Trump administration further clarifies telework expectations

The Trump administration is attempting to clarify how and when agencies should approve exceptions to the return-to-office mandate, particularly for federal employees with disabilities who request reasonable accommodations to telework.

A recently published “technical assistance” document from the Office of Personnel Management and Equal Employment Opportunity Commission comes after President Donald Trump, on his first day in office, required all federal employees to return to the office full-time, with few exceptions.

According to EEOC and OPM officials, their new guidance answers common questions from agencies as they continue implementing Trump’s return-to-office orders, while also abiding by federal law. Agencies are required under the Rehabilitation Act to provide reasonable accommodations to qualified employees with disabilities, as long as that accommodation does not result in “undue hardship” for agencies.

“Returning to in-person work and upholding disability rights are not mutually exclusive,” OPM Director Scott Kupor said in a Feb. 11 press release. “This joint technical assistance gives agencies the clarity they need to implement the president’s directive while fully complying with federal civil rights law and ensuring fair, consistent accommodation decisions.”

Generally, the Trump administration’s new guidance states that agencies should not take a “blanket approach” to rescinding or denying telework accommodations. Instead, agencies should make an “individualized determination” for each employee.

In many instances, the guidance prioritizes other accommodations, such as alternative work schedules or specialized equipment, over telework. The guidance also details the steps agencies should take when granting, modifying or denying telework requests from federal employees with disabilities.

Kupor estimated in a recent blog post that governmentwide, about 10% of federal employees have received exemptions from Trump’s return-to-office orders.

But other federal employees have alleged their agencies denied their requests for a telework accommodation, despite having a medically documented disability.

Debra D’Agostino, a partner at the Federal Practice Group, said issues around telework-related reasonable accommodations are the No. 1 EEO complaint she has seen over the past year.

“Telework can resolve issues for people with all sorts of disabilities, but agencies have been contorting themselves to offer alternatives to telework,” D’Agostino said. “If telework has been working, and this employee has outstanding appraisals, and it has not posed any impediment to their ability to do their job, why are we wasting resources to try to redo this?”

Revisiting prior telework approvals

The new guidance from OPM and EEOC emphasizes that employees are not “entitled” to telework indefinitely, and that agencies still reserve the right to reassess previously granted accommodations. Any reassessments that do take place may lead to a different conclusion, potentially replacing a telework accommodation with an “effective alternative,” the document states.

When agencies are reevaluating a telework accommodation, the guidance adds that agencies can consider any “evidence” they find that appears to conflict with an employee’s need to telework due to a disability.

“This is not a license to engage in fishing expeditions to undermine an employee’s request for accommodation,” the guidance states. “That being said, an agency is not required to turn a blind eye to evidence tending to show that an employee is not entitled to an accommodation.”

As an example, the guidance says agencies can consider as evidence a social media post of an employee “routinely engaging in strenuous physical activity outside of work,” despite the employee stating they can’t do work involving “walking or other biomechanical motions.”

The new guidance additionally tells agencies they are allowed to review employees’ medical documentation when reevaluating a previously granted telework accommodation.

“Agencies may find that many original decisions to grant telework were made without sufficient information,” the guidance states. “In these cases, an agency likely will need to make new inquiries, including requests for updated medical documentation, to obtain sufficient information for a reevaluation decision.”

D’Agostino called the administration’s guidance on medical documentation reviews “troubling,” adding that in some cases, these types of requests may amount to a violation of the Rehabilitation Act.

“If an agency has been providing a reasonable accommodation, that means it’s already determined that the employee is disabled,” D’Agostino said. “Demanding that employees continue producing medical documentation, especially when the diagnosis is a chronic condition, sets the agency up for liability.”

Additionally, OPM and EEOC’s new guidance states that in cases where an employee with a disability has a “flare-up” of their condition, offering situational telework “is not necessarily required.”

Instead, the guidance says employees can dip into what it described as a “generous allotment of paid sick leave.” But agencies can still offer situational telework in cases where there is “a net efficiency gain.”

Joshua Stanton, a recently retired senior federal agency attorney who now offers representation to federal employees with disabilities, said the administration’s guidance on flare-ups “tries to simplify something that is way too complex.”

“It’s going to depend on the disability. It’s going to depend on the severity of the condition,” Stanton said. “This leans too hard into the outcome the agency wants to reach.”

Mental health conditions and telework

Another part of the administration’s new document discusses how agencies should address telework requests from employees experiencing mental health impairments, such as anxiety.

When considering accommodations requests due to an anxiety disorder, the guidance says agencies should first require employees to work in person, and from there assess whether they are able to perform satisfactorily on-site.

“Simple observation can be the best approach to telework requests in this vein,” the guidance states.

In contrast, D’Agostino said mental health disabilities are often harder to accommodate in the workplace, and can be much less visible. But when it comes to telework accommodations, cases involving mental health disabilities have been “a more uphill battle” with the Trump administration, she added.

“A mental health condition can certainly be as debilitating as a physical health condition, but you may have no idea whatsoever by looking at a person or even working with a person,” D’Agostino said. “And oftentimes, it cannot be resolved by just buying a piece of equipment.”

In most cases, the Trump administration’s guidance states that anxiety is “unlikely” to create a barrier to working in person. If there is a barrier, the document says agencies have to consider an accommodation — “but not necessarily telework.” It states that approving a telework accommodation is mandatory “only if all other options are demonstrably ineffective.”

“Many common situations can be reasonably and effectively accommodated with in-office measures,” the document says.

Stanton, however, said the guidance appears to blur the distinction between employees with lower levels of undiagnosed anxiety, and employees who have a significant anxiety disorder diagnosed by a mental health professional — and in the latter case, it rises to the level of a disability.

“It really seems to be based in the stereotype that mental health conditions aren’t real disabilities, when they absolutely are,” Stanton said.

Guidance on commuting

The Trump administration’s new telework guidance also covers how agencies should be addressing accommodations requests to telework, in cases where an employee with a disability may face difficulties in their commute to and from their worksite.

The guidance states that agencies “generally” do not have to grant telework requests when employees with disabilities have to deal with difficult or lengthy commutes.

Citing EEOC case law, the guidance states that it’s the responsibility of the employees to make commuting arrangements, and that it’s “unreasonable” for agencies to be required to excuse employees from commuting.

“Agencies have reported instances when employees assert they cannot drive to commute to work but are routinely observed doing so for personal activities,” the document states. “An agency may follow up on these incongruities.”

In a recent blog post, Kupor also addressed the topic of commuting, pointing to instances of approved accommodations to telework for employees with disabilities, primary care-giving responsibilities, or military spouses, where commuting may be difficult.

“But — and I realize many people may disagree with this — commuting time alone is not grounds for an accommodation,” Kupor wrote.

Instead of approving telework as an accommodation, the administration’s new guidance suggests first offering a flexible work schedule for the employee to “effectively accomplish their commute and access the worksite.”

D’Agostino, however, argued that the commute to the office and the worksite itself go hand in hand. A disability may also not necessarily affect an employee’s work directly, but could still impact the ability to commute every day.

“You can’t dismiss the commute from the job — it’s part of the workday,” D’Agostino said. “It’s pretty extraordinary to us that they said that’s not something that they need to be looking at.”

If you would like to contact this reporter about recent changes in the federal government, please email drew.friedman@federalnewsnetwork.com or reach out on Signal at drewfriedman.11

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