On April 20, 2020, the White House issued a memorandum instructing heads of executive departments and federal agencies to prepare for reopening the federal government. Agencies are encouraged to “ramp back up government operations to the maximum extent possible, as local conditions warrant, consistent with the National Guidelines for Opening Up America Again.” The White House states that National guidelines should be followed in determining whether federal agencies should reopen their offices and workplaces, and that before proceeding to the phased reopening process, they should ensure the following criteria are met:
- influenza-like illnesses and COVID-like cases of illness must trend downward for 14 days;
- documented COVID-19 cases and prevalence of positive tests must trend downward for 14 days (while not decreasing the overall number of tests); and
- local hospitals must have the capacity to treat all patients without crisis care and jurisdictions must have a robust healthcare worker testing program and plan in place.
What will targeted reopening look like for the federal government? In short, it will be complicated and may put employees at risk. If federal agencies follow the criteria laid out by the White House in geographic regions that have seen a downward trend for 14 days, workers still may prefer to remain in quarantine due to fears of a second wave, or due to individual risk factors, such as a compromised immune system. Federal agencies will then have to decide what to do with those employees who cannot come back to the workplace or return to their duties, including whether to allow them to continue teleworking, if telework is available to the employee. For workers whose jobs do not allow for telework, agencies will need to decide whether to allow for leave, what kind of leave, and for how long.
The vast majority of the federal workforce, approximately 85% of employees, works outside of the D.C. metropolitan area, which will likely result in a disorganized and piecemeal reopening of federal agencies. Some states, including Tennessee and Georgia, have already moved to reopen certain businesses. In Georgia, businesses such as hair salons, gyms, restaurants and movie theaters have been reopened despite evidence that the number of COVID cases is increasing. Georgia’s decision to reopen certain businesses also ignores concerns of a second wave, and has been met with sharp criticism from local officials, including the mayor of Atlanta, who stated the governor’s decision to reopen businesses “really defies logic.”
How agencies consider reopening in states like Georgia, where official policy is to reopen certain businesses in opposition to the National Guidelines, remains to be seen. It is clear, however, that the White house memo—while invoking the National Guidelines—nevertheless allows federal agencies to reopen offices and workplaces based on the desires of local officials, with little to no oversight of those decisions.
In short, a federal agency could still move to reopen its offices even where the state and local policies conflict with the CDC’s guidelines. Agencies will then have to assess whether to comply with the National Guidelines or a local order to reopen, even if it means putting their employees in danger. While employees may refuse to return to work, their refusal could result in discipline. There are exceptions that allow employees to disobey an unlawful order under certain circumstances, but the difficulty for employees will be showing a federal agency’s directive to reopen its office and require employees to return to work is unlawful. Other factors to consider are the reasons for the employee’s objections to the order; naturally, this will be more compelling in situations where the employee could suffer a significant adverse impact by cooperating with this order. KCNF Partner Richard Renner recently explained the circumstances in which a federal employee could refuse an order to return to work and some claims that might be available to employees who experience retaliation. For a claim under the Whistleblower Protection Act, the employee would only need to show a “reasonable belief” that following the order would result in a violation of a law, rule or regulation. 5 U.S.C. Section 2302(b)(9)(D).
If you are a federal worker and you have concerns about being required to return to work, please contact the employment lawyers of Kalijarvi, Chuzi, Newman & Fitch. We are here to answer your questions and advocate on your behalf.