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

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

Updated March 16, 2020
Telework in Executive Agencies: Background, OPM Guidance,
and 116th Congress Legislation Following Coronavirus
Background
activation. Agencies should immediately review
The Telework Enhancement Act of 2010, enacted on
their current telework policies and ensure that
December 9, 2010 (P.L. 111-292, 124 Stat. 3165), and
written telework agreements are in place for as
codified at Chapter 65 of Title 5 of the United States Code,
many employees as possible. Agencies are strongly
authorizes telework in executive agencies, defines
encouraged to sign situational (ad hoc) telework
teleworking, and establishes requirements for telework
agreements with all telework eligible employees
programs. The law (at 5 U.S.C. §6504(d)(1)) requires that
currently without a signed telework agreement.
the telework policy of each executive agency “incorporate
Further, agencies should reassess their factors for
telework into the continuity of operations [COOP] plan of
determining telework eligibility to determine if
that agency.” A COOP plan ensures that essential functions
additional categories of employees may be
continue to be performed during disruption of normal
classified as telework eligible. Finally, OPM
operations. Furthermore, Section 6504(d)(2) requires that
“
encourages agencies to take steps to prepare all
[d]uring any period that an executive agency is operating
telework-ready employees to effectively telework
under a continuity of operations plan, that plan shall
supersede any telework policy.”
and have access to agency IT systems and networks,
as may be necessary, should the conditions from
The U.S. Office of Personnel Management (OPM) is
COVID-19 so warrant a Federal office closure.
required to report annually to Congress on the status of
The OPM guidance also attached responses to frequently
telework in the federal government. In January 2019, OPM
asked questions that reiterated policies on various matters,
published the most recent report, which provided data for
among them that
FY2017. According to the report, 1,013,975 employees
were eligible to telework, and 436,732 employees were
[a]n agency [must] have a solid technology
teleworking in a federal workforce that includes 2,193,400
infrastructure established to support a high level
employees. Therefore, 43% of eligible employees were
and volume of connectivity, so employees can work
teleworking. Agencies reported that 50% of employees who
seamlessly from their alternate locations (e.g.,
were teleworking did so on a situational or ad hoc basis,
home) and maintain established records and
32% teleworked three or more days per two-week period,
security requirements.
28% teleworked one to two days per two-week period, and
6% teleworked no more than once per month. Some 80% of
During an agency closure due to COVID-19 …
agencies reported that telework was emphasized as part of
telework program participants will generally be
its COOP. OPM noted that telework data collection remains
expected to continue working from home.… They
a challenge for several reasons, including the limitations of
must telework for the entire workday, take other
technology to track employee participation.
leave (paid or unpaid) or other time off, or use a
combination of telework and leave or other paid
COVID-19 Telework Guidance
time off.
Coronavirus Disease 2019 (COVID-19) is prompting a
review of the telework law in the 116th Congress.
On March 15, 2020, the U.S. Office of Management and
According to the U.S. Centers for Disease Control and
Budget (OMB) issued “Updated Guidance for the National
Prevention, COVID-19 is a respiratory disease caused by a
Capital Region on Telework Flexibilities” (M-20-15). OMB
novel (new) coronavirus first detected in China and now
stated:
detected in the United States. On January 31, 2020,
Secretary of Health and Human Services Alex Azar
All Federal Executive Branch departments and
declared a public health emergency for the United States in
agencies within the National Capital Region
responding to COVID-19. On March 7, 2020, OPM issued
(NCR), consistent with OMB’s recent guidance
additional guidance to federal agencies on COVID-19 that
(OMB M-20-13), are asked to offer maximum
stated, in part:
telework flexibilities to all current telework eligible
employees, consistent with operational needs of the
Agencies are strongly encouraged to continue
departments and agencies as determined by their
reviewing and updating their emergency and COOP
heads. In addition, we encourage agencies to use all
plans, as needed.… Agency COOP plans should
existing authorities to offer telework to additional
have telework fully incorporated so that as many
employees, to the extent their work could be
employees as possible are working during a COOP
telework enabled. If employees are not eligible for
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Telework in Executive Agencies: Background, OPM Guidance, and 116th Congress Legislation Following Coronavirus
telework, agency heads have the discretion to offer
days per pay period; one or two days per pay period; once
weather and safety leave, or the agency’s
per month; and on an occasional, episodic, or short-term
equivalent, including for employees who may not
basis) for all employees. In addition, an agency would be
have been considered “at higher risk” under 0MB
required to make any teleworking determination with
M-20-13. Furthermore, agency heads should
respect to an employee or group of employees on a case-by-
