The union has been fielding many questions and concerns from SEC employees regarding the agency's office opening status at this stage of the global coronavirus pandemic. We are providing this update to you on the SEC’s overall COVID-19 status. 

Voluntary Return

The union has been in discussions with management regarding permitting SEC employees to return to the office on a voluntary basis. We expect an announcement from management on this issue soon. Our position on voluntary return has been clear. If SEC employees want to return to their respective SEC offices on a strictly voluntary basis, the union is not at this time opposed to their doing so.

A “voluntary” return status will afford employees the option to weigh existing pandemic risks for themselves and choose to come into the office based upon their personal risk assessments.  Employees will be able to determine for themselves and their families whether adequate safety measures exist to satisfy their individual personal risk assessments with respect to their commute to and from the SEC and the time they would spend in the office. It is not the union’s – nor management’s – place to substitute our judgment for yours. Everyone’s personal situation and risk profile is different. For that reason, we will support a voluntary return to the office status for the remainder of the summer.

We do want to emphasize, however, that voluntary means voluntary. Based on recent discussions with staff, some managers, in their zeal to return to an in-office status, may attempt to pressure employees to return this summer when they do not want to do so. We hope, of course, that this does not happen, and senior management and the Office of Human Resources have assured us that it will not. If, however, you feel that you are being inappropriately pressured by management to come into your office this summer, please do not hesitate to reach out to a union steward. We will correct the situation immediately.

The Possibility of Involuntary Return in September

Despite our position on voluntary return, the union continues to oppose involuntary return to the office after September 7^th (the date of the most recent extension of mandatory telework status at the agency). Due to the uncertainty regarding the risks posed by emerging COVID-19 variants, we continue to believe that agency leadership should respect the ability of individual employees to assess the circumstances facing themselves and their families now (and how those circumstances might change in the weeks and months ahead) to determine what their telework status should be after Labor Day. This is in line with many other entities, such as FINRA and Apple, both of which this week reportedly abandoned plans to reopen in September due to concerns over the spread of the COVID-19 Delta variant, extending their current telework status for employees until at least January 2022.

As of today, SEC management’s official position on involuntary return to the office is that “our operating status after [September 7, 2021] has not yet been determined.” However, union officials have been hearing from employees across the agency that various managers have been making comments suggesting that they believe the agency will be reopened on an involuntary basis as early as the second week of September. The union believes that this suggests possible planning for reopening at the highest levels of the agency. Based upon available data, however, the union also believes that a decision to compel employees to return to the office in September would be reckless. We continue to insist that SEC leadership once again extend the current remote work option for employees who choose not to risk infection under the current circumstances.

The union’s position starts with the undeniable fact that SEC professionals have demonstrated during the pandemic that they can perform the agency’s mission remotely, without risking infection by getting on mass transit and spending the day in the office. Unlike many other agencies, the SEC is set up in a way that allows it to work remotely. And that is by design. Years before the pandemic, the union and management built an impressive infrastructure to maintain the continuity of our operations while working remotely. That is what has allowed the Commission and its staff to remain fully functional since March 2020.

The union is not aware of any work being deferred until the pandemic is over. Trials, depositions, interviews, complex case and exam meetings, are all occurring remotely. Furthermore, when necessary, SEC staff has volunteered to appear in-person for essential work that requires face to face interaction (for example, court appearances)—and the union has never opposed, even before vaccines were introduced, such voluntary in-person meetings. The transition has been seamless, as has been recognized by numerous positive messages from managers across the agency. Simply put, SEC professionals have demonstrated over the past sixteen months that they can simultaneously deliver both safety and soundness– the safety of its employees and the soundness of the markets.

