By: FEDweek StaffFollowing are the sections of recent OPM guidance on telework and remote work arrangements addressing standards for eligibility.
Telework Eligibility
Because both the positions Federal employees encumber and the responsibilities of those positions can differ greatly from agency to agency, Federal agencies have broad authority and discretion to make their own telework eligibility determinations for employees – but not unfettered authority or discretion. As a practical matter, the agency’s latitude may be determined by the Telework Enhancement Act, decisions of the Federal Labor Relations Authority interpreting that Act (as well as management rights under the Federal Service Labor Management Relations Statute), and governmentwide and agency regulations.
Within the parameters of existing statute and legal precedent, agencies should make their determinations, based upon operational needs. Agencies should make sure the process and criteria used to make decisions about who teleworks are written down, applied equitably and consistently, and as transparent as possible. The criteria for their decisions should be detailed in the agency telework policy (and may also be covered in applicable collective bargaining agreements, which should be applied in accordance with law and governmentwide regulation). But agencies should anticipate particular decisions regarding an individual’s eligibility may be challenged (e.g., frequency of telework days).
Overall, the eligibility of a given position for telework should be grounded in a determination whether the position’s duties and responsibilities may be performed at an alternative worksite without diminution of employee performance or agency operations and that process should be as transparent as possible. The Act includes language that says that telework should not diminish employee performance, so an agency should have processes in place to determine whether employees are succeeding in using telework. In making these decisions, individual agencies are in the best position to define what it means to “ensure that telework does not diminish employee performance or agency operations.” There is no “one-size-fits-all” approach to making eligibility determinations and notifying employees of eligibility. Agencies could consider restructuring jobs not currently eligible for telework in a way that would allow incumbents (except those who are legally prohibited) to telework at least on a situational basis, and OPM encourages such innovation where it is possible. A workforce that is entirely telework-eligible would be best positioned to withstand emergencies and other disruptions to normal business operations, although OPM is aware that such arrangements may not be possible for some lines of work. For additional information about telework eligibility, please refer to our website, www.telework.gov.
Notify Staff of Telework Eligibility
Agencies are also required to notify employees of their eligibility to telework. This can take several forms including mass or agency-wide emails, personal communications, agency intranet announcements, training efforts, electronic personnel files, agency newsletters, agency meetings/briefings, and new employee orientation. Generally speaking, given the high level of interaction and trust between employees and their immediate supervisors, and the supervisor’s direct role in monitoring and assessing employees’ performance, agencies should consider how to best leverage direct supervisors in this role. As mentioned below, agencies should consider providing additional training and support to supervisors on agency-specific policies, as well as effective team management in a telework-ready environment.
Ineligibility Under the Act
The Act specifies two categories of employees who may not be deemed eligible under any circumstances: (1) an employee who “has been officially disciplined for being absent without permission for more than 5 days in any calendar year,” and (2) an employee who “has been officially disciplined for violations of subpart G of the Standards of Ethical Conduct for Employees of the Executive Branch for viewing, downloading, or exchanging pornography, including child pornography, on a Federal Government computer or while performing official Federal Government duties” (5 U.S.C. 6502(a)(2)(A),(B)).
Generally, agencies have written policies that govern disciplinary and adverse actions. These actions can range from oral admonishments, to written letters of reprimand, and to suspension, termination, or removal actions. These policies also often put time limits on maintaining documentation of specific actions. The term “official discipline” should be understood as a disciplinary action that results in the placement of a document in an employee’s official personnel file (OPF). In OPM’s view, the bar on participation would remain in effect as long as the document stays in the employee’s OPF. Based on this reasoning, suspension and removal actions (i.e., that are specifically related to the two categories of employees described in the law as ineligible) which result in a document that permanently remains in the OPF would translate to a permanent prohibition on telework participation. In other words, an employee would be permanently barred from telework for either of the disciplinary actions called out in the Act.
In defining the term “day” for the purpose of determining when an employee has been absent without leave (AWOL) for more than 5 days in any calendar year, agencies should define the term “day” to be associated with an employee’s tour of duty that is established by their agency under 5 U.S.C. 6101(a)(3), 6122, and 6127. Under these references, an agency is required to establish the administrative workweek, including the number of hours an employee works in each day. For example, for an employee working 8 hours per day for 5 days a week, a work “day” is defined as 8 hours. Therefore, if an employee is absent for any amount of time in excess of five distinct (eight-hour) days, the employee is ineligible to telework under the Act. For an employee working on a compressed work schedule of 4 10-hour days per week, a workday is defined as 10 hours, and if the employee is absent for any amount of time in excess of five distinct (10-hour) days in any calendar year, the employee is ineligible to telework. An employee may not telework when they have been AWOL for more than 5 days and have been officially disciplined for such AWOL. A ‘day’ counts toward the over 5-day eligibility requirement only when the AWOL occurs on 5 full workdays, and any portion of an additional workday.
Candidates for Remote work
Agencies are encouraged to consider remote work as part of an overall strategic workforce plan. This may include identifying particular positions or functions that employees can perform more efficiently and effectively if working remotely. Moreover, an agency remote work policy should establish a clear process by which an employee can make a request to work remotely on a full-time basis. Such a policy should include requirements to conduct a formal and complete assessment of benefits and cost to determine if the arrangement is workable and cost effective for the Government and the organization. As noted previously, there are various reasons why an employee may request or be offered a remote work opportunity including:
• As a retention tool to maintain talent or institutional knowledge.
• To acquire the knowledge needed for difficult to hire mission-critical talent or hard to find skillsets.
• To help the agency achieve cost savings with real estate reductions (e.g., office closure).
• To help an employee balance work and family responsibilities (e.g., spouse required to relocate for their employment).
• To meet the demands of a changing workforce that demands more flexibility.
Remote work requires more than simply working at an alternative worksite, and this is especially true for a remote work arrangement where the employee is rarely if ever at the agency worksite. Such alternative work arrangements come with challenges and require what may be a new skill set for the employee unfamiliar with working in dispersed or virtual teams. Not every position or every employee will be suited for remote work. Agencies may want to consider multiple factors, including individual work style preferences, team dynamics, and job characteristics, when making decisions about candidates for remote work. Employees are also advised to conduct an honest self-evaluation when determining if they are suited for working in an environment where there is reduced interaction with managers or members of the team. Employees may want to talk to other remote workers to gain information to help decide if remote work is a viable option.
Promising candidates for remote work are self-directed and require minimal supervision. Additionally, while such employees must be able to work independently, they must also be responsive to the organization, team, and customers. That means keeping a high profile (not out of sight, out of mind), keeping supervisors and co-workers informed about the status of projects pending and completed, and pitching in to help when needed. They should also be comfortable not having day-to-day contact with colleagues. Establishing and maintaining a culture that supports remote workers will help the agency recruit the right candidates for remote work positions. For some agencies, this might involve a requirement that all candidates for remote work must first work onsite for a period of time to form essential relationships, learn how the organization functions, or to meet other business objectives.
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