Issue Briefs

Following are portions of a final notice of rule-making regarding the new “weather/safety” leave in which OPM addressed comments to the proposed rules and clarified the new policies.

Comment: A union requested clarification that, unlike OPM’s Governmentwide regulations, OPM-issued “guidance” (e.g., weather/safety leave guidance) does not interfere with a union’s bargaining rights or legal obligations in existing collective bargaining agreements.

OPM response: To respond to the comment about the relationship between OPM guidance and collective bargaining agreements, we must first address how statutory and regulatory requirements affect collective bargaining agreements. Statutory requirements established by the Administrative Leave Act supersede conflicting provisions in any agency collective bargaining agreement–as of the applicable implementation date. Thus, the requirements in section 6329c would prevail over conflicting provisions in any agency collective bargaining agreement effective on the date that is 30 days after publication of these final regulations. For example, section 6329c allows agencies to provide weather/safety leave “only if” an employee is “prevented from safely traveling to or performing work at an approved location.” By definition, for an employee participating in a telework program, the telework site is an approved location. Thus, the law bars granting weather/safety leave to an employee who can safely work at home under a telework arrangement.

If OPM regulatory requirements that go beyond statutory requirements conflict with an existing agency collective bargaining agreement, those regulatory requirements may not be implemented until the expiration of the current term of the agreement. (See section 7116(a)(7).) However, for any agency collective bargaining agreement that takes effect on or after the date these regulations are published, regulatory provisions will supersede conflicting provisions in the agreement during any period of time following the regulatory implementation date (30th day following publication). Once applicable, OPM regulations will have the force of law and be binding on agencies.

Once OPM regulations are in force, we will also expect agencies to comply with any related OPM guidance concerning compliance with the Act or regulations, and such guidance may itself impact an agency’s collective bargaining obligations. For example, if the negotiability of a proposal or provision is at issue before the FLRA or Courts in the future, an agency may rely upon OPM’s regulations and guidance as reasons why the proposal or provision would be contrary to law under the Federal Service Labor-Management Relations Statute and, therefore, be nonnegotiable.

Comment: One individual commented that agencies should not grant weather and safety leave, but instead should require employees to use their annual leave when they are prevented from safely traveling to work.

OPM response: The statute confers upon agencies the authority to grant weather and safety leave without loss of “leave to which the employee or employees are otherwise entitled” (section 6329c(b)). Weather and safety leave is generally appropriate when Government offices are closed for a full or partial day because of snow or any other weather or safety conditions and the employee is prevented from working or otherwise unable to work at an alternative worksite pursuant to the criteria provided in section 6329c(b). This would cover situations where working at an alternative worksite is itself unsafe, where the employee is ineligible for telework, or where the employee is not participating in a telework program. At the sole and exclusive discretion of agency management, it could also be used to cover the unusual situation where a teleworker is unprepared to telework because the event could not be readily anticipated (e.g., the normal workplace is rendered unsafe following a fire, flood, or earthquake) and the employee does not have equipment or materials he or she would need to perform work.

Comment: An individual commenter objected to § 630.1605(a)(1) because the commenter viewed the regulation as forcing an employee to telework when an agency closes during a weather or safety event. The commenter stated that this rule had the effect of treating all telework employees as emergency employees. The commenter further stated that the safety of the employee should be given priority. The commenter noted that some existing collective bargaining agreements do not allow employees to telework when an agency is closed due to a weather/safety event.

OPM response: The weather/safety leave regulation does not force employees to telework. Rather it recognizes that weather/safety leave is normally unnecessary if an employee is eligible for and participating in a telework program and is able to work at his or her alternative work location, notwithstanding the conditions at the default workplace. The regulation simply provides a framework and criteria for decisions about whether to grant weather and safety leave to Federal employees, including those employees who are approved to telework. If a teleworkparticipating employee does not meet the criteria for the granting of weather/safety leave and seeks not to telework, the employee has other options–the same options the employee would have on any other day he/she seeks not to work (e.g., requesting annual leave, requesting leave without pay etc.). Since the employee has the option to telework, the employee is able to work without compromising his/her safety.

Weather/safety leave is granted solely because of safety risks. As stated in the law at section 6329c(b), weather/safety leave is to be granted “only if” an employee is “prevented from safely traveling to or performing work at an approved location,” and for an authorized teleworker the telework site (usually the employee’s home) is an approved work location. Emergency employees are governed by a different set of guidelines than telework-participating employees. Unlike many emergency employees, the teleworker is not expected to report to the regular worksite when an emergency has caused the regular office to be closed to the public. To the extent that an existing collective bargaining agreement contains provisions that conflict with the nonstatutory requirements in telework-related regulations in § 630.1605(a), however, this regulation may not be enforced during the current term of the agreement (5 U.S.C. 7116(a)(7)).

