March 12, 2020
Telework in Executive Agencies: Background, OPM Guidance,
and 116th Congress Legislation Following Coronavirus
Background
Agencies are strongly encouraged to continue
The Telework Enhancement Act of 2010, enacted on
reviewing and updating their emergency and COOP
December 9, 2010 (P.L. 111-292, 124 Stat. 3165), and
plans, as needed.… Agency COOP plans should
codified at Chapter 65 of Title 5 of the United States Code,
have telework fully incorporated so that as many
authorizes telework in executive agencies, defines
employees as possible are working during a COOP
teleworking, and establishes requirements for telework
activation. Agencies should immediately review
programs. The law (at 5 U.S.C. §6504(d)(1)) requires that
their current telework policies and ensure that
the telework policy of each executive agency “incorporate
written telework agreements are in place for as
telework into the continuity of operations [COOP] plan of
many employees as possible. Agencies are strongly
that agency.” A COOP plan ensures that essential functions
encouraged to sign situational (ad hoc) telework
continue to be performed during disruption of normal
agreements with all telework eligible employees
operations. Furthermore, Section 6504(d)(2) requires that
“
currently without a signed telework agreement.
[d]uring any period that an executive agency is operating
Further, agencies should reassess their factors for
under a continuity of operations plan, that plan shall
supersede any telework policy.”
determining telework eligibility to determine if
additional categories of employees may be
The U.S. Office of Personnel Management (OPM) is
classified as telework eligible. Finally, OPM
required to report annually to Congress on the status of
encourages agencies to take steps to prepare all
telework in the federal government. In January 2019, OPM
telework-ready employees to effectively telework
published the most recent report, which provided data for
and have access to agency IT systems and networks,
FY2017. According to the report, 1,013,975 employees
as may be necessary, should the conditions from
were eligible to telework, and 436,732 employees were
COVID-19 so warrant a Federal office closure.
teleworking in a federal workforce that includes 2,193,400
The OPM guidance also attached responses to frequently
employees. Therefore, 43% of eligible employees were
asked questions that reiterated policies on various matters,
teleworking. Agencies reported that 50% of employees who
among them that
were teleworking did so on a situational or ad hoc basis,
32% teleworked three or more days per two-week period,
[a]n agency [must] have a solid technology
28% teleworked one to two days per two-week period, and
infrastructure established to support a high level
6% teleworked no more than once per month. Some 80% of
agencies reported that telework was emphasized as part of
and volume of connectivity, so employees can work
its COOP. OPM noted that telework data collection remains
seamlessly from their alternate locations (e.g.,
a challenge for several reasons, including the limitations of
home) and maintain established records and
technology to track employee participation.
security requirements.
During an agency closure due to COVID-19 …
COVID-19 Telework Guidance
telework program participants will generally be
Circumstances that are prompting a review of the telework
expected to continue working from home.… They
law in the 116th Congress include Coronavirus Disease
must telework for the entire workday, take other
2019 (COVID-19) and actions at several federal agencies
leave (paid or unpaid) or other time off, or use a
prior to the COVID-19 onset to reportedly change their
combination of telework and leave or other paid
policies on employee participation in teleworking.
time off.
According to the U.S. Centers for Disease Control and
The guidance stated that OPM and the U.S. Office of
Prevention, COVID-19 is a respiratory disease caused by a
Management and Budget (OMB) will continue to host
novel (new) coronavirus, first detected in China, and now
periodic interagency calls to address questions related to the
detected in the United States. On January 31, 2020, Alex
issue. Updated information is to be provided at
Azar, Secretary of Health and Human Services, declared a
http://www.opm.gov/covid19.
public health emergency for the United States in responding
to COVID-19. On March 7, 2020, OPM issued additional
In the wake of the OPM guidance, the National Aeronautics
guidance to federal agencies on COVID-19 that stated, in
and Space Administration, the National Oceanic and
part:
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
H.R. 6108 would amend Section 6506(b)(2) to add two new
teleworking, the U.S. Social Security Administration
content requirements for OPM’s annual report to Congress
reportedly implemented a new policy on March 2, 2020,
on the status of telework. First, the report would have to
that allows deputy commissioners to determine which
include information on agency cost savings achieved
employee positions are eligible to telework and for how
through teleworking. Second, it would have to include a
many days. Other agencies for which policy changes to
detailed explanation of a plan to increase the government-
