Significant confusion exists across the federal workforce concerning telework authorized as a result of the COVID-19 pandemic and national emergency and subsequent social distancing efforts. As agencies begin recalling workers, we are experiencing an increase in calls concerning telework in the context of the pandemic. Specifically, federal employees are asking,
- If they are required to report back to the office during the pandemic, or even after.
- Whether reasonable accommodation can be requested to avoid returning to work.
- What will happen if an employee refuses to report to the office as directed yet continue to telework (citing the pandemic as a basis).
- The impact of weather and safety leave subsequent to an instruction to report back to the office.
In the context of federal personnel law, these issues are exceedingly complex. Situational guidance can only be provided in consideration of specific (and often unique) fact patterns and circumstances affecting an employee. Accordingly, we are providing very broad information and guidance. Affected employees should seriously consider obtaining consultation concerning their unique fact patterns and circumstances prior to making potentially career ending decisions.
In 2010, Congress approved and President Obama signed into law the Telework Enhancement Act (PL 111-292; codified at 5 USC Chapter 65). For the first time, a law authorized federal employees to telework to the maximum extent possible providing doing so did not adversely affect agency operations and performance. Agencies were also required to incorporate telework into their continuity of operations plan for reasons such as we are experiencing now. See, 5 USC 6502 (b)(5), 5 USC 6504 (d). The Office of Personnel Management (OPM) subsequently issued guidelines and federal agencies promulgated implementation regulations in consideration of those guidelines. The result was that federal agencies inconsistently implemented telework to various degrees during normal circumstances. In emergency circumstances and with short notice, most federal agencies implemented telework outside existing regulations citing the impermanency of the authorized telework.
SIDEBAR: As recently as January 2020, the Trump Administration was vigorously pursuing a goal (started in 2016) of either permanently eliminating telework in federal government or catastrophically reducing its use. Had the Trump Administration been successful, the ability of the government to continue operations in a national crisis would have been significantly and adversely affected. See, Naylor, Brian. ” In Reversal, Trump Administration Now Urges Agencies to Allow Telework ” , NPR. National Public Radio, 13 March 2020.
Impact of Pandemic and National Emergency
Many federal employees currently teleworking have been placed in a variety of telework status specifically, and only because of, the COVID-19 pandemic and associated (declared) national emergency. In response to various (and diverse) state directives to socially distance and /or quarantine, and with the full authority of the Office of Personnel Management (OPM), and under the basis of internal security (see, 5 USC 7106 (a) (1)), agencies authorized telework in a largely haphazard and hurried manner in an effort to safeguard employees, the community, and agency operations. Affected employees were not otherwise in a telework status. In our experience, this resulted in some of the following situations (not all inclusive):
- Telework agreements were not completed.
- Employees in positions declared unsuitable for telework were authorized telework.
- Employees previously declared ineligible for telework were authorized to telework.
- Employees with poor performance or misconduct were allowed to telework.
- Agency computer equipment to telework was not provided.
- Managers did not monitor performance of newly teleworking employees.
- Probationary status employees were permitted to telework.
- Agencies “lost track” of some teleworkers.
It is important to note agencies situationally (temporarily) implemented telework under the basis of “internal security” in this instance thus permitting significant exceptions to existing rules and negotiated agreements. The Federal Labor Relations Authority (FLRA) has repeatedly concluded that an agency right to determine internal security measures includes the authority to determine policies and practices designed to safeguard personnel, property and operations. See, Luke AFB, 63 FLRA 174 (FLRA 2009). This situation effectively excluded the implementation of telework (in this instance) from collective bargaining and provided federal agencies significant, if not unilateral, authority to implement telework to the extent, and in the manner, it deemed best in the situation.
Terminating Telework Granted Solely in Connection with COVID-19
The authorization to telework in connection with COVID-19 was made under the umbrella authority of continuity of operations and internal security, safety, and health in an unprecedented situation. All federal employees permitted to telework due to COVID-19 should expect to have their telework arrangements terminated at some point in a “post COVID-19” environment, whatever that may look like. The determination to terminate such telework agreements largely rests with the federal agency that permitted the telework and not the affected employees. Telework is simply not an entitlement. Failure (or refusal) to return to the designated duty site if and when instructed will likely result in discipline or removal from employment as federal agencies seek to regain control of the workforce, which they arguably lost during this crisis.
Continuing Telework After Being Instructed to Return to Official Duty Station
HOWEVER, despite the foregoing, a legitimate basis may exist for employees to request either 1) a temporary continuation of the emergency telework arrangement or 2) conversion of the temporary arrangement to a permanent, or semi-permanent, arrangement within the construct of existing non-emergency (normal) telework regulations. In most instances the underlying basis in these situations will be medically based in some form. This basis could be due to COVID-19 health related reasons (self or family or exposure) and the request can take the form of a simple e-mail to your supervisor or a formal reasonable accommodation request. Ultimately, an employee seeking to appeal an unfavorable decision will need to file an Equal Employment Opportunity complaint.
While the scope of the current COVID-19 situation is unprecedented in impact on the federal workforce in modern times, the situation itself is not unprecedented. The authorization to telework due to the pandemic was never intended to be permanent and employees should understand the potential consequences of refusing to return to the designated work site (official duty station) unless alternative arrangements are sought. As each case is unique, affected employees should obtain expert consultation on how to seek alternative arrangements prior to making any irreversible decisions.
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