Ms. Reed worked as an Attorney Advisor for the Department of Health and Human Services (HHS) in its Office of Medicare Hearings and Appeals in Arlington, Virginia. She was serving as a probationary period for 2 years. (Reed v Department of Health and Human Services (nonprecedential), No. 2024-1620, 1/8/2025)
Even before COVID-19 came along, HHS had a telework policy allowing attorneys to work remotely after 90 days of performance at a satisfactory level. Reed did not choose to participate so she never submitted the required written telework agreement. Once COVID-19 came along and the OPM (Office of Personnel Management) safety guidance was issued, Reed’s boss asked her to sign the telework agreement since he anticipated his team would end up being required to work remotely. The administrative office sent Reed the necessary agreement and asked her to submit it and to complete the required training by the next day. Reed responded she was not interested. The Arlington field office director contacted Reed asking about the telework agreement. Reed replied that the governing NTEU collective bargaining agreement provided that participation in telework was voluntary, she had not signed the agreement, and she could not certify that she had the necessary infrastructure at home to be able to telework. (Opinion pp. 2-3)
A few days later, HHS mandated that all employees would begin remote work. Since Reed still had not signed the required telework agreement, her boss put her on mandatory leave until she finished the required training and signed the agreement. She finally completed the requirements and presumably began to work from home. (P. 3)
Reed’s boss began expressing concerns about her work performance. A year into her probationary period, Reed’s employment was terminated. At this point, Reed filed a whistleblower reprisal complaint with the Office of Special Counsel. She alleged she had flagged the labor contract violation when pressured to sign up for telework, that the agency unlawfully retaliated by making her take leave without pay and by firing her. OSC investigated, took no action, and told Reed she could file an individual right of action appeal to the MSPB. (P. 4)
Reed filed a complaint with the Merit Systems Protection Board (“the Board”) claiming whistleblower reprisal. She argued she should not have been forced to take LWOP and that she was fired as a result of her whistleblowing. The administrative judge determined that Reed had set out a prima facie case. As to the LWOP the AJ concluded that HHS had proved by clear and convincing evidence that the agency would have required Reed to take leave notwithstanding her whistleblowing activity. However, as for the probationary dismissal, the AJ ruled that the agency had failed to show it would have dismissed Reed in spite of the whistleblowing. The AJ ordered HHS to reinstate her with full back pay. (p. 5)
HHS petitioned for full Board review, which was denied, leading Reed to seek judicial review regarding just the leave without pay decision.
The court considered whether the decision to place Reed on leave without pay was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Reed argued that the Telework Enhancement Act, which generally promotes voluntary telework, was violated by HHS’s actions. However, the court concluded that during the COVID-19 pandemic, HHS had implemented a Continuity of Operations Plan that required mandatory telework, superseding typical telework policies. This plan was in line with the requirements of the Telework Enhancement Act as it pertains to emergency situations. (Pp. 5-7)
The court upheld the Merit Systems Protection Board’s decision, confirming HHS’s authority to mandate remote work during an emergency, and affirmed Reed’s leave without pay status during the disputed period.
