Following is a set of questions and answers from the Office of Personnel Management on telework and other considerations for agencies and employees during a return to normal operations as Coronavirus-related restrictions are lifted.
1) Should training be developed to encourage social distancing and good hygiene as agencies resume normal operating status?
Agencies should distribute Centers for Disease Control and Prevention (CDC) guidance as appropriate. They may also develop hygiene and social distancing training programs based on CDC guidance but tailored to specific employee work environments. Agencies should continue coordinating broad workforce training programs and directives with the Office of Management and Budget (OMB) and the Vice President’s Task Force. Such coordination will ensure plans are aligned with current national guidelines, and agencies have sufficient resources and workforce planning in place to execute.
2) Is a phased return to the workplace appropriate? Should ‘vulnerable’ personnel be permitted to continue emergency telework longer – who is vulnerable and how is that determined?
As noted in OMB’s guidance, M-20-23, Aligning Federal Agency Operations with the National Guidelines for Opening Up America Again a phased return from maximum telework is appropriate and encouraged as local conditions improve. In accordance with the President’s Guidelines for Opening Up America Again, and CDC guidance, employers with vulnerable populations, agencies, components, or duty locations in states or regions that remain in the Gating period, Phase 1, or Phase 2 should maximize telework for eligible workers. Telework should be maximized for eligible workers, including but not limited to populations that CDC has identified as being at higher risk for serious complications from COVID-19 (CDC High Risk Populations) and to CDC-identified special populations, including pregnant women (CDC Special Populations). In addition, to the extent possible, employers are encouraged to consider telework options for employees with vulnerable household members, until their state or region has entered Phase 3 in accordance with the Guidelines for Opening Up America Again.
For agencies, components, or duty locations in regions or states that remain in the Gating period or Phase 1, a combination of maximized telework and flexible work schedules (FWS) should be used to improve social distancing between employees. Agencies may expand the types of FWS that are available to employees, as different types of schedules provide different degrees of flexibility. Telework and FWS can also provide agencies significant flexibility to assist employees attempting to meet other responsibilities, such as caregiving.
3) What telework posture is appropriate after agencies end maximum telework?
As noted in OMB’s guidance, M-20-13, Updated Guidance on Telework Flexibilities in Response to Coronavirus, agency heads have the flexibility to develop appropriate protocols for their operations. As conditions change, agency heads should revisit telework policies and agreements in order to continue progression toward normal operations or to address changing conditions while retaining the flexibility needed during the response. Agency heads have full flexibility (as they do under normal operating conditions), to calibrate the extent of their telework, in accordance with current law, regulation and any applicable collective bargaining agreement. (For example, see 5 U.S.C. chapter 65, when applicable.)
Note that the use of a directed evacuation to the employee’s home or another alternative workplace, for those not under a telework agreement, is authorized only when an agency is operating under the evacuation pay authority in 5 CFR 550.409.
4) For localities where schools are closed, should telework flexibilities continue to be utilized for employees with school-aged children?
Yes. Agencies are encouraged to review the full spectrum of available workplace flexibilities, including telework and FWS, to support employees with children and other dependent care obligations.
5) How should managers handle situations that arise in which employees fail to report to their assigned duty station?
By following the approach to reopening the country reflected in the Guidelines for Opening Up America Again, taking into account phase determinations made by State governments, and continuing to use available and appropriate workforce flexibilities, agencies can fulfill their missions while protecting the health and safety of employees. Agency management should never dismiss the health concerns of employees. Some employees may have reservations about returning to their workplace even as the likelihood of contracting Coronavirus diminishes. It is appropriate for agencies to work with labor unions and employees to address such concerns even after agency management has determined that it is safe for employees to return.
Once an agency has determined that sufficient conditions allow for employees to safely work in a given environment, employees can be expected to report to their office unless in an approved leave status.
Before requiring employees to report to duty on-site, and when considering any administrative action based on non-compliance with a reporting requirement, agencies are encouraged to consider all facts and circumstances in each case. Such considerations may include an employee’s vulnerability to serious complications if infected, the presence of an individual in a CDC-identified high-risk category in the home, or child-care or other dependent care responsibilities resulting from daycare, camp, or school closures. Agencies should determine if other options are appropriate, such as allowing employees to continue to telework or asking them to request personal leave (e.g., annual leave, sick leave if applicable, or leave without pay). If the worksite is in a jurisdiction still subject to restrictions related to COVID-19, agencies should consider the terms of any such restrictions as well as employee concerns about their safety in the workplace or during commuting and determine if steps can be taken to mitigate those concerns.
