EEOC: Denial of Reasonable Accommodation Found

Via EEOC:

Denial of Reasonable Accommodation Found.

Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (Jan. 23, 2020).

Complainant filed an EEO complaint alleging that she was discriminated against on the basis of disability when she was not provided with a reasonable accommodation of situational telework as her medical circumstances required. Complainant had been teleworking for several years, but her telework agreement expired. According to the record, Agency managers repeatedly asked Complainant to resubmit her request or provide additional information over a period of several months. Approximately six months after Complainant requested accommodation, the Agency informed Complainant that she could telework on Mondays, Wednesdays, and Fridays and would have a one-hour window to report her duty station to her supervisor on those days. The Commission found that the Agency discriminated against Complainant when it did not approve her request for situational telework. The Agency acknowledged that Complainant was a qualified individual with a disability. Complainant demonstrated that she needed to be able to telework when she experienced symptoms related to her condition, and these symptoms occurred without notice and were not limited to the three days specified. Therefore, the Agency’s offer, which was essentially the same telework schedule Complainant had before she requested reasonable accommodation, was not an effective accommodation. The Commission found that the Agency failed to prove it would have been an undue hardship to allow Complainant to telework when her medical conditions warranted.  The Agency was ordered, among other things, to provide Complainant with the ability to situationally telework, restore any lost leave or pay, and investigate her claim for compensatory damages.
Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (Jan. 23, 2020).

Burn Bag: Sharing COVID-Positive Employees’ Information May be Prohibited Under ADA and EEO Regulations

Via Burn Bag:
“The Department has numerous required trainings for supervisors.  Yet, some continue to disregard them.  This behavior can create costly lessons for the Department, especially when it touches upon ADA and EEO regulations.
A supervisor recently emailed several individuals the full name of an employee – from a different team/office – who tested positive for COVID.  Our understanding is that the supervisor should have omitted the employee’s name per federal ADA/EEO regulations.  We do not know if the employee is aware of this supervisor’s actions, but based on previous experiences, this supervisor will retaliate if we inform the employee, EX, or S/OCR.
 Since we do not have an anonymous EEO reporting process, we ask the Department institute a mandatory training for all Bureau and posts for all supervisors, FSOs, FSSs, CSs, EFMs, contractors, detailees, and others to learn about federal EEO/ADA regulations for COVID-related matters.
 Returning to this supervisor, s/he has averaged approximately one EEO violation per month towards various individuals (with his/her leadership’s knowledge).  Yet the Department allows this supervisor to remain.  We’d like to remind the Department that it has the authority to proactively manage supervisors without waiting for numerous costly and time-consuming ADA/EEO complaints.  Employees (on their personal time) are also allowed to inform their Senators and Congressmen of the Department’s compliance with ADA/EEO regulations.”

Addendum:

“We understand that S/OCR will soon be drafting the 2020 MD-715, an annual status report of the Department’s EEO/ADA programs, which should include COVID-related actions.  We are curious to learn how it may acknowledge that 1) supervisor(s) may be in ongoing non-compliance with EEO/ADA regulations, 2) the Department appears to maintain supervisors in their same roles and 3) this continued non-compliance directly hurts retention and advancement of employees with disabilities.”

 

White Cat on Grass Field by Pixabay

OPM: Protect Employee Privacy Interests During COVID-19

Via OPM:

Under what circumstances should an agency communicate to its employees that there is a confirmed case among one or more of its employees (without identifying the person/specific office)?

The infected employee’s privacy should be protected to the greatest extent possible; therefore, his or her identity should not be disclosed. In an outbreak of quarantinable communicable disease or COVID-19, management should share only that information determined to be necessary to protect the health of the employees in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).
Supervisors should consult with their agency general counsel to determine what information is releasable. Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure at https://www.cdc.gov/coronavirus/2019-ncov/hcp/assess-manage-risk.html.
If social distancing, information sharing, or other precautions to assist employees in recognizing symptoms or reducing the spread of the illness can be taken without disclosing information related to a specific employee, that is the preferred approach. Managers should work with their workplace safety contacts and local health officials to stay apprised of information regarding transmission of the illness and precautions that should be taken to reduce the spread of influenza or any other contagious disease in the workplace. Managers should treat this as they would any other illness in the workplace and continue to protect employee privacy interests while providing sufficient information to all employees related to protecting themselves against the spread of illness.
Source: (PDF)

Secretary of State to be Sole Recipient of ARB Report, Will Also Determine Its Subsequent Distribution.

