[Federal Register: January 5, 2005 (Volume 70, Number 3)]
[Proposed Rules]
[Page 1067-1110]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja05-40]
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Part IV
Office of Personnel Management
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5 CFR Parts 353, 530, et al.
Restoration to Duty From Uniformed Service or Compensable Injury;
Payrates and Systems (General); Pay Under the General Schedule; Pay
Administration (General); Pay Administration Under the Fair Labor
Standards Act; Recruitment and Relocation Bonuses; Retention
Allowances; Supervisory Differentials; Hours of Duty; and Absence and
Leave; Proposed Rule
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 353, 530, 531, 550, 575, 610, and 630
RIN 3206-AK61
Restoration to Duty From Uniformed Service or Compensable Injury;
Payrates and Systems (General); Pay Under the General Schedule; Pay
Administration (General); Pay Administration Under the Fair Labor
Standards Act; Recruitment and Relocation Bonuses; Retention
Allowances; Supervisory Differentials; Hours of Duty; and Absence and
Leave
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management is issuing proposed
regulations to amend the rules concerning the determination of official
duty station for location-based pay entitlements, compensatory time off
for religious observance, hours of work and alternative work schedules,
and absence and leave. In addition, the proposed regulations are being
issued to aid and support the standardization of pay policies under the
e-Payroll initiative. The regulations have been rewritten and, in some
instances, reordered to enhance reader understanding.
DATES: Comments must be received on or before March 7, 2005.
ADDRESSES: Send or deliver comments to Donald J. Winstead, Deputy
Associate Director for Pay and Performance Policy, Strategic Human
Resources Policy Division, Office of Personnel Management, Room 7H31,
1900 E Street NW., Washington, DC 20415, FAX: (202) 606-0824, or e-mail
them to pay-performance-policy@opm.gov.
FOR FURTHER INFORMATION CONTACT: Sharon Herzberg by telephone at (202)
606-2858; by fax at (202) 606-0824; or by e-mail at
pay-performance-policy@opm.gov.
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
issuing proposed regulations to revise the rules concerning the
determination of official duty station for location-based pay
entitlements, compensatory time off for religious observances, hours of
work and alternative work schedules, and absence and leave. Except as
otherwise stated in this supplementary information, the purpose of
these revisions is to standardize and simplify pay, leave, and hours of
work rules to simplify payroll processing under the e-Payroll
initiative and in general to aid agencies in the administration of
these programs. We are also taking this opportunity to make these parts
more readable. As part of this rewriting effort, the proposed
regulations have been reorganized and renumbered to aid in
accessibility. In addition, we have replaced the verb ``shall'' with
``must'' for added clarity and readability. We intend that any
provision using the verb ``must'' has the same meaning and effect as
previous provisions using ``shall.''
Military Leave
Section 353.208 of title 5, Code of Federal Regulations, states
that an employee on military leave is permitted, upon request, to use
any accrued annual leave (or sick leave, if appropriate), or military
leave during such service. However, the Uniformed Services Employment
and Reemployment Rights Act of 1994, Public Law 103-353, December 12,
1994, which was implemented by this regulation, states that an employee
must be permitted during a period of military service to use any
vacation, annual, or similar leave with pay accrued by the person
before the commencement of such service. We do not believe that sick
leave is similar to annual leave in this context. Sick leave is
intended to provide income to an employee who must be excused from work
on account of sickness. Long-standing Comptroller General opinions have
held an employee who is already on extended leave without pay cannot be
said to be prevented from working by a period of sickness and therefore
is not entitled to use sick leave. Likewise, an employee on extended
leave without pay for military service cannot be said to be prevented
from working at his civilian job by a period of illness. Therefore, we
are proposing to delete the reference to sick leave from Sec. 353.208.
In addition, the last sentence of Sec. 353.208 states that an
employee may not use military leave for inactive duty training.
