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The Justice Dept.’s Workplace Safety Plan Details COVID-19 Testing Protocols

The plan’s language encouraging a “broader” application of telework disappointed career prosecutors, who had hoped for a firm baseline of two days per week of working remotely after the COVID-19 pandemic.

The Justice Department last week issued an update to its workplace safety plan to prepare for employees to return to traditional worksites and to outline procedures for agencies to screen unvaccinated employees for COVID-19 if they are already reporting in person.

The plan does not set a concrete return-to-office date as some other federal agencies have done, but states that the department will give employees who are currently working remotely 30 days’ notice before they will be expected to begin returning to federal facilities.

It also spells out the protocols by which unvaccinated Justice Department employees will have to undergo regular testing in order to report to physical work sites, as required by the White House Safer Federal Workforce Task Force. The task force set a Feb. 15 deadline for agencies to begin regular testing of unvaccinated employees and contractors to conform with President Biden’s vaccine mandate executive order, although discipline of noncompliant feds remains on hold due to multiple federal injunctions blocking that portion of the edict.

“Until further notice, before entering a department workplace other than an employee’s telework location, federal employees who are not fully vaccinated are required to provide to their supervisor (or component designee) a recent negative COVID-19 test result,” the Justice Department plan states. “The department encourages components to require that the negative test result be obtained within the previous three days (i.e., twice per week) before entering the worksite; however, based upon operational needs and testing availability, components may require a negative COVID-19 result once a week, particularly in areas of low or moderate transmission of COVID-19.”

The department encouraged employees to receive their testing at an official site, such as a pharmacy, doctor’s office, or other large scale testing site, although officials also provided an option for employees to take rapid at-home tests. If employees use home testing kits, the employees must do so with another Justice Department employee via teleconference, like Microsoft Teams, so that the second employee can independently verify the results.

The department said employees should submit any costs associated with getting COVID tests, either through a medical provider or the purchase of at-home tests, to their insurance company. Any costs not covered by insurance will then be reimbursed by the department, as well as any reasonable transportation costs.

One Justice Department component that will not go ahead with mandatory testing is the U.S. Bureau of Prisons. In a Feb. 4 memo, Michael Smith, the agency’s assistant director for health services, said that since judges partially blocked Biden’s vaccine mandate, the Bureau of Prisons would return to its previous workplace safety plan, under which COVID-19 testing was optional for employees.

“The Centers for Disease Control and Prevention’s guidance for testing of staff in correctional and detention facilities indicates that regular weekly testing should be offered and made available upon request to unvaccinated staff when community transmission is at substantial or high levels,” Smith wrote.

But the White House Safer Federal Workforce Task Force last month stated that while the court decisions have put discipline of noncompliant federal workers on hold, all other elements of the executive order, including testing of unvaccinated employees, should remain in effect.

“Task force guidance on other federal agency safety protocols based on vaccination status—including guidance on protocols relating to masking, distancing, travel, testing and quarantine—remains in effect,” the task force wrote.

Bureau of Prisons spokeswoman Randilee Giamusso told Government Executive Thursday that the agency follows CDC guidance for jails and prisons, not the White House task force, and confirmed that testing is optional.

“The Safer Federal Workforce Task Force provides general guidelines for federal workers who are mostly in an office setting,” she said. “The Bureau of Prisons follows CDC guidelines specific to the field of corrections, which takes into consideration our mission and those of other correctional entities. Currently, the BOP offers testing to all staff regardless of vaccination status on a weekly basis.”

Although the Justice Department’s plan contemplates the end of the “maximum telework” posture for employees whose work is portable, it also encourages agencies to make telework more accessible to federal workers than it was before the pandemic began.

“Components are urged to continue to build on their successful experiences during the department’s ‘maximum telework’ posture during the pandemic to provide broader access to telework and other worksite and scheduling flexibilities to employees, as balanced against mission requirements, in developing and implementing their reentry plans.”

But that language came as a disappointment to a group representing career prosecutors, who have been lobbying the department to set a firm baseline of two days per week of telework for assistant U.S. Attorneys. National Association of Assistant U.S. Attorneys Vice President Adam Hanna said the politically appointed prosecutors who run each individual U.S. attorney’s office have a history of setting drastically different telework policies.

“U.S. attorney’s offices have not enthusiastically embraced telework as much as other places in government or even the legal world, and I don’t know exactly why that is,” he said. “I never figured out why there’s been so much historic hostility to telework . . . These U.S. attorneys are presidentially appointed and Senate-confirmed, so they should have a high level of control over their individual offices, but the Executive Office for U.S. Attorneys doesn’t hesitate to set nationwide standards on pay, leave, travel, litigating positions and all of these other things.”

Hanna is still hopeful that the office overseeing U.S. attorney’s offices will step in and set a benchmark standard for prosecutors’ telework policies, but he said if not, the government could lose out to Big Law and other private sector law firms as they try to recruit the next generation of attorneys.

“We’ve always been able to recruit people, despite lesser pay, based on the idea of getting to work in a place where you have a legal job with a purpose,” he said. “But I think that practically speaking, when you stack up the disadvantages—not only less pay, but telling people that we’ll pay you less, and you’ll have to be at your desk from 8 until 5 five days a week, unlike your job in Big Law—those disadvantages kind of cascade and will eventually be a recruiting disadvantage. It may not be immediately apparent that we’re losing the talent war, but it will happen over time.”