Member Advisory: Covid-19 Reporting

MEMBERS & FAMILIES OF OUR MEMBERS – PLEASE READ IN ITS ENTIRETY

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

The Union has noticed a disturbing trend in which management is using Evolving Situation Reports (ESRs) to deny, delay, or controvert 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 own 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, there are some managers within the Border Patrol who believe they have the medical ability and that it is their duty to make the determination that an employee was NOT infected while on duty and performing their duties as a Border Patrol agent. Unfortunately, these managers are utilizing 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 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 that you should share with management is that someone within your household tested positive for COVID-19. You are not obligated nor should you give managers any more information than what is necessary to make management aware that you have been exposed to or 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. Management may utilize this information against you when 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 in order 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 an exposure and diagnosis of COVID-19, if you believe that your exposure was work-related, you have the right to submit a CA-1 and to 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 and information about your family to management.

Below is a sample of the exact text (entire text can be viewed here) from the Department of Labor regarding federal employees who have been determined to be serving in “high-risk employment” positions (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.