 

On June 1, 2020, the State Department updated its Foreign Affairs Manual (12 FAM 030) covering the Accountability Review Board (ARB). The chair of the ARB Permanent Coordinating Committee will now be the director of the Office of Management Strategy and Solutions (M/SS). If we remember correctly, this used to be the director of M/PRI (Office of Management Policy, Rightsizing and Innovation (M/PRI). Another update relates to the classification authority of Board Members; they have no original classification authority; M/SS will exercise original classification authority on the Board’s work materials.  On the ARB’s findings, the Board submits its findings to the Secretary of State through M/SS.  The updated regs make clear that “the report will initially be provided solely to the Secretary, who will determine its subsequent distribution.”
The updated regs has not eliminated 12 FAM 036.4  which refers to Reports to Congress (an update from 10-05-2017). Per the ARB statute, the Secretary will, not later than 90 days after the receipt of a Board’s program recommendations, submit a report to the Congress on each such recommendation and the action taken with respect to that recommendation.”
The Secretary is required to submit “a report” to the Congress not later than 90 days but the regs does not require him/her to submit the ARB report. The new regs says the secretary of state will determine the report’s “subsequent distribution.”

12 FAM 035  FINDINGS AND RECOMMENDATIONS

12 FAM 035.1  Findings
(CT:DS-332;   06-01-2020)

a. Examination:  A Board will examine the facts and circumstances surrounding the security-related incident or a visa incident.

b. Written submission:  In its report to the Secretary, a Board makes written findings, which may be classified, as necessary.

c.  Dissemination of findings:  The board submits its written findings directly to the Secretary through the M/SS director, whose role is only to classify the document as appropriate (the Board members do not have original classification authority), and L, whose role is to offer legal advice about the report, including ensuring that the report meets the legal requirements laid out in 22 U.S.C. 4834.  The report will initially be provided solely to the Secretary, who will determine its subsequent distribution.  The Board’s written findings are distributed as directed by the Secretary following the Secretary’s receipt of the Board’s written findings.

12 FAM 034.2-5  Classification Authority
(CT:DS-332;   06-01-2020)

Members of the Board do not have original classification authority.  The director of M/SS will exercise original classification authority for materials originating from Board activities.

12 FAM 032.1  ARB Permanent Coordinating Committee (ARB/PCC)
(CT:DS-332;   06-01-2020)

a. Purpose:  The ARB/PCC will, as quickly as possible after an incident occurs, review the available facts and recommend to the Secretary to convene or not convene a Board.  (Due to the 1999 revision of the law requiring the Secretary to convene a Board not later than 60 days after the occurrence of an incident, except that such period may be extended for one additional 60-day period, the ARB/PCC will meet within 30 days of the incident if enough information is available.) In addition, the ARB/PCC will meet yearly to review the ARB process, existing policies and procedures, and all past ARB recommendations, and ensure that any necessary changes are effected.

b. Membership:  The ARB/PCC will be composed of the following members:

(1)  The director of the Office of Management Strategy and Solutions (M/SS), who will chair the ARB/PCC; or designee

(2)  The Assistant Secretary for Diplomatic Security or designee;

(3)  The Assistant Secretary for Intelligence and Research or designee;

(4)  The coordinator for Counterterrorism or designee;

(5)  The assistant secretary or designee of the relevant regional bureau(s)

(6)  One representative designated by and representing the DNI; and

(7)  The Assistant Secretary for Consular Affairs or designee.

    NOTE:  Designees must have the authority to vote at ARB/PCC meetings on behalf of their principal; they may not defer decisions until they have briefed the principal.

c.  Other participants:  As a result of the State-Justice Memorandum of Understanding (MOU) dated September 20, 2001, the Department of Justice has attended PCC meetings.  The Department’s Deputy Legal Adviser, director of the Bureau of Medical Services, and Executive Secretary of the Executive Secretariat, or his/her designees, will attend PCC meetings.  Also, as determined by the chairperson, representatives of other offices and agencies may be invited to work with the ARB/PCC.  Participants listed in this section do not vote.

