By Barbara Haga, May 20, 2020

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

Back in the building after testing positive

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

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

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

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

1- Establish a valid rule.

2 – Inform the employee of the rule.

3 – Prove the employee broke the rule.

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

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

Refusing to comply with precautions

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

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

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

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

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

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

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

What kind of charge?

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

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

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

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

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

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

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