However, authority to use military leave for inactive duty training was
added by section 1106 of the National Defense Authorization Act for
Fiscal Year 2000 (Public Law 106-65, October 5, 1999). Section 1106
amended 5 U.S.C. 6323(a)(1) to permit an employee to use his or her
entitlement to 15 days of military leave for ``inactive-duty training''
(as defined in section 101 of title 37, United States Code) in addition
to active duty and active duty training. Therefore, we are proposing
the deletion of the last sentence of Sec. 353.208 consistent with this
change in law.
Official Duty Station
We are proposing to add a new 5 CFR 531.605 to specifically define
the requirements for determining an employee's official duty station
for location-based pay entitlements, including special salary rates
under 5 CFR part 530, subpart C, special pay for law enforcement
officers under 5 CFR part 531, subpart C, and locality based
comparability payments under 5 CFR part 531, subpart F. New Sec.
531.605 also addresses the official duty station determination for
employees temporarily working at another location or teleworking from
an alternative worksite. Under Sec. 531.605, the official duty station
is the location where the employee regularly performs his or her
duties. For employees who telework, the official duty station is the
employee's telework site. However, if an agency schedules an employee
to report at least once a week to the regular work site (i.e., the
location of his or her assigned organization), the official duty
station is the regular worksite. Agencies may make temporary exceptions
to this requirement in appropriate circumstances.
We are proposing to revise the definition of official duty station
at Sec. Sec. 531.301 and 531.602 to refer to the new requirements
found at revised Sec. 531.605. In addition, we propose to add the
definition of position of record to Sec. Sec. 531.301 and 531.602. The
definition of position of record builds on the language found in
current regulations in Sec. 530.303(i) and clarifies that the term
incorporates employing agency, grade, occupational series, and position
duties--all of which may be relevant in determining an employee's
coverage under a special rate schedule. In addition, we propose to
revise Sec. 530.303(i), which concerns conditions for coverage under
special salary rates, to incorporate these new definitions. Finally, we
are adding the definitions of telework and telework arrangement to
Sec. 531.602.
Time Limits for Use of Compensatory Time Off
The consolidation of payroll systems has revealed varying policies
among agencies concerning time limits for the use of compensatory time
off. As part of our effort to support consolidation through
standardization of payroll processes, we are proposing to amend the
regulations at 5 CFR 550.114 and 551.531 to provide a consistent 26-pay
period time limitation on the period during which an employee may use
compensatory time off. Under current regulations at Sec. 550.114(d),
the head of
[[Page 1069]]
an agency may require that an employee who is not covered by the Fair
Labor Standards Act must use earned compensatory time off within a
certain time period or risk forfeiture of unused compensatory time off,
unless failure to use the compensatory time off is due to an exigency
of the service beyond the employee's control. Under this discretionary
authority, many agencies have established policies to provide payment
for unused compensatory time off upon expiration of the agency's
established time limit. The proposed regulations would establish a
Governmentwide time limit of 26 pay periods for using earned
compensatory time off, but agencies would retain their discretionary
authority to provide payment for, or require forfeiture of,
compensatory time off that is not used within the 26-pay period time
limit. The proposed regulations also would require that if an employee
who is not covered by the Fair Labor Standards Act separates or goes on
extended leave without pay to perform service in one of the uniformed
services or because of an on-the-job injury with entitlement to injury
compensation under 5 U.S.C. chapter 81, he or she would be entitled to
receive pay for the overtime work at the overtime rate in effect for
the period during which compensatory time off was earned.
