Enjoying remote work? Like having the flexibility of hybrid work to choose when you can show up to the office? You’re not alone, as according to the 2023 Federal Employee Viewpoint Survey, a little over 90% of federal employees agree or strongly agree that their current work schedule allows for them to be productive, with an 89% rating of agree or higher around their work schedule satisfaction (both including telework or remote work arrangements.)

With around 58% of surveyed federal employees not being located in headquarter offices (either working from the field or full-time remote), it appears that technology inclusion and integration into the federal employment sphere have been welcomed and appreciated by the majority of federal employees.

However, despite 68% of federal employees currently engaging in some form of full- or part-time telework, the Biden Administration continues to push to try and return federal employees back into the office, aiming to shift the 70-30 split towards a 50-50 split.

While many agencies have been following through with their planned steps to decrease telework options in 2024 as the pandemic fades further into the rear view, White House Chief of Staff Jeff Zients told agency heads that some are “not where they need to be” on office reentry.

While some agencies, like the Departments of Veterans Affairs, Energy, Defense, and State, have exceeded these goals, Zients pushed for agencies to “aggressively execute” plans to shift to a more in-person work environment in 2024.

As agencies continue to try and hit this number, many federal employees and unions have continued to push back against these calls for reentry, arguing the same valid points that telework offers a tangible workplace benefit for employees that can be leveraged for recruitment and retention.

While this fight will likely continue for the next few years as the echoes and reverberations of COVID’s impact are fully wrangled by the federal government, what should federal employees know in 2024 when it comes to remote work and their options to either utilize such options? What would the refusal to return to in-person work mean for them?

What Telework Options are Available to Federal Employees?

Generally, telework tends to fall into one of three categories:

• Routine Telework
• Situational Telework
• Remote Work

With routine telework, employees can telework as part of their regular schedule—usually working at their agency worksite on some days and from home or an alternative work location per pay period. While the schedule (and any changes to it) must be approved by management, they do not need to get additional permission for each day they telework.

This is in contrast to situational telework, where an employee teleworks occasionally and is not part of their ongoing work schedule per pay period. Agency policies may require managerial approval each time an employee teleworks.

Remote work, however, is different and distinct (at least for the purposes of OPM guidance) in that it does not involve an expectation that the employee will need to report to the office or agency worksite each pay period. Remote work can be initiated by the agency or requested by the employee; however, agency heads ultimately have the final say to determine whether remote work should be implemented.

Can Federal Employees Be Required to Telework? Can Telework Be Revoked?

As outlined by the Telework Enhancement Act, the decision to participate in agency telework programs is left up to the employee, assuming they are eligible. However, if an employee decides to participate in their agency’s teleworking program, there may be subsequent work requirements they must follow. For example, if an employee has the option to telework, they may be required to work when there is a weather or safety event that prevents in-person employees from reporting to their regular workplace.

Additionally, telework is not an entitlement to employment. Should an employee not comply with the terms of the telework agreement, have their performance dip below certain expectations, or have another justified reason, there are just causes for agencies to terminate telework agreements. That being said, managers should be able to provide documented lists and reasonings for terminating a telework agreement—and even before then—provide warnings/notices to employees and inform them of any appeals processes they may take should they want to contest the decision.

What Would the Refusal to Return to the Office Mean for Federal Employees?

As necessary, agencies may direct employees to return to the office (RTO) to remain in compliance with Executive Branch policy or follow through with RTO procedures following the decline of the threat of COVID-19. As such, if an employee were to fail to report to the office without an acceptable reason, they could be considered absent without leave and could be subject to disciplinary action, including, in some cases, removal from federal service.

Being said, with the popularity of telework and remote work and the desire to retain qualified talent, OPM guidance indicates that agencies should consider if other options are appropriate to offer to employees to continue teleworking—whether it be on a temporary basis or as they were prior—or allowing them to request personal leave (annual leave, sick time, leave without pay, etc.).

Things to Look out for

Unfortunately, employees alone have very little to no legal power to push back against agency calls to return to the office. Since workplaces have the right to set their own workplace policies, as long as they follow proper safety guidelines determined by the Occupational Safety and Health Administration, employees alone do not have much of a leg to stand on.

That being said, there are many avenues that employees can—and already have used to some success—to try and stave off these calls to return to the office, mostly in the form of unions and collective pressure. Their arguments have mostly been grounded on the fact that telework offers a workplace benefit that can not only be used for recruitment and retention but also, as shown in the data above, can improve workplace morale.

Additionally, the implications of a reduced telework policy have led some to speculate that it would also lead to a decrease in diversity in the federal government. Many younger employees prefer flexibility in the workplace and might not be as keen to move to densely populated and expensive urban areas like Washington, D.C., further widening the age gap in the federal government and making the “model employer” of the United States not reflective of the population it serves.

Speculation aside, these arguments over telework and remote work will likely continue in the years to come. As such, employees who are looking to continue teleworking in 2024 should stay in contact with their managers and stay abreast of any new developments to remain in compliance and advocate for workplace benefits that best serve their individual needs.

If you have additional questions about your ability to advocate against agency RTO policy or how to fight against any agency adverse action regarding telework, our team of experienced attorneys is ready to assist you today.