HHS telework rollback challenge upheld by FLRA

A quasi-judicial agency overseeing labor-management disputes within the federal government has struck down a challenge from the Health and Human Services Department over its rollback of telework for employees. 

A third-party arbitrator in January ordered HHS to walk back its return-to-office mandate for thousands of employees represented by the National Treasury Employees Union. HHS rescinded those workplace flexibility agreements in early 2025, after President Donald Trump ordered federal employees to return to the office full-time.

Arbitrator Michael J. Falvo ruled that HHS committed an unfair labor practice by unilaterally terminating telework and remote agreements, without regard to its five-year collective bargaining agreement with NTEU.

Falvo ruled that HHS must “rescind the return-to-office directive,” and immediately reinstate remote work and telework agreements for NTEU members.  

The Federal Labor Relations Authority’s three-member panel, in a decision Wednesday, denied HHS’s exceptions to Falvo’s telework arbitration award, keeping NTEU’s win intact.  

“We find that the Agency does not demonstrate that the award is deficient on any of these grounds, and we deny the exceptions,” the FLRA wrote. 

Among its objections, HHS argued that the arbitrator exceeded his authority by seeking to “nullify, disregard, or limit application of presidential directives” in his ruling. But FLRA members wrote that Falvo’s ruling was consistent with Trump’s return-to-office memo.

Trump’s presidential memorandum directed agencies to terminate remote work and telework agreements, but stated that the return-to-office mandate must be “implemented consistent with applicable law.”

“Therefore, we find that the Agency’s arguments do not demonstrate that the Arbitrator exceeded his authority,” they wrote. 

HHS also argued that the arbitrator ignored or gave insufficient weight to some evidence when drafting his opinion. Agency officials claimed Falvo’s ruling didn’t consider that HHS's collective bargaining agreement with NTEU allowed management to suspend or terminate telework and remote work for “mission or operational needs.” 

FLRA members, however, wrote that “mere disagreement with an arbitrator’s interpretation” was not sufficient to overturn his ruling, and that an arbitrator’s interpretation of collective-bargaining agreements and legal conclusions “cannot be challenged as nonfacts.” 

NTEU said in a statement that the FLRA ruling is "big win for telework rights," but that HHS employees are "unlikely to see immediate changes to their telework arrangements" because HHS has until December 21 to appeal the FLRA’s decision to a federal appellate court. 

"We will continue to vigorously defend telework as the fight continues across NTEU’s agencies," the union said. 

The labor contract, which covers 2023 through 2028, states the agency can only terminate telework and remote work agreements “for cause,” including emergency situations and cases when an employee falls short of a “fully satisfactory” performance rating.

FLRA members also wrote the HHS officials appeared to use generative AI tools to draft its legal brief. They wrote that 22 of the department’s 29 footnotes, and 35 of its 42 of its citations are “fictitious, erroneous, or irrelevant.” 

“Based on the nature and scope of these errors, it appears that the Agency may have used a generative artificial-intelligence (AI) tool in drafting its brief,” they wrote. “While nothing prohibits parties from using AI tools when preparing filings for submission to the Authority, we caution those who do so to be aware that AI continues to present significant risks of error.” 

NTEU filed a grievance against HHS in February 2025, after the agency issued a directive requiring all bargaining unit employees to report to the office on a full-time basis. Union officials argued that HHS refused to negotiate before the return-to-office memo took effect, and that it would only agree to “post-implementation bargaining.”

The arbitrator's ruling impacts thousands of HHS workers represented by NTEU. It represents workers at the Food and Drug Administration, the Substance Abuse and Mental Health Services Administration, the Administration for Children and Families, the Administration on Community Living, the Health Resources and Services Administration, the National Center for Health Statistics and the HHS Office of the Secretary.

HHS denied the grievance, saying that an agency head “retains the statutory right to determine overall telework levels and to exclude positions from telework eligibility.” HHS officials argued before the arbitrator that Trump’s return-to-office memorandum superseded the collective bargaining agreement. 

Christina Ballance, the executive director of the agency’s National Labor and Employee Relations Office, told the arbitrator that HHS “was obligated to comply with the presidential memorandum.”

“Ultimately, the president is our chief, and if he directs that employees return to offices in person, the agency is required to do so,” Ballance said in her testimony.

But the 1978 Federal Services Labor-Management Relations Statute makes it an unfair labor practice for an agency “to enforce any rule or regulation … which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the rule or regulation was prescribed.”

Falvo said that Federal Labor Relations Authority precedent in previous labor disputes determined that a presidential memorandum “is not a governmentwide rule or regulation that the employer is obligated by law to implement immediately upon issuance.”

HHS officials rejected the claim that it terminated all telework and remote work agreements, noting that it still allows situational and ad-hoc telework, as well as workplace flexibilities for military spouses and reasonable accommodations for employees with disabilities.

Trump touted his return-to-office mandate at a White House press briefing on Jan. 20, 2026, where he looked back on the accomplishments of his first year in office. He told reporters that when he took office last year, “we had so many of our federal workers who wouldn’t come into work.”

“We don’t want them sitting in their home, on their bed, working. We want them in an office that we’re paying for in Washington, D.C., or wherever it may be. And we’ve largely taken care of that mess,” Trump said. “I guarantee you they’re out on the ballfields. I guarantee you they’re out playing golf. And you can’t run a country or a company that way.