Under the proposed regulations at Sec. 551.531, if an employee who
is covered by the Fair Labor Standards Act fails to use compensatory
time off earned under paragraph (a) or (b) of that section within 26
pay periods, or if the employee separates before the earned
compensatory time off is used, he or she must be paid for the overtime
work at the overtime rate in effect for the period during which the
compensatory time off was earned. In addition, the proposed regulations
require that if an employee who is covered by the Fair Labor Standards
Act goes on extended leave without pay to perform service in one of the
uniformed services or because of an on-the-job injury with entitlement
to injury compensation under 5 U.S.C. chapter 81, he or she is entitled
to receive pay for the overtime work at the overtime rate in effect for
the period during which compensatory time off was earned. To aid
payroll providers in transitioning to the new time limitations, the
proposed regulations provide that employees with unused compensatory
time off to their credit under Sec. 550.114 or Sec. 551.531 as of the
effective date of the final regulations would have 26 pay periods after
the effective date of the final regulations to use such compensatory
time off. Time limitations for paying earned compensatory time off to
employees covered by the Federal Wage System will be discussed by the
Federal Prevailing Rate Advisory Committee before OPM issues final
regulations.
Compensatory Time Off for Religious Observances
We are proposing to add definitions of three terms in 5 CFR
550.1002. The term employee is used in defining coverage. The term rate
of basic pay is used in proposed Sec. 550.1008 in the context of
determining the monetary value of compensatory time off for religious
observances. The term scheduled tour of duty for leave purposes is used
in proposed Sec. 550.1001 to make clear that religious compensatory
time off is used in place of hours within the employee's tour of duty
as established for leave purposes.
Proposed Sec. 550.1003 provides that an agency may require
documentation to ensure that an employee's request for compensatory
time off for religious observances is legitimate. Also, this section
empowers agencies to require employees who are submitting requests for
this time off to make the requests sufficiently in advance to allow for
work schedule adjustments that may be required to accommodate the time
off. These provisions are consistent with the past guidance we have
given agencies concerning the administration of this program.
Proposed Sec. 550.1004 includes a new requirement that, if an
employee fails to perform compensatory overtime work within 3 pay
periods after using advanced compensatory time off, the agency should
charge the employee annual leave to eliminate the negative balance.
This is consistent with longstanding OPM policy. In addition, proposed
Sec. 550.1005 provides that agencies may allow employees to accumulate
only the number of hours of earned compensatory time off needed to
cover past absences and anticipated absences for specifically
identified religious observances. While agencies have always been able
to require employees to identify specific future religious observances
as a condition for allowing them to earn religious compensatory time
off, this new section now makes it mandatory that agencies require
employees to identify the specific future religious observances for
which the compensatory time off will be used. This requirement is
intended to prohibit the practice of ``stockpiling'' religious
compensatory time off and ensures that this benefit will be used as
intended by law.
Proposed Sec. 550.1007 includes a new sentence documenting the
fact that earned compensatory time off for religious observances under
5 U.S.C. 5550a is not considered in applying the premium pay
limitations in 5 U.S.C. 5547 and 5 CFR 550.105-550.107. (See 62 CG 590,
July 26, 1983.) In contrast, the dollar value of overtime work
resulting in earned compensatory time off under 5 U.S.C. 5543 is
considered to be premium pay in applying those limitations.
Proposed Sec. 550.1008 provides rules regarding how an agency must
deal with employees who have a negative or positive balance of earned
compensatory time off for religious observances when they separate from
an agency. Consistent with previous OPM policy, in converting earned
but unused compensatory time off to a monetary value, agencies must use
the rates of basic pay in effect at the time the religious compensatory
overtime work was performed.
If an employee has a negative balance of religious compensatory
time off hours upon separation from the agency, the employee's annual
leave balance would be reduced by the amount of the negative balance of
hours to the extent possible. If it is necessary for the agency to
determine the monetary value of the employee's negative balance, that
value would be computed using the employee's rate of basic pay in
effect at the time the religious compensatory time was taken.
