Converting annual leave to weather and safety leave

As we emailed last week, when inclement weather prevents employees from reporting to work, Del Rio Sector utilizes a procedure requiring employees first to request annual leave and then request weather safety leave later on. We disagree with this process and are addressing it, but there will be many of you this week who will be requesting that your annual leave be converted to weather and safety leave because of last week’s winter weather.

For context, Article 14, Section I, of the CBA and 5 USC § 6329c allow employees to be granted weather and safety leave for a day, or part of a day, during which such conditions prevent an employee from reporting to work. However, to be eligible, you must provide your supervisor with evidence that you “made every reasonable effort to report to work, but that such conditions prevented” you from doing so.

In the memo, explain what conditions prevented you from getting to work. For example:

  • Did the ice or snow prevent you from getting out of your neighborhood or subdivision?
  • Were the only roads you can take to work closed by the state or county?
  • Did you drive some of the way to work, but turn around because the roads were too dangerous?
  • Did you get into an accident on the way to work?

Gather and provide to your supervisor any evidence you can showing that you made “every reasonable effort to report to work, but that such conditions prevented” you from doing so — the keyword is reasonable. For example, provide pictures or videos of icy roads, closed road notifications or signs, weather reports indicating dangerous conditions, pictures of vehicles in ditches, an explanation of how you made it part of the way to work, but the roads continued to get worse, etc.

Remember, you will not be granted weather and safety leave if you just woke up, looked at the temperature, and then crawled back into bed. You have to do some work to document the roadways’ hazardous nature by making every reasonable effort to get to work.

If your request for weather and safety leave is denied, contact a local union rep so we can gather more information and evidence to determine the path forward.

Member Advisory - COVID-19 and OWCP Claims for Agents

Click here for a PDF copy of this member advisory, along with a copy of the FAQ.

Below, and in the frequently asked questions (FAQ) linked here and below, you will learn what agents should do if you are exposed to, or test positive for, COVID-19. The most critical information can be found below, with more information in the FAQ.

Have you been exposed to COVID-19?

Each exposure is different, and not all exposures require you to quarantine at home. If you are exposed, you must explain, in great detail, to your supervisor the following (consult with a union rep if you need help):

  • Were you, others around you, and the sick person wearing PPE or facial coverings
  • How much time did you spend around the sick person, and for how much of that time were you and the sick person wearing PPE or a facial covering?
  • What level of contact did you have with the sick person? Did you eat around each other? Were masks on and off throughout the exposure time? Was the sick person coughing?

These are only examples of the information your supervisor needs to know to make a risk decision. If they don’t ask these questions, make sure you provide this and any other relevant information.

If you had a high-risk exposure, you should be placed on weather and safety leave if you have no symptoms. You cannot use weather and safety leave if you are sick, so you must use sick leave until and if you test positive for COVID-19.

If you had an exposure, consider getting tested, especially if you develop symptoms, but don’t test too early – most doctors recommend waiting four to five days to get tested. Otherwise, you could test too early and test negative when you are actually sick.

Have you tested positive for COVID-19?

Employees who contract COVID-19 in the course of their duties can be covered by OWCP for treatment and any time away from work. DOL understands that we can’t know when and where we got COVID, so we don’t have to prove it. If you test positive for COVID-19 and you believe you could have gotten it at work, fill out a CA-1. Unless you have not been at work for weeks, it’s very likely you did indeed get it at work. Even if your family member tests positive first, it’s possible you gave it to them, but they showed symptoms first. Ask your supervisor that you be promptly counseled regarding your workers’ compensation benefits, entitlements, and responsibilities under Article 18 of the CBA.

Register and fill out a CA-1 on http://www.ecomp.dol.gov. In Box 10 (date of injury), use your best estimate when you believe you were exposed to COVID-19 at work. If you don’t know, use your last workday before you tested positive. In Box 13, write something about your job that could have led to potentially being exposed to COVID-19. For example, you could describe: 1) processing and having close contact with numerous illegal aliens; 2) being in a confined space with several employees for several hours; 3) arresting a group of illegal aliens who weren’t wearing masks; 4) working at a traffic checkpoint with numerous travelers; and 5) any other work-related situation that could lead to contracting COVID-19.

If a supervisor claims that you must prove when and where you got COVID, tell them to show you the policy requiring this. If this happens, escalate things to a WC or PAIC/DPAIC and get with a station union representative. Finally, make sure you elect to use COP in Box 15. The first day of COP is your first full day away from work because of your symptoms – not the day you tested or got your test results.

