985) (HHS). The FLRA explained that “section 7114(a)(2)(A) and section 7114(a)(2)(B) provide respectively that ‘(a)n exclusive representative . . . shall be given the opportunity to be represented at – (A) any formal discussion . . . or (B) any examination . . . in connection with an investigation . . ..’ The use of the conjunction ‘or’ to separate these sections indicates a Congressional intent that the right to union representation at formal discussions in section 7114(a)(2)(A) be separate from the right to union representation at an examination contained in section 7114(a)(2)(B).” Id. (emphasis added).

I rest my case.

In case you still need additional explanation, the HHS case did that by looking at the legislative history of section 7114. The FLRA noted that the representation right at formal discussions was intended “to apply to union representation at certain formal discussions between representatives of an agency and unit employees concerning grievances, personnel policies or practices or other general conditions of employment” and NOT “meetings which are ‘highly personal, informal meetings.’” Id.

By contrast, the legislative history regarding section 7114(a)(2)(B) Weingarten right establishes a representation right in a very narrow situation – an examination of a unit employee in connection with an investigation. The FLRA highlighted that “such a right will only attach where the employee who is being examined reasonably believes that the examination may result in disciplinary action and the employee requests representation. The requirement that the employee request representation further highlights the distinction between the right to representation under section 7114(a)(2)(A) and section 7114(a)(2)(B) respectively.” Id. (emphasis added). The FLRA continued: The “right to union representation under section 7114(a)(2)(A) is not contingent upon an employee’s request for such representation at formal discussions although it is a requirement for representation” at Weingarten meetings. Id.

There you have it, folks. A meeting cannot be both a formal discussion and a Weingarten meeting. That matters because the processes are different.

Make sure you assess the different meeting parameters for a formal discussion and a Weingarten meeting when considering whether the union can be present. Following this guidance will enable you to know when to and when not to allow the union’s presence in meetings between management and bargaining unit employees. And that’s Good News! [email protected]

[Editor’s note: Looking for more guidance, register for FLRA Law Week, which runs May 5-9, 2025, or schedule the 60-minute event The Union Doesn’t Get to Attend Every Meeting.]

 

The Clean Record Provision is Not Always So Clean

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By Dan Gephart, April 15, 2024

If you’re thinking of using a clean record provision to settle a potentially expensive and litigious employment law situation, you’re not alone. But while clean record agreements are a popular alternative disciplinary tool, they are not without their own set of problems.

For the uninitiated, a typical clean record provision is a term in a settlement agreement in which the agency agrees to change, remove, or withhold potential negative information about the employee’s performance or conduct, while the employee agrees to drop employment-related claims against the agency.

Sixteen months into his term, President Trump released a flurry of executive orders (EOs) impacting the Federal workplace, including one that effectively banned the use of CRAs. Those actions were overturned when President Biden issued an EO rescinding them.

Meanwhile, OPM, who had developed and implemented regulations to comply with President Trump’s EOs, had to re-develop and implement updated regulations. At the time, OPM guidance said agencies were permitted to implement a clean record agreement with an employee, even though the regulations prohibited such an action. Many FELTG readers told us judges were not keen on that approach. Fortunately, OPM regs now match President Biden’s EO. We again have consistency.

The return of CRAs seems like an obvious win-win. Agencies save the time and money of litigating a case, while avoiding the impact languishing cases tend to have on agency credibility and supervisor morale.

Meanwhile, the agreements give employees the opportunity to apply for future positions without any stains on their Federal personnel records.

Or do they?

In its 2013 report Clean Record Settlement Agreements and the Law [PDF], the MSPB stated: “Several of the appellant attorneys we spoke with indicated that the primary reason why appellants seek clean records is to aid them in their efforts to obtain another Federal position.”

And, as you know as a federal employee, there is paperwork that goes along with securing a federal job. (I’m looking at you OF-306 [PDF]!). And you sure as heck better not lie on those reports lest you find yourself even less Federally employable.

Honesty isn’t a one-sided coin when it comes to CRAs. Agencies are required to be truthful, especially when talking to Federal investigators in connection with background investigations. We explained as much in a somewhat-recent Ask FELTG article. This requirement to be truthful also applies to suitability determinations and other inquiries related to vetting for personnel security.