Federal Wage System
OPM is proposing to revise its regulations in 5 CFR part 550,
subpart L, on lump-sum payments for accumulated and accrued annual
leave for employees who separate from Federal service (64 FR 36763,
July 8, 1999) to ensure consistency with the guidance provided in the
OPM Operating Manual on the Federal Wage System. This change ensures
that a lump-sum payment for employees who work a regular rotating
schedule involving work on both day and night shifts is calculated as
if the employee had continued to work beyond the effective date of
separation. To further ensure that the regulations are consistent with
the guidance provided in the Operating Manual, we are proposing to
amend the definition of rate of basic pay in the regulations at 5 CFR
575.103, 575.203, and 575.303 for purposes of recruitment and
relocation bonuses and retention allowances. The revised definition
will clarify that night pay and environmental differential pay under
the Federal Wage System are not
[[Page 1070]]
included in the definition of rate of basic pay for those purposes.
Weekly and Daily Scheduling of Work
In 5 CFR 610.102, we are proposing to add the definitions of
authorized agency official and unpaid meal period. In addition, we
propose to change the reference in Sec. 610.111 from ``overtime pay''
in paragraph (a)(1)(ii) to ``premium pay'' to be consistent with other
references within the section. We are also proposing to add paragraph
(e) to Sec. 610.121 to clarify that the regulations on work schedules
do not apply to employees on flexible and compressed work schedules in
those areas where the law and regulation on flexible and compressed
work schedules conflict with the requirements of this section.
In Sec. 610.123, we are proposing to change the word ``shall'' to
``should'' to indicate that while an agency official may require an
employee to travel outside duty hours, every effort should be made to
avoid doing so. In addition, we are clarifying that an agency may not
adjust the regular working hours of an employee solely for the purpose
of including time spent traveling as hours of work. We are also
proposing the addition of Sec. 610.124 to clarify that agencies have
authority to establish a mandatory unpaid break for meal periods under
5 U.S.C. 6101(a)(3)(F) and that there is no explicit entitlement to a
meal period. An agency may require or permit unpaid meal periods during
overtime hours, and the policy may be different from that for the basic
workweek. An unpaid meal period may not be counted as hours of work.
Holidays
In 5 CFR 610.201, we are proposing the addition of the definitions
of administrative workweek, agency, authorized agency official, basic
workday, basic workweek, employee, rate of basic pay, and the United
States. In addition, we are revising Sec. 610.202 to clarify when an
employee is entitled to a paid holiday. This section reflects the
requirements of Executive Order 11582 and previous OPM guidance. We are
also proposing the revision of Sec. 610.203(b) to clarify how to
determine holidays for employees, as provided by 5 U.S.C. 6103(b) and
(d) and Executive Order 11582. In addition, we are proposing to add a
note to new Sec. 610.203(c), to clarify that an employee on a
compressed work schedule is not entitled to an additional ``in-lieu-
of'' holiday if his or her duty station is closed by an administrative
action (if for example, the installation is closed due to inclement
weather) on a day that has been designated as his or her alternate
legal holiday. We are also proposing to move parts of former Sec. Sec.
610.405 and 610.406 to Sec. 610.203(d) for ease of administration. New
Sec. 610.203(d) clarifies that part-time employees on flexible or
compressed work schedules are not entitled to an ``in-lieu-of'' holiday
when the holiday falls on their regularly scheduled nonworkday.
We are also proposing to add new Sec. 610.204 in response to
numerous inquiries OPM receives from agencies and employees as to an
employee's entitlement to pay for a holiday when the employee has been
in a nonpay status before and/or after the holiday. Employees normally
are paid on a holiday on which they do not work under the assumption
that, but for the holiday, they would have worked and received pay. It
is logical to assume that employees who are in a nonpay status on the
workdays before and after a holiday would not have worked on the
holiday itself. However, it may also be assumed that employees who are
in a pay status for a portion of the day before or after the holiday
would have been in a pay status on the holiday. Therefore, we are
proposing to clarify that if an employee is in a pay status for at
least 4 hours on the day before or after the holiday, he or she is
entitled to be paid for the holiday.