Given the basic fact that wholesale return to the office is not necessary to fulfill our mission, the question then becomes, when is it actually safe to return? SEC senior management says that it will make this decision based upon “science and data.” Frankly, at this time, experts across our nation continue to express a great deal of uncertainty about what that data currently portends for the future course of the pandemic, particularly given the recent emergence of more “breakthrough” infections of fully vaccinated individuals. The primary reason for this is the appearance of COVID-19 variants, or mutations, such as Delta, Epsilon and Lambda, all of which are much more contagious than the original COVID-19 virus, and each of which appears able to more readily circumvent the protections of existing vaccines. It is too soon to force people to take risks no one can yet credibly quantify.

Some Current Facts about the Pandemic

• The emerging Delta variant carries 1,000 times more viral load than the original COVID-19 virus, and thus it is much more highly contagious and spreads much more quickly and efficiently. Delta currently is fueling new COVID-19 increases across the US after weeks’ long declines, and now accounts for about 80% of all new cases. These increases are highest in locations with low vaccination rates, but they are not sparing even geographic regions with higher vaccination rates. Examples are turning up across the nation, including the highly publicized recent infection of three Miami-Dade County Commissioners, several elite professional baseball players and Olympic athletes, and a number of the Texas legislators who recently traveled to DC—all of whom were vaccinated. The number of daily cases has doubled in the last three weeks, during the summer when we should expect declines. We are already seeing surges in various locations across the country. Cases are rising in every state and Washington, DC, with the average number of new cases jumping at least 10% higher than the week before – and at least 38 states are seeing a 50% increase or more. Cases are even rising rapidly in cities like St. Louis, New York and Los Angeles, despite high levels of vaccination. The State of Florida is seeing a huge surge in positive cases right now. And LA County in California has seen a 700% increase in positive cases in one month, leading to a new indoor mask mandate. Other localities across the nation are considering similar moves.

• Many experts are predicting another fall surge in the US, similar to what is already occurring in Israel and the UK—both countries with high vaccination rates, and both of which have previously proven to be harbingers for the future state of the pandemic in the US. The UK, for example, is currently experiencing 50,000 new infections a day, twice the level of infections in America with just a fifth of its population. Experts forecast that this number will double again to 100,000 per day, representing an infection rate equaling the worst of the pandemic. Dr. Scott Gottlieb, former head of the Food and Drug Administration from 2017-2019, warned last week that a Delta variant-fueled pandemic peak could hit the US in September. Gottlieb indicated in an interview with Squawk Box that modeling showed the highly infectious Delta variant would “move its way through the country over the course of August and September maybe into October.” “We expect the peak to be sometime near the end of September,” he noted. Gottlieb is currently on the board of vaccine manufacturer Pfizer.

• Although the CDC’s guidance has not yet changed, in light of the new data about the variants, the World Health Organization recently urged even fully vaccinated people to continue to wear masks and to practice other COVID-mitigation practices such as social distancing, limiting indoor activities and avoiding crowds. That the WHO’s concern extends even to vaccinated persons is noteworthy. “People cannot feel safe just because they had the two doses. They still need to protect themselves,” Dr. Mariangela Simao, WHO assistant director-general for access to medicines and health products, said during a news briefing from the agency’s Geneva headquarters. “Vaccines alone won’t stop community transmission,” Simao added. “People need to continue to use masks consistently, be in ventilated spaces, hand hygiene ... physical distance, avoid crowding. This still continues to be extremely important, even if you’re vaccinated when you have a community transmission ongoing.”

• Many experts are now questioning vaccine efficacy against the variants and the possibility of reaching “herd immunity” anytime soon in the US – a situation that could create ready paths for both the spread of highly contagious variants, and further mutations that create new variants. The Wall Street Journal recently reported that the Delta variant now accounts for 90% of Israel’s cases and half of the adults so infected had received the Pfizer-BioNTech vaccine, prompting the government there to reimpose an indoor mask requirement and other measures. Right now, less than half the population of the US is fully vaccinated. There are 48 million children under age twelve who likely will not be eligible for vaccination until this winter. Millions more eligible adults are not getting vaccinated. It also remains an open question how long vaccination protection will last against the variants, whether boosters will be required, and when. For example, Pfizer-BioNTech has apparently concluded that the effectiveness of its two-dose vaccine declines and will require a “booster” shot. Finally, a number of states and media outlets are opposing efforts to promote vaccination.