telework were reportedly being instituted prior to COVID-
wide teleworking participation rate to a rate above that for
19 include the Departments of Agriculture, Education,
FY2016.
Health and Human Services, and the Interior.
The legislation would require OPM, in collaboration with
116th Congress Legislation and Actions
the Chief Human Capital Officers Council, to establish
On March 5, 2020, Representatives Gerald Connolly, John
uniform guidance for agencies on teleworking data
Sarbanes, and Jennifer Wexton introduced H.R. 6108, the
collection, goal setting, and cost savings reporting within 90
Telework Metrics and Cost Savings Act. The bill was
days after the act’s enactment. The guidance would have to
referred to the House Committee on Oversight and Reform.
provide for an accounting of cost savings related to travel,
It would amend the telework law to improve federal agency
energy use, and real estate.
teleworking programs and included the following
provisions.
On March 6, 2020, Senators Mark Warner, Benjamin
Cardin, Tim Kaine, Chris Van Hollen, Mazie Hirono, Brian
H.R. 6108 would amend current law to specify that an
Schatz, Sherrod Brown, and Gary Peters urged OPM
employee’s duties could be performed on a periodic or full-
Director Dale Cabaniss to take several actions related to the
time basis. Under current law, the terms telework and
COVID-19 guidance, including clarifying “that federal
teleworking are defined to refer to “a work flexibility
employees and contractors who follow such guidance will
arrangement under which an employee performs the duties
not be at risk of income insecurity, disciplinary action, or
and responsibilities of such employee’s position, and other
any adverse employment actions” and making “clear that
authorized activities, from an approved worksite other than
federal employees and contractors will not be expected to
the location from which the employee would otherwise
work while they or a loved one are ill … even if they have
work.”
exhausted all of their available paid leave.”
The legislation would add new requirements to Title 5,
The House and Senate reports (H.Rept. 116-122, S.Rept.
Section 6502(b), of the U.S. Code related to teleworking
116-111) that accompanied the Financial Services and
participation in executive agencies. First, an agency’s
General Government appropriations bills for FY2020,
telework policy would be required to include annual goals
respectively, urged OPM to “direct Federal agencies to
to increase the percentage of employees who are
continue to track telework successes, compile best
teleworking three or more days per pay period; one or two
practices, and expand telework programs” and encouraged
days per pay period; once per month; and on an occasional,
OPM to “work with agencies to continue to improve data
episodic, or short-term basis. Second, that policy would be
collection methods and provide training for employees and
required to include methods for collecting telework data,
managers to be effective teleworkers” and “work with
setting telework goals, and reporting telework cost savings.
agencies on establishing outcome goals for telework and to
assess progress towards achieving those goals.”
H.R. 6108 would add a new subsection (d) to Section 6502
requiring an agency head to provide written notification to
Possible Oversight Issues for Congress
OPM, the House Committee on Oversight and Reform, and
The House and the Senate may wish to review whether
the Senate Committee on Homeland Security and
executive agencies have fully implemented the requirement
Governmental Affairs within 30 days before the agency
in P.L. 111-292 that telework be incorporated into their
implements or modifies a telework plan that would reduce
COOP plans and consider if agency certifications of such
the percentage of employees who telework. The notification
action would be warranted. In addition, Congress may wish
would have to include a justification for the reduction in
to review required OMB guidelines for ensuring that
telework participation and describe how the agency will pay
“information and security protections for information and
for any resulting increased costs.
information systems used while teleworking” are adequate,
and that agencies purchase computer systems that support
The bill would add a new subsection (e) to Section 6502
telework. It may also wish to review the extent to which
stating that agencies could not prohibit any teleworking
executive agency policies are in accordance with the OMB
period that has been delineated (including three or more
standards.
days per pay period; one or two days per pay period; once
per month; and on an occasional, episodic, or short-term
Barbara L. Schwemle, Analyst in American National
basis) for all employees. In addition, an agency would be
Government
required to make any teleworking determination with
respect to an employee or group of employees on a case-by-
IF11454
case basis.


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Telework in Executive Agencies: Background, OPM Guidance, and 116th Congress Legislation Following Coronavirus


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https://crsreports.congress.gov | IF11454 · VERSION 2 · NEW

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