Court: Defense’s COOP policies supersede telework policy even for employees not normally eligible for telework, and they may be required to do so during a pandemic. Image: DCStockPhotography/Shutterstock.com

A federal appeals court has ruled that even though telework generally is an optional policy for both an agency and an employee, an agency may require it under its continuity of operations policies.

Case No. 22-1305 before the Federal Circuit appeals court involved a DoD employee who at the onset of the pandemic initially was placed on paid weather and safety leave. Afterward she was told to begin teleworking, the court recounted, and was provided with a “laptop, network-access, a detailed outline of her duties and responsibilities, and necessary teleworking resources and training.”


However, it said, she did not take the training nor begin teleworking and the department then revoked the weather and safety leave and moved to fire her for AWOL; she retired before that action took effect but nonetheless appealed the agency’s action to the MSPB.

A hearing officer rejected her argument that under the Telework Enhancement Act, the department had no authority to compel her to telework upheld the firing. On appeal, the court wrote that under that law, employees typically cannot be ordered to telework. However, it noted that the law also requires agencies to incorporate telework into the continuity of operations plans.

It said that even though the employee’s position had not been designated mission-critical, the MSPB “correctly found that, in light of the novel coronavirus pandemic, Defense had authority to require her to telework pursuant to its continuity of operation [COOP] policies. Defense’s COOP policies ‘supersede the telework policy’ and provide that employees not normally eligible for telework may nonetheless be required to telework during a pandemic,” it ruled.

The court further ruled that removal was a justified penalty and that DoD followed proper procedures in carrying it out.

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