What does post-pandemic telework look like during a shutdown?

The fall tradition of federal agencies gearing up their shutdown contingency plans is upon us, as Congress works to avert a budget impasse that could transpire in two weeks. 

While the preparation for government shutdown is not new, it hasn’t transpired in the post-pandemic era of telework, where federal employees continue to work remotely and sometimes distributed from their agencies.

“I think it’s a huge open question for both those personnel who do have to work and for those who are, in fact, not permitted to work,” said David Berteau, Professional Services Council president and CEO, on a Tuesday media call. 

Berteau likened the situation to the sequestration-era rules of a decade ago, when federal employees were restricted to the amount of time they were allowed to use agency-issued technology and mobile devices to roughly eight hours a day, an environment that has radically changed in the three years since the onset of the COVID-19 pandemic. 

“I know of very few remote workers that stick to a rigid, 8 a.m.-to-5 p.m. schedule and don’t look at their computer or their email outside of that schedule, how the government plans to do that is a mystery to us," Berteau said. "So far, at least in the updated guidances we’ve seen, it is not addressed.”

Typically, in a federal government shutdown, agencies will furlough designated while retaining excepted employees to work on-site without pay until Congress passes new appropriations. Agencies work to determine which employees will be needed to carry out essential operations, such as those that involve the safety of human life or the protection of property. Which personnel are deemed excepted employees can change even as the shutdown is ongoing, but they have typically been on-site when one occurs. 

The Office of Personnel Management’s December 2021 guidance for shutdown furloughs does say that “orderly shutdown activities (including the distribution of furlough notices and, where necessary, the adjustment of voicemail and email messages to reflect the agency’s operating status)” may be done remotely if consistent with legal requirements.

It also states that agencies “are encouraged to explore the use of workplace flexibilities such as alternative work schedules and telework” for excepted employees if they need to be absent from work for brief periods.  

A January 2019 OPM telework guidance, penned two days before the most recent shutdown ended, strongly encouraged agencies “to allow telework-eligible employees performing excepted duties to telework more frequently, permit flexible start and stop times under a flexible work schedule, and provide employees with the ability to request time off based on their personal circumstances.” 

OMB’s December 2021, “Frequently Asked Questions During a Lapse in Appropriations” document also notes non-excepted employees are prohibited from working, including remotely, except to perform orderly shutdown activities.

“Furloughed employees should be given clear guidance that the prohibitions of the Antideficiency Act extend to work performed from outside of the office, including via mobile devices or remote computer connections,” the document said.

How that will translate in a post-pandemic setting will be among many issues to watch in the event of a shutdown. 

Berteau said the issue could be crucial for contractors looking to stay in touch with their contracting officer during a shutdown.

“The COVID-related workforce disbursement and where people are working, that’s largely unaddressed in either the previous guidance documents or the ones being updated now,” he said. “If your contracting officer is remote in -- you pick it -- Boise, Idaho, it’s really important for you to know that, as opposed to you can’t go knock on the door at VA headquarters and can’t get an answer. I haven’t seen any guidance that addresses any of this at all.”

The subject of federal employees’ telework has become more contentious in the past year. Though the Office of Personnel Management encouraged agencies in 2021 to make telework a significant part of their workforce policies, the Biden administration recently signaled its intention in August for more employees to return to the office. 

Republicans on Capitol Hill have recently pushed back as well, with Sen. Joni Ernst, R-Iowa, leveling accusations of “fraud” at federal workers whom she said “get location-based pay and Washington, D.C., wages” while working in areas with lower costs of living, though OPM has locality pay guidelines that require workers to be able to commute to the office at least twice per pay period. 

OMB officials were unavailable for comment on the shutdown impact of remote work by publication time.