Agencies have discretion to make their own eligibility determinations for employees subject to operational needs while considering the specific requirements described in the Telework Enhancement Act (the Act). In making these decisions, individual agencies are in the best position to define what it means to “ensure that telework does not diminish employee performance or agency operations.”
There are a variety of circumstances in each individual agency that relate to position classification, organizational structures, and agency mission areas. As a result, it would be impractical and inadvisable to suggest a Governmentwide “standard” or develop generic language that would imply a “one-size-fits-all” approach to making eligibility determinations and in notifying employees of eligibility. Agencies should take special care to specifically describe eligibility and participation criteria in their telework policies.
Eligibility vs. Participation
The Act makes a clear distinction between “eligibility” and “participation.” To be able to participate in telework, an employee must first be identified as eligible.
The Act does not establish new eligibility standards, but it does specify two categories of employees who may not be deemed eligible under any circumstances:
- an employee who "has been officially disciplined for being absent without permission for more than 5 days in any calendar year”
- an employee who “has been officially disciplined for violations of subpart G of the Standards of Ethical Conduct of Employees of the Executive Branch for reviewing, downloading, or exchanging pornography, including child pornography, on a Federal Government computer or while performing official Federal Government duties [Public Law 111-292, 6502(a)(2)(A)(B)]."
In defining the term"day" for the purpose of determining when an employee has been absent without permission (AWOP) for more than 5 days in any calendar year, agencies should adopt a broad interpretation of the law. Specifically, agencies should define the term “day” to be associated with an employee’s tour of duty that is established by his/her agency under 5 U.S.C. 6101(a)(3), 6122, and 6127. Under these references, an agency is required to establish the administrative workweek, including the number of hours an employee works in each day. For example, an employee working 8 hours per day for 5 days a week, a work “day” is defined as 8 hours. Therefore, an employee would need to be absent for all 8 hours on more than 5 distinct days in any calendar year to be deemed ineligible under the Act. For an employee working on a compressed work schedule of 4-10 hour days per week, a work day is defined as 10 hours and the employee would need to be absent for all 10 hours on more than 5 distinct days in any calendar year to be ineligible for telework. An employee may not telework when he/she has been AWOP for more than 5 days, and has been officially disciplined for such AWOP. A 'day' counts toward the over 5 day eligibility requirement only when the AWOP occurs on 5 full workdays, and any portion of the sixth workday.
Also, agencies should apply the provisions of the statute regarding eligibility prospectively. That is, ineligibility determinations should apply only to conduct or official discipline (e.g., discipline that is in the Official Personnel File) that occurred after the enactment of the Act.
Key eligibility points to consider:
- Employees should understand that participation is not a "right." It should be based upon sound business and performance management principles.
- Effective performance management is a key component of a successful telework program. The Act specifies in Section 6502(b)(3) that an agency's telework policy shall "provide that an employee may not be authorized to telework if the performance of that employee does not comply with the terms of the written agreement between the agency manager and that employee."
- Participation also may be limited because of the duties encompassed by the position. Some positions are not conducive to telework. Section 6502(b)(4) of the Act states that telework participation would "not apply to any employee of the agency whose official duties require on a daily basis (every work day) (A) direct handling of secure materials determined to be inappropriate for telework by the agency head; or (B) on-site activity that cannot be handled remotely or at an alternate worksite."
- When making determinations regarding employee participation, agencies and managers should be creative in considering the use of telework and other workplace flexibilities. For example, most, if not all, jobs include some duties that are considered to be “portable” in that they generally can be performed at any location.
- When the nature of an employee’s work prohibits telework, sound work-life principles and best practices would suggest that managers work with affected employees to avail them of opportunities to use workplace flexibilities appropriate to their situation (e.g., alternative work schedules such as flexible work schedules or compressed work schedules).
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