develop an operational plan that maximizes
case basis.
resources and functional areas to most safely and
efficiently deliver these mission-critical functions
H.R. 6108 and S. 3428 would amend Section 6506(b)(2) to
and other Government services (including but not
add two new content requirements for OPM’s annual report
to Congress on the status of telework. First, the report
limited to staggered work schedules and other
would have to include information on agency cost savings
operational mitigation measures).
achieved through teleworking. Second, it would have to
The earlier OMB M-20-13 guidance noted, “In determining
include a detailed explanation of a plan to increase the
their telework and leave decisions, agencies should consider
government-wide teleworking participation rate to a rate
the mission-critical nature of their work.” Furthermore,
above that for FY2016.
OMB M-20-14 guidance provided that “only mission-
critical travel is recommended at this time.”
The legislation would require OPM, in collaboration with
the Chief Human Capital Officers Council, to establish
116th Congress Legislation and Actions
uniform guidance for agencies on teleworking data
In March 2020, the Telework Metrics and Cost Savings Act
collection, goal setting, and cost savings reporting within 90
(H.R. 6108 and S. 3428) was introduced in the House of
days after the act’s enactment. The guidance would have to
Representatives and the Senate. The legislation was referred
provide for an accounting of cost savings related to travel,
to the House Committee on Oversight and Reform and the
energy use, and real estate.
Senate Committee on Homeland Security and
Governmental Affairs, respectively. It would amend the
On March 6, 2020, eight Senators urged OPM Director
telework law to improve federal agency teleworking
Dale Cabaniss to take several actions related to the COVID-
programs and included the following provisions.
19 guidance, including clarifying “that federal employees
and contractors who follow such guidance will not be at
H.R. 6108 and S. 3428 would amend current law to specify
risk of income insecurity, disciplinary action, or any
that an employee’s duties could be performed on a periodic
adverse employment actions” and making “clear that
or full-time basis. Under current law, the terms telework
federal employees and contractors will not be expected to
and teleworking are defined to refer to “a work flexibility
work while they or a loved one are ill … even if they have
arrangement under which an employee performs the duties
exhausted all of their available paid leave.”
and responsibilities of such employee’s position, and other
authorized activities, from an approved worksite other than
The House and Senate reports (H.Rept. 116-122, S.Rept.
the location from which the employee would otherwise
116-111) that accompanied the Financial Services and
work.”
General Government appropriations bills for FY2020,
respectively, urged OPM to “direct Federal agencies to
The legislation would add new requirements to Title 5,
continue to track telework successes, compile best
Section 6502(b), of the U.S. Code related to teleworking
practices, and expand telework programs” and encouraged
participation in executive agencies. First, an agency’s
OPM to “work with agencies to continue to improve data
telework policy would be required to include annual goals
collection methods and provide training for employees and
to increase the percentage of employees who are
managers to be effective teleworkers” and “work with
teleworking three or more days per pay period; one or two
agencies on establishing outcome goals for telework and to
days per pay period; once per month; and on an occasional,
assess progress towards achieving those goals.”
episodic, or short-term basis. Second, that policy would be
required to include methods for collecting telework data,
Possible Oversight Issues for Congress
setting telework goals, and reporting telework cost savings.
The House and the Senate may wish to review whether
executive agencies have fully implemented the requirement
H.R. 6108 and S. 3428 would add a new subsection (d) to
in P.L. 111-292 that telework be incorporated into their
Section 6502 requiring an agency head to provide written
telework COOP plans and consider if agency certifications
notification to OPM, the House Committee on Oversight
of such action would be warranted. In addition, Congress
and Reform, and the Senate Committee on Homeland
may wish to review required OMB guidelines for ensuring
Security and Governmental Affairs within 30 days before
that “information and security protections for information
the agency implements or modifies a telework plan that
and information systems used while teleworking” are
would reduce the percentage of employees who telework.
adequate and that agencies purchase computer systems that
The notification would have to include a justification for
support telework. It may also wish to review the extent to
the reduction in telework participation and describe how the
which executive agency policies are in accordance with the
agency will pay for any resulting increased costs.
OMB standards.
The bills would add a new subsection (e) to Section 6502
Barbara L. Schwemle, Analyst in American National
stating that agencies could not prohibit any teleworking
Government
period that has been delineated (including three or more
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Telework in Executive Agencies: Background, OPM Guidance, and 116th Congress Legislation Following Coronavirus

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