Monday, March 30, 2020

IRS Order to Employees: Evacuate Your Post of Duty

Free Tax Filing Programs | Milford Town LibraryOn Friday March 27, according to the Federal News Network,[1] effective today, IRS employees are to evacuate their posts in an effort to limit the spread of COVID-19, which has now claimed the United States as the world leader in the number of infected people. Those that are able to work from home are directed to do so.

The order is clearly a good-faith effort by the Treasury Department to do its part in fighting the national emergency. According to the National Treasury Employees Union (“NTEU”), the IRS can issue such an order under Treasury Regulations, notwithstanding any collective bargaining agreement that may be in place. Despite the order, the NTEU also stated that the IRS will expressly reserve the right to direct employees to report for work, as needed, to carry out mission critical activities.

Carrying out the order by the IRS as a whole for any lengthy period will be a daunting task for an agency that is behind the times in terms of technology. The IRS currently has about 75,000 full time workers (computed as “full time equivalents” or FTEs for 2019) spread throughout the 50 states and D.C., and major cities around the world.

According to the FNN article, the evacuation order says if the employee currently has an approved work-remotely agreement in place, and is already working from home, they are considered “telework ready” and are expected to continue to work under their present arrangement. For those workers who have an approved telework agreement in place but are not yet teleworking, they are apparently ordered to start working from home.

For those employees in a “telework eligible position” and otherwise meet the requirements but have not yet entered into a telework agreement, they may be  assigned “any work necessary or required to be performed during the evacuation period as long as the employee has the necessary knowledge or skills to perform the work assignments.”

For those employees who lack the skills and knowledge to perform a job which is telework eligible, they are apparently ordered to evacuate their post of duty and remain on standby to receive possible orders from management to perform mission-critical duties.

On the bright side, it should be a smooth transition for many revenue officers, revenue agents, tax examiners, or special agents who already work remotely. Additionally, it should be expected that a certain number of employees will continue reporting for work to carry out mission critical tasks, like processing payments and mail, protecting the government’s interest to help ensure statutes of limitation do not lapse, etc. No doubt the activities of the IRS will be slowed during this time, but the critical work will carry on.   

There will be a large number of employees, likely in the thousands, for whom there is simply no work. The NTEU is working through these issues.  Nevertheless, the two main points are that the IRS is doing what it can to protect workers, and is continuing to carry out its mission. It is clear that the IRS managers in Washington who drafted the evacuation order did not contemplate all issues in the short time it had to issue this unprecedented order.

There is little doubt the IRS will be issuing guidance to its employees in the days to come on exactly how the order will be carried out. One of the issues to think through, for example, is that a revenue agent can work at home completing a final audit report, the manager can review and approve it, but how will it ultimately be processed and issued to the taxpayer? Will this type of processing be deemed mission critical to the IRS? What about the stimulus checks; how are those to be issued, and will they be delayed? Do the answers to these types of questions change if the order is in place for a longer period of time, compared to a week or two? The IRS has been through shutdowns before, but this is unprecedented.

Recall also that even before the onset of the COVID-19 virus outbreak, the IRS has been constrained by a limited budget and experienced shutdowns due to congressional impasse in approving a budget. The budget cuts have been sustained by drastic staffing cuts, resulting in reduction in taxpayer service, employee training, and upgrading the IRS’s 1960s-era main frames. Only recently has it been able to hire and begin to replenish its ranks. While there are indeed much bigger concerns right now, it is certainly not the best time for this to be hitting the IRS.

Surely, IRS workers are entitled to the very same protections as every other American worker during the new reality. The new evacuation order most assuredly will be a welcome development for the IRS rank and file.  Notwithstanding,  for those taxpayers and practitioners who are working in good faith to maintain an appropriate level of tax compliance in the new era,  working with the IRS from this time forward will present new challenges. But let there be no doubt, we will all get through this.


[1] https://federalnewsnetwork.com/workforce/2020/03/nteu-says-irs-preparing-evacuation-notice-to-send-all-employees-home/