HAS OPM CHANGED LEAVE “POLICY” IN OFFICE CLOSURE SITUATIONS?
If you missed OPM’s latest effort to interfere with collective bargaining, double back and read it closely. OPM has announced that it wants “to change an outdated leave practice.” To be precise, it wants to do away with the practice of granting administrative or excused absence on days the office is closed due to inclement weather or other events. Instead, it wants those who were scheduled to take annual or sick leave that day generally be charged the leave rather than given administrative or excused leave. We understand its interest, but we have several problems with how it is going about it.
First, its announcement mentions that rather than issue a formal regulation on the matter as part of 5 CFR, which would have given unions a chance to comment and perhaps even challenge, its “Federal closure operating status announcement will no longer state that all non-emergency employees on pre-approved paid leave receive excused absence.” It will be interesting to see if someone tries to argue the lack of any mention of continuing the practice amounts to a regulation making it illegal to do so or which restricts bargaining—as most government-wide regulations do. We hope not because if an agency unilaterally makes the change, it will likely take two or three years for the case to work its way through FLRA and the courts. Should the agency have been wrong to treat this OPM whimsical missive as a government-wide regulation, it would likely have to go back and restore leave to current and former employees over a very long period of time. Agencies would be better off bargaining detailed rules covering these situations than relying on this very porous OPM proclamation.
Second, OPM’s announcement is vague. Aside from trying to establish policy (or even a practice) by NOT mentioning something in a written document, “OPM advises that the general practice moving forward will be for employees on pre-approved leave to either telework or remain on leave when Federal offices are closed, subject to agency policy, and in accordance with any applicable collective bargaining agreement (as consistent with law).” Advises? “General practice?” “In accordance with any collective bargaining agreement?” Any doubt about the wishy-washy nature of what OPM wants is further confirmed in the examples included in the OPM announcement. Specifically, examples two and three mention that the “agency should” do something.
Third, whether you call it a gross lack of sensitivity, a dangerous degree of naiveté, or just sloppy policy/practice making, OPM’s new approach turns on whether an employee is “telework-ready” on an office-closure day to work at home. While OPM chose not to burden us with an explanation of what that concept includes, we can think of a few problems with it. For example, what if the employee’s children are also home making it nearly impossible to concentrate on work or even ignore them for hours at a time? What if the employee shares an apartment with a roommate, making it almost impossible for the employee to work on confidential government documents or cases? What if the Internet’s speed is slowed down by every teen and pre-teen descending on it because their schools are also closed? What if the employee has no power? What if the employee tried to get to work and now must spend the remainder of the day trying to get her car towed out of a snow drift? What if the employee planned to spend a telework day at some private corporation examining books and records—and that company is closed? We could go on, but you get the point. Frankly, if OPM had bothered to put this out for notice and comment it might have seen a need to refine its “telework-ready” mantra before it doomed federal agencies to years of litigation.
Ideally, the more mature labor-management parties will find a way around the OPM advice, whether they perfect it, define its vague terms, or ignore it. After all, nothing says that it is illegal for agencies to continue current practices.