Updated March 1216, 2020
Telework in Executive Agencies: Background, OPM Guidance,
and 116th Congress Legislation Following Coronavirus
Background
The Telework Enhancement Act of 2010, enacted on
December 9, 2010 (P.L. 111-292, 124 Stat. 3165), and
codified at Chapter 65 of Title 5 of the United States Code,
authorizes telework in executive agencies, defines
teleworking, and establishes requirements for telework
programs. The law (at 5 U.S.C. §6504(d)(1)) requires that
the telework policy of each executive agency “incorporate
telework into the continuity of operations [COOP] plan of
that agency.” A COOP plan ensures that essential functions
continue to be performed during disruption of normal
operations. Furthermore, Section 6504(d)(2) requires that
“[d]uring any period that an executive agency is operating
under a continuity of operations plan, that plan shall
supersede any telework policy.”
The U.S. Office of Personnel Management (OPM) is
required to report annually to Congress on the status of
telework in the federal government. In January 2019, OPM
published the most recent report, which provided data for
FY2017. According to the report, 1,013,975 employees
were eligible to telework, and 436,732 employees were
teleworking in a federal workforce that includes 2,193,400
employees. Therefore, 43% of eligible employees were
teleworking. Agencies reported that 50% of employees who
were teleworking did so on a situational or ad hoc basis,
32% teleworked three or more days per two-week period,
28% teleworked one to two days per two-week period, and
6% teleworked no more than once per month. Some 80% of
agencies reported that telework was emphasized as part of
its COOP. OPM noted that telework data collection remains
a challenge for several reasons, including the limitations of
technology to track employee participation.
COVID-19 Telework Guidance
Circumstances that are prompting a review of the telework
law in the 116th Congress include Coronavirus Disease
2019 (COVID-19) and actions at several federal agencies
prior to the COVID-19 onset to reportedly change their
policies on employee participation in teleworkingCoronavirus Disease 2019 (COVID-19) is prompting a
review of the telework law in the 116th Congress.
According to the U.S. Centers for Disease Control and
Prevention, COVID-19 is a respiratory disease caused by a
novel (new) coronavirus, first detected in China, and now
detected in the United States. On January 31, 2020, Alex
Azar,
Secretary of Health and Human Services, Alex Azar
declared a
public health emergency for the United States in responding
responding to COVID-19. On March 7, 2020, OPM issued additional
additional guidance to federal agencies on COVID-19 that
stated, in
part:
Agencies are strongly encouraged to continue
reviewing and updating their emergency and COOP
plans, as needed.… Agency COOP plans should
have telework fully incorporated so that as many
employees as possible are working during a COOP
activation. Agencies should immediately review
their current telework policies and ensure that
written telework agreements are in place for as
many employees as possible. Agencies are strongly
encouraged to sign situational (ad hoc) telework
agreements with all telework eligible employees
currently without a signed telework agreement.
Further, agencies should reassess their factors for
determining telework eligibility to determine if
additional categories of employees may be
classified as telework eligible. Finally, OPM
encourages agencies to take steps to prepare all
telework-ready employees to effectively telework
and have access to agency IT systems and networks,
as may be necessary, should the conditions from
COVID-19 so warrant a Federal office closure.
The OPM guidance also attached responses to frequently
asked questions that reiterated policies on various matters,
among them that
[a]n agency [must] have a solid technology
infrastructure established to support a high level
and volume of connectivity, so employees can work
seamlessly from their alternate locations (e.g.,
home) and maintain established records and
security requirements.
During an agency closure due to COVID-19 …
telework program participants will generally be
expected to continue working from home.… They
must telework for the entire workday, take other
leave (paid or unpaid) or other time off, or use a
combination of telework and leave or other paid
time off.
The guidance stated that OPM andOn March 15, 2020, the U.S. Office of
Management and Budget (OMB) will continue to host
periodic interagency calls to address questions related to the
issue. Updated information is to be provided at
http://www.opm.gov/covid19.
In the wake of the OPM guidance, the National Aeronautics
and Space Administration, the National Oceanic and
Atmospheric Administration, and the U.S. Department of
the Air Force were reportedly conducting tests of their
teleworking and COOP procedures in March 2020.
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Telework in Executive Agencies: Background, OPM Guidance, and 116th Congress Legislation Following Coronavirus
With regard to policy changes on employee participation in
teleworking, the U.S. Social Security Administration
reportedly implemented a new policy on March 2, 2020,
that allows deputy commissioners to determine which
employee positions are eligible to telework and for how
many days. Other agencies for which policy changes to
telework were reportedly being instituted prior to COVID19 include the Departments of Agriculture, Education,
Health and Human Services, and the Interior.
116th Congress Legislation and Actions
On March 5, 2020, Representatives Gerald Connolly, John
Sarbanes, and Jennifer Wexton introduced H.R. 6108, the
Telework Metrics and Cost Savings Act. The bill was
referred to the House Committee on Oversight and Reform.
It would amend the telework law to improve federal agency
teleworking programs and included the following
provisions.
