Following are key parts of new guidance from OPM on principles agencies are to follow when deciding on telework, remote work and alternative work schedules in their workplaces.
For the past several months, OPM has been consulting with stakeholders from within and outside of Government on post-reentry personnel policies and the work environment. Federal agencies have been preparing for the “Future of Work” for many years, driven by changing missions, increased talent demands, and evolving technology. Then, the COVID-19 pandemic caused abrupt changes to agency work environments. Federal employees, and the agencies that employ them, have adapted and embraced innovative ways of working to deliver on their missions. As agencies plan for reentry and post-reentry, there is a clear and immediate imperative to reimagine our policies and practices to reflect new realities and effectively serve the American people . . .
This guidance is intended to facilitate—not impede—the continuation of workforce flexibilities that have been beneficial during the pandemic.
Prior to the pandemic, practices varied among agencies. During the pandemic, telework expanded dramatically out of necessity. As agencies consider what their post-reentry polices should be, OPM encourages them to consider telework as part of overall strategic workforce planning that provides new flexibilities to agencies competing for top talent with other sectors across the country.
To assist agencies in crafting policies to best fit their needs, OPM suggests agencies consider the following:
Workers who have been teleworking during the pandemic will continue to be eligible for telework, at least on a situational basis, unless, in the intervening period, one of the limitations at 5 U.S.C. § 6502(a)(2) has become applicable or unless the agency has determined that telework has diminished employee performance or agency operations (5 U.S.C. § 6502(b)(1)). Decisions to change an employee’s telework arrangement should be based on an agency’s determination that the arrangement no longer advances the efficient and effective delivery of the agency’s mission. Agencies may also decline to approve telework for employees with a documented history of misconduct connected to telework (e.g., misreporting work hours), as provided in 5 U.S.C. § 6502(b)(3). For employees who are eligible to telework, but have not been authorized by their agency to telework during the pandemic, agencies can explore whether their job responsibilities can be structured to allow, at a minimum, situational telework (i.e., occasional telework that is not scheduled as part of the employee’s normal work week on a regular basis).
For employees who are eligible to telework, agencies are permitted by law to impose reasonable, business-related limitations on the frequency of telework for employees. Any such limitations should be based on job functions, documented misconduct, or performance-related challenges specific to telework, and other mission-related priorities, however, rather than mere managerial preference. Under the Telework Enhancement Act (P.L. 111-292) and current policy Government-wide, telework is a voluntary arrangement that can be offered to the employee, but may not be imposed, unless one of the exceptions noted below applies. Once an employee enters into a telework agreement, however, the employee’s participation in an agency telework program could have consequences for subsequent work requirements. For example, pursuant to the Administrative Leave Act of 2016, enacted under section 1138 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328) and OPM’s implementing regulations, an employee who has entered into a telework agreement is generally required to work when there is a weather or safety event that prevents reporting to the regular workplace, or even a longer-term emergency, such as the pandemic, that makes work from the office unsafe.
OPM notes that there are other scenarios where an employee may be directed to work from a location other than the employee’s home office. For example, a catastrophic event that disrupts agency operations may result in the activation of an agency’s Continuity of Operations Plan (COOP) and a direction to members of the COOP team to relocate to and work from an alternative location. In that case, the employee is working from an alternative workplace under the agency COOP, not an agency telework program. Similarly, in the event of a physical disaster or military event, an agency may order employees to evacuate and relocate pursuant to OPM regulations at 5 CFR 550.401408. In the event of a pandemic, an agency may order employees to evacuate to their homes pursuant to 5 CFR 550.409. Many agencies are currently operating under just such an order. These evacuation orders are fluid, and do not necessarily prohibit employees from entering the workplace. As with the first example, such orders are undertaken pursuant to OPM regulations, not an agency telework program, and thus are not dependent upon an employee having entered into a telework agreement. Nonetheless, effective use of these authorities can be enhanced by involving more employees in telework and having them practice telework throughout the year.
Under current policy, agencies can require teleworking employees to report to their agency worksites on a regular and recurring basis each pay period, consistent with updated agency telework policies. Employees who are not required to report to their agency worksites on a regular and recurring basis fall into the “remote work” category described below, unless a temporary exception (e.g. a weather or safety event) applies. Agencies that authorized a temporary exception for reporting to agency worksites because of the pandemic may withdraw that authorization, as long as they treat similarly situated employees the same. However, agencies should provide ample notice to employees to provide them a reasonable period of time to relocate, if necessary, before ending the temporary exception.
Teleworking employees under the General Schedule who are required to report to the agency worksite at least twice each pay period will receive the locality rate associated with the agency worksite.
Federal employees have shown during the pandemic that they are able to balance work responsibilities with dependent care needs, including by taking breaks during regular working hours and making up the time after regular working hours. In light of this demonstrated success, OPM intends to clarify its previous guidance on dependent care and telework. During the transition back to the physical workplace, agencies may authorize employees to telework even when they may also have dependent care responsibilities. Agencies may also require employees to demonstrate their ability to complete their job assignments.
Agency telework policies must be implemented in a fair and equitable manner. Agencies should provide ample notice to affected employees of any change in their respective telework schedules.
