The Pandemic is progressing or waning, depending on your individual point of view, experience, and news sources. However, what is not subject to individual interpretation is the fact all employment sectors are either trying to return to normal or determine what a “new normal” will look like within their respective environments. Pandemic and post pandemic federal employee travel will be a key area of employment impacted by societal changes resulting from the Pandemic. This impact will extend long term, if not permanently.
As federal employees begin returning to offices, regardless of the Pandemic situation, agencies are slowly beginning to require business travel again. As they do, they will encounter unprecedented issues, conflicting guidance, and resistance from federal employees for a variety of reasons. In fact, opposition has started and it appears agencies will have to adjust traditionally held positions requiring federal employees to travel, and use directed means of travel, simply because they are told to do so by a supervisor or based on, “that’s the way it has always been done.” Federal sector employment, just like private sector of employment, will need to shift its paradigms and practices concerning control over employees in response to shifting employee attitudes. Even the extent by which employees perform their jobs and from where these jobs are performed; once, decisions within the sole and unquestionable authority of management, will be open for some level of debate. Arguably, as in the private sector, “power” is shifting to employees as employee attitude toward employment shifts. As the “Great Resignation” has aptly demonstrated, the ability to attract, recruit, and retain quality employees can no longer be taken for granted.
General Background on Federal Employee Travel
Many federal employees are “required” to travel in connection with employment. Typically this requirement is associated (mainly) with executive, investigative, and professional occupations and functions. In vacancy announcements, this requirement is disclosed with language similar to: “Travel for this position is required up to 30%” or “Infrequent travel required”. Sometimes the vacancy announcement will state: “Local travel required” or “Travel not required”. Regardless, when an employee accepts the position they are also accepting the stipulated travel requirement in the vacancy announcement. This is indisputable. Historically, federal employees have been bound to this stipulation in the vacancy announcement for which they applied both in volume of travel and regulated means of travel and reimbursement. Failure to travel as directed in such instances could result in disciplinary (suspension) or adverse action (removal) depending on circumstances.
Travel by civil service federal employees in connection with duties is primarily regulated by Federal Travel Regulations (FTR), which are codified in 41 CFR Parts 300-304. Some employees may also be subject to additional high-level controlling regulations such as Department of Defense employees who place primary reliance on the Joint Travel Regulations (JTR). Some federal employees have separate controlling regulatory authorities. For example, foreign service officers must comply with the Foreign Affairs Manual (FAM) rather than the Federal Travel Regulations. Additionally, many federal agencies maintain multiple layers of aggregating, redundant, contradictory, but binding regulations and policies at all levels of the organization, often culminating with very localized policy and even workgroup practices (for example, what your supervisor is willing to approve may differ from what a different supervisor is willing to approve). As every federal employee who ever traveled in their official capacity will tell you, compliance can be overly burdensome whereas noncompliance is easily achieved.
The objective of this article is not to cover regulations governing official travel. Instead, the objective is to cover conditions of mandated travel and reasonably expected changes to travel requirements arising from the impact of the Pandemic on society.
Pre-Pandemic Challenges to Travel
Mandated travel, means of travel, and travel reimbursements for federal employees has been subject to various challenges for many reasons prior to the impact of the Pandemic on American society. Reimbursement challenges historically manifested through appeals to the Civilian Board of Contract Appeals (CBCA) in response to decisions made by managers solely on the basis of, “this is the way we have always done it” or otherwise citing interpretation and application of law and regulation. Other aspects of challenges made their way through the Equal Employment Opportunity Commission (EEOC), usually in connection with Reasonable Accommodation or discrimination claims.
Challenges to Reimbursement
For example, in the case of a traveler with special needs, the Federal Travel Regulations allows reasonable accommodations by paying for additional travel expenses incurred associated with the issue giving rise to the need for the Reasonable Accommodation. Robert R. Schneible (CBCA 2016) citing 41 CFR 301-13.1. In short, an agency is authorized to pay for additional travel expenses incurred by an employee with special needs to provide him with a reasonable accommodation. And, under 41 CFR 301-13.2, an agency may pay for additional travel expenses associated with an employee’s special needs when the expense is necessary to accommodate a special physical need. Donald C. Barnes (CBCA 05/13/15). There are also a host of other decisions concerning reimbursement when an employee elected to utilize a Privately Owned Vehicle (POV) rather than other prescribed common carrier options (usually airfare), albeit not at full reimbursement when POV costs exceeded common carrier costs. In another, admittedly unusual scenario before the CBCA, the CBCA found nursing mothers were entitled to reimbursement of the cost of shipping their milk home to children while on temporary duty. Ashley R. Luo (CBCA 07/24/19). Despite any exceptions, it is important to remember the CBCA has ruled that where a law or regulation specifically prohibits a payment, erroneous advice (or even authorization) by a government official cannot over-ride that prohibition. In other words, no government official can authorize anything that is not already permitted by law or regulation as interpreted by an adjudicating authority upon appeal. Final determinations in this regard are within the sole purview of the CBCA.
Challenges to Means of Transportation
In a case that ostensibly appears as a ruling against federal employees, the ruling demonstrated an employee can deviate from traditionally prescribed modes of transportation. Though an employer need not provide a particular accommodation requested by an employee, as long as the accommodation it provides is effective in accommodating the employee’s known limitations. In the case of Khoury v. Department of Defense (D.N.J. 01/26/16, unpublished), the agency allowed the employee to travel by train instead of airline due to a claim of Reasonable Accommodation whereas the traditional method of travel was via air travel. In this case, the employee requested first class or business air travel, which was denied. However, the key point was that the agency allowed deviation from travel methods previously mandated.