 

Snapshot: Managing Accountability Review Board (ARB) Recommendations

Via 12 FAH-12 H-010
06-01-2020
(Office of Management Strategy and Solutions (M/SS))

(Click image to see larger view)

Related item:
12 FAM 030 ACCOUNTABILITY REVIEW BOARD (ARB)
Snapshot: ARB Recommendations — Procedural Action and Responsibilities 2016

Grievant Claims @StateDept Failed to Follow Required Procedures, So What Happened Next?

 

Via FSGB 2019 Annual Report, February 2020:
The grievant in FSGB Case No. 2017-051, who was slated for separation, contested statements in an EER relied upon by Commissioning and Tenure Boards (CTBs) that deferred and ultimately denied him tenure. He also challenged the conclusions of the second CTB, as indicated in its counseling statement, on procedural grounds. The Board found one statement in the EER to be falsely prejudicial and ordered it redacted. It also found the second CTB had violated the precepts by failing to take into account that earlier performance weaknesses had been overcome. The Board ordered that the CTB decisions to defer and deny tenure be rescinded.
The grievant in this case raised a third issue that was advanced in several other cases. He claimed that the Department failed to follow required procedures by having CTBs composed of only five members, rather than the six required by the Foreign Affairs Manual (FAM) (including one non-State member). The Department argued that a five-member CTB was a long-running practice to which AFSA had agreed. The Board found that the five-member CTB did not comply with the applicable FAM requirements and provided another ground for relief. The Department has requested reconsideration of this aspect of the decision, which is pending. The Department has since amended the FAM to require only five members.
On April 16, 2019, the State Department updated the composition of the CTB to consist only of five members:
3 FAH-1 H-2246  THE COMMISSIONING AND TENURE BOARD
3 FAH-1 H-2246.1  Composition
(CT:POH-216;   04-16-2019)
(State Only)
(Applies to Foreign Service Only)
The Commissioning and Tenure Board (Board) will consist of five members of the Foreign Service of the Department of State, one from each of the five skill codes/occupational categories (management, consular, economic, political, and public diplomacy), of class FS-01 and above.  The most senior member will serve as the chairperson. Among the members, at least one will be a member of a minority group and one a woman.

Did US Embassy Bangui Go on “Ordered Departure” Without Telling Anyone? (Updated)

Updated 3/28/2020, 8:20 pm PDT | US Embassy Bangui’s Health Alert dated March 26, 2020 says “On March 18, the Department of State ordered the departure of non-emergency U.S. personnel in Bangui.”
We learned last week that the US Embassy in Bangui, Central African Republic “just went on ordered departure.” Apparently this was less about Covid19 and more about a flare-up of violence in the country. To-date, neither the State Department nor the US Embassy has made an announcement about this post’s evacuation status.
On March 20, US Embassy Bangui released the following statement about reduced staffing:

The U.S. Embassy in Bangui announces that it is reducing its staffing in response to increasing travel restrictions, limited health infrastructure and potential disruption of supply chains for essential goods in the Central African Republic.

We call your attention to the State Department’s Global Travel Advisory issued March 19, 2020

The State Department has issued a global travel advisory advising all U.S. citizens to avoid all international travel due to the global impact of COVID-19.  In countries where commercial departure options remain available, U.S. citizens who live in the United States should arrange for immediate return to the United States, unless they are prepared to remain abroad for an indefinite period.  U.S. citizens who live abroad should avoid all international travel.  Many countries are experiencing COVID-19 outbreaks and implementing travel restrictions and mandatory quarantines, closing borders, and prohibiting non-citizens from entry with little advance notice.  Airlines have cancelled many international flights and several cruise operators have suspended operations or cancelled trips.  If you choose to travel internationally, your travel plans may be severely disrupted, and you may be forced to remain outside of the United States for an indefinite timeframe.

U.S. Embassy in Bangui does not provide visa or citizen services  to U.S. citizens in CAR.  U.S. citizens in need of assistance there are advised to contact the U.S. Embassy in Yaoundé, Cameroon.
Note that the Central African Republic is on a Level 4 Do Not Travel Advisory “due to crime, civil unrest, and kidnapping” as of December 12, 2019. The Travel Advisory has not been updated to indicate its evacuation status as of this writing.
A source at a neighboring post is similarly perplexed as they know from colleagues in Bangui that the embassy has gone on ordered departure despite the lack of public announcement.  We were asked if it is possible to have an internal ordered departure and Foggy Bottom knows it but it’s not ‘official’?
These days anything is possible, it seems, but we don’t know how that works without running afoul of 7 FAM 050 No Double Standard Policy. “Generally, if the Department shares information with the official U.S. community, it should also make the same or similar information available to the non-official U.S. community if the underlying threat applies to both official and non-official U.S. citizens/nationals.”
7 FAM 053(f) includes a reminder: “Remember that if post concludes it should warn, or has warned, its personnel or any U.S. Government employees beyond those with a strict need-to-know, whether permanently stationed or on temporary duty abroad, about a security threat, post should share that same information with the non-official U.S. community under the “No Double Standard” policy (see 7 FAM 052).