Administrative Dismissals of Daily, Hourly, and Piecework Employees
We are proposing to revise the definition of regular employees in 5
CFR 610.302 to clarify that 5 CFR part 610, subpart C, does not apply
to employees who have a scheduled annual rate of pay--for example,
employees paid from the General Schedule. We are also proposing to
revise Sec. 610.303 to make clear that Federal Wage System employees
are not covered by subpart C, consistent with Public Law 92-392.
Flexible and Compressed Work Schedules
Unless otherwise stated, the additions to 5 CFR 610.401 through
610.411 codify current OPM policy and interpretation of law (5 U.S.C.
chapter 61, subchapter II) as published in the ``Handbook on
Alternative Work Schedules.'' In Sec. 610.402 we are proposing the
addition of alternative work schedule, basic work requirement,
compressed work schedule, core hours, flexible hours, flexible work
schedule, rate of basic pay, and tour of duty. We are also proposing to
add language to Sec. 610.403 to make it clear that there is no
authority that would allow an agency to combine elements from flexible
and compressed work schedules to create a ``hybrid'' schedule. In
addition, we propose to add Sec. 610.411 to stipulate that overtime
hours under a flexible work schedule must be officially ordered in
advance.
By law (5 U.S.C. 6124 and 6128) employees on a flexible work
schedule are entitled to 8 hours of paid absence on a holiday, while
employees on a compressed schedule are entitled to the number of hours
of paid absence equal to the number of hours they are scheduled to
work. We are proposing to revise current Sec. 610.405, which will be
renumbered as Sec. 610.412, to add language to stipulate that full-
time employees under a flexible work schedule are entitled to 8 hours
of holiday pay and that part-time employees are entitled to holiday pay
for the number of hours regularly scheduled for that day, not to exceed
8 hours. In addition, we are proposing to add Sec. 610.413 to clarify
that full-time employees on a flexible work schedule who perform work
on a holiday are entitled to up to 8 hours of holiday premium pay,
their rate of basic pay for nonovertime hours within the basic work
requirement, and, if applicable, overtime pay for hours in excess of
the basic work requirement that are officially ordered and approved. In
addition, this section also explains that part-time employees who
perform work on a holiday are entitled to holiday premium pay for hours
of work performed during their basic work requirement on a holiday, not
to exceed 8 hours. Finally, this section clarifies that part-time
employees scheduled to work on a day designated as an ``in lieu of''
holiday for full-time employees are not entitled to holiday premium
pay.
We are proposing the addition of Sec. 610.414 to clarify the
treatment of credit hours earned under a flexible work schedule. We
propose to make clear that full-time employees may carry forward up to
24 credit hours from one pay period to the next and part-time employees
may carry forward a proportional amount. Paragraph (a) incorporates
language currently found in Sec. 610.408, which prohibits members of
the Senior Executive Service from earning credit hours.
We are proposing to add Sec. 610.421 to clarify that, for full-
time employees who are not covered by the Fair Labor Standards Act
(FLSA) (FLSA-exempt employees) and have compressed work schedules,
overtime hours are those officially ordered and approved in excess of
the compressed schedule for the day. For part-time FLSA-exempt
employees, overtime hours are those officially ordered and approved but
must be in excess of 8 hours in a day or 40 hours in a week. For full-
time
[[Page 1071]]
employees who are covered by the FLSA (FLSA-non-exempt employees),
overtime hours are those in excess of the compressed work schedule that
are officially ordered and approved or ``suffered or permitted.'' For
part-time FLSA-nonexempt employees, overtime hours are those in excess
of the compressed schedule for the day that are officially ordered and
approved but must be in excess of 8 hours in a day or 40 hours in a
week. Full-time and part-time employees may not be credited with FLSA
overtime hours on the basis of periods of duty in excess of 8 hours in
a day when the hours are not hours of work for purposes of computing
overtime pay under 5 CFR 410.402, 5 CFR Parts 550 or 532 and 5 U.S.C.
