Can Federal Employees be Forced to SHOW UP to Work?

Legislation in Congress would cut federal employees’ telework benefits. What options do federal employees have if they want to remain on expanded telework?

A recent bill introduced by House Republicans has brought the conversation of teleworking’s involvement in the federal workforce to the limelight again. If this bill were to pass, it would return a large portion of government employees back to the traditional in-person office settings.

Specifically, the Stopping Home Office Work’s Unproductive Problems Act, also referred to as “SHOW UP,” would mandate that all federal agencies return to their pre-pandemic office configurations, effectively lowering the number of telework alternatives currently available to federal employees.

While the conversations surrounding teleworking’s stay in the regular federal working procedure are not a surprise, for those employees who either have or are currently in the process of obtaining teleworking flexibilities or agreements, what implications does this bill present? Are there still options available for federal employees to remain working on expanded telework if their agencies start to pressure them to return to in-person work? 

As with any conversation surrounding the impact of COVID-19 and the pandemic’s impact on working conditions for federal employees, policies are often subject to rapid change. It is important that employees are aware of the current policies in place and what options they have so that they can enjoy these flexibilities while remaining in compliance with agency directives.

A Room Split…Virtually

For many years, the Office of Personnel Management (OPM) and the General Services Administration (GSA) has promoted teleworking flexibility for federal employees due to the numerous benefits it provides to adaptable agencies. Not all-encompassing, but some of the more noteworthy highlights include a lower overhead cost, higher employee satisfaction through work-life balance shifts, and having emergency plans in place should the worst happen.

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.

Today, most teleworkers still do not work remotely full-time, with a large majority only working from home a handful of days per month. However, with the increased capabilities of mobile devices, the lines between what is considered sustainable when it comes to working remotely and in-office are becoming more and more blurred.

Despite this, representatives on the House Oversight and Accountability Committee have stated their reasons for introducing this legislation are founded on the backlogs and delays many agencies have experienced over the past few years.

Chairman of the Committee, Rep. James Comer (R-KY), further clarified his stance on the bill in a press release, stating, “For years, Americans have suffered from the federal government’s detrimental pandemic-era telework policies for federal bureaucrats. 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 on 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.

Being said, with Democrats in control of the Senate and President Biden having also echoed his support for teleworking flexibilities with regard to continued monitoring of COVID-19, it is expected that this bill is unlikely to be enacted. Despite this fact, it seems that the utilization of teleworking flexibilities will continue to be a focus for the Oversight Committee as we emerge from the pandemic.

Teleworking Insights

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 Options do Federal Employees Have to Remain Working on Expanded Telework Should They Face Agency Pressure to Return to In-Office Proceedings?

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 (ADA) should an employee wish to continue utilizing the expanded teleworking capabilities previously granted due to a disability or other protected reason. 

Looking Ahead

While the room remains split as to whether or not teleworking capabilities should continue to be utilized at the rates they are in the federal government, it is important that any federal employee looking to telework be in contact with their supervisors as conversations and policies surrounding telework develop in the coming months.

If you have additional questions about what your rights are when it comes to teleworking, our team of attorneys is available to assist you today.

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel. To schedule a meeting with one of the firm’s federal employment law attorneys call (202) 787-1900. The information in this column is not intended as legal advice.