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DOL Telework Policy Questioned as Worker Contracts Covid-19 (1)

March 30, 2020, 8:47 PM; Updated: March 30, 2020, 9:48 PM

A Labor Department employee has tested positive for Covid-19, three weeks after agency leadership initially decided to maintain normal operations when it learned of a confirmed diagnosis in the same Virginia office building.

The DOL employee works for the Mine Safety and Health Administration and was last at the agency’s headquarters in Arlington, Va., on March 18, according to an email Sunday to MSHA employees from Li-Tai Sikiu Bilbao, the agency’s director of administration and management. The building’s fourth floor, which houses MSHA staff, is now closed, and all “employees who have been in contact have been directed to self-isolate,” according to the email, a copy of which Bloomberg Law obtained.

The infected MSHA employee had been teleworking since March 17, pursuant to agency policy, but visited the office on March 18 to pick up equipment, a union official said.

The MSHA staffer doesn’t have proof of how or when he was infected with the virus, but asserts it happened because he was working in the same building as a Department of Defense contractor who tested positive for Covid-19, the disease caused by the novel coronavirus, said Christopher Findlay, an official with the American Federation of Government Employees Local 12, which represents DOL employees. Findlay said he spoke with the infected MSHA employee, who is a member of Local 12.

The DOD contractor employee—who had access to an elevator, lobby, and restroom that is shared with MSHA staffers—passed away on March 21, the Pentagon announced earlier this month.

The DOL said in a prepared statement Monday that it “has no information or indication at this time [that] exposure at this building has resulted in any employees contracting COVID-19.” The statement said the department “takes the safety of our workforce seriously” and “is following the OMB guidelines regarding maximum telework with more than 90% of employees in telework status,” referring to the White House Office of Management and Budget.

Union officials said, however, that the MSHA employee’s confirmed diagnosis raises questions about DOL’s decision to keep agency staffers working out of the Arlington building for a full work-week after the department learned March 9 that the DOD contractor had tested positive. The contractor rents space in the building, which is in Arlington’s Crystal City neighborhood.

The DOL didn’t institute a maximum telework policy until the week starting March 16. The policy, which is consistent with other federal agencies’ response plans, informed DOL employees in the Washington, D.C., region that they have the option to telework if they’re eligible.

The agency’s decision Sunday to inform all employees, close the floor that houses MSHA staff, and deep-clean the space “is a lot more appropriate” than how the department reacted on March 9 when it learned of the DOD contractor’s diagnosis, Findlay said. “It should’ve been done on March 9, but the scope and severity of the situation wasn’t as well defined as it is now,” he added.

A DOL spokeswoman said March 9, when asked to explain the decision to continue to require workers to report to the office, that the department “takes the health and safety of its employees seriously. At this time, the Department is continuing to operate as usual and is monitoring the situation.”

The MSHA headquarters has largely been empty since March 17, aside from political leadership and senior career executives, Findlay said.

Some 20 MSHA employees gathered for an in-person meeting at the Virginia office on Monday, March 16, the day after DOL workers learned of the expanded telework option, said Jeff Wheeler, president of AFGE Local 12. The MSHA employee who tested positive for Covid-19 attended the meeting, according to Findlay, who said the session was called by the agency’s enforcement head and held in “close but not cramped” quarters.

Wheeler applauded senior DOL leadership for their “assertive” commitment to telework, but said some subagencies have had challenges implementing the policy. “I’m most concerned about MSHA,” Wheeler said, adding that he is “alarmed” the March 16 meeting “was held with so many people physically there.”

At least one other DOL employee who works at the Virginia office believes they may have contracted the virus, according to a series of other emails sent to agency staffers.

That employee works in the DOL Solicitor’s Office, which is on the building’s fifth floor. The employee last reported to work March 16 and now has a “suspected case of Covid-19,” Deputy Solicitors Katherine Bissell and Stanley Keen wrote in an email Sunday to DOL employees who work at the building.

Last week, another MSHA worker was sent home due to illness, although agency Deputy Assistant Secretary Patricia Silvey “does not believe it was Covid19 related,” according to an email sent to MSHA employees Friday by the agency’s management officer, Nancy Wilson.

(Updated with additional reporting about a meeting at MSHA headquarters on March 16.)

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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