H.R. 6108 would amend current law to specify that an
employee’s duties could be performed on a periodic or fulltime basis. Under current law, the terms telework and
Budget (OMB) issued “Updated Guidance for the National
Capital Region on Telework Flexibilities” (M-20-15). OMB
stated:
All Federal Executive Branch departments and
agencies within the National Capital Region
(NCR), consistent with OMB’s recent guidance
(OMB M-20-13), are asked to offer maximum
telework flexibilities to all current telework eligible
employees, consistent with operational needs of the
departments and agencies as determined by their
heads. In addition, we encourage agencies to use all
existing authorities to offer telework to additional
employees, to the extent their work could be
telework enabled. If employees are not eligible for
https://crsreports.congress.gov
Telework in Executive Agencies: Background, OPM Guidance, and 116th Congress Legislation Following Coronavirus
telework, agency heads have the discretion to offer
weather and safety leave, or the agency’s
equivalent, including for employees who may not
have been considered “at higher risk” under 0MB
M-20-13. Furthermore, agency heads should
develop an operational plan that maximizes
resources and functional areas to most safely and
efficiently deliver these mission-critical functions
and other Government services (including but not
limited to staggered work schedules and other
operational mitigation measures).
The earlier OMB M-20-13 guidance noted, “In determining
their telework and leave decisions, agencies should consider
the mission-critical nature of their work.” Furthermore,
OMB M-20-14 guidance provided that “only missioncritical travel is recommended at this time.”
116th Congress Legislation and Actions
In March 2020, the Telework Metrics and Cost Savings Act
(H.R. 6108 and S. 3428) was introduced in the House of
Representatives and the Senate. The legislation was referred
to the House Committee on Oversight and Reform and the
Senate Committee on Homeland Security and
Governmental Affairs, respectively. It would amend the
telework law to improve federal agency teleworking
programs and included the following provisions.
H.R. 6108 and S. 3428 would amend current law to specify
that an employee’s duties could be performed on a periodic
or full-time basis. Under current law, the terms telework
and teleworking are defined to refer to “a work flexibility
arrangement under which an employee performs the duties
and responsibilities of such employee’s position, and other
authorized activities, from an approved worksite other than
the location from which the employee would otherwise
work.”
The legislation would add new requirements to Title 5,
Section 6502(b), of the U.S. Code related to teleworking
participation in executive agencies. First, an agency’s
telework policy would be required to include annual goals
to increase the percentage of employees who are
teleworking three or more days per pay period; one or two
days per pay period; once per month; and on an occasional,
episodic, or short-term basis. Second, that policy would be
required to include methods for collecting telework data,
setting telework goals, and reporting telework cost savings.
H.R. 6108 and S. 3428 would add a new subsection (d) to
Section 6502
requiring an agency head to provide written
notification to
OPM, the House Committee on Oversight
and Reform, and
the Senate Committee on Homeland
Security and
Governmental Affairs within 30 days before
the agency
implements or modifies a telework plan that
would reduce
the percentage of employees who telework.
The notification
would have to include a justification for
the reduction in
telework participation and describe how the
agency will pay
for any resulting increased costs.
The billbills would add a new subsection (e) to Section 6502
stating that agencies could not prohibit any teleworking
period that has been delineated (including three or more
days per pay period; one or two days per pay period; once
per month; and on an occasional, episodic, or short-term
basis) for all employees. In addition, an agency would be
required to make any teleworking determination with
respect to an employee or group of employees on a case-bycase basis.
H.R. 6108 and S. 3428 would amend Section 6506(b)(2) to
add two new
content requirements for OPM’s annual report
to Congress
on the status of telework. First, the report
would have to
include information on agency cost savings achieved
achieved through teleworking. Second, it would have to
include a
detailed explanation of a plan to increase the governmentwide
government-wide teleworking participation rate to a rate
above that for
FY2016.
The legislation would require OPM, in collaboration with
the Chief Human Capital Officers Council, to establish
uniform guidance for agencies on teleworking data
collection, goal setting, and cost savings reporting within 90
days after the act’s enactment. The guidance would have to
provide for an accounting of cost savings related to travel,
energy use, and real estate.
On March 6, 2020, Senators Mark Warner, Benjamin
Cardin, Tim Kaine, Chris Van Hollen, Mazie Hirono, Brian
Schatz, Sherrod Brown, and Gary Peterseight Senators urged OPM
Director Director
Dale Cabaniss to take several actions related to the
COVID-19 COVID19 guidance, including clarifying “that federal
employees employees
and contractors who follow such guidance will
not be at
risk of income insecurity, disciplinary action, or
any any
adverse employment actions” and making “clear that
federal employees and contractors will not be expected to
work while they or a loved one are ill … even if they have
exhausted all of their available paid leave.”
The House and Senate reports (H.Rept. 116-122, S.Rept.
116-111) that accompanied the Financial Services and
General Government appropriations bills for FY2020,
respectively, urged OPM to “direct Federal agencies to
continue to track telework successes, compile best
practices, and expand telework programs” and encouraged
OPM to “work with agencies to continue to improve data
collection methods and provide training for employees and
managers to be effective teleworkers” and “work with
agencies on establishing outcome goals for telework and to
assess progress towards achieving those goals.”
Possible Oversight Issues for Congress
The House and the Senate may wish to review whether
executive agencies have fully implemented the requirement
in P.L. 111-292 that telework be incorporated into their
telework COOP plans and consider if agency certifications
of such
action would be warranted. In addition, Congress
may wish
to review required OMB guidelines for ensuring that
that “information and security protections for information and
and information systems used while teleworking” are adequate,
adequate and that agencies purchase computer systems that support
support telework. It may also wish to review the extent to which
which executive agency policies are in accordance with the OMB
OMB standards.
Barbara L. Schwemle, Analyst in American National
Government
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Telework in Executive Agencies: Background, OPM Guidance, and 116th Congress Legislation Following Coronavirus
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