Comment: Another individual commented that the denial of weather/safety leave to teleworkers penalizes those who only occasionally telework and discourages employees from agreeing to situational telework. The commenter recommended that the regulations include an annual threshold for situational teleworking days under which an employee, with supervisor concurrence, would not be required to telework or take leave when the government is closed for weather and safety purposes.

OPM response: As noted above, the statute at section 6329c(b) permits weather/safety leave only if the employee is prevented from safely traveling to or performing work at an approved location. Occasional teleworkers have the same ability as regular teleworkers to perform work at an approved location (the telework site) during weather/safety events.

Occasional teleworkers also realize the benefits of teleworking, although not as frequently as regular teleworkers. OPM does not believe that the inability to receive weather/safety leave on the rare occasions when weather/safety events close offices will discourage a significant number of employees from seeking the benefit of occasional teleworking. Even if it does cause some employees to not engage in occasional teleworking, however, the regulation is consistent with the underlying purpose of this later statute, which is to limit weather/safety leave to situations where an employee is unable to perform work at an approved location.

Comment: A union asked what criteria are necessary to determine if an employee can reasonably work from home and what happens if the employee does not have a home and equipment that are suitable for teleworking. The union also commented that it was not equitable for those with telework agreements to work on days when those without agreements are not required to work. The union further said that it is not reasonable to force teleworkers to be forecasters of weather and safety events such that they must be telework ready on all workdays.

The union additionally stated that telework policies are trending toward expecting employees to maintain their residence in a continuous telework-ready state by requiring mandatory telework during emergency closure of the regular worksite, which in effect requires employees to provide “free rent” of their residential office to the government on days when they were not planning to telework.

OPM response: The regulations on weather/safety leave related to teleworkers apply only to employees who are already “participating in a telework program” (as defined in § 630.1602). For such telework program participants who already telework at home, they must have a home and equipment suitable for teleworking. Agency telework policies and employee telework agreements establish the criteria for determining whether an employee can reasonably work from home. At a minimum, and subject to other requirements of the agency, teleworkers must have sufficient work and a workplace conducive to performing the work. If the employee does not have a suitable home or cannot transport needed equipment to his or her home, then the employee should not have a telework agreement. Employees without telework agreements cannot work from home; therefore, they may be granted weather/safety leave under these regulations.

Employees with telework agreements gain the benefits of teleworking, but generally will not be granted weather/safety leave when a weather/safety event can be reasonably anticipated.

Warnings for these anticipated events are usually broadcast in the media well in advance and, for that reason, teleworkers are generally expected to know that they need to be prepared to work from home when the event occurs. Because agencies may provide weather/safety leave to teleworkers when, in the agency’s judgment, the event could not be reasonably anticipated and an employee is otherwise prevented from performing work, there is no need for teleworkers to be prepared to telework on days when a major event is not anticipated unless it coincides with an already scheduled telework day. There is no requirement for employees to maintain their residence in a continuous telework-ready state or dedicate any part of their residence for telework purposes beyond any requirements in connection with their normally scheduled telework. For employees who have a regular telework schedule, there is essentially no difference between activities required to maintain a residence in a telework-ready state when expecting a weather event and maintaining it in a telework ready state when preparing for any other telework day, nor is there any meaningful difference in how an employee would dedicate space in their residence under these respective scenarios. OPM also notes that these regulations do not require mandatory telework during emergency closures, but instead bar weather/safety leave from being granted when employees can telework.

Comment: A union said that it is the responsibility of the agency to timely notify employees of an impending weather/safety condition if the agency wants the employees to telework on a day when the employees would have otherwise worked in the office. The union believed it unfair and burdensome to make employees take annual leave when they do not bring work home.

OPM response: Under § 630.1605(a)(3), agencies have discretion in determining whether a weather/safety condition could be reasonably anticipated and whether the employee took reasonable steps to prepare for teleworking. OPM defers to an agency’s judgment as to whether to provide notice in some manner of impending weather/safety conditions for which teleworking employees will not receive weather/safety leave. An agency notice, whether provided or not provided, may be a consideration in the determination as to whether an employee took reasonable steps to prepare for teleworking.