What Happens to Teleworkers When a Storm Hits?

With the aftermath of Hurricane Florence still affecting the East Coast, federal agencies need to determine whether it is appropriate to grant weather and safety leave to employees who can’t safely make it into the office. But what about teleworkers? Can they be granted weather and safety leave?

The framework and criteria for decisions about whether to grant weather and safety leave to teleworkers is provided in 5 CFR Section 630.1605. Employees who are participating in telework programs and are able to safely travel to and work at approved telework sites generally may not be granted weather and safety leave. These employees are typically able to safely perform work at their approved telework sites (e.g., homes) since they are not required to work at their regular work sites.

An agency also does not have to provide leave if the weather or safety conditions do not prevent the employee from safely traveling to or safely performing work at a regular work site, even if the affected day is a scheduled telework day.

Granting weather and safety leave

Under 5 CFR Section 630.1605(a)(2)(i), an agency may provide leave if the weather or safety conditions could not reasonably be anticipated, and the employee was not able to prepare for telework and is unable to perform work at the telework site.

When deciding whether to grant leave to a teleworker, an agency must evaluate whether:

  • The weather or safety conditions could reasonably be anticipated; and
  • The employee took reasonable steps to prepare to telework at the telework site.

Hurricane forecast

For example, Hurricane Florence was predicted, and therefore was reasonably anticipated, to create unsafe weather conditions in a generally defined area on the East Coast. Accordingly, teleworkers in that area should have prepared by taking home any equipment (such as a laptop) and work needed for teleworking.

If the employee is unable to perform work at a telework site because of her failure to make necessary preparations for Hurricane Florence, her agency may not provide weather and safety leave, and the employee would need to use other appropriate paid leave, paid time off, or leave without pay.

Unsafe to work

If the employee cannot work safely at the telework site due to weather or safety conditions, the agency has the discretion to grant leave under 5 CFR Section 630.1605(a)(2)(ii). In the Federal Register notice of the final rule on weather and safety leave, the Office of Personnel Management provided examples of when agencies have the discretion to grant weather and safety leave:

  • Weather-related damage to a home that makes occupying the home unsafe.
    · Loss of power at home (which makes the home not an approved location under agency telework policies).
    · Employees not being prepared for teleworking when the conditions could not be anticipated (tornado or earthquake).

Mandatory evacuation areas

State and local governments may declare mandatory evacuation in areas that are expected to be hit hard by a hurricane. Based on 5 CFR Section 630.1605(a)(2)(ii), agencies likely would have discretion to grant weather and safety leave to a teleworker whose work site is in a mandatory evacuation area. The employee would not be able to safely work at the telework site due to circumstances arising from the hurricane.

Additionally, OPM’s advice in the Federal Register notice states that weather and safety leave may be appropriate for hurricane evacuation purposes. While this guidance is not specific to teleworkers, it would be reasonable that agencies could determine it is unsafe for the teleworker to continue to work in a telework office in an evacuation area.

Evacuation payments

Agencies also have the discretion to authorize advance payments, continuation of pay, and payments for travel and subsistence expenses to employees who are ordered to evacuate from an area because of imminent danger to their lives as a result of severe weather conditions or other emergency situations. The agency head must make the determination that an employee was officially ordered or authorized to evacuate. While this flexibility is not specific to teleworkers, agencies may determine that a teleworker’s circumstances in an evacuation meet the requirements for authorizing evacuation payments.

OPM has issued guidance on HR flexibilities and procedures for hurricane season with more information on evacuation payments, as well as weather and safety leave and teleworkers.

Christine Bulger
Christine M. Bulger is the legal editor at cyberFEDS.