One of the many questions posed by the COVID-19 coronavirus is how companies can balance the health and wellbeing of employees with the daily operating needs of businesses, partners, and customers. The implementation of temporary closures and teleworking (or working remotely) is one measure companies can take to keep employees safe, and not at the expense of negatively impacting business operations.
While companies are moving at different paces from closing, or voluntary/mandatory remote consideration, employers should be ready to cope with teleworking policies and questions from employees as we move into the coming weeks of ‘social distancing.’
The Telework Enhancement Act (TEA) of 2010 specifies roles, responsibilities, and expectations for all federal executive agencies regarding telework policies, employee eligibility and participation, program implementation, and reporting. Even though the focus is mainly on federal agencies, the statute does speak specifically to company employees in several areas. The intent of the Act is to promote the appropriate use of telework.
Agencies Forcing Telework
While many agencies are encouraging employees to telework if they have the means, can an agency (i.e. Office of Personnel Management or OPM) force an employee to telework? The answer is no! TEA does not contain language that would lead OPM to revise their understanding that telework is a voluntary flexibility. In other words, an agency may not compel an employee to telework even if the duties of the position make that employee “telework eligible.”
With the above mentioned, there is one caveat, in that while entering into a telework arrangement is voluntary, once the employee is under this arrangement, they may be required to telework outside of their normal work schedule – as long as this is in their telework policy, as well.
The head of each executive agency is required to establish a telework policy while OPM provides agencies, managers, supervisors, and employees with guidance and support to facilitate the use of telework in the sector.
Are private companies able to force employees to telework?
According to The Federal Library and Information Network (FEDLINK), an employee does not have a right to telework, and cannot be forced to work at home. However, subject to any applicable union agreement, management ultimately decides whether the employee telework, depending on the nature of the job requirements and the employee’s past performance. Ultimately, employees are encouraged to speak with their human resources departments to review their own policy.
For both the government and private sector, it’s clear that telework is far from a one-sized-fits-all approach, and is completely dependent upon the existing telework policies of companies and agencies. The issue? Until recently, many government agencies and private companies did not have telework policies in place.
If you’re a company in the midst of drafting these HR policies or an employee deciding your next steps through the crisis, be mindful of cybersecurity, privacy, and liability issues when deciding your workspace.
