EEOICPA BULLETIN NO.03-26

Issue Date: June 3, 2003

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Effective Date: June 3, 2003

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Expiration Date: June 3, 2004

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Subject: Eligibility status of an employee of a government agency who can be considered to be a "DOE contractor employee."

Background: A number of EEOICPA claims have been filed by current or former employees of state or federal government agencies seeking coverage as a "DOE contractor employee." Many of these claims involve government employees who were conducting contracted work at a DOE facility. Other claims involve employees of regulatory agencies who performed inspections or other duties required by their agency mission at a DOE facility where a contract or an agreement was established. These claims raise the question whether an employee of a state or federal agency can be considered a "Department of Energy contractor employee" within the meaning of EEOICPA, 42 U.S.C. § 7384l(11).

It has been determined that a civilian employee of a state or federal government agency can be considered a "DOE contractor employee" if the government agency employing that individual is (1) found to have entered into a contract with DOE for the accomplishment of one or more services it was not statutorily obligated to perform, and (2) DOE compensated the agency for that activity. This Bulletin does not address EEOICPA eligibility status of uniformed members of the military services. That issue is addressed in EEOICPA Bulletin 03-21. However, a civilian employee of the Department of Defense (DOD) may be eligible for EEOICPA benefits as a "DOE contractor employee." For example, a substantial number of the employees of the United States Army Corps of Engineers (Corps) are civilian, rather than military, employees and the Manhattan Engineer District was a part of the Corps. The Corps also performed work at DOE facilities pursuant to contracts with the Atomic Energy Commission. If a civilian employee of the DOD meets the criteria required to be considered a "DOE contractor employee" he or she is not excluded from EEOICPA coverage merely because they were employed by DOD.

The policy and procedures outlined in this Bulletin only apply to state and federal agencies that have/had a contract or an agreement with a designated DOE facility. Atomic Weapons Employers, Beryllium Vendors, and RECA recipients are excluded.

"Contract" is defined as: an agreement that something specific is to be done in return for some payment or consideration. This definition may be satisfied where such an exchange has taken place and the agreement is in the form of a memorandum of understanding, a cooperative agreement, or an actual written contract. An oral agreement may also constitute a contract within the meaning of EEOICPA and be sufficient to make the government agency a "DOE contractor."

Reference: Energy Employees Occupational Illness Compensation Program Act of 2000, 42 U.S.C. §§ 7384l(9)(B)(ii)(II); 7384l(11); 7384l(14); 7384r(d); and 20 CFR § 30.112.

Purpose: To provide procedures for processing claims from state and federal government employees seeking EEOICPA coverage as a "DOE contractor employee."

Applicability: All staff.

Action:

1. When a new claim for compensation is received, the claims examiner (CE) must determine whether the employee is a covered employee under the EEOICPA. EEOICPA makes compensation payable in certain situations to a "DOE contractor employee." To determine if an employee of a state or federal agency is a "DOE contractor employee" the first criterion to be met is whether the agency performed a service for the DOE. The second criterion is whether the DOE compensated the agency for that activity.

2. While developing the case, the CE must collect as much information as possible from the claimant or the DOE to establish that a contract or an agreement between the state or federal agency and the DOE existed. The CE may conclude that person is a "DOE contractor employee" without obtaining a copy of the actual written contract or agreement. However, it is important to acquire enough evidence to conclude that the employee was employed by a state or federal agency, which performed one or more services for the DOE, and the agency was compensated for the work performed for the DOE. The CE may also conclude that the employee is a "DOE contractor employee" where the document establishing the arrangement between DOE and the state or federal agency is something other than a contract such as a memorandum of understanding or a cooperative agreement. Further, an oral agreement may be considered a contract for the purpose of determining whether an entity is a "DOE contractor."

3. The CE must evaluate the employment history and obtain contractual information and employment verification from the DOE and the state or federal agency. The district office contacts the federal or state agency directly in an effort to obtain the desired information. The District Director will designate an individual in the district office to be responsible for coordinating and contacting federal and state agencies. This approach should facilitate better communications with the agencies, especially for agencies with numerous requests. The point of contact is to provide copies of contracts and contacts to the National Office so that a database can be developed. The burden to establish employment and contractual relationships primarily falls on the claimant, pursuant to 20 CFR § 30.112 and the DOE, pursuant to 42 U.S.C. § 7384v(c). Accordingly, the CE should not pressure a state or federal agency to produce employment or contractual records.

4. Development of any employment for an employee of a state or federal agency proceeds in the usual manner. If the evidence is unclear as to whether employment by a state or federal agency can be determined using the guidance of this Bulletin, the claimant should be asked to provide clarification. The CE must review any documentation submitted by the claimant and undertake any additional development necessary to clarify the individual’s employment status. Upon finding that the employee does not meet the definition of a "DOE contractor employee" for a state or federal agency, and this is the sole employment listed on the EE-3 form, the CE must deny the claim. The CE will issue a recommended decision denying the claim on the basis that the employment at the state or federal agency does not qualify the claimant as "DOE contractor employee" as defined in the EEOICPA.

5. If the claimant provides information or identifies himself/herself as military personnel, the CE must send a letter to the claimant stating that uniformed military personnel are ineligible for benefits under the EEOICPA as outlined in EEOICPA Bulletin 03-21. Only civilian employees who performed services for the DOE via military contracts are considered DOE contract employees. Civilian employees of the military for the sake of this program may be contractor or a federal/state employee who worked for a military entity.

6. If at any time the CE is unable to make a determination whether a federal or state employee is eligible under the EEOICPA, the CE refers the issue to the National Office. The referral is made to the Branch Chief for BPRP resolution of the issue through the CE’s Supervisor and the District Director. The referral can be made in the form of a case file, copies of pertinent documents from a case file, or electronic mail (E-mail) and includes a summary of the issue and any supporting facts/documents, i.e., copies of payment stubs, employment verification, affidavits, and contracts/agreements.

The CE uses the WS/WR guidance provided in EEOICP Bulletin 03-12 to track this request in ECMS.

Disposition: Retain until incorporated in the Federal (EEOICP) Procedure Manual

PETER M. TURCIC

Director, Division of Energy Employees

Occupational Illness Compensation

Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, District Office Mail & File Sections