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When Uncle Sam’s Your Boss, Returning to Work Isn’t the Same

July 16, 2020, 5:31 PM

Working for the federal government as it reopens offices during the Covid-19 pandemic offers advantages unavailable to private sector employees. But that doesn’t necessarily make federal return-to-work less challenging.

The nation’s 2.1 million federal employees generally have more job security than those in the private sector. The government isn’t going to run out of money, about half the workers are represented by unions, and civil service protections insulate them from layoffs.

Unlike their private sector counterparts, however, federal workers face unique pressures—based on politics, paper requirements, and other considerations—to return to work despite safety concerns. This has created tension between agencies and government unions.

For example, the National Treasury Employees Union, which represents IRS employees, earlier this month called on the agency to shut down its Austin, Texas, campus after dozens of workers contracted Covid-19. And the Environmental Protection Agency was forced to pause its reopening plans after the Washington metropolitan area reported a rise in the number of coronavirus cases. The agency on July 13 started new return-to-work talks with the American Federation of Government Employees.

Here are ways in which being a federal employee differs from being a private sector worker. Some differences benefit federal workers. Some don’t.

1. Political Considerations

Politics can influence agency reopenings, even as public health officials warn against putting large numbers of people together inside during the pandemic.

President Donald Trump “wants to show that we are getting back to normal,” said Lee Adler, a faculty member at Cornell University’s School of Industrial and Labor Relations. That viewpoint, and the general disconnect between Republicans and Democrats on these issues, could affect how political appointees approach reopenings. At the same time, federal employee unions have considerable clout in Congress, with allies in both political parties, Adler said.

2. Paper Chase

While many private sector companies can complete much of their work electronically, the federal government still uses or allows paper for many purposes, which has led some agencies to push employees to return to their offices.

For example, a massive backlog of paper tax returns led the IRS to call back employees who can’t work from home. “Agencies can’t handle documents at home” if the documents are sensitive or they haven’t been digitized, said Dan Meyer, a managing partner at Tully Rinckey PLLC in Washington, who represents federal workers and contractors in employment disputes.

3. Leave Choices (and Quantity)

Federal employees can request five different kinds of leave—annual leave, sick leave, leave without pay, leave under the Family Medical Leave Act, and wounded warrior leave for those who are military veterans with a qualifying disability.

Federal workers, like their private sector counterparts, also can qualify for up to 80 hours of coronavirus-related leave in calendar year 2020 under the CARES Act, which was signed into law by Trump in March, said Ann Boehm, a former agency attorney who’s now an instructor at the Federal Employment Law Training Group. In addition, agencies can grant excused absences as administrative leave in certain circumstances, such as for voting, and as weather and safety leave where emergencies such as the Covid-19 pandemic interfere with an employee’s ability to report to work, Boehm said.

Federal employees start with 13 days of leave, and after 15 years they are eligible for 26 days, far more than what is offered by most private sector employers.

4. Widespread Workforce

Federal workers are spread out across the U.S., with about 85% living outside the Washington area. This has led the administration—and many agency heads—to argue that a one-size-fits-all approach to reopening doesn’t make sense.

Federal employee unions say across-the-board mandates are needed to ensure that all agencies keep their workers safe. The fact that the unions represent people from all over the country gives them an in with lawmakers from both blue and red states, Adler said.

5. Layoff Protections

Federal employees have layoff protections beyond what’s available for most private sector workers, such as the 36,000 United Airlines employees who could face layoffs after Sept. 30 or the Hometown Buffet Inc. employees who recently sued over what they said was inadequate notice of a “massive layoff.”

“Private employers can move quickly” to trim their workforces in most cases, Meyer said. This kind of flexibility isn’t available to agency heads because federal law prevents agency managers from taking arbitrary, abusive, or politically motivated actions against their employees, he said.

Before a layoff can occur, individual federal employees are owed “a notice with reasons for termination, a chance to file a written reply, and even a personal appearance,” he said. Veterans’ and other preference rules also kick in and “they require comment periods and more personal appearances. It’s a lot of work; most federal personnel offices just try to push retirements and shut down hiring,” he said.

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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