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Biden Administration to Lift Capacity Caps at Federal Worksites

Agencies may set their own limits on how many federal employees can return to the office beginning next month, and in the meantime, the federal government will maintain its maximum telework posture.

The Biden administration on Thursday announced that it would lift its 25% cap on the number of federal employees allowed to report to agency worksites due to the COVID-19 pandemic, although it will maintain its maximum telework policy until at least next month.

In a memo to agency heads, acting Office of Management and Budget Director Shalanda Young, acting Office of Personnel Management Director Kathleen McGettigan and acting General Services Administrator Katy Kale lifted the capacity cap, which has been in place since Biden took office in January, although not much will immediately change as a result of the decision.

The memo instructed agencies to adjust for the change in their reopening plans, which are not due until July 19, and required them to “satisfy any collective bargaining obligations” prior to moving forward. It also stated that employees should have “at least 30 days” notice before they are required to return to the office, and suggested that many may continue working remotely most of the time.

“Agencies may establish occupancy limits for specific workplaces as a means of ensuring physical distancing between unvaccinated individuals,” the memo states. “Prior to increasing the number of employees in the physical workplace, an agency must complete its phased plan for reentry and post-reentry, ensure it has an updated COVID-19 workforce safety plan pursuant to current [Centers for Disease Control and Prevention] guidelines, satisfy any applicable collective bargaining obligations, and provide ample notice to any affected employees.”

Agencies may in rare circumstances temporarily deviate from these procedures to meet “urgent, mission-critical needs,” but those decisions must be approved by the agency head and with the approval of OMB and OPM.

The memo reiterated the Biden administration’s policy that although federal employees should be strongly encouraged to get vaccinated against COVID-19, a vaccination is not a “precondition” to return to the office, and agencies may not mandate employees disclose their vaccination status. But agencies may use vaccination information provided voluntarily by members of their workforces to inform how they plan to mitigate the spread of the virus after reopening.

The administration stressed that agencies should be flexible in how they reopen their physical offices, signaling that even after feds can return to physical worksites, telework should have a bigger role in workforce policies.

“Overall, agencies’ decisions must be guided by how they can most effectively achieve their respective missions,” the memo stated. “As shown during the pandemic, agencies can, where appropriate, deploy personnel policies such as telework, remote work and flexible work schedules effectively and efficiently as strategic management tools for attracting, retaining and engaging talent to advance agency missions, including in the context of changes in workplaces nationwide as a result of the pandemic and response to long-term workforce trends.”

The memo paid special attention to agencies’ collective bargaining obligations, stressing that unions have a role to play in the development of reentry policies and highlighting President Biden’s executive order stating that the government’s policy is to “encourage union organizing and collective bargaining.”

“Labor relations obligations may be addressed issue by issue for aspects of the agency’s overall plan for reentry and post-reentry,” the officials wrote. “For example, an early issue to surface to employee representatives may be the agency’s plan for ample notice to employees. Also, for example, an agency may decide to engage with employee representatives on aspects of its post-reentry personnel policies separate from labor relations engagement on the updating of the agency’s COVID-19 workplace safety plan.”

Federal employee unions appeared encouraged by the attention paid to collective bargaining in the memo. National Treasury Employees Union National President Tony Reardon described it as a “solid start” to the process of transitioning back to the office.

“In particular, the guidance makes clear that no major changes should happen until after the agencies’ reentry plans are finalized on July 19 and all bargaining obligations are met,” he said. “We also appreciate the administration’s emphasis on ample notice—at least 30 days—before employees’ working conditions are changed . . . NTEU also agrees that any employee who has teleworked successfully throughout the pandemic—and there were tens of thousands of them—is considered telework eligible from now on, even post-pandemic.”

American Federation of Government Employees National President Everett Kelley echoed his colleague’s optimism.

“As we move forward, negotiations will address the procedures for implementing these new policies around return to worksites, and those negotiations will take into consideration the complex issues federal employees are facing, whether they’ve been teleworking or continuing to report to their regular worksites,” Kelley said. “We’re happy to see that the administration is not rushing or imposing any kind of uniform schedule but rather allowing agencies time to work with us for a safe re-entry that incorporates the lessons learned about both the advantages and disadvantages of telework.”

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