Labor & Employment Law Daily Wrap Up, AGENCY NEWS—OPM provides guidance on telework, remote work CBA language, (Feb 5, 2025)

By Patricia K. Ruiz, J.D.

Any provisions that require agencies to provide minimum telework levels or prevent agencies from setting maximum telework levels are likely unlawful, the OPM stated.

A guidance memorandum issued by the Office of Personnel Management provides detail on the collective bargaining obligations that apply to efforts to return federal workers to in-person work, particularly for organizations that have collective bargaining agreement (CBA) language on telework and remote work. The guidance instructs agencies on required review of new CBAs and reevaluation of existing CBAs.

Telework in CBAs. The Telework Enhancement Act allows agency heads the ability to set overall telework levels and to exclude specific positions from telework. These are exercises of management rights to determine the agency’s mission and organization, direct employees, and assign work. Unions can negotiate procedures for determining individual telework eligibility within authorized telework levels and appropriate arrangements for employees whose telework eligibility is altered. The guidance states that provisions of collective bargaining agreements that conflict with management rights are unlawful and cannot be enforced.

Review of language. The guidance instructs agencies to review current CBA language on telework and remote work to determine if any provisions are unenforceable for conflicting with management’s statutory rights under the Federal Service Labor-Management Relations Statute. Any provisions that require agencies to provide minimum telework levels or prevent agencies from setting maximum telework levels are likely unlawful, and the same applies to provisions that require agencies to authorize telework for specific positions.

Agencies may declare unlawful provisions in existing CBAs unenforceable and no longer adhere to them, the guidance states, and agencies may immediately implement government-wide rules that do not conflict with lawful CBA provisions. Thus, any CBA provisions that purport to restrict the agency’s right to determine overall levels of telework are likely unlawful and unenforceable, the OPM stated. The OPM instructed agencies to further review any criteria and procedures on the approval and disapproval of telework and remote work in CBAs, as well as how they may have interpreted such provisions in the past and whether the interpretation should be reevaluated.

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