6) What should an agency do if the return of Federal employees to their duty station conflicts with ordinances put in place by local or state authorities?
As the decision of an agency head to return to normal operations depends heavily on consultation with and guidance from local health officials, we expect such conflicts to be infrequent. However, OPM, in consultation with the Department of Justice, has determined that none of the orders issued to date restrict the ability of Federal employees and contractors from any travel necessary to perform official functions. OPM recommends that Federal agencies continue to follow staffing plans that have been adopted consistent with previous COVID-19 guidance issued by OMB and OPM.
Federal employees and contractors should continue to carry appropriate Federal identification (such as a CAC or PIV card, or agency-issued letter of authorization) when traveling to carry out Federal business and report to appropriate supervisors if there has been a travel issue with local law enforcement.
7) Does an agency have collective bargaining obligations when returning bargaining unit employees to the normal worksite?
There may be collective bargaining obligations. When agencies decide to return to normal operations from the current posture of telework maximization, rescind evacuation orders if applicable, and recall employees to their office worksite, they are encouraged to communicate with employees and the appropriate union representatives as soon as possible regarding these plans. Agencies should coordinate any such communications with offices of human resources, equal opportunity, and general counsel to address compliance questions including agency requirements pursuant to collective bargaining agreements and employee requirements regarding return-to-work directives. Agency officials should coordinate with offices of human resources, facilities, and other appropriate stakeholders to determine the appropriate time period to transition back to normal operations.
8) If an employee who returns to the normal worksite exhibits signs of illness, may a supervisor order the employee to leave work or work from home? If so, will the employee be paid during the absence?
Employees that exhibit signs of illness should leave work immediately. Supervisors should remind the employee of his or her leave options, such as: requesting sick leave, annual leave, or emergency leave under the Families First Coronavirus Response Act (FFCRA), if available to the employee.
If the employee has no leave available, supervisors are authorized to approve requests for advanced leave or leave without pay in certain circumstances. When these leave options are not practical, a viable alternative, when the employee is covered by a telework agreement, is for the employee to work from home pursuant to an ad hoc arrangement approved by the employee’s supervisor. When an employee opts not to take leave or telework voluntarily, a supervisor may find it appropriate to enforce the employee’s use of leave. If the agency elects to require work from home or another alternative location, this must be done using evacuation pay authority under 5 CFR 550.409. See OPM’s Factsheet issued on March 3, 2020 (https://www.opm.gov/policy-data-oversight/covid-19/fact-sheet-additional-guidance-in-connection-with-the-covid-19-emergency/).
Supervisors should consult with appropriate human resources (HR) staff and general counsel before taking such a step as enforced leave is an adverse action that imposes procedural requirements (i.e., advance notice, an opportunity to reply, the right to representation, and an agency decision) before actually enforcing the use of leave. Enforced leave of 14 days or less may be subject to agency administrative grievance procedures or negotiated grievance procedures. In addition, enforced leave lasting longer than 14 days may be appealed to the Merit Systems Protection Board (MSPB) or potentially grieved under any applicable negotiated grievance procedure. Supervisors need to consult with their HR office and legal counsel when deciding to enforce the use of leave, to ensure that the action is permissible.
9) Will an employee who has direct contact with the public (e.g., investigator, park ranger, health care professional, police officer, firefighter) be required to report for work at the normal worksite and perform the normal duties of his or her position?
Agencies and components in states and locations that are in the Gating Period or in Phase 1 of the national guidelines should consider the need for public-facing employees. Employees deemed mission-critical that cannot telework will still need to report for work and perform the normal duties of their positions. Agencies should consult with the CDC and the Occupational Safety and Health Administration to determine the appropriate mitigation measures warranted for their workplace.
10) How can an agency encourage the use of face-coverings by employees where appropriate?
Agencies may recommend that employees follow certain safety procedures, such as using a face covering, in order to help ensure the health and safety of the employee and their coworkers. Consistent with the Guidelines for Reopening America Again, agencies are to strive to create workspaces where appropriate social distance can be maintained. In situations where maintenance of such distance is challenging, however, agencies should consider encouraging employees to wear face coverings. Employees are free to wear appropriate (as deemed by agency management) face coverings at all times within the workplace.