5544 (e.g., suffered or permitted overtime work). Suffered or permitted
overtime work is always credited towards an employee's weekly FLSA
overtime standard. The daily overtime standard applies only to hours of
work that would be considered overtime hours under title 5, United
States Code, for General Schedule or prevailing rate (wage) employees.
Leave and Overtime Hours
We have been asked whether an employee whose tour of duty includes
regularly scheduled overtime work may earn or be charged leave during
those overtime hours. Leave cannot be earned or charged during overtime
hours, except as provided in 5 CFR 630.204 for employees on uncommon
tours of duty. We propose to revise Sec. Sec. 630.202 and 630.205 to
clarify that both full-time and part-time employees earn and use leave
based on their regularly scheduled administrative workweek, exclusive
of overtime hours. In addition, for clarity and consistency, the term
``regularly scheduled administrative workweek'' and ``intermittent work
schedule'' are defined in Sec. 630.201.
Charging Leave for Part-Time Employees
We have been asked whether part-time employees should be charged
leave for additional hours outside their ``normal'' work schedule if
they are unable to work the additional hours. We propose to revise
Sec. 630.205 to make clear that a part-time employee earns leave based
on the number of nonovertime hours (i.e., hours less than 8 hours in a
day and 40 hours in a week) in a pay status, without regard to the
number of hours in his or her regularly scheduled workweek. Thus, a
part-time employee would be charged leave for any nonovertime hours the
employee is unable to work during the regularly scheduled workweek, as
long as the employee's work schedule is established in advance of the
pay period. However, a part-time employee would not be charged leave
for hours not worked that were scheduled in addition to the employee's
regularly scheduled administrative workweek after the beginning of the
pay period. For example, if a part-time employee who is scheduled to
work 62 hours in a pay period is required to work a total of 70 hours,
he or she would earn leave based on the 70-hour total. However, if the
employee is not able to work more than 62 hours, he or she could not be
charged leave for the excess 8 hours because it was not scheduled in
advance of the pay period.
A part-time employee who has hours in a pay status that are fewer
than the number of hours necessary to accrue 1 hour of leave is
entitled to have those hours in a pay status carried forward into the
next pay period and credited toward leave accrual. For example, an
employee who is entitled to accrue 1 hour of leave for every 13 hours
in a pay status and who works 56 hours is credited with 4 hours of
leave, and the remaining 4 hours in a pay status must be carried
forward. Therefore, we are proposing to add Sec. 630.205(d) to clarify
that, for part-time employees, hours in a pay status that are
insufficient to accrue 1 hour of leave must be carried forward into the
next pay period and credited toward leave accrual.
In addition, we are adding a new Sec. 630.301 to clarify that, for
both part-time and full-time employees whose duty station is the United
States, the maximum amount of annual leave that may be carried over
from one leave year into the next is 240 hours (30 days). This
limitation is found in law at 5 U.S.C. 6304(a) and is being restated in
regulation for clarification. The maximum amount of annual leave that
may be carried over by an employee who transfers from an overseas
assignment is prescribed in 630.302(c).
Leave for Employees on Uncommon Tours of Duty
New 5 CFR 630.204 would give agencies the authority to require that
employees with uncommon tours of duty accrue and use leave based on
that uncommon tour. We propose to revise paragraphs (a) and (b) of
Sec. 630.204 to clarify that for employees who accrue and use leave on
the basis of an uncommon tour of duty, the ceiling on the amount of
annual leave that may be carried over into the next leave year under 5
U.S.C. 6304(a), (b), or (c), or the amount of annual or sick leave that
may be advanced under 5 U.S.C. 6302(d) or 6307(d), must be adjusted
along with accrual rates and leave balances to reflect the uncommon
tour of duty. For example, when an uncommon tour of duty is established
for a firefighter with a 144-hour biweekly tour of duty, the annual
leave ceiling for that firefighter must be adjusted to 432 hours (144/
80 x 240 hours).
