By Barbara Haga, April 15, 2020

I’m going to take a break from writing about performance standards to deal with an issue that is relevant to things happening right now.

Telework is a wonderful thing for many people, and many agencies have work that can be performed remotely. That’s not the case across the board.  I sometimes think OPM loses sight of this when the guidance keeps talking about telework, telework with children in the house, and adjusting schedules for telework.  There are numerous jobs where telework is not an option. Law enforcement officers, medical staff who provide direct patient care, intelligence specialists, and many others still need to be at work. Their work is essential to maintaining law and order, the health and well-being of patients, and our nation’s security.

Obviously, these agencies must implement procedures and provide protective equipment to try to protect workers from exposure from patients and other people that they deal with while completing their duties, including their coworkers. But what if those procedures are ignored by the employees they were intended to protect?

An Enforceable Rule

Could there be anyone who doesn’t know that if you are sick you should stay home? It’s repeated everywhere. I would imagine that most agencies have put out guidance to that effect.  If your notice referenced OPM’s issuances, those refer to the CDC’s guidance. You don’t have to click too far on the CDC website to know to stay home. At the top of the page, there are two buttons, one of which is “what to do if you are sick.” Click there and it brings up a page that gives steps to follow if you think you are sick. The first is: Stay home except to get medical care.  It’s in public service announcements on television. The daily briefings from the White House talk about following precautions.

What happens if an employee ignores that guidance and comes to work showing signs of a respiratory illness? Maybe he thinks this is all overblown and not a big deal (and from the news it seems that there are people who believe that). Maybe she thinks that she is critical to doing what your agency does and it’s worth the risk. Maybe he doesn’t have any sick leave and can’t afford being without pay. What do you do?

Sending Employees Home

The CDC answered what employers should do if employees showed up with symptoms. OPM referred to that information in their guidance on 3/7/202 in section F of the Fact Sheet. The CDC says, “Employees who appear to have symptoms (i.e., fever, cough, or shortness of breath) upon arrival at work or who become sick during the day should immediately be separated from other employees, customers, and visitors and sent home.”  By the way, the EEOC said that was OK, too. The EEOC pandemic guidance was updated on March 21.

To get the person out, you can try to talk them into taking their own leave. If all else fails, you send them home on admin leave. If your agency chooses to follow up with an enforced leave action, that’s an option. Enforced leave, of course, requires that the agency provide the employee the notice-response opportunity required by the principles of due process found in 5 CFR 752. But what if management wants to take further action because the employee failed to follow the procedures in place and/or because of the risk to the organization that failing to do so caused?

Could the Employee be Disciplined?

I am not aware of anything that would stop an agency from taking action in these circumstances. I recently reviewed about 50 MSPB cases that included the term “communicable.”  There was nothing relevant to this type of case.  We have a novel issue to go with the novel virus.

How would it work? If you’ve been to FELTG training, you’ve seen the elements of discipline list. The steps are 1) Establish a valid rule, 2) Inform the employee of the rule, 3) Prove the employee broke the rule, 4) Select a defensible penalty, and 5) Provide due process.

Steps 1 and 2. We looked at the “enforceable” rule earlier. Your agency probably put out guidance. It may have said “Stay home if you are sick.”  If it didn’t specifically say it, that guidance may have incorporated the OPM information which referred to the CDC guidance. It’s in the media.  Remember that you can rely on some very basic common sense requirements like “you can’t stab anyone at work” even if you never set a policy about that.

Step 3. Could an employee credibly argue that she did not know that she should not come to work if she had symptoms of a respiratory illness? I think that would be a stretch. That would be particularly so if it involved people in the health care business, even including tangential jobs such as firefighters who are also EMTs, or housekeeping staff in a hospital.

Step 4. Select a defensible penalty. Under Douglas, you would talk about the nature and seriousness of the misconduct.

Here are some examples:

“You reported to roll call for your shift in the Fire Station exhibiting symptoms of infection, risking spreading the virus to all of the Firefighters and supervisors on your shift.  This includes 18 first responders, who are essential to fighting fires and providing emergency lifesaving to the facility and mutual aid to the surrounding community. Your misconduct could have led to this Station not being able to respond to fires and other emergencies, requiring more distant Stations to respond which would increase response times.”

“You reported to your office exhibiting symptoms of infection, risking spread of the virus to the five other IT Specialists on this shift who maintain the computer equipment that supports the Remotely Piloted Aircraft (RPA’s) unit on base.  If this equipment is not properly maintained by the IT staff, it could potentially mean that RPA’s would not be available to support intelligence missions.  If our base could not respond, other bases who are also dealing with the virus’s impact on their own manning would have to cover our missions.”

I think FELTG readers know what to do with Step 5.

The charge should be something akin to “Failure to Follow Instructions.” More to follow next month! [email protected]

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