Key Considerations for Employers as the Public Sector Grapples with Return to Office

Public sector employers are not immune from the challenges of returning employees to the office. A slew of recent government actions and opposition highlights the challenges public employers face as they try to rein in remote work in this post-pandemic era.

Nebraska Public Employee Union Obtains Temporary Stay of Return-to-Office Executive Order

On November 9, 2023, Nebraska Governor Jim Pillen issued Executive Order 23-17, “Bringing Nebraska’s Public Servant Workforce Back to the Office.” The executive order sought to require all public servants employed by the State of Nebraska to return to their office, facility, or field location beginning January 2, 2024, subject to limited exceptions.

Among the many reasons for issuing the executive order, Governor Pillen cited the “common sense expectation that people are most productive when they are working together in the office and not remotely.”

The Nebraska Association of Public Employees (NAPE) quickly challenged the executive order by filing a petition with the Nebraska Commission of Industrial Relations (NCIR) alleging that the state refused to negotiate in good faith and made a unilateral change to union members’ remote working conditions in violation of state collective bargaining laws. NAPE also obtained a temporary stay of the executive order as to members of its bargaining unit until the underlying unfair labor practice claim is resolved. In its motion for a stay, NAPE claimed that the state was “critically short staffed in many areas” and that NAPE’s survey “indicates that as many as 1390 of 1700 surveyed” union employees “would or are considering leaving the employment of the State of Nebraska” if forced to return to the office. Presumably, the executive order remains in effect for state employees falling outside of NAPE’s bargaining unit.

Oregon Stops Reimbursing Costs for Government Remote Employees to Travel to the Office

Unlike Nebraska, the State of Oregon has not sought to prohibit remote work for government employees. However, mounting concerns about the costs of remote work led to the introduction of Senate Bill 853 during the 2023 legislative session. Senate Bill 853 sought to permanently narrow travel reimbursement costs associated with government remote workers. The bill passed the Senate but did not advance in the House after the Oregon Department of Administrative Services (ODAS) announced it was ending “reimbursement standards for remote work that were established during the COVID-19 pandemic.” Sure enough, on September 1, 2023, ODAS changed its Working Remote Policy to no longer reimburse remote employees’ costs incurred in commuting from their remote workplace to their central workplace unless a collective bargaining agreement provides otherwise.

Kentucky Bill Barring State Employees from Telecommuting Fails to Make Headway

Kentucky’s 2023 Senate Bill 148 initially sought to prohibit certain state employees from teleworking unless an emergency was declared by the governor of Kentucky. The bill was amended in the Senate to do away with the prohibition on remote work and instead create a task force to investigate and make recommendations regarding remote work. The amended version of the bill passed the Senate but ultimately failed to advance in the House.

Federal SHOW UP Act Passes House and Awaits its Fate in the Senate

At the federal level, the Stopping Home Office Work’s Unproductive Problems Act (monikered the SHOW UP Act) would require agencies to revert back to the telework policies, practices, and levels that each agency had in effect on December 31, 2019, in effect returning many government workers back to the office. The SHOW UP Act passed the House (221-206) and is now pending in the Senate. In order to expand remote work, the SHOW UP Act would require agencies to obtain certification from the Director of the Office of Personnel Management that expanding remote work will, among other things:

  • Have a substantial positive effect on the performance of the agency’s mission;
  • Substantially lower the agency’s cost of owning, leasing, or maintaining real property;
  • Substantially lower the agency’s cost attributable to paying locality pay to agency personnel working outside the locality of their official worksite; and
  • Ensure that remote employees will be provided with secure network capacity, records access, and other equipment to enable each employee to be fully productive.

Given the mounting opposition to return to office mandates it is unclear whether the SHOW UP Act will advance in the Senate.

Key Takeaways

Both public and private sector employers continue to face strong opposition to any efforts to curb remote work or return employees to the office. As the return-to-office debate thunders on, employers in both sectors may want to take the following steps before limiting remote work:

  • Consider continuing or expanding remote/hybrid work for those departments or positions that perform well remotely and do not require an in-office presence;
  • Consider and prepare for the impact on staffing as some employees will leave rather than return to office;
  • Consider and prepare for the impact on talent as local talent may not be as strong as the remote hiring pool;
  • Articulate clear expectations for remote work or return to office by updating policies in compliance with applicable laws; and
  • Prepare for legal disputes from labor unions and individual employees.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.