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Do I Have to Return to the Office? What Federal Employees Need to Know About Teleworking Flexibilities

When the pandemic struck, the federal government and many agencies allowed their employees to work from home or telework, serving as a model employer for many businesses and offices around the country. However, now that many federal employees are vaccinated according to White House data and the threat of COVID-19 has started to subside, many federal employees who are being instructed to go back to the office are now curious about their teleworking options moving forward.

While there are many benefits and challenges presented when it comes to working from home, some agencies have already expressed their intent to try and maintain some form of remote/teleworking capability. In that regard, better and more reliable data on how teleworking operates outside of the pandemic would help the federal government prepare for other emergencies and issue guidance quicker.

On the other hand, however, some agencies are eager to have employees return to the office, stating that standard operations such as hiring, training, and maintaining security are all much more challenging in a teleworking environment. Coupled with the strain on network capacity, IT equipment shortages, and reported decreased engagement from employees who struggled to maintain a healthy work-life balance, the room appears to be split on whether or not allowing employees to telework should be something to be relied on moving forward.

Teleworking Takeaways

The Office of Personnel Management released a new report on federal agencies’ use of telework during the height of the pandemic in 2020. While OPM has released teleworking reports for around a decade now, this year’s report is especially important, as it gave numbers that reflected what worked well and was implemented correctly and what could use further refinement.

Some key takeaways include:

  • In 2020, telework saved the government $180 million. Fewer travel expenses, reduced absenteeism, human capital, utilities, office space, and training were the most prevalent cost savings.
  • In 2020, 45% of all government employees teleworked, a 23% increase from years prior.
  • In 2020, 90% of workers who were qualified for telework did so, a 34% increase.
  • In a two-week period, the majority of teleworkers teleworked for three or more days. A smaller portion of employees teleworked 1–2 days every two weeks. And only a small percentage of those teleworked no more than once a month.

Recent Teleworking Legislation

Despite the numbers showing an increased reliance on telework, some members of Congress have introduced legislation to try and return federal agency teleworking policies to what they were before the COVID-19 pandemic. Congressman Andy Biggs introduced the Return to Work Act, which would do just that, reverting agency teleworking policies to what was in place in December 2019.

In a press release, Biggs stated that “the majority of Americans have returned to work. There’s no excuse for federal agencies to continue to have a strict telework schedule for their employees. By not coming to the office, federal agencies have created a backlog of service requests. This backlog has prevented many Americans, especially our veterans, from receiving the service and care they need. ”

While Biggs was not the first to call for agencies to revert their teleworking policies, a growing number of lawmakers are continuing to echo his sentiments by encouraging federal employees to return to the office. However, many federal employees have expressed their desire to continue utilizing their agency’s teleworking policies.

What Options do Federal Employees Have

One of the most asked questions regarding teleworking is whether or not an agency can rescind a teleworking agreement at their discretion. At this time, supervisors should allow employees to continue teleworking within the scope of their telework agreement unless there are extenuating circumstances, which must be resolved per departmental and agency policy.

What this means is those federal employees who teleworked during the pandemic may be eligible for telework in the future, at least on a situational basis, unless one of the limits under 5 U.S.C. 6502(a)(2) applies or the agency determines that telework has harmed employee performance or agency operations (5 U.S.C. 6502(b)(1)). Should an employee disagree with their agency’s decision to either grant or terminate their telework agreement, they should follow their collective bargaining agreement to address this grievance.

Alternatively, telework may be a form of reasonable accommodation under the Americans with Disabilities Act (ADA), if the employee requires telework because of a disability. A federal employee may consider submitting a reasonable accommodation, as applicable, in order to sustain and facilitate a work at home/telework schedule in light of the push to return to the office.

Looking Ahead

It is anticipated that the conversation and policies surrounding teleworking will drastically shift in the coming months, so federal employees should remain in contact with their supervisors and understand the stipulations of their remote work agreements to avoid any unexpected changes.

Furthermore, employees and their federal employers should be well versed in their overtime policies. For example, Fair Labor Standards Act exempt employees who work in executive, administrative, or professional roles and who earn more than $684 a week, must have any overtime hours ordered or approved of in advance to be duly compensated. With the availability of telework, establishing the appropriate balance between life and work can be difficult and employees should be aware of how to best navigate this new and evolving space.

If you have additional questions about what your rights are when it comes to teleworking, our team of attorneys is available to assist you today.

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