Letter to Mark Esper, Secretary of Defense, and James McPherson , Acting Secretary of the Navy - Congresswoman Elaine Luria Calls on Department of Defense to Provide Safety Leave Guidance for Civilian Personnel

Letter

Dear Secretary Esper and Secretary McPherson:

We write to you to express our concerns with the civilian personnel guidance for nontelework eligible workers provided by the Department of Defense (DoD) in responding to the
COVID-19 pandemic. As the Navy's four public shipyards are either located in or adjacent to our
congressional districts, we represent thousands of Navy civilian workers. Many of these workers
have hands-on roles as welders, pipefitters, electricians, engineers, or other specialized technicians
that require their physical presence at the worksite -- they do not have the option of teleworking
during the current public health emergency. While we appreciate the early actions taken by the DoD
and Navy to quickly disseminate updated leave policy instructions, which reflected Office of
Personnel and Management (OPM) and Office of Management and Budget (OMB) memorandums,
we believe that -- in the interests of public health and mission readiness -- the DoD should update its
guidance to grant weather and safety leave to non-telework eligible workers who live with sick or
high-risk family members.

As this unprecedented crisis developed throughout March, OMB issued increasingly
aggressive direction on how to align government resources and personnel to slow the transmission of
COVID-19 across the country12. This direction balanced the needs of mission-critical work and the
health and safety of the American people through polices that facilitated greater social distancing. In
practice, this direction meant then when an employee could do his or her work from home, the
employing agency should allow that worker to telework. For non-telework eligible workers, such as
many of those employed at the public shipyards, this meant identifying how many and which
workers were required to report for duty to maintain mission-critical activities. The OMB and OPM
guidance make clear that agencies should use their wide discretion in authorizing weather and safety
leave due to a "condition that prevents the employee or group of employees from safely traveling to
or performing work at an approved location" (5 U.S.C. § 6329c(b)). OPM has determined that
agencies may authorize weather and safety leave for a non-telework eligible asymptomatic worker
when there is a significant safety risk for other employees and the general public should such an
employee travel to and from and performing their work at his or her worksite3
.

The DoD interpretation of this OMB and OPM weather and safety leave guidance excludes
two scenarios which could impact public health and the ability of the DoD component to fulfill its mission-critical functions4
. Both scenarios involve a worker who is asymptomatic of COVID-19. In
the first scenario, the worker resides with either a symptomatic family member or a family member
who is confirmed to have COVID-19. In either case, it is not in the interest of public health, the
DoD component, or the surrounding community to have such a worker travelling to and from home
and reporting to a federal installation at which the worker could spread the disease amongst the
workforce performing mission-critical activities at the worksite, such as a Navy shipyard. In the
second scenario, the worker resides with a family member who is designated as high-risk according
to the Centers for Disease Control and Prevention. In this situation, it is not in the interest of public
health and not in alignment with the OMB direction to allow this worker to jeopardize the health of
that family member by travelling to and from home on a daily basis. The 5 U.S.C. § 6329c(b)
statutory language on weather and safety leave and both OMB and OPM interpretations of this
provision in U.S. Code make clear that agencies and departments can and should authorize weather
and safety leave to employees in these two circumstances.

Accordingly, we ask the DoD and Navy to revise its civilian personnel guidance to fully
reflect the wide discretion of the OMB and OPM directives to federal departments and agencies on
weather and safety leave authorization for non-telework eligible employees in these two scenarios.
Such a revision is needed to align DoD policy with the emphasis and intention of the OMB guidance
to mitigate the spread of COVID-19 and protect the public health while balancing the ability of the
federal government to fulfill mission-critical functions. As the number of COVID-19 cases continue
to increase across our nation, we must continue to make resource and personnel decisions, within the
full scope of the law and executive branch guidelines, that minimize risks to public health and
maintain the readiness of our military, and particularly our public shipyards, to meet their mission
requirements.

Thank you for your attention to this important issue, and we look forward to your prompt
response.