1 1 (March 16, 2020)

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                                                                                         Updated March 16, 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.

Coronavirus Disease 2019 (COVID-19) is prompting a
review of the telework law in the 116th Congress.
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,
Secretary of Health and Human Services Alex Azar
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.
On March 15, 2020, the U.S. Office of Management and
Budget (OMB) issued Updated Guidance for the National
Capital Region on Telework Flexibilities (M-20-15). OMB

    All Federal Executive Branch departments and
    agencies within the National Capital Region
    (NCR), consistent with OMB's recent guidance
    (OMB M-20-13), are asked to offer maximum
    telework flexibilities to all current telework eligible
    employees, consistent with operational needs of the
    departments and agencies as determined by their
    heads. In addition, we encourage agencies to use all
    existing authorities to offer telework to additional
    employees, to the extent their work could be
    telework enabled. If employees are not eligible for

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