Recent legislation proposed by House Republicans has reignited the debate about teleworking’s role in the federal workforce. If this bill were to pass, it would force a significant number of government workers to return to traditional physical office settings.

The Stopping Home Office Work’s Unproductive Problems Act, also known as the “SHOW UP” Act, would specifically require that all federal agencies return to their pre-pandemic office setups, effectively reducing the number of telework options accessible to federal employees.

While the debate over teleworking’s continued inclusion in regular federal working procedures is not surprising, what ramifications does this bill have for employees who have or are in the process of obtaining teleworking flexibilities or agreements? Is it possible for federal employees to continue working on increased telework if their agency begins to press them to return to in-person work?

As with any discussion on the influence of COVID-19 and the pandemic’s impact on government employees’ working circumstances, policies are frequently subject to rapid change. Employees must be informed of the current policies in place as well as their options in order to take advantage of these flexibilities while staying within agency guidelines.

Splitting the room…virtually

Due to the multiple advantages it offers flexible agencies, the Office of Personnel Management and the General Services Administration have long supported teleworking flexibility for federal employees. While not exhaustive, some of the more notable aspects include lower overhead costs, increased employee happiness due to work-life balance changes, and preparedness for emergency situations.

Obviously, since the pandemic occurred, we have seen firsthand the benefits that offering federal employees the ability to work from home has had, saving the federal government an estimated $180 million in 2020 due to fewer travel expenses and lower costs in utilities and office expenses.

Most teleworkers do not currently work from home full-time; instead, they often only do so a few days each month. The distinction between what is considered sustainable when it comes to working remotely and in-office is becoming hazier, though, as a result of the enhanced capabilities of mobile devices.

Despite this, members of the House Oversight and Accountability Committee claims that the backlogs and delays that many agencies have seen over the past few years are what prompted them to introduce this legislation.

“For years, Americans have suffered from the federal government’s detrimental pandemic-era telework policies for federal bureaucrats,” committee Chairman Rep. James Comer (R-Kentucky), said in a statement. “President Biden’s unnecessary expansion of telework crippled the ability of departments and agencies to fulfill their responsibilities and created cumbersome backlogs.”

While many of these agencies have taken significant steps to work out of their backlogs—for example, the IRS—the impacts on an individual’s access to federal services could be a key argument when it comes to garnering support for this bill.

Implications for the federal workforce

Along with returning many federal employees back to the office (granting employees 30 days to do so), agencies would also be required to submit reports to Congress on how pandemic-era teleworking capabilities impacted their individual missions. While this wouldn’t eliminate an agency’s ability to grant teleworking capabilities, it would only allow them to expand them again should the agency prove it would have a demonstrably positive effect on work performance.

Nevertheless, it is anticipated that this bill won’t pass because the Senate is controlled by Democrats and because President Biden has shown support for teleworking flexibility in relation to ongoing COVID-19 monitoring. Despite this, it appears that the Oversight Committee will continue to focus on how to utilize teleworking flexibility as we emerge from the pandemic.

The OPM issues an annual report to Congress summarizing the information provided by Executive Branch agencies on the status of their telework programs. In their 2022 report, 69% of all federal employees reported that they utilized some form of teleworking in 2021. Additionally, 72% of agencies have participated in “goal setting” when it comes to either the frequency of or participation in teleworking. This clearly shows that despite what individuals might think about teleworking and hybrid working capabilities, agencies are continuing to plan for the long term when it comes to carving out options for employees as we continue to emerge from the pandemic.

As a part of these goals, many agencies are keen on offering teleworking/hybrid options for their employees since it is a great way to recruit and retain top talent. Telework and other workplace flexibilities have been cited as critical drivers for increasing access to high-quality applicants and geographically dispersed individuals who might not otherwise have access to specific industries or career possibilities. Telework in job advertisements and interviews, as well as stressing telework in recruitment materials and events, were cited as essential strategies by agencies focused on hitting recruitment goals.

Additionally, agencies continue to recognize the benefits of positive employee sentiment to operational success and, as such, have cited the improvement of employee attitudes as one of the most commonly identified goal-setting areas. Teleworking and hybrid options have played a critical role in this, as when compared with non-teleworkers, teleworkers show consistently higher scores on performance management indicators. Telework can encourage better performance and work efficiency by letting people work in environments that are most conducive to their needs.

What can government workers do?

Regardless, employees may still request to work remotely/telework, but granting it is entirely at the discretion of management and requires a written agreement outlining the restrictions, including how frequently the employee is needed to physically visit the agency worksite. Remote work agreements must also address concerns such as performance criteria, which must be the same as those for employees in the same job who do not work from a different location.

If a manager denies an employee’s telework request, they can appeal that decision. Should they wish to do so, employees can engage with their telework coordinator to fully understand the policies and procedures that apply to them. Additionally, a telework coordinator can assist you in creating a business-based proposal that you can present to your supervisor, provided you are qualified under the provisions of the policy and have complied with the correct processes.

Teleworking still remains a form of reasonable accommodation under the Americans with Disabilities Act should an employee wish to continue utilizing the expanded teleworking capabilities previously granted due to a disability or other protected reason.

While opinion is divided on whether teleworking capabilities should be used at the current rate in the federal government, it is critical that any federal employee interested in teleworking communicate with their supervisors as conversations and regulations surrounding telework develop in the coming months.

Stephanie Rapp-Tully is a partner at Tully Rinckey PLLC, where she concentrates her practice on federal labor and employment law.

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