Remote work is a special type of arrangement under which an employee is scheduled to perform work within or outside the local commuting area of an agency worksite and is not expected to report to the agency worksite on a regular and recurring basis. Remote work was available prior to the pandemic, but it was not widespread. Agencies are encouraged to think of remote work as another option in their overall strategic workforce planning to assist them in competing for top talent. Remote work also may offer opportunities for agencies to reach into new communities for which Federal employment may not have been desirable because it traditionally has required employees to relocate.
Eligibility for remote work is governed by agency policy. Agencies can authorize current employees to work remotely with a requirement for agency pre-approval of the remote work location. Agency policies should include remote work location verification requirements, agency pre-approval of any changes in a remote work location, and ongoing oversight for remote work arrangements. Agencies can advertise new positions as “remote” positions, thus requiring the employee accepting the job to work remotely. Agencies can also advertise new positions as either remote or in-person, and tailor the arrangement to the person they select.
Whether to grant remote worker status is within the agency’s discretion. Agencies are not generally required to cover relocation expenses for employee-driven requests for remote work. These provisions will vary among agencies, according to specific guidance, allowances, and restrictions.
The duty station of a remote worker is the worker’s home or other alternative location from which the employee is authorized to work that is not an agency office or facility. Remote workers are not required to report to the office on a regular, recurring basis during each pay period. Agencies, however, can require remote workers to report to the office on an occasional basis as needed to carry out the functions of their jobs.
Agencies should evaluate the travel costs associated with this requirement. As an alternative to remote work, agencies and employees can also agree that the employee’s duty station will be a location other than the agency office to which the employee would normally be assigned, such as an agency’s regional office or other local office space made available under agreement with another agency. In that case, the teleworker can meet any duty station reporting requirement by reporting on a regular and recurring basis each pay period to the agreed-upon alternative office.
Pay: General Schedule employees who are authorized for remote work receive the locality rate associated with the location of the remote worksite.
Travel: Agencies considering remote work arrangements, especially remote work that occurs outside the local commuting area of the agency worksite, should also consider how often the employee needs to physically visit their agency worksite. If the remote worker resides within the local commuting area of the agency worksite, reimbursement for local travel costs when the employee is required to come to the office is governed by agency policy, and therefore may or may not be required. If an employee’s position of record is located outside of the local commuting area of the agency worksite, then regulations require reimbursement each time the employee is required to travel to the office in person.
Revocation: Agencies have the discretion to revoke authorization for remote work. During the pandemic, many agencies expanded remote work opportunities, both for current employees and those newly hired. To the extent agencies authorized remote work arrangements as a temporary measure in response to the pandemic, they may revisit those authorizations and rescind them if necessary to effectively and efficiently deliver their missions. In considering whether to revoke a remote work arrangement, agencies may
consider employee performance if the employee’s remote status is contributing to performance problems that could otherwise be effectively addressed if the worker were not remote. Agencies should assess applicable regulations and their existing policies, including those relating to responsibilities for relocation costs, when evaluating whether to approve or terminate a remote work arrangement.
Implementation: Agency remote work policies must be implemented in a fair and equitable manner. Agencies should provide ample notice to affected employees of any change in their remote work arrangement. Decisions to change an employee’s remote work arrangement should be based on an agency’s determination that the arrangement no longer advances the efficient and effective delivery of the agency’s mission.
Hours of Work
During the pandemic, Federal employees demonstrated their ability to effectively carry out their job responsibilities while balancing a host of other demands, including child and elder care. Such balance was sometimes achieved by using “maxiflex” work schedules. Agencies can choose to continue to provide employees with enhanced flexibility on the specific hours they work, consistent with meeting the demands of the agency’s mission. Specifically, agencies may authorize employees to work maxiflex schedules (or any other flexible work schedules currently available to employees under other agency authorities). Under a maxiflex work schedule, an employee may work any 80 hours in a bi-weekly pay period, any 40 hours in a week, or any 8 hours in a day, as long as the employee works during agency-defined core hours (which could be as few as two hours on each of two workdays during the pay period), subject to any limitations the employing agency may establish.
Agencies have discretion to determine which employees are eligible for maxiflex work schedules. Whether the employee is working in the office, teleworking on a part-time or full-time basis, or based remotely is not relevant to eligibility for maxiflex schedules.
Acceptable agency limitations include limiting the number of hours an employee may work per day, limiting hours during which work may be performed (flexible time bands), barring completion of basic work requirement hours on Sundays or holidays to avoid triggering premium pay, etc. Agencies that authorized maxiflex schedules only because of the pandemic may withdraw authorization but should treat similarly situated employees in the same way. However, agencies should provide ample notice to employees of a change in their work schedule. Employees working outside regular business hours should also be aware that regular agency support resources may be limited or unavailable during that time.
Employees on maxiflex schedules do not earn overtime pay for choosing to work their regular 80-hour biweekly work schedule outside of normal working hours. For such employees, overtime hours are all hours of work in excess of 8 hours in a day or 40 hours in a week that are officially ordered in advance by management. (See the definition of “overtime hours” at 5 U.S.C. § 6121(6).) Employees on maxiflex schedules do not earn night pay for choosing to work at night (6 p.m. to 6 a.m.) when they could have completed their 8-hour daily basic work requirement during daytime hours (6 a.m. to 6 p.m.).
Agencies should consider approving employee requests to reduce their work schedules (e.g., allow part-time work) in connection with transitioning to the post-reentry environment.
Agency hours of work policies must be implemented in a fair and equitable manner. Agencies should provide ample notice to affected employees of any change in their work hours arrangement.