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March 12, 2020
Telework in Executive Agencies: Background, OPM Guidance,
and 116th Congress Legislation Following Coronavirus
The Telework Enhancement Act of 2010, enacted on
December 9, 2010 (P.L. 111-292, 124 Stat. 3165), and
codified at Chapter 65 of Title 5 of the United States Code,
authorizes telework in executive agencies, defines
teleworking, and establishes requirements for telework
programs. The law (at 5 U.S.C. §6504(d)(1)) requires that
the telework policy of each executive agency incorporate
telework into the continuity of operations [COOP] plan of
that agency. A COOP plan ensures that essential functions
continue to be performed during disruption of normal
operations. Furthermore, Section 6504(d)(2) requires that
[d]uring any period that an executive agency is operating
under a continuity of operations plan, that plan shall
supersede any telework policy.
The U.S. Office of Personnel Management (OPM) is
required to report annually to Congress on the status of
telework in the federal government. In January 2019, OPM
published the most recent report, which provided data for
FY2017. According to the report, 1,013,975 employees
were eligible to telework, and 436,732 employees were
teleworking in a federal workforce that includes 2,193,400
employees. Therefore, 43% of eligible employees were
teleworking. Agencies reported that 50% of employees who
were teleworking did so on a situational or ad hoc basis,
32% teleworked three or more days per two-week period,
28% teleworked one to two days per two-week period, and
6% teleworked no more than once per month. Some 80% of
agencies reported that telework was emphasized as part of
its COOP. OPM noted that telework data collection remains
a challenge for several reasons, including the limitations of
technology to track employee participation.
Circumstances that are prompting a review of the telework
law in the 116' Congress include Coronavirus Disease
2019 (COVID-19) and actions at several federal agencies
prior to the COVID-19 onset to reportedly change their
policies on employee participation in teleworking.
According to the U.S. Centers for Disease Control and
Prevention, COVID- 19 is a respiratory disease caused by a
novel (new) coronavirus, first detected in China, and now
detected in the United States. On January 31, 2020, Alex
Azar, Secretary of Health and Human Services, declared a
public health emergency for the United States in responding
to COVID-19. On March 7, 2020, OPM issued additional
guidance to federal agencies on COVID-19 that stated, in
part:
Agencies are strongly encouraged to continue
reviewing and updating their emergency and COOP
plans, as needed.... Agency COOP plans should
have telework fully incorporated so that as many
employees as possible are working during a COOP
activation. Agencies should immediately review
their current telework policies and ensure that
written telework agreements are in place for as
many employees as possible. Agencies are strongly
encouraged to sign situational (ad hoc) telework
agreements with all telework eligible employees
currently without a signed telework agreement.
Further, agencies should reassess their factors for
determining telework eligibility to determine if
additional categories of employees may be
classified as telework eligible. Finally, OPM
encourages agencies to take steps to prepare all
telework-ready employees to effectively telework
and have access to agency IT systems and networks,
as may be necessary, should the conditions from
COVID-19 so warrant a Federal office closure.
The OPM guidance also attached responses to frequently
asked questions that reiterated policies on various matters,
among them that
[a]n agency [must] have a solid technology
infrastructure established to support a high level
and volume of connectivity, so employees can work
seamlessly from their alternate locations (e.g.,
home) and maintain established records and
security requirements.
During an agency closure due to COVID-19 ...
telework program participants will generally be
expected to continue working from home.... They
must telework for the entire workday, take other
leave (paid or unpaid) or other time off, or use a
combination of telework and leave or other paid
time off.
The guidance stated that OPM and the U.S. Office of
Management and Budget (OMB) will continue to host
periodic interagency calls to address questions related to the
issue. Updated information is to be provided at
http://www.opm.gov/covidl9.
In the wake of the OPM guidance, the National Aeronautics
and Space Administration, the National Oceanic and
Atmospheric Administration, and the U.S. Department of
the Air Force were reportedly conducting tests of their
teleworking and COOP procedures in March 2020.
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