Labor leaders say agency officials have proposed setting preconditions on employees’ use of recently enacted partial paid sick leave, potentially in violation of the law.
Employees at the Social Security Administration say the agency’s policies on telework and a new form of paid sick leave are hurting workers, even as they report record productivity metrics.
Since the agency instituted maximized telework in March, the processing time for Social Security disability hearing requests has fallen by more than 30 days from 391 days at the end of February to 358 as of May 15. And employees in some components have been shifted to so-called “alternate workloads” to keep busy.
“It’s gotten to the point where alternate workloads were created for decision writers to handle, assisting getting telephonic hearings prepared, preparing judges and assisting claimants,” said Rich Couture, president of the American Federation of Government Employees’ Council 215. “The agency is trying to find ways to maximize its human resources to get hearings up and running in a productive and efficient way.”
But the agency’s success in expanding telework—shortly after instituting across the board cuts to the program—has come at a cost. Restrictions on when employees can perform their duties and delays in the implementation of a new partial paid leave program mandated by the Families First Coronavirus Response Act enacted in March have meant employees with children and other dependent care responsibilities have been burning out, burning through annual leave, or both.
The first coronavirus response bill signed into law in mid-March included a provision called the Emergency Paid Sick Leave Act, which provides employees in both the public and private sectors with up to 80 hours of paid sick leave, as well as up to 10 weeks of paid leave at two-thirds of their regular pay for workers who have child and dependent care responsibilities due to school and daycare closures related to the coronavirus pandemic.
Although the Labor Department offered employers a 30-day “non-enforcement period,” that ran out more than a month ago. As of Friday, the Social Security Administration still had not begun offering the benefit, and it has told stakeholders that the Interior Department’s Interior Business Center has said it will not have implemented it in its payroll software until July.
The Interior Business Center did not respond to a request for comment, but a spokesperson told Federal News Network that it has provided a workaround to customer agencies until it can update the software.
Couture said that Social Security has declined to use that workaround, proposing that employees file for weather and safety leave instead. Under this plan, employees would be paid their full pay rate, and likely would be forced to pay the remainder back once the new system is in place. The agency has thus far flatly rejected the idea of either waiving overpayments that result from this system, as well as proposals from Couture to allow employees to file for a mix of weather and safety leave and leave without pay to approximate the two-thirds pay provided by the Emergency Paid Sick Leave Act.
“AFGE’s position all along has been that we’re opposed to any workaround that would subject employees to overpayment, as well as any blanket position that these overpayments are not waivable,” Couture said. “Employees have the legal right to take this leave, and there is no exception contingent on the updating of payroll software or any other bureaucratic red tape.”
According to a draft version of a leave request form obtained by Government Executive, the agency will require employees seeking to use the new benefit to acknowledge that they could become “indebted” to the agency via overpayment and limit their right to seek an overpayment waiver.
“I have been advised that the SSA Time and Attendance System is not currently programmed to differentiate rates of pay based on qualifying reasons,” the form states. “I understand that if I elect to use EPSL at the present time for qualifying reasons I may be paid in excess of EPSL limits (daily or cumulative) and therefore incur a debt that will be collected at a later time. Furthermore, I understand that at the time I am notified of my indebtedness a waiver of overpayment is not expected to be approved.”
Couture said the form, which is not yet in use, should have been subject to negotiations with the agency’s bargaining units, and argued that passage illegally sets a precondition on employees who need to use the new leave benefit.
“If you’re looking at that and you’re reading it, it might give you pause and consider not taking the leave in the first place,” he said. “And if you don’t sign the form, you can’t use the workaround. The agency basically bootstrapped a precondition to approval of leave to its EPSL workaround. It’s an extra-statutory requirement not called for in the law and I believe they’re in noncompliance with the statute.”
The Social Security Administration did not answer questions regarding its implementation of the Emergency Paid Sick Leave Act or its apparent refusal to use the workaround provided by the Interior Business Center.
National Treasury Employees Union Chapter 224 President Christie Saunders said that there is another way that the agency could make life easier for employees with children if finding a workaround for emergency sick leave at two-thirds pay is too onerous in the short term: maxi-flex telework.
Maxi-flex telework is a practice by which an employer expands the hours during which telecommuting employees can perform their duties outside of traditional business hours. Currently, depending on the agency component, Social Security employees can do their work between 6 a.m. and 6 p.m. or 6:30 a.m. and 6 p.m.
“You know, you’ve got employees with kids at home and other dependents,” Saunders said. “If they allowed a more flexible schedule, they could start working earlier into the day or later in the evening, or they could even work on weekends. [With schools closed] people have obligations for home schooling, and there are employees with special needs children and that heightens their obligations.”
Saunders said she has repeatedly asked to expand the hours available to employees later into the evening or during weekends since March, but so far the management has said only that they would consider the proposal.
“It’s a no-cost fix, and other agencies are already doing it,” she said. “We submitted a proposal on March 22 for maxi-flex telework, and I’ve inquired frequently about what the heck is going on, but I’ve been told consistently, ‘We’re still looking at that.’”
Couture also has been asking for the agency to adopt maxi-flex telework.
“This is not a normal telework situation, where the employee is usually the only person in the house,” he said. “You’ve got children, you’ve got full houses.”
In a statement to Government Executive, Social Security Administration spokesman Mark Hinkle touted the agency’s efforts to provide flexibilities to its employees.
“In response to COVID-19, the agency has developed and shared a number of workplace flexibilities for Social Security employees to include full-time telework within our existing flexible work schedule, which currently begins as early as 6 a.m. and lasts until 6 p.m.,” he wrote. “As necessary and appropriate, the agency continues to consider additional workplace flexibilities to ensure our employees can balance the needs of their families with their work responsibilities.”