But wait, there’s more. Other reasons a CRA may not be the best option include:

  • An appellant does not need show actual harm, such as a failure to obtain a position or other form of monetary loss, in order to establish that a clean record (nondisclosure) provision has been materially breached. Cardoza v. DOJ, 53 MSPR 264 (1992).
  • A clean record provision implies a confidentiality clause when one is not present. In Torres v. DHS, 110 MSPR 482 (2009), the agency agreed to replace the removal SF-50 with a resignation SF-50. However, several former coworkers told a private company that the employee resigned in lieu of removal.
  • CRA compliance is not easy to police, especially as time wears on.

More than half of the settlements before the MSPB involve CRAs. Here are some of the issues to consider when determining whether to go the CRA route:

  • What items will be removed from a record?
  • What systems of records will be cleaned?
  • What obligations does an agency have to support the record in communications with others?
  • Who is bound by the commitments?
  • Details on references.
  • How things outside the agreement can affect the ability of parties to meet their obligations.

This is not to say that CRA can’t be an effective time and money-saving tool. As is the case with other alternative discipline strategies, there are great advantages. You just have to do your homework before you jump in. The best way to do that is to join FELTG President Deborah J. Hopkins on May 21 at 1pm ET for Clean Records, Last Rites, Last Chances, and Other Discipline Alternatives. [email protected]

Should I Stay or Should I Go? Either Way, Workers’ Comp Rule Applies

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By Frank Ferreri, April 15, 2024

For those of us who don’t work remotely 100 percent of the time, getting to and from work, with possible stops along the way, comes with the risk of getting injured.

To handle the “what ifs” in the world of going to and coming home from work, workers’ compensation law across the country, and in the Federal government, has developed what’s known as the “going and coming” rule, which is also called the “coming and going” rule, depending on which judge you read.

The Employees’ Compensation Appeals Board (ECAB), following the lead of state and Federal courts around the country, has maintained that for employees having fixed hours and a place of work, injuries occurring off premises while going to and coming from work before or after work hours or during a lunch break are not compensable. However, there are exceptions, some of which we explore below.

Special Errand Rule

An employee who has identifiable time and space limits on her employment makes an off-premises journey that would normally not be covered under the going and coming rule. However, if the trouble and time of making the journey or the special inconvenience, hazard, or urgency of making it in the particular circumstances is sufficiently substantial, it can be viewed as an integral part of the service itself. See A. Larson, The Law of Workers’ Compensation § 13.00 (2007).

Case example

N.J. and Department of Justice, Federal Bureau of Prisons Metropolitan Detention Center, No. 20-1148 (ECAB 2021). A corrections officer filed a CA-1, alleging she was injured in a motor vehicle accident while in the performance of duty. She was driving to firearms training when a large tree branch fell through the windshield and roof of her vehicle just before she was rear-ended by a speeding car.

OWCP denied her claim, finding that the officer’s injury did not occur during the course of her employment. ECAB disagreed, noting the special errand exception was met because:

  • She was expected to perform her official duties on requalifying with her required weapons.
  • A daily assignment sheet demonstrated that she was assigned to perform firearms training on the day of the employment incident.
  • An assistant human resources manager indicated that the officer’s firearms training was a yearly requirement associated with her employment duties.

Rural Carrier Exception

When an employee is required to bring along her own car, truck, or motorcycle for use during the working day, the trip to and from work is, by that fact alone, considered within the course of employment. See Lex K. Larson, Larson’s Workers’ Compensation, § 15.05 (2013). Rural carriers may use their own vehicles to deliver their routes, which is a benefit to the agency. The carriers may be deemed in the performance of their duties when they are driving their vehicles to and from their route.

Case example

J.C. and U.S. Postal Service, Kentuckiana District, No. 17-0995 (ECAB 2017). A rural carrier, who was working as a supervisor of customer services, alleged she injured her shoulders and neck when she was involved in a motor vehicle accident around 7:40 a.m. on the day in issue. OWCP decided the carrier was not in the performance of duty when injured.

On appeal, ECAB agreed. The board noted the carrier was not driving her vehicle to work as a rural carrier but for her role as an acting supervisor. “Regardless of whether appellant used her private vehicle while acting as a rural carrier, she was not scheduled to perform the task of delivering mail,” ECAB wrote. “Rather, she was driving to the Benton, Kentucky, post office where she had been an acting supervisor for four months.”