 

@StateDept’s Rules Governing the Use of Social Media by Eligible Family Members

 

Related to D/SecState Biegun Alerts @StateDept Employees to Updated Guidance For Political Activities Restrictions, we’ found this item from the FLO’s FAQ on the use of social media by EFMs.
Via state.gov/FLO/FAQ
What are the Department’s rules governing the use of social media by eligible family members?
    • 3 FAM 4170 sets out Department policy for employees on public speaking, teaching, writing, and media engagement, including the use of social media. Social media posts pertaining to U.S. foreign policy written in an employee’s capacity as a private citizen must be reviewed/cleared by the appropriate office (3 FAM 4174.3). These provisions apply to Eligible Family Members (EFMs) when they are employed by the Department in any capacity in the United States or abroad, including those EFMs working at post under either an appointment or Personal Service Agreement (PSA) and/or who are members of the Foreign Service Family Reserve Corps (FSFRC). EFMs who are in Intermittent No Work Scheduled (INWS) status or members of the FSFRC in Reserve Status, are employees of the Department and must abide by Department policies.
    • Where review is required, the Final Review Office for FSFRC members at post (even if not currently working in a position at post) is the Chief of Mission or his/her designee. For FSFRC members residing in the U.S., the Bureau of Public Affairs is the Final Review Office. (See 3 FAM 4174.3.)
    • The provisions of 3 FAM 4170 apply only to employees and, as such, do not apply to EFMs who are not currently employed by the Department in any capacity (i.e., not working at post or domestically for the Department or not a member of the FSFRC); however, the general provisions governing outside activities would be applicable, and the non-employee EFM should be cognizant of the general guidance provided in 3 FAM 4125 (Outside Employment and Activities by Spouses and Family Members Abroad). There is no expectation of privacy on social networking sites. Even where users have taken privacy precautions, hackers and other bad actors may still be able to access information.
Links to the Foreign Affairs Manual inserted above. Below is the specific cite linked to by D/Biegun in recent message (3 FAM 4123.3 (Employee Responsibilities Abroad/Political Activities):

3 FAM 4123.3  Political Activities

(TL:PER-491;   12-23-2003)
(Uniform State/USAID/Commerce/Foreign Service Corps-USDA)
(Applies to Foreign Service, Foreign Service National, and Civil Service)

A U.S. citizen employee, spouse, or family member shall not engage in partisan political activities abroad, other than authorized activities pertaining to U.S. elections.  This provision shall not preclude a locally hired U.S. citizen employee, who also is a national of the country of residence, from exercising political rights deriving from that foreign nationality.

Shall not as in a commanding must not?  Or else what?
Does the recent Pompeo-approved updated guidance for political activities restrictions from the L bureau addresses 3 FAM 4123.3 order and spouses not currently employed?  Does this regs apply to all EFMs or are there exceptions? If so, what are the exceptions? Best to ask now, or later after surprises?

Foggy Bottom’s Fourteen Principles of Ethical Conduct For a Happy Christmas and All Merry Days

Via Santa’s Be Good Not/Not Naughty List: 11 FAM 611.4-4
a. Public service is a public trust; employees must place loyalty to the Constitution, the laws, and ethical principles above private gain.
b. Employees shall not hold financial interests that conflict with the conscientious performance of duty.
c.  Employees shall not engage in financial transactions using nonpublic government information or allow the improper use of such information to further any private interest.
d. Employees shall not, except as permitted by the Standards of Ethical Conduct, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the Department, or whose interests may be substantially affected by the performance or nonperformance of the employee’s duties.
e. Employees shall put forth honest effort in the performance of their duties.
f.  Employees shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the government.
g. Employees shall not use public office for private gain.
h. Employees shall act impartially and not give preferential treatment to any private organization or individual.
i.  Employees shall protect and conserve Federal property and shall not use it for other than authorized activities.
j.  Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official government duties and responsibilities.
k. Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
l.  Employees shall satisfy in good faith their obligations as citizens, including all financial obligations, especially those imposed by law, such as Federal, State, or local taxes.
m. Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, gender identity, sexual orientation, national origin, age, or handicap.
n. Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in the Standards of Ethical Conduct.  Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.

