As some in the Trump administration push toward “reopening the government,” a federal employment lawyer said worried workers might find solace in existing leave policies and the whistleblower protection statute.
Although it remains unclear when or if the United States will effectively “flatten the curve” of the coronavirus outbreak, federal agencies appear poised to begin calling at least some employees back to the office in the coming weeks.
Last month, the Office of Personnel Management and Office of Management and Budget issued guidance entitled “Opening Up America Again,” on how agencies should “ramp back up government operations” after consultation with state and local leaders.
The guidance highlights the need for agency officials to work in concert with local governments and take a phased approach to efforts to bring employees back to their traditional work sites. But many employees may be concerned that agencies may not fully adhere to OPM and OMB’s guidance in practice.
Joanna Friedman, a partner at the Federal Practice Group, a law firm that specializes in federal employment law, said that if an agency calls employees back without instituting measures to ensure workers can continue to follow social distancing guidelines or fails to provide adequate personal protective equipment, a fearful worker could conceivably seek to continue their existing posture of full-time telework.
“The reality for federal employees is that the government has discretion to determine whether or not to allow telework, but they cannot use that discretion in an inequitable manner,” Friedman said. “So the first thing that feds should focus on is if they’ve been allowed to telework up until now, and they’re suddenly told that’s going to be taken away, they should ensure that’s a policy issued to all employees and not just targeted toward some. If it is targeted, perhaps there’s a potential [Equal Employment Opportunity Commission] issue or a prohibited practice issue.”
Additionally, she said the provisions of the law establishing weather and safety leave should remain in effect regardless of whether agencies have begun recalling employees to their worksites.
“The [Administrative Leave Act of 2016] was passed not as a response to coronavirus, and obviously a lot of people are using it right now,” Friedman said. “If you put forth a letter from a doctor saying that you’re predisposed to adverse outcomes [from COVID-19] or you have a pre-existing condition, you should still be allowed to be put into weather and safety leave, where you don’t have to go to work and you’re in a leave status.”
But Friedman warned employees against simply refusing to come back to work against an agency’s orders.
“Let’s say that certain agencies are told to call employees back, really then it becomes a conundrum,” she said. “You could be charged with insubordination or failure to follow a directive as a disciplinary action and receive a letter of reprimand or suspension. You could put in your reply why you’re refusing to come back, but that’s certainly something managers can hold over employees’ heads, so folks could feel scared and have no choice but to return.”
One potential avenue for protection could come from the Whistleblower Protection Act. Friedman said that one could make a legal argument that by raising concerns that the worksite is a public hazard with management or watchdog agencies like the Office of Special Counsel or inspectors general, an employee is making a protected disclosure, and efforts to discipline that employee could constitute retaliation.
“If you report to your manager or HR or the [Office of the Inspector General], ‘I am fearful to come to work because of all of these reasons,’ if that’s a protected disclosure, and they threaten disciplinary action . . . potentially you do have a complaint there,” she said. “The other thing that strikes me as an issue is at what point is the federal government liable? If they’re compelling employees to work and then [the employees] get coronavirus at work and then they die, is there a potential wrongful death suit because they were compelled to come back to work?”
By Erich Wagner