Trump’s return-to-office memo doesn’t override telework protections in union contract, arbitrator tells HHS

A third-party arbitrator is ordering the Department of Health and Human Services to walk back its return-to-office mandate for thousands of employees represented by one of its unions.

Arbitrator Michael J. Falvo ruled on Monday that HHS must “rescind the return-to-office directive,” and must immediately reinstate remote work and telework agreements for members of the National Treasury Employees Union.

HHS rescinded those workplace flexibility agreements early last year, after President Donald Trump ordered federal employees to return to the office full-time.

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

The ruling will impact thousands of HHS employees represented by NTEU. Its members include employees 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.

Falvo is also ordering HHS to post a signed notice, “admitting that the agency violated the statute by repudiating the collective bargaining agreement.” The arbitrator wrote that his ruling does not limit NTEU from “seeking additional remedies to the extent permitted by law.”

HHS officials argued that Trump’s return-to-office presidential memorandum supersedes the collective bargaining agreement. 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.”

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

“These cases compel the conclusion that the agency breached the agreement and violated the statute,” he wrote.

The arbitrator decided Trump’s return-to-office memo does not override telework and remote work protections outlined in NTEU’s collective bargaining agreement. HHS did not respond to a request for comment. NTEU declined to comment.

NTEU Chapter 282, which covers FDA headquarters employees, told members in an email that HHS is likely to appeal the arbitrator’s decision and has 30 days to do so. The union’s message states, “NTEU will push the agency to accept the ruling and restore your rights without delay.”

“This is a significant win that reaffirms that telework and remote work rights negotiated in a term contract cannot be unilaterally taken away,” NTEU Chapter 282 told members.

More than a year into the second Trump administration, several recent exceptions to its return-to-office policy have emerged.

The Labor Department’s Office of Workers’ Compensation Programs recently told employees that some of its employees will be eligible for remote work, because the agency is “extremely challenged” covering rent expenses for a fully in-office workforce.

Meanwhile, a second arbitrator ruled that the Centers for Medicare and Medicaid Services “violated statutory obligations” to bargain with the American Federation of Government Employees over implementation of the administration’s return-to-office directive.

The arbitrator in this dispute determined CMS wasn’t required to negotiate with the union over the administration’s return-to-office mandate, but did have an obligation to ensure implementation complied with its collective bargaining agreement with AFGE.

The arbitrator ordered CMS to meet and negotiate with AFGE over the “effects of the implementation of the directive on work/life balance of employees.”

Trump touted his return-to-office mandate at a White House press briefing on Tuesday, where he looked back on the accomplishments of his first year in office.. Trump 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.”

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

“Reasonable persons could have different notions whether a presidential memorandum (or an executive order) is such a ‘rule or regulation’ under ‘applicable law.’ On January 20, 2025, what ‘applicable law’ required was not a matter of first impression,” Falvo wrote.

NTEU filed a grievance against HHS last February, 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 with NTEU before the return-to-office memo took effect, and would agree to “post-implementation bargaining.”

HHS officials denied the grievance and told the union that an agency head “retains the statutory right to determine overall telework levels and to exclude positions from telework eligibility.”

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.

HHS officials rejected NTEU’s claims that it terminated all telework and remote work agreements. They said the agency still allows situational and ad-hoc telework, as well as workplace flexibilities for military spouses and reasonable accommodations for employees with disabilities.

But Federal News Network first reported last month that a new HHS policy restricts employees with disabilities from using telework as an interim accommodation, while the agency processes their reasonable accommodation request.

HHS is also centralizing the processing of reasonable accommodation requests on behalf of its component agencies. As a result, it is inheriting a backlog of requests that HHS officials expect will take about six to eight months to review.

If you would like to contact this reporter about recent changes in the federal government, please email jheckman@federalnewsnetwork.com, or reach out on Signal at jheckman.29

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