Employees are highly encouraged to refer to the frequently asked questions (FAQ) for more information (PDF).

Dangerous road conditions in and around Del Rio Sector

As we've all heard for over a week, there is some brutally cold weather headed our way for the next few days. Since this part of Texas is generally not prepared for this sort of weather, most of the roads used by agents to drive to/from work will not be treated with salt or anything else to effectively prevent ice from forming.

The "weather" in weather and safety leave is designed for this exact scenario. Article 14, Section I, of the CBA and 5 USC § 6329c allow for agents to be granted weather and safety leave for a day, or part of a day, during which such conditions prevent an employee from reporting to work. However, to be eligible, you must provide your supervisor with evidence that you "made every reasonable effort to report to work, but that such conditions prevented" you from doing so.

Del Rio Sector, along with some others, has established a procedure by which employees must first request annual leave, and then request weather and safety leave when they return to work. The union does not believe this is the best way for this to be handled, so we are working with the agency to sort out a better process.

In the meantime, here's what you should do if you cannot safely get to work:

  • Call your supervisor and request weather and safety leave — they will likely tell you that they can only approve annual leave. Fine, so be it.
  • Gather any evidence you can showing that you made “every reasonable effort to report to work, but that such conditions prevented” you from doing so. The key word is reasonable so, for example, take pictures or videos of icy roads, closed road notifications or signs, weather reports indicating dangerous conditions, pictures of vehicles in ditches, an explanation of how you made it part of the way to work, but the roads continued to get worse, etc.
  • If your primary route to work is closed, check other routes, but be reasonable. If an alternate route is open, but it's going to take hours to get to work, or those roads are likely just as dangerous as the primary road, be prepared to explain that.
  • You will not be granted weather and safety leave if you just wake up, look at the temperature, and then crawl back into bed. You have to do some work to document the unsafe nature of the roadways.

Now, if you happen to live near a station that is not your regular station, they might tell you to report for duty at the closer station. However, if road conditions still prevent you from getting there, you will have to explain that all over again.

For example, if you live in San Antonio, but work in Carrizo Springs, it’s probably not reasonable for you to report to Uvalde, but you will have to show why it’s not possible to report to Uvalde. However, if you live in Uvalde and work in Brackettville and the roads are closed or dangerous, it’s likely you could make it to Uvalde Station to work. The key to all of this is effective communication with your supervisor.

We’ve asked Del Rio Sector to send guidance via the Emergency Notification System because, as we write this message, it seems that nothing has been pushed out to the workforce.

If you are able to get to work over the next couple of days, be extremely careful when you drive, particularly on the roads that aren’t heavily used. Ice can sneak up on you and the last thing we need is someone getting into a wreck because they were driving too quickly for the road conditions.

COVID-19 Tests and High-Risk Employment Designation

With the availability of numerous types of COVID-19 tests, it is important to know the Department of Labor (DOL), Office of Workers' Compensation Program (OWCP), is only accepting laboratory tests, such as but not limited to, polymerase chain reaction (PCR), nucleic acid amplification tests (NAAT), and antigen tests.

However, if employees submit antigen test results, DOL requires a copy of the laboratory test results, not just the letter from the provider stating the results were positive. Antibody tests may also be submitted, but this route requires additional medical evidence to address work-relatedness, diagnosis, and treatment due to the intricacies involved in this process.

Regardless of testing choice, make sure you specifically ask for the laboratory results, as required by DOL. If employees only submit test results (without the lab results), they will likely get a letter from DOL telling them they must submit the lab results or the claim will not be approved.

DOL acknowledges that it is difficult to determine the precise moment and method of SARS-CoV-2 (coronavirus) transmission. Therefore, federal employees deemed to be engaged in "high-risk employment" are not burdened with identifying the exact day or time they contracted COVID-19.

Uniformed employees within our bargaining unit have been designated "high-risk employment" by the agency for OWCP purposes, which means OWCP will accept that the exposure was proximately caused by the nature of employment. If the employee files the CA-1 within 30 days, and the employer supports the claim/that the exposure occurred, the employee is eligible to receive continuation of pay for up to 45 days. High-risk employees are eligible to have COVID-19 testing paid by OWCP or have it reimbursed.