#

To our readers and blog friends, we know this has been a difficult year for many.  We feel it every day from the time we wake up to the time we go to bed in an uneasy sleep or nasty nightmares.  There are days when all we want is to grow vegetables on Mars or sleep in a cave. But hey, we’re still here and we appreciate that you’re still here.  We wish you all a happy holidays and send good wishes for the new year. May our homes be always warm in the company of loved ones and good friends.  May we keep faith that there will be better days even in these indecorous and disquieting times. (Excuse me, what? Oh, and may this crazy world not self-destruct in the middle of this darn live show).  Be well, safe travels, and be kind to one another wherever you are.  –DS

 

Turkish Court Rules to Keep USG Employee Metin Topuz in Jail

 

Reuters reported on December 11, that a Turkish court ruled that U.S. Consulate General Istanbul employee, Metin Topuz remain jail “as his trial on espionage charges continues.”
Reuters previously reported in September that the lawyers for Metin Topuz applied in January to the European Court of Human Rights and that  the ECHR has accepted the application.
The AP previously reported that Topuz began working at the consulate in 1982 as a switchboard operator and was promoted to work as an assistant and translator to the DEA’s American personnel in Turkey a decade later.
Topuz was first arrested in October 2017 and has now been incarcerated for over two years. He is still an employee of the U.S. Government. We’ve been wondering what’s going to happen to him. There’ll be another hearing in March. And on and on it goes? Until when?
The State Department has previously updated its Foreign Affairs Manual in 2017 which provides the terms and conditions for authorizing compensation payments for current and former locally employed (LE) staff who are/were imprisoned by foreign governments as a result of their employment by the United States Government.
So for “amount of benefit” which applies to locally employed staff at State and All Agencies under Chief of Mission Authority (includes DEA):

a. State:  Compensation may not exceed an amount that the State Deputy Assistant Secretary for HR determines to approximate the salary and benefits to which an employee or former employee would have been entitled had the individual remained working during the period of such imprisonment.

b. All other agencies:  Compensation may not exceed an amount that the agency head determines to approximate the salary and benefits to which an employee or former employee would have been entitled had the individual remained working during the period of such imprisonment.

c.  Once the compensation amount has been set, each agency will deny or reduce this compensation by the amount of any other relief received by the employee or other claimant, such as through private legislation enacted by the Congress.

Under the section of “other benefits”:

Any period of imprisonment for which an employee is compensated under this section shall be considered for purposes of any other employee benefit to be a period of employment by the U.S. Government, with the following exceptions:

(1)  A period of imprisonment shall not be creditable toward Civil Service retirement unless the employee was covered by the U.S. Civil Service Retirement and Disability System during the period of U.S. Government employment last preceding the imprisonment, or the employee qualifies for annuity benefits by reason of other services; and/or

(2)  A period of imprisonment shall not be considered for purposes of workers’ compensation under Subchapter I of Chapter 81 of Title 5, U.S.C., unless the individual was employed by the U.S. Government at the time of imprisonment.

Just pause and think about this for a moment.  Local employees are typically are not paid in U.S. dollars but paid in local compensation plans/currencies. The United States Government will only pay the amount that the employee would have been entitled to if she were at work (and not in prison). Were Congress to allocate any compensation, USG will deny or reduce the amount claimed beyond the approximate salary.
So compensated for eight hours a day considered a workweek but none for weekends and 16 hours a day spent incarcerated and away from families or being slammed around by prison hosts? (A former Turkish official assigned to NATO arrested and accused as a “Feto” member spoke of tortures and show trials).
Wow!  This is breathtaking and full of heart, we wanna scream.
Also with very few exceptions, most locally employed staff are not covered by U.S. Civil Service retirement. But former USG local employees who gets in the cross-hairs of their governments and imprisoned due to their employment with the U.S. Government, their imprisonment “shall not be considered for purposes of workers’ compensation”. That only applies if they are employed by the USG at the time of imprisonment.
State/HR’s Overseas Employment should be proud of that ‘taking care of local employees’ award.

 

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