COVID-19: Feds must hold the frontlines—but should reject needless risks
- By Nathan Abse
- Mar 26, 2020
The coronavirus pandemic—with over 50,000 confirmed cases and 1,000 deaths in the United States as of Mar. 26—has led to widespread federal advisories—and state and local government “stay-at-home” and quarantine orders—across much of the country. But, of course given the ongoing emergency, government employees, including feds, are often at-risk—reporting to their positions on the frontlines as first responders, healthcare professionals, scientists and many other inherently often perilous occupations. Minimizing the risks where reasonably possible—and not dragging employees into danger where avoidable—played a part in recent weeks in the decision to switch feds to telework wherever that can be done. Yet, as some federal employee unions and employee advocates are objecting—some on specialized COVID-19 information webpages, like these here and here—too many feds are put in unnecessary peril. Another key resource for federal employees in these circumstances are attorneys specializing in the laws and practices governing federal employment. Nathan Abse recently interviewed an attorney on this subject, whose firm specializes in employment law, Greg T. Rinckey of Tully Rinckey Law.
Q&A with Greg T. Rinckey
Have federal employees begun contacting you—worried they’re being pushed into dangerous commutes and worksites despite their health issues, a sick co-worker or contaminated worksite?
Rinckey: Yes. We’ve had some people—federal employees—who are afraid to go in right now. Some who really shouldn’t have to go in—they’re right. Some of that is about problems for now with mass transportation—like with the Washington-area Metro, whether it’s safe and how it’s running, about public spaces. For others, their concern is about infection where they live—or about government-ordered lockdowns, and so on. Some are alarmed or have concerns about infection at work. Many different reasons connected with the coronavirus—and how to deal with that, why not to come in, it’s partly kind of a common sense thing, at this point, for affected employees.
Have you been contacted by feds who complain they got infected, and are sick, because they reported to a dangerous workplace or followed dangerous orders?
Rinckey: No. But it takes time, and there isn’t [as much testing yet as there needs to be.] But what we have seen, early on, is a lot of fear. It’s, “I’m afraid to get on the Metro.” Or it’s, “I can’t get to work because I have my kids, and I can’t get help with them, can’t leave them alone.” Or, “I have older people in the household, and I can’t subject them to the danger of this virus.” Or—and some people have very real, preexisting mental health issues, with anxiety or OCD: “I’m having ongoing panic attacks over coronavirus—no way I can get to work, be of use there.”
What is the key here, then, for answering what is a fed to do?
Rinckey: Well, it has to do with your specific job. But, really—“reasonableness”—that what this is all about, and that’s in the rules and law. It is about whether your actions on work are reasonable—and whether your employer’s actions are reasonable? If your employer says, “Okay, you don’t have to come in to work, and you have the ability to work from home,” so do that. Many are saying that. If so, that’s reasonable. Now, on the other hand, if you are, say, a police officer assigned to protect the Pentagon, and you have to do that, you can’t work from home. So, there, your employers may be reasonable in their ordering you in from work. My point is, it is reasonable for some who are being pushed not to come in. If you are panicked and you have a mental health issue, potentially then you should be able to take sick leave or annual leave. Now, if you have small children or family to look after, you could potentially take FMLA leave. On all of these, reasonableness is the key. By the way, right now, I would say that the need for a doctor’s letter is not reasonable. Because with this danger, it is reasonable to say, “I’m not going anywhere near a doctor!” It’s too dangerous—it’s not being done unless you are very sick. It’s a whole new ball game.
Specifically, though, what is the standard, for a fed to appropriately say, “I can’t safely come to work,” either because they believe they might be a danger or the workplace isn’t safe?
Rinckey: We are saying, again, that the standard should be reasonableness. For instance, if somebody is not well at all, and that could be suspect right now, they can’t come in. But also if the concern is that someone at work has the coronavirus, and that’s an issue, then managers have to take steps to decontaminate—or make sure risk should be reduced—before others would be required to come back there. And where possible the employer, the agency, must take steps to accommodate their employees, for example, by allowing them to work from home.
We have reports—in the media, and sent to us—of some managers not being accommodating, not taking “reasonable” steps, pushing employees inappropriately—what can they do?
Rinckey: Well, we will see some employees get written up, reprimanded, and in other ways punished. But what we are telling people is this: As long as you are backing up what you say—if you are not well, informing, following procedures. And in general providing a reasonable reason for not coming in, and finding reasonable alternatives—then you should be okay.
What about the danger of being removed—put on a path to being fired?
Rinckey: I don’t expect there will be many adverse actions, like that, put in right now—for most employees in this situation. I mean, I don’t think anyone is going to try to fire or terminate someone over these things, with the coronavirus as things are right now.
With a mission-critical job, if someone refuses to come in, then that’s something else though?
Rinckey: Yes—it can—but remember with a proposed removal, you have a right to respond. If it is an adverse action, you have the right, first, to appeal that internally. Then you can appeal to the Merit Systems Protection Board, or through the court system. Actually, I think adverse actions and appeals are probably going to slow down during this critical period. And if one happens to you, there is going to still be due process. Due process will be available.
What about more kind of more subjective issues—someone, a manager, has been after you?
Rinckey: Well, let’s say someone has a problem about politics, and you can show that, you document that—and you can pursue that. That’s prohibited. Or if it’s a discrimination issue, and you document that, then that can be pursued. That’s also not allowed. There is the Office of Special Counsel, and they investigate prohibited personnel practices. Remember, there are 16 of those. We can find a rational to appeal an adverse action, if it’s within these categories. Now, when you have the plain, “vanilla” kind of scenario, where the unfair action taken against the fed is less than clear—that can be a problem. For instance, when an employee is given a less than glowing review, but it wouldn’t be clear to someone outside the office that it’s an unfair assessment, not clear what has happened. It can be hard to appeal those. Yet at some agencies if you don’t have a great review, you’re not going to advance—and a less-than-glowing review is like an action against you. It’s harder to pursue.
Given that internal appeals and legal appeals all take time—can’t an attorney help sometimes with just a letter or phone call?
Rinckey: Yes, a lot of times, we pick up the phone and talk to the employer—with feds, the agency’s counsel. Or often we do what we call a “demand letter.” That is when we write the employer and say, “Hey this is the situation, and we would like to resolve this as amicably as possible, without going further—but we will do that.” Meantime, “please call us,” we will say. Otherwise, we tell them, “We’ll have to pursue our other options.” Often, they will pick up the phone and together we can rectify the situation.