• Many SEC employees have kids. There is growing concern among experts about how to protect the millions of children under age twelve who cannot yet be vaccinated. Furthermore, of the roughly 25 million children aged twelve and over who are currently eligible for vaccination, only about a third are fully inoculated. 20,000 new COVID infections were reported in US children in one week this month. There are COVID clusters of cases in numerous summer camps across the US. Ten children in Mississippi were recently placed on life support due to the Delta variant. Parents in the US are frustrated by conflicting messages and lack of planning in many schools and childcare centers. The CDC now says that unvaccinated children should wear masks, and the American Academy of Pediatricians goes further by urging all children, including teenagers, to wear masks when school begins. However, many states have no uniform plans to require them. Many parents may opt to continue remote learning, or caring for children under five at home, complicating their ability to come into the office. Outbreaks could lead to school and childcare center closures in the fall, many experts say.

• COVID-19 is an aerosolized virus, meaning that the virus is airborne and can remain in the air for longer periods than the droplets that usually spread other viruses. For that reason, spending extended periods of time in indoor spaces with other people increases the risk for infection. The use of elevators and bathrooms at the same time as others, or shortly after others have left the space, poses a risk. Similarly, riding on trains and subways with numerous other passengers, some of whom will not be vaccinated, also poses a risk.

Conclusion

As SEC leadership considers its bargaining position regarding the agency’s operating status after September 7th, we hope they will keep in mind that SEC professionals want a fully remote work option to remain in place, so they can choose how to keep themselves and their families safe. This was made clear by our recent survey showing 95% support for that position—and those who support employee choice include the vast lion’s share of the individuals who presently want an option to return to the office voluntarily. President Biden has made this option available to the SEC, and has also made it clear that he wants federal agencies to expand telework where possible across the federal government. I have asked agency leadership to retain this feature of our operating status into the fall, to give everyone an opportunity to see how the pandemic situation evolves.

Each SEC professional has a different set of risk circumstances. Some are older, and/or have underlying conditions that make them more susceptible to COVID infection. Others live with, or have regular, necessary, in-person contact with, family members who are susceptible to infection for a host of reasons including comorbidities, cancer treatments, old age, inability to get a vaccine for medical reasons such as suppressed immune systems, and others. Even if they are not worried about themselves, they worry about infecting their loved ones, or being required to limit their contact with them for an extended period of time, due to a pointless compelled return to the office. Given all of the uncertainties about the course of the pandemic, for now, SEC professionals should be permitted to assess the risks associated with coming into the office based upon their own individual circumstances and act accordingly.

This pandemic will not go on forever. A consensus will emerge among epidemiologists and vaccination experts when the situation has become “safe enough” for a return to “normalcy.” We will, at some point, resume “normal operations.” However, that consensus has not yet occurred. And we have been successfully advancing our mission throughout the pandemic while working remotely.  Ordering an involuntary return under these circumstances would be reckless and put the health and safety of our workforce needlessly at risk.

For all of these reasons, the union will vigorously oppose any effort at a compelled return in September, to continue to protect SEC professionals and their families.

Although we had differences on a number of topics, I am extremely proud of my work with former SEC Chairman Jay Clayton during a difficult presidential administration to keep you safe from the global pandemic while you protected investors, maintained fair, orderly and efficient markets, and facilitated capital formation. Jay and I agreed that we could simultaneously perform our mission effectively from home and keep our workforce safe. I continue to hope that we will develop a similar partnership with Chairman Gensler during a new and very pro-employee administration. To borrow a theme from Jay’s notes to the staff throughout 2020, I do not know what “inning” this pandemic is in, but I know it isn’t over.

In any event, the union will continue, as always, to zealously advocate for your interests.

Thanks.

NTEU Chapter 293 President Greg Gilman