Gensler Pushes to End COVID-19 Safety Measures and Moves Return to Office Talks Towards Litigation


The union is receiving an increasing number of inquiries about the status of the union’s bargaining over the SEC’s plan to return all staff to the office for mandatory in-person work (“RTO”) in January. We regret to inform you that management notified the union this week that Chair Gensler has opted to immediately take the matter to the Federal Mediation and Conciliation Service (“FMCS”). Mediation at FMCS usually constitutes the first step towards bringing a bargaining “impasse” to the Federal Service Impasses Panel (“FSIP”) for resolution through litigation.

Chair Gensler’s decision to go to FMCS over RTO is disturbing for several reasons. First, it is premature for such a move. The management bargaining team has only met with the union for two brief WebEx sessions for formal negotiations over Gensler’s proposals. During those two one-hour sessions, including one last week, management refused to make any changes in response to employees’ concerns, or even to engage in meaningful discussions about those concerns. Gensler apparently believes that it is proper to make a “take it or leave it” proposal to his workforce. In fact, we have the right to bargain over RTO on your behalf and Gensler’s unilateral decision to end discussions so quickly can constitute evidence of bad faith bargaining.

More importantly, though, Chair Gensler’s proposals on RTO are substantively problematic. For example, Gensler is insisting upon weekly mandatory “community days” during which employees would be required to return to the office together during the pandemic. His “community days” concept—which the union has dubbed “community spread days”—would allow supervisors unfettered discretion to require all staff under their supervision to be in the office on the same day once per week to gather in a conference room or multipurpose space, with no limitation on the number of employees required to attend and no requirement that they wear masks. Gensler apparently believes that forcing staff to meet this way—even without a mission-related reason to do so, is an appealing way to build a sense of “teamwork” and “social cohesion” at the agency during the pandemic.

By contrast, the union believes that “community days” almost certainly would result in completely unnecessary spread of COVID-19 in all of our SEC communities. To be clear, for over a year, the union has not been opposed to voluntary in-person meetings between and among SEC employees, but we draw the line at compelled meetings, especially where there is no clearly articulated mission-related purpose for such meetings. Even during our current operating status, management regularly reports COVID-19 infections of in-office employees to the union every few days. We are aware of no other federal agency or private sector entity that has implemented such a risky strategy of compelled socializing. Under current conditions, we believe that community days will result not in an increase in “social cohesion,” but instead in increased COVID-19 infections, anxiety, and stress on the part of most of our workforce.

Gensler’s RTO proposal also does not include any process at all for granting exceptions to employees who are at increased risk from COVID-19 infection/complications due to their underlying conditions, nor for employees who live with or care for someone who is at increased risk. According to the union’s survey data, these are very real concerns for roughly a quarter of our workforce. Gensler’s flat refusal to grant any exceptions to these employees would make the SEC an outlier in both the federal government and the private sector in situations in which employees can perform their jobs remotely, as SEC employees have been doing successfully for two and half years now. Gensler’s “no exceptions” stance appears even more heartless when combined with his proposal to compel these same employees to gather together with unmasked coworkers for “community days.”

The union also is seeking other health and safety protocols (such as physical distancing) for the roughly 75% of our workforce that will be returning to the office. SEC employees know from their own experience that these are mainstream strategies for boosting in-person work during COVID-19. We are seeing them employed across the economy in jobs similar to ours. We are having a difficult time grasping why Chair Gensler is rejecting them out of hand.

As we have been required to do several times in the past, we remind Chair Gensler that the pandemic is not yet over. The BA.5 surge is ongoing, with a much larger proportion of “breakthrough” infections than earlier in the pandemic. Almost all of the SEC’s offices are in CDC designated red zones of high community spread. Public Health authorities are warning that vaccine protection is waning, and that immunity from prior infection cannot be relied upon with BA.5. Hospitalizations, ICU usage, and deaths are up.

The union supports in-person work, as is evidenced by our agreement more than a year ago to allow anyone who wants to come in to the office on a voluntary basis to do so. We are not aware of a single instance of an SEC work activity not being completed during the pandemic. But we believe there is a reasonable, straightforward path to make it safer for employees to be in the office. We cannot accept a one-size-fits all agreement on behalf of SEC employees that is premised on wishful thinking or whatever else is motivating the SEC’s leadership at this point. We will continue to ask for the same reasonable health and safety protocols routinely being afforded to white collar office workers across our economy.

We will keep you posted regarding our efforts as we move forward.