Should federal employees return to office?

By: Esther Gabriel, Esq., for Tully Rinckey PLLC

When the pandemic hit, the federal government and several agencies allowed workers to work from home or remotely, setting a precedent for many businesses and offices across the country. Now that many federal employees have been vaccinated, according to the White House, and the threat of COVID-19 has subsided, many federal employees who are being asked to return to work are wondering about their future remote working options.

While working from home has several pros and cons, many agencies have already indicated their intention to retain some form of remote/teleworking capability. Better and more trustworthy data on how telecommuting works outside of the pandemic would help the federal government prepare for future emergencies and provide quicker guidance.

On the other hand, some organizations want employees to return to the office, claiming that remote working makes regular operations like hiring, training, and maintaining security significantly more difficult. Given the strain on network bandwidth, the lack of IT equipment, and reported lower engagement from employees who have struggled to maintain a good work-life balance, opinion seems divided as to whether enabling remote working for employees is a priority for should be the future.

Telecommuting to go

The Office for Personnel Management has released a new report on federal agencies’ use of telecommuting during the peak of the pandemic in 2020. While the Office of Human Resources Management has been publishing telecommuting reports for over a decade, this year’s study is particularly meaningful because it included numbers showing what worked well during the pandemic and was carried out appropriately during the pandemic and what could be improved in the future.

Some highlights from the report are:

· In 2020, telecommuting saved the government $180 million. Less travel expenses, less absenteeism, human capital, utilities, office space and training were the most common cost savings.

· In 2020, 45% of all government employees were working from home, a 23% increase from previous years.

· In 2020, 90% of workers qualified to telecommute did so, an increase of 34%.

In a two-week period, the majority of teleworkers worked three or more days. A smaller part of the employees worked remotely for 1-2 days every two weeks. And only a small percentage of those who telecommute no more than once a month.

Current legislation against telework

Despite the increasing use of telecommuting, some members of Congress have introduced legislation to bring federal agencies’ telecommuting regulations back to pre-COVID-19 levels. The return-to-work bill introduced by Rep. Andy Biggs, R-Ariz., would do just that, restoring agencies’ telecommuting policies to where they were in December 2019.

In a press release, Biggs explained that “the majority of Americans have returned to work. There is no excuse for federal agencies to continue to have a strict telecommuting schedule for their employees. By not coming into 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 wasn’t the first to call for the authorities to roll back telecommuting regulations, a growing number of politicians are echoing his sentiments in urging federal employees to return to work. On the other hand, many federal employees have expressed a desire to continue using their agency’s telecommuting policy.

What are the options for federal employees?

One of the most frequently asked questions about teleworking is whether or not an agency can unilaterally terminate a teleworking agreement. Barring any extenuating circumstances that must be addressed under departmental and agency regulations, managers should allow workers to continue teleworking at this time within the parameters of their teleworking agreement.

This means that federal employees who have telecommuted during the pandemic will be eligible for telecommuting, at least on a situational basis, unless one of the restrictions under 5 USC 6502(a)(2) applies or unless the agency determines that telecommuting harmed employee performance or agency activities (5 USC 6502(b)(1)). If an employee disagrees with their agency’s decision to grant or terminate their telework contract, they should file a grievance in accordance with their collective agreement.

If an employee needs to telecommute because of a disability, telecommuting may be considered a reasonable accommodation under the Americans with Disabilities Act (ADA). Given the desire to return to the office, a federal employee may consider making reasonable accommodations, if necessary, to maintain and facilitate the home/telecommuting schedule.

Go forward

Telework talks and policies are expected to evolve in the coming months, so federal employees should stay in touch with their managers and understand the terms of their remote work agreements to avoid surprises.

Employees and their federal employers should also be aware of their overtime policies. For example, employees in managerial, administrative, or professional positions who are on leave and earning more than $684 per week must have pre-approved or approved all additional hours in order to be adequately compensated. Striking the perfect balance between life and work can be difficult given the availability of remote working, and employees need to be aware of how to navigate this new and growing space effectively.

If you have additional questions about your teleworking rights, you should seek appropriate legal advice today. Esther Gabriel is an Associate Lawyer in Tully Rinckey PLLC’s Syracuse office. Her main focus is on federal labor law and employment law. She can be reached at [email protected] or at (888)-529-4543.

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