Wed, 04/22/2020
During the COVID-19 pandemic, many federal agencies expanded the availability of telework to their employees to enable non-essential employees to work remotely. On April 20, 2020, the Office of Management and Budget (OMB) issued a memorandum to the federal agency heads instructing them to “ramp back up government operations to the maximum extent possible” and return federal employees to work at government facilities. Although this memorandum allows for continuing to “encourage telework whenever possible and feasible with agency operational needs,” it calls for ceasing mandatory telework and instructs agencies to begin returning employees to work using the assessments of progress toward “gating criteria” made by the states and localities in which the agency facilities are located as “starting points.”
However, the governors of several states, including Georgia, South Carolina, Tennessee, and Texas have indicated they will begin lifting COVID-19 related restrictions soon, regardless of whether federally issued guidelines permit it. Therefore, in some states, federal employees could be ordered back to work before the federal government’s own guidelines say that it is safe for them to return.
Federal employees who are exposed to COVID-19 may have rights to additional pay or other protections under the law, such as hazardous duty pay, reimbursement for agency-mandated medical screenings, and paid leave. In addition, unions representing federal workers may be able to negotiate protections for their bargaining-unit members, such as access to personal protective equipment, and modified office procedures and practices.
For those federal employees who are ordered to return to federal facilities during the “ramp up,” it is possible they will be returned to work sites where another employee tests positive for COVID-19. In such cases, their employing agency may be required to compensate them with hazardous duty pay due to exposure to an infectious disease. Some agencies may require employees to submit to medical screenings or examinations related to COVID-19, and, if the employee incurs out-of-pocket expense due to the testing, they may be entitled to reimbursement for costs related to such medical evaluations.
Some federal employees are also covered by the paid sick leave provisions of the Families First Coronavirus Response Act (FFCRA). The Act provides covered federal employees two weeks of paid sick leave if the employee is unable to work because they are subject to a quarantine or if they are experiencing COVID-19 symptoms and are seeking a medical diagnosis. In addition, the FFCRA provides covered federal employees two weeks of sick leave paid at 2/3 an employee’s regular rate of pay for employees who need to care for someone subject to a quarantine or to care for a child whose school or childcare provider is closed due to COVID-19. For more information about the FFCRA, visit MSE’s Coronavirus Information page.
Federal sector unions can consider negotiating a variety of policies relevant to the reintroduction of their bargaining unit members to federal facilities. For instance, the return to the office before the end of the pandemic may require new procedures for requesting and coordinating leave. The OMB memorandum allows agencies to approve leave for safety reasons to employees identified as “vulnerable” by the CDC. It also allows agencies to grant “weather and safety leave” to employees unable to safely travel to or perform work at a federal facility. Unions may want to negotiate procedures by which employees can request such leave.
The memorandum also instructs agencies to maintain social distancing and hygiene measures, which may entail “closing common spaces, limited gatherings, reconfigured space, prohibiting communal food in workspaces and cafeterias,” all of which are changes to conditions of employment that may give rise to bargaining obligations. Unions should consider requesting to bargain over such changes – social distancing may require negotiation for less crowded work spaces and extension of relaxed telework policies. Unions may also be able to enforce safety provisions in current negotiated agreements in order to create a safer work environment. If agencies refuse to comply with negotiated agreements or negotiate over union proposals, unions should consider filing grievances and/or unfair labor practice charges.
Unions should also remain vigilant and identify bargaining unit employees who may be due hazardous duty pay or reimbursement for agency-mandated screening associated with COVID-19. Employees and Unions with questions about what their rights or options are related to the federal government’s announced shift back to on-site work, can contact MSE at info@mselaborlaw.com.
