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Perhaps on purpose, but the administration has offered only vague guidance on when or if or which federal employees must return to their offices. Mostly the schedule has been made up agency by agency. So can they force you back? And if you’re in a bargaining unit, is any of this negotiable? The Federal Drive with Tom Temin got some insight from federal employment attorney John Mahoney.
Tom Temin: And, John, what’s your take on the ability of the government to make people come back?
John Mahoney: Bottom line is that management and agencies have inherent management authority, or inherent management right to determine the number, the place and the type of work that employers are going to be offered. So first and foremost, the employers have the right to determine where people are going to work. So in this case, the State of the Union was March 1, the president said that the federal government is going to lead the way in returning workers to the workplace. Since then, the administration issued the national COVID-19 preparedness plan in which it was set forth that federal employees would set the example for this new stage of the COVID-19 pandemic, which is returning to the workplace. Since April 1, many other federal agencies are starting to return their workforces to the office. There is no governmentwide OPM policy to do so. Each agency has its own authority in terms of whether and when federal employees ought to return to the workforce. And so it’s really a specific mission determination, agency by agency, when employees are going to be required to come back to work. In terms of rights to bargain, certainly, bargaining-unit-covered federal employees can negotiate the impact and implementation of the return to work instructions by the agency at issue. And I do see, worldwide we’re seeing a fair degree of pushback from federal employees who have gotten used to working from home over the last two and a half years or so and don’t really see the need or the import as to whether or why they have to return to the office all of a sudden.
Tom Temin: Sure. And just getting back to the bargaining unit question for a moment. I’ve heard several bargaining units from AFGE, I think, have said that they have negotiated some issues with returning such as I guess, hygienic protocols or separation and that kind of thing. Do we know the extent to which this is negotiable? And would it vary from contract to contract?
John Mahoney: Well, generally, the inherent management right is to determine where employees were. So the agencies have the right to issue the order to return to work. And then it’s a matter of how that’s going to be implemented. That’s certainly negotiable. And the unions are bargaining over the impact of implementation of the order in terms of grievances on the back end, obviously, and what I do for a living is deal with prohibited personnel practice complaints. So if employees feel like they’re being treated disparately in terms of how the return to work order is being applied, then if they believe they’re being treated differently because of their race, color, sex, national origin, age, disability, religion, prior EEO activity status, they can file an EEO complaint with their agency’s EEO office if they believe they’re being forced back to work. And similarly situated employees are being allowed to continue to work from home. And that’s motivated by some other prohibited personnel practice rationale, such as whistleblower retaliation or retaliation for complaint or grievance activity, they can file a complaint with the Office of Special Counsel, and ultimately an individual right of action appeal with the Merit System Protections Board.
Tom Temin: Sure.
John Mahoney: So employees do have a lot of options to try to resist the return to work orders. Ultimately, though, the golden rule of employment law is to obey now and grieve later. So employees are ordered to return to the workplace. Their safest move is to follow the order, comply with the order and if they believe the application of the order is really disparate treatment toward them based on a protected class membership they can either file an EEO complaint if it’s an EEO issue, or an Office of Special Counsel complaint, if it’s whistleblower retaliation or grievance retaliation. And then certainly bargaining unit employees who feel like the order itself is just wrong in terms of the application to them whether or not it’s a prohibited personnel practice, they can certainly file a grievance to their grievance procedure.
Tom Temin: We’re speaking with John Mahoney, he’s founder and managing partner of the law firm bearing his own name. So if someone then were to complain about a situation in the office, maybe there’s not enough barriers or people sick, whatever the case might be some kind of health related issue from the aftermath of the pandemic, then you can’t retaliate against them. Management is obligated to deal with that complaint, correct?
John Mahoney: They do, they are obligated to deal with a complaint. Certainly you see that coming to fruition most likely in a reasonable accommodation for a disability situation. So if a federal employee believes that returning to the office would compromise their health or they would have an adverse reaction with regard to their physical or psychological disability, they can seek reasonable accommodation under the Rehab Act and the Americans with Disabilities Act. And then the agency would have to prove that the request to remain on full-time telework or full-time remote work is an undue burden on the agency’s operation. The way it plays out, typically, I think in this situation is that it’s going to be very difficult for federal agencies to prove that having people continue on full-time telework or remote work is an undue burden, given the fact that the employees have worked on telework or remote work for the last two-and-a-half years or so. And so especially if the employees’ performance ratings have been fully successful or above during the last two annual rating cycles, I think it’s going to be a hard thing for an agency to show that remaining on telework or remote work would be an undue burden on their agency mission. So I do see that that’s going to be a problem for management in terms of forcing people to come back to work if they were on a reasonable accommodation. And the same goes for religious exemptions. There’s a lot of religious exemption or accommodation requests surrounding the vaccination requirement, which is still applicable now or is newly put back in place in terms of being active for federal employees. Federal employees are covered by the vaccine mandate, which is now reinstated, so if they have some religious objection to having to take the vaccine, then they can seek to have a reasonable accommodation for their religious beliefs. So it is going to be a very complicated period, this Return to Work Order since the State of the Union address. And I think it’s going to really end up being something that federal agencies are going to have to come up with a hybrid solution in order to keep their employees happy.
Tom Temin: Right. And I wanted to bear in on that, because can you offer telework options based on people’s performance like, well, this person does better when they’re here, versus when they’re there, if it’s even possible to determine that? Or are managers on safer ground just simply having a uniform policy on hybrid, Monday and Friday you can work at home or whatever the case might be, for everybody in their unit?
John Mahoney: Well, it can be very tailored to a specific performance metrics. If the agency can prove that employee is not performing as effectively or efficiently working from home, they can make the argument that the employee should return to work. Especially federal employees that have to deal with members of the public in person, it’s almost a condition of their job duties that they work from the office in order to deal with customer relations issues, and so for front-facing federal employees that interact with the public on a day-to-day basis, I think it’s going to be hard for them to resist the return to work order. Folks that really don’t deal in person with members of the public and can perform the basic functions of their duties from home, I think the agencies are going to really need to come up with a sort of a hybrid, remote work or telework arrangement. So as to recognize both the employee desires to work from home, as well as the other political factors that forcing people to commute back and forth to work lead to. It’s much better for the environment that people don’t have to commute back and forth by car every day, as we have done for decades. And if they can perform the duties of their job from home, and they have effectively done so and their ratings have been fully successful or above for the past two years, I think the agencies should work out a deal with their employees that they can work so many days from home or so many days in the office.
Tom Temin: Right. So managers then should really abandon their personal preference in this whole situation and really look at the performance and look at the objectives of the mission and base their decisions there, not on whether they like to count noses.
John Mahoney: Exactly. Yeah, that’s going to be the wave of the future. Working on a hybrid telework arrangement is definitely the future for our workplace scenarios, both in the private sector and in the federal sector.
Tom Temin: John Mahoney is founder and managing partner of the law firm bearing his own name. As always, thanks so much for joining me.