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With states all over the country lifting stay at home orders, many Federal Agencies are beginning to reopen and bringing teleworking employees back to the office, in phases. These Agencies include the Internal Revenue Service, the State Department, the Departments of Defense, Education, Agriculture, and Veterans Affairs, the Environmental Protection Agency, the Federal Emergency Management Agency (“FEMA”), and the Office of Personnel Management.
With employee safety in mind, many lawmakers from the D.C. Metro area are pushing back against the rush to bring employees back. Although there is substantial opposition from lawmakers and unions, policy has yet to change. This leaves the question: what should Federal employees do if they fear returning to the workplace?
Below, we will address these options, but at the outset, a Federal employee’s best option is the Family Medical Leave Act (“FMLA”).
According to the Department of Labor, Federal employees can resort to using the FMLA’s paid sick leave provisions.
According to the Act, employees are entitled to a total of 12 administrative work weeks of leave during any twelve-month period because of a serious health condition that makes the employee unable to perform the functions of the employee’s position. 5 U.S.C. § 6382(a)(1)(D). Or, if an employee was caring for a spouse, child, or parent, who has a serious health condition such as contracting COVID-19, that employee would then also be eligible for paid leave.
Under the paid sick leave provisions, employees can substitute any accrued or accumulated annual or sick leave under subchapter I for any part of the 12-week period of leave. Otherwise, the leave is unpaid, but it preserves the employees’ position with the Agency.
Although the Family Medical Leave Act may be typically thought of as a vehicle for providing leave to parents of newborns, the act applies to any situation where an employee cannot perform the functions of the employee’s position because of a serious health condition.
Further, the Department of Labor’s guidance specifically states that Federal Government employees can resort to FMLA leave in applicable situations because the new Family’s First Coronavirus Response Act (“FFCRA”) applies to private sector employees working for companies with 500 or fewer employees and some public employers only and does not apply to Federal Government employees. Therefore, FMLA leave fills the gap regarding COVID-19.
Of course, one has to be able to prove that the employee or family member has a serious health condition that makes FMLA applicable. A completely healthy employee with completely healthy family members cannot invoke FMLA.
Filing for a reasonable accommodation is another avenue to which Federal employees may resort if they fear returning to the workplace due to COVID-19.
Employees are eligible for a reasonable accommodation if they have a qualified disability which is defined as having a “physical or mental impairment that substantially limits one or more major life activities, a person who has a history of such an impairment, or a person who is perceived by others as having such an impairment.” 42 U.S.C. §12102 (1), (A)-(C). The Rehabilitation Act of 1973 applies to federal employees, but the standards are substantially the same.
The Centers for Disease Control and Prevention (“CDC”) have enumerated certain underlying conditions which, if they exist in an individual, put that individual at a higher risk for severe illness from COVID-19.
Quite a few of the listed conditions would most likely qualify as a “disability” under the ADA. Specifically, Chronic Kidney Disease, Chronic Obstructive Pulmonary Disease (“CPOD”), Sickle Cell Disease, and serious heart conditions such as Coronary Artery Disease.
Under the ADA, a Federal employee could possibly file for a reasonable accommodation to work from home. The employee has to show that he or she can perform the essential functions of his/her position, but that the disability requires the work from home accommodation.
Agencies may advance up to 240 hours (30 days) of sick leave to a full-time employee who would, as predetermined by the health authorities having jurisdiction or by a healthcare provider, jeopardize the health of others by his or her presence on the job because of exposure to a communicable disease. This also applies if the employee has a serious health condition, or a family member has a serious health condition.
However, employees should know that any advanced sick leave taken will reduce future sick leave and that it must be paid back over time, reducing the employee’s flexibility to take sick leave in the future.
If the provisions of the ADA/Rehabilitation Act do not apply, or if an employee has exhausted their FMLA leave, another option would be to go on leave without pay. This option would allow for an employee to preserve their employment without being terminated. An Agency, however, can deny this leave at its discretion. A physician’s note is highly recommended.
Under the Occupational Health and Safety Act, an employee can refuse to work under certain circumstances and cannot be retaliated against, but the burden is very high to prove that the dangers exist and get the protection of the law.
The applicable regulations states:
Occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination. The condition causing the employee’s apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition. 29 C.F.R. §1977.12(b)(2).
This is not an optimal choice as the burden to prove the above is very high.
Not every Agency, in particular the Department of Defense and the intelligence agencies, can afford for all employees to telework, one primary issue being the handling and safekeeping of secret and top secret information. However, Agencies can, if they are not already doing so, allow employees to rotate in and out of the office on a bi-weekly or even daily basis, depending on optimal lengths of time.
In addition, every Agency should strictly enforce social distancing rules, provide face masks, hand sanitizer, and make sure that they are well equipped with other cleaning supplies. In addition, Agencies should allow for employees to bring in air purifiers if they so choose.
If employees show symptoms for COVID-19, they should be sent home and allowed to telework.
Agencies should also appoint points of contact (“POC”) that are tasked with ensuring that social distancing rules are strictly enforced.