Challenges to Claimed Necessity of Travel
Direct challenges to a management order to travel in connection with employment have been rare as travel is considered an assignment of work and a management right under 5 USC 7106 (a)(2)(B). Challenges to travel typically manifested as appeals to the Merit Systems Protection Board (MSPB) or Equal Employment Opportunity Commission (EEOC) in response to disciplinary or adverse actions taken by agencies when federal employees refused to travel. In some cases, challenges arose to management directed reassignments, a far different topic not within the scope of this article.
Indirect traditional challenges to management directed travel in connection with federal employment often take the form of appeals related to removal from employment on the basis (charge) of “Medical Inability to Perform” as employees will often rely on medical restrictions to avoid travel. Wren v. Dept. of Army, 121 MSPR 28, MSPB 20 (2014). As a side note, Wren is also an interesting case because under the Morgan / Street precedent (also known as the Morgan/Street post-removal recovery analysis), it noted that “when an agency proves by preponderant evidence that the appellant was physically unable to perform the duties of his position at the time he was removed, the removal action may be rescinded on the basis that such action would not promote the efficiency of the service, as required by 5 U.S.C. 7513(a), when the evidence clearly and unambiguously demonstrates the appellant has recovered during the pendency of a Board appeal such that he is able to perform the essential duties of his position.” In other words, if, after you rare fired, you recover to such an extent that you can now travel (whereas you could not before), the MSPB will likely order you reinstated. See, Street v. Dept. of Army, 23 MSPR 335 (1984); Morgan v. USPS, 38 MSPR 676 (1988). Also interestingly, Morgan / Street may have some applicability in relation to the federal employee vaccine mandate, in the right circumstances, as noted by the Federal Employment Law Training Group (FELTG).
A substantive body of case law does not exist concerning direct challenges to management directed travel, especially concerning pandemic and post pandemic federal employee travel. Such cases would typically involve a charge of insubordination, typically a “capital offense” for federal employees. However, the central theme concerning the MSPB’s view of such appeals, even when insubordination is not charged by the agency, is encompassed in SSA v. Boham, where the charge was refusal to accept assignments requiring travel. Specifically, the MSPB held,
Appellant does not have a right to be exempted from assignments which required travel since there is no inherent right for employees to be excused from inconvenient work assignments. Employees may seek and management may, in its discretion, grant such exceptions. For this Board to judge the reasonableness of such agency actions, as respondent urges, on hindsight would unduly limit an agency’s right to assign work by unnecessarily impeding its ability to insure the performance of its mission. SSA v. Boham, 38 MSPR 540, 546 (1988).
So, in essence, past challenges (pre-pandemic) to the various aspects of business travel affecting federal employees has been for limited reasons and generally met with limited success.
Challenges to Pandemic and Post Pandemic Federal Employee Travel Have Begun
As we previously stated, the American workforce is changing in response to the Pandemic for a host of reasons. Pandemic and post pandemic federal employee travel will change and we have received numerous inquiries in this regard. We are still in a Pandemic situation and national emergency by all accounts. Many federal employees are beginning to return to the workplace and federal agencies are directing travel again. The employees being directed to travel have already voiced apprehension and reluctance to travel for many reasons. Some reasons are Pandemic related or medical whereas some reasons involve questioning the actual necessity to physically travel to perform the duties of the position given that they have been successfully performing the duties while teleworking from home. Many federal managers we have spoken with suggest they are amenable to reexamining the need for travel and finding alternative methods to accomplish the job duties. For example, the same methods already in use (remote work). Many of these alternative methods have already been put in place and proved successful.
It is important to make a distinction between jobs truly requiring a presence in a different location to actually accomplish the duties of the position (i.e., investigative law enforcement) versus those jobs that required travel for nondescript reasons (i.e., human resources specialists conducting onsite training). Often, adjudicating bodies such as the EEOC and, to a lesser extent MSPB (less likely to question management’s decision to require travel compared to the EEOC), will ask the critical question, “what duties of the position could not be performed from a remote location?” If the duties in question were previously performed remotely, management will find it difficult to defend it business based rationale for requiring travel.
The best recommendation we can make to any employee intending to challenge a travel requirement is to first honestly examine whether their job actually requires travel to accomplish the duties of the position. If the answer is yes, then you should look for another job that does not require travel, if you no longer wish to travel or are otherwise unable to travel. Alternatively, you could discuss the issue with your supervisor and seek an agreeable solution. This is usually a first step. If you are in a situation involving a medical condition conflicting with a travel requirement, you should also discuss this with your supervisor and if necessary, request Reasonable Accommodation.
There are situations in which filing an EEO complaint may be warranted. However, independent analysis of the fact pattern and circumstances of each case is required to determine whether such claims are 1) actionable under applicable claims standards, 2) viable in that the evidence will support the claims, and 3) sustainable at an EEOC hearing or Final Agency Decision (FAD) or possibly settlement.
We hope this article, though lengthy, will provide practical guidance to federal employees encountering issues with travel concerning Pandemic and Post Pandemic Federal Employee Travel. This is a developing area, with very little official guidance or case law from which to base informed decisions. Accordingly, federal employees should “tread lightly”.
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