By Deborah Hopkins, April 15, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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