Contact a union rep if you have any questions or need help with the process.

For further information, read through the below resources.

OWCP FECA COVID-19 resource page

FECA Bulletin No. 21-01, Issue Date: October 21, 2020

FECA Bulletin No. 20-05, Issue Date: March 31, 2020

What should you tell Border Patrol if you or your family test positive for COVID-19?

NBPC MEMBER ADVISORY

What should you tell Border Patrol if you or your family test positive for COVID-19?

Members, be advised that if you divulge any private or medical information to any management official while reporting COVID-19 related matters, there is a very high probability that the information you provide will be used later to controvert (challenge) any claim that you make regarding any work-related exposure to COVID-19.

There is a lot of information in this advisory, but it’s important to understand what you need to do in order to protect your rights for potential OWCP claims for a diagnosis of COVID-19.

The Union has noticed a disturbing trend in which management uses Evolving Situation Reports (ESRs) to deny or delay DOL Form CA-1 submissions or to support controverting CA-1 forms submitted for COVID-19 related coverage. It is unfortunate that during these challenging times, we must also deal with members of management holding their employees to a different standard from what the Department of Labor has determined to be “high risk employment.” Some managers have decided to simply ignore the federal government’s determination that it is “difficult to determine the precise moment and method of virus transmission.”

There is no single person, medical doctor, or scientist in the world, let alone within the United States, who can determine when or how a person was infected with COVID-19. Yet, some supervisors and managers within the Border Patrol believe they have this medical ability and that it is their duty to decide that an employee was NOT infected while on duty and performing their duties as a Border Patrol agent. Unfortunately, these supervisors and managers use information gained during voluntary conversations with agents to challenge these claims.

You are under absolutely NO obligation to divulge any information regarding your family, and you are under absolutely NO obligation to divulge anything other than an exposure to, or a diagnosis of, COVID-19. Furthermore, you should NEVER speculate how, when, or where you or your family became infected.

If you or someone within your household becomes infected with COVID-19, the ONLY information you should share with management is that someone within your household tested positive for COVID-19. You are not obligated to, nor should you, give managers any more information than what is necessary to make management aware that you’ve been exposed to COVID-19 or have been diagnosed with COVID-19.

Federal law, specifically the Genetic Information Nondiscrimination Act (GINA), “prohibits employers from asking employees medical questions about family members.” The law, however, “does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.”

Bottom line: Do NOT reveal any personal information about your family to the agency. If they can, management will utilize this information against you should you file a claim under the Federal Employees Compensation Act (FECA).

Federal law allows employees to be asked whether they are experiencing symptoms of COVID-19, such as whether an employee has fever, chills, cough, shortness of breath, or sore throat. However, employers, including the federal government, “must maintain all information about employee illness as a confidential medical record in compliance with the ADA.”

An ESR does not qualify as a confidential medical record, and there are requirements that must be met for management officials to require an employee to discuss or disclose anything more than a diagnosis of COVID-19 and its associated symptoms. Nothing changes about requests for sick leave; employees have always had, and will continue to have, the ability to self-certify that they are incapacitated and unable to perform their duties, thereby self-certifying that they are eligible for sick leave.

As for submitting a CA-1 for a diagnosis of COVID-19, if you believe that your exposure was work-related, you have the right to submit a CA-1 and request Continuation of Pay (COP), but you must have a diagnosis of COVID-19. As determined by the DOL, Border Patrol agents are considered to be serving in “high-risk employment,” thereby removing the additional burdens of determining “the precise moment and method of virus transmission,” and “burdening the employee with identifying the exact day or time they contracted the novel coronavirus.”

Management cannot refuse to accept your CA-1, nor can they refuse to process the form. To do so is a violation of law, for which you can file a complaint with the DHS Office of Inspector General (OIG), or the CBP Office of Professional Responsibility (OPR). Management retains the right to controvert (challenge) your claim; and as stated above, they will utilize any information that an employee unwittingly provides to support their challenge. Do not provide unnecessary information to management, and do not provide any information about your family to them either.

Below is a sample of the text (the entire document can be accessed here) from the Department of Labor regarding federal employees who have been determined to be serving in “high-risk employment” positions (i.e., law enforcement, first responders, and front-line medical and public health personnel):

“The pandemic caused by the COVID-19 viral disease is impacting how we live and work across the country, and around the world. The U.S. Department of Labor (DOL) is committed to providing support to Federal employees during this difficult time.