Workers on Travel Status

FECA covers an employee 24 hours a day when the employee is on travel status and engaged in activities essential or incidental to such duties.

Case example

J.N. and Department of Homeland Security, Transportation Security Administration, No. 14-1764 (ECAB 2015). An air marshal alleged he sustained a cervical spine fracture, a collapsed right lung, a concussion, numerous lacerations, high blood loss, and extensive bruising when he was involved in a motor vehicle accident while en route from his home to an offsite training class. The air marshal alleged he was on the clock and that by reporting directly to the training location, he avoided three hours of overtime pay status for the agency.

OWCP disagreed, finding the air marshal was not in the performance of duty. ECAB affirmed. According to the Board, the air marshal was permitted to drive his personal vehicle to the training session for personal convenience, and precedent cases established that air marshals are not in travel status while commuting to work.

“His travel to attend training was no more for the benefit of the employer than any other worker’s commute,” ECAB wrote. “Appellant’s decision to travel to the training in his personal vehicle was by his own choice, not by any mandate of the employer.” 

Premises Rule

This exception applies just about everywhere in U.S. workers’ compensation law and covers situations where an employee isn’t on the clock or on the job yet but experiences an injury on the employer’s premises. A common locus for premises rule cases is a parking lot, and the premises doctrine is applied to those cases where it is affirmatively demonstrated that the employer owned, maintained, or controlled the parking facility, used the facility with the owner’s special permission, or provided parking for its employees. Rosa M. Thomas-Hunter, 42 ECAB 500 (1991).

Case example

Hartman and Social Security Administration, Office of Hearings and Appeals, No. 01-749 (ECAB 2004). A legal assistant was in the underground parking garage after a power outage led to all employees being released from work. She fell over a bicycle rack and injured her hands, shoulders, knees, legs, back, and neck. OWCP applied the going and coming rule to reject the assistant’s claim. It noted her injury did not fall within an exception to the rule that injuries sustained by employees having fixed hours and places of work while going to or coming from the job are not compensable.

ECAB noted the premises rule has a close relative — the “special hazard” rule. However, it didn’t apply here because “the hazard encountered by appellant was not an exceptional or uncommon hazard.” ECAB likened the darkened parking garage to dangers that arose in other cases in which a special hazard exception did not apply, including:

  • An assault on the streets while going to work. Jimmie D. Harris, Sr., 44 ECAB 997 (1993).
  • Wax on a public plaza immediately outside the only exit. Sallie B. Wynecoff, 37 ECAB 728 (1986).
  • A traffic accident resulting from a backup for a security checkpoint. Bettie J. Broadway, 44 ECAB 265 (1992).
  • An icy sidewalk. Denise A. Curry, 51 ECAB 158 (1999).

In each of these cases, ECAB found the hazards were common to all travelers.

Proximity Exception

Treated as a subcategory of the premises rule and dependent on the special hazard exception, the proximity exception stands for the principle that the course of employment should extend to an injury that occurs at a point where the employee is within the range of dangers associated with the employment. There must be a special hazard before the proximity rule kicks in.

Case example

D.C. and U.S. Postal Service, Post Office, No. 08-1782 (ECAB 2009). A custodian injured his right wrist when he “fell on ice at a curb” immediately following his work shift. OWCP rejected the claim explaining that, although the USPS was responsible under local law for keeping the sidewalk clear of ice and snow, the sidewalk was not part of the agency’s premises.

ECAB agreed because the sidewalk in question was a public sidewalk. The custodian did not present evidence the sidewalk was used exclusively or principally by agency employees for the convenience of the agency. There are other exceptions that are generally recognized as well, including in the following scenarios:

  1. Where employment requires the employee to travel on the highways.
  2. Where the employer contracts to and does furnish transportation to and from work.
  3. Where the employee is subject to emergency calls, as in the case of a firefighter.
  4. Where the employee uses the highway to do something incidental to her employment with the knowledge and approval of the employer.
  5. Where the employee is required to travel during a curfew established by local, municipal, or state authorities because of civil disturbances or other reasons.

What does all this mean for an agency? It’s hard to predict how a case will go, and most results depend on case-specific facts. However, as a basic concept, the more an employee’s coming or going is to do something for the agency rather than herself, the more likely it will be FECA-covered. [email protected]