PSH-23-0041 - In the Matter of Personnel Security Hearing

On April 11, 2023, an Administrative Judge (AJ) determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. In August 2021, according to an investigation by his employer, the Individual was placed on a Site Access Restriction (SAR) due to violating his employer's mask-wearing policy when he entered the facility unvaccinated, not wearing a mask, and reported to work while COVID-19 (hereinafter "COVID") positive. He was sent home and instructed not return without proof of vaccination or a negative COVID test. The Individual informed the employer's site physician that he was unable to get tested on August 9, 2021, but he told the site physician that he had received a positive result from an August 10, 2021, COVID test. However, on August 12, 2021, the Medical Director of the state Department of Health informed the site physician that the Individual had tested positive for COVID twice-on August 9, 2021, and the next day, August 10. Id. In his Letter of Interrogatory (LOI) response, the Individual admitted he had been untruthful to the site physician about his first positive COVID test because he was "shocked" by his first test results, and because he was nervous that he would be terminated from his job because he was sick and not been wearing a mask in accordance with his employer's policy. The employer's investigation also found that the Individual had deliberately violated employer procedures by deliberately obscuring the fact that he did not have a vaccine badge (card) by placing his hand over his badge when verifying his identity at the " search train," and intentionally turned his badge around backward after passing the guard station. In his LOI response, the Individual denied that he had intentionally obscured his badge and vaccination status, and asserted that he had developed an unintentional habit of turning his badge around after he showed it to the security guards at the search train.

At the hearing, the Individual's wife testified that the Individual has expressed remorse and apologized to her almost daily for putting their family in financial risk due to consequences from his actions that affected his job. The wife asserted that she believes the Individual will follow rules in the future because he has learned his lesson, has gotten counseling, and has recently increased his involvement in their church activities. The Individual also presented testimony from his coworker and his union president, both of whom testified that they found the Individual to be reliable, and that neither of them had known of any other occasions that the Individual failed to follow his employer's rules. The Individual testified that in approximately July 2021, he observed other employees who were unvaccinated and not wearing masks and he observed that his employer took no disciplinary action against his coworkers. He stated that for this reason and because he claimed the masks caused him headaches, he decided to stop wearing a mask. He also admitted that when he realized that his employer was going to find out about his August 9 positive COVID test, he should have self-reported his untruthful statements, but he had not done so. Regarding the allegations of obscuring his badge, the Individual again asserted his same explanation from his LOI response.

The AJ concluded that the Individual had not mitigated the security concerns raised by his pattern of dishonesty and rule violations brought under Guideline E. Therefore, the AJ determined that the Individual's access authorizations should not be granted. (OHA Case No. PSH-23-0041, Balzon)