“All federal employees who develop COVID-19 while in the performance of their federal duties are entitled to workers' compensation coverage pursuant to the Federal Employees' Compensation Act (FECA). See https://www.dol.gov/owcp/dfec/.

“DOL acknowledges, however, that it is difficult to determine the precise moment and method of virus transmission. Therefore, when an employee claims FECA benefits due to COVID-19, federal workers who are required to have in-person and close proximity interactions with the public on a frequent basis - such as members of law enforcement, first responders, and front-line medical and public health personnel - will be considered to be in high-risk employment, thereby triggering the application of Chapter 2-0805-6 of the FECA Procedure Manual. In such cases, there is an implicit recognition that a higher likelihood exists of infection due to high-risk employment. Federal workers in such positions routinely encounter situations that may lead to infection by contact with sneezes, droplet infection, bodily secretions, and surfaces on which the COVID-19 virus may reside. Therefore, the employment-related incidence of COVID-19 is more likely to occur among members of law enforcement, first responders and front-line medical and public health personnel, and among those whose employment causes them to come into direct and frequent in-person and close proximity contact with the public.”

“Accordingly, DOL has created new procedures (Bulletin 20-05 & Bulletin 21-01) to specifically address COVID-19 claims. Employees filing a claim for workers' compensation coverage as a result of COVID-19 should file Form CA-1, Notice of Traumatic Injury through your employer using the Employees' Compensation Operations & Management Portal. The new procedures will also call the adjudicator's attention to the type of employment held by the employee, rather than burdening the employee with identifying the exact day or time they contracted the novel coronavirus.”

If you have any questions, do not hesitate to contact a union representative

Notice of meeting - December 2020

Tuesday, December 15, 2020
7:00 pm

To help promote social distancing and comply with local municipal requirements, this meeting will be held over Webex.

You must register at the link below by 5 pm on December 15, 2020, so membership can be verified. A meeting link will be sent to all members who register in advance.

https://bit.ly/Dec2020meeting

Topics will include:

COVID-19 updates
AFGE convention delegates
Abad FLSA lawsuit conclusion
Implementation of Paid Parental Leave
Blue Force Tracking
Body-worn cameras
New canine policy
Online union rep training

Notice of 2021 AFGE Convention

DETERMINE THE NUMBER OF UNION DELEGATES TO THE AFGE CONVENTION AND, IF NECESSARY, NOMINATE ADDITIONAL DELEGATES, DETERMINE IF DELEGATES CARRY ALL VOTES, AND DETERMINE COMPENSATION FOR DELEGATE EXPENSES

At this regularly scheduled meeting on the date/time and location above, members will be asked to
determine if Local 2366 will participate in the AFGE National Convention in August 2021 and, if so, the
number of additional delegates, if any, they want to represent Local 2366, if the delegates will carry all
votes, and if travel expenses will be authorized.

Local 2366’s elected Executive Board Officers have already been designated as delegates by virtue of
office. Members will be asked to determine if the selected delegates will carry all of Local 2366’s votes,
which, if approved, would preclude the need for alternate delegates. However, if members do not
approve this proposal and instead authorize additional delegate(s), then nominations for additional and
alternate delegates will be accepted, and a mail ballot election will be held to elect additional and
alternate delegates as governed by the AFGE Rules of Conduct for an Election, Appendix A, of the
AFGE National Constitution. For those who cannot attend the meeting, nominations can be submitted
via nominations@nbpc2366.org.

NOTE: The AFGE National Convention is considered internal union business and official time to travel
to and from these events, or to attend the events is not authorized. As a result, delegates attend and
travel to/from these events on days off or annual leave.

DRT Virtual Benefits Townhall

Del Rio Sector Leadership would like to extend a personal invitation to a virtual benefits-based town hall meeting on June 26, 2020, at 1:00 p.m. CST, regarding several support topics available to Del Rio Sector Border Patrol employees and their families. Please share this with your spouse and/or families, so they may attend this important virtual event.

There will be a variety of presenters covering a broad range of topics to include:

  • General Benefits
  • Work for Life Programs
  • Employee Assistance Program
  • Peer Support Program
  • Worker’s Comp (OWCP)
  • And More…

In order to join the event, connect to the link sent to all DRT employees this morning, June 24, 2020. If you do not have access to the email, you can call the HR department at Del Rio Sector and they can provide you with the link.

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