Gov. Glenn Youngkin’s return-to-office mandate is adding to tensions at the Virginia Department of Health, where at least two employees say they’ve been asked to hand over medical documents to the state’s health commissioner to support requests to work remotely for the next year.

Attorneys and employment experts said it’s not unusual for employers to review medical documentation for people requesting work accommodations. But health department employees interviewed by VPM News said they expected to turn over medical paperwork to the human resources department — not the state health commissioner. Both said Commissioner Colin Greene personally rejected their requests for several days of remote work, unless they provided the documentation.

Each expressed concerns over who would have access to the documents, how the information would be stored and what criteria would be used to assess their claims.

Greene’s requests for medical records appeared to contradict emails VDH’s Office of Human Resources sent to employees telling them not to include personal health information in their telework forms. 

In an emailed response to a VPM News inquiry, Greene did not directly respond to claims that he asked for employees’ medical records. 

“All applications of VDH employees who requested telework as an ADA accommodation are being consistently processed in accordance with the Americans with Disabilities Act,” Greene wrote.

Younkgin spokesperson Macaulay Porter said the governor “instructed secretaries to protect medical data in accordance with applicable law and adhere to all applicable law regarding ADA and telework.” 

VPM News granted anonymity to the employees, who said they feared speaking on the record could lead to retaliation in a 3,700-person department roiling with tension. Greene was formerly reprimanded by the Board of Health on Thursday for downplaying the role of racism in health outcomes, and The Washington Post reported last week that Greene has clashed with VDH staff over his views on the issue.

The claims around medical records add to mounting frustrations from state employees over a revised telework policy Youngkin announced last month that aimed to bring an end to  remote-work guidelines adopted during the pandemic. Under the new policy, approvals of two or more days of remote work require signoff from cabinet secretaries and three or more days requiring permission from Youngkin’s chief of staff, Jeff Goettman. 

The administration is now more than three weeks behind a self-imposed June 3 deadline to process all telework requests. Porter said on Friday that the administration and agencies “are working as quickly as possible to expedite the review process.”

All employees are expected to return to their offices on July 5, unless they’ve received the required approvals. 

It’s also unclear what processes are in place if there is a COVID-19 outbreak in a state office. Greene said VDH “will follow guidance from the [Youngkin] administration as the situation warrants.” Porter didn’t respond to questions on whether the administration had created contingency plans.

Telework requests

VDH, like other state divisions and agencies during the pandemic, has set up an elaborate process for employees to request varying numbers of telework days based on their role, the department’s needs and medical conditions. Any state employee who wants to work remotely needs to complete a telework application, even if they’ve already filed an ADA accommodation.

One VDH employee who spoke with VPM said they’d requested to work remotely under a category set aside for people with ADA accommodations, a medical condition or “extraordinary circumstances.” The employee said they were in the process of filing ADA paperwork with VDH’s internal human resources office while simultaneously completing separate telework paperwork.

Their telework form came back with a note from Greene, which VPM News has reviewed, rejecting the employee’s request for multiple days of remote work unless they submitted documentation of their medical condition. Greene wrote that he would consider approving a shorter amount of remote work without the documents. It was unclear from Greene’s note where the employee was expected to submit the additional paperwork; and the employee was already working on supplemental paperwork with HR staffers. The employee said they were uncomfortable with the prospect of sending the information directly to Greene and decided to request fewer work-from-home days.

“I was discouraged,” the employee said. “I didn’t think we had to submit medical documentation with the telework request.”

Greene’s request appears to buck guidance from VDH’s human resources office.

In a June 21 email obtained by VPM News through a records request, Hillary Ziegler, deputy director of policy and operations in VDH’s Office of Human Resources, told staff that they should “not include [personal health information] in the Standard Telework Agreement request form.” Instead, the email stated, supporting medical paperwork should be filed with her office. Staff who had an ADA reasonable accommodation request in process, and whose telework agreement was rejected, should apply again, she said, and note their ADA status in the telework form.  

Despite his requests for medical documentation, Greene said in his email to VPM News that ADA-related telework requests “should have been forwarded to the agency’s Office of Human Resources,” in line with the agency’s standard ADA process. He said VDH is reviewing all ADA-related telework requests labeled as disapproved to make sure they were referred to the department’s human resources office for follow-up.

“Any requests for specific information needed by the Office of Human Resources to consider the request in accordance with its standard ADA process will be made by the Office of Human Resources and not by me,” Greene said.

Another VDH employee said they’d requested multiple work-from-home days off to help care for a family member with a chronic illness — a category of accommodation not covered under ADA. The employee said their supervisor told them Greene had requested “more specific information,” including medical documentation of the family member’s condition. With a May 20 deadline for submissions looming, the employee said they felt “pressured to reveal private information that I would not have otherwise revealed.”

“I was worried this would be used against me in some way,” they said, adding that it was unclear where the medical documentation should be sent or how it would be used. They, too, ended up sending a request for fewer days.

Existing ADA accommodations

State employees with disabilities have spoken out about their fear of losing ADA protections as part of Youngkin return-to-office push. Porter, Youngkin’s spokesperson, told the Richmond Times-Dispatch that previous ADA accommodations will be honored during state employees’ return to the office. 

The state risks legal action if it forces staff back to work who have existing ADA accommodations or are in the process of requesting them, according to Richmond employment attorney Harris Butler. 

“To have an arbitrary cut off … I can’t see that as being successful to a court challenge,” Butler said.

Butler said supervisors sometimes review limited medical records as part of ADA accommodations but that HR staff usually do most of the review. “It really should be somebody who has some HR training,” he said. 

Steven Traubert, director of litigation at the disAbility Law Center of Virginia, said both the ADA and state code make it clear that employees with disabilities — particularly those working for the government — should receive accommodations, unless it prevents them from doing their job.

“So, if my preferred accommodation is to telework, and I have demonstrated that I’m able to telework effectively, then there’s sort of a presumption that that’s the accommodation I should get from a state or local government employee,” Traubert said. 

A summary of a survey from the Virginia Government Employees Association of more than 400 state employees described the telework process as “rushed and confusing.” 

With fewer than five full work days left before the July 5 return-to-office deadline, it’s not clear when the ambiguity will be resolved. The employees association has called for the administration to delay implementation of telework until Sept. 12 to address concerns around childcare and commuting plans. 

In a Monday interview, VGEA Lobbyist Dylan Bishop said he met with Secretary of Administration Lyn McDermid earlier this month, but had low hopes the administration would push back its timeline. 

Bishop said his group had always believed the process would be rushed under Youngkin’s timelines. “That concern’s only continued to grow,” he said. “The Youngkin administration hasn’t met their own deadlines.”

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