In addition, consistent with the ``directly proportional rule''
applied in Sec. 630.204, the amount of sick leave that may be advanced
to an employee with an uncommon tour of duty must be calculated using
the ratio of the employee's biweekly hours to an 80-hour pay period.
For example, for a firefighter with a biweekly tour of duty of 144
hours, the maximum amount of sick leave that may be advanced is 432
hours (144/80 x 240). The amount of annual leave that may be advanced
is equal to the amount of annual leave such firefighters would earn
during the remainder of the current leave year.
The proposed revision of Sec. 630.204 also provides that when an
employee is converted to a different tour of duty, the employee's leave
accrual rates, leave balances, advanced leave, and leave ceiling must
be converted simultaneously. Lastly, we propose to revise Sec. 630.905
(currently found at Sec. 630.906(c)) to permit an agency that has
employees who earn and use annual leave on the basis of an uncommon
tour of duty to establish procedures for administering the transfer of
annual leave to or from such employee under both the leave transfer and
leave bank programs established under 5 U.S.C. chapter 63, subchapters
III and IV.
90-Day Appointment
Agencies have requested clarification from OPM on the annual leave
accrual status of an employee who has been appointed for a term limited
to less than 90 days. Section 6303(b) of title 5, United States Code,
limits the annual leave accrual of employees whose current appointment
is limited to less than 90 calendar days. However, employees may accrue
annual leave if they receive consecutive appointments, all less than 90
days, that cumulatively total more than 90 calendar days of employment
without a break in service. We are proposing to add a new 5 CFR 630.206
to clarify that an employee who receives an initial appointment limited
to less than 90 days is not eligible to accrue annual leave. However,
if the appointment is extended or the employee receives one or more
successive appointments without a break in service, the employee
becomes eligible to accrue annual leave on the 90th day of employment,
and in addition, the employee is entitled to the
[[Page 1072]]
annual leave that would have accrued during the initial 90-day period.
Employees whose appointments are not limited to less than 90 days are
not subject to this provision, nor are employees who are serving in a
less-than-90-day appointment to which they transferred, without a break
in service, from a leave-earning position. Also, the limits on leave
accrual for an employee who has been appointed to a less-than-90-day
appointment applies only to annual leave. Such employees earn 4 hours
of sick leave in each biweekly pay period of the appointment.
Fractional Pay Periods and Reduction in Leave Credits
We are proposing to revise 5 CFR 630.207 to provide that when an
employee's service is interrupted by a non-leave-earning period, such
as a period of intermittent employment or a period during which an
employee receives benefits from the Department of Labor's Office of
Workers' Compensation Programs (OWCP), he or she earns leave on a
prorated basis for that portion of each pay period during which he or
she is eligible to earn leave as long as there is no break in Federal
service. An employee who moves back and forth between part-time and
intermittent employment has periods when he or she is eligible to earn
leave and periods when he or she is not. This change in eligibility to
earn leave also occurs when an employee is carried in a leave without
pay status while receiving disability compensation (i.e., workers'
compensation) and is not eligible to earn leave under the rules
governing dual compensation. Agencies must credit a prorated amount of
annual and sick leave to employees who become ineligible to accrue
leave in the middle of a pay period.
However, employees who begin an extended period of leave without
pay in the middle of a pay period (e.g., extended leave for military
service or under the Family and Medical Leave Act) are entitled to
accrue leave in that pay period. By law, employees accrue leave when
they are employed for a full biweekly pay period. Proposed Sec.
630.202 states that a full-time employee earns leave during each full
biweekly pay period while in a pay status or in a combination of a pay
status and a nonpay status. The effect of leave without pay on the
accrual of annual and sick leave is addressed in new Sec. 630.208,
which requires reduction in leave credits for excess hours in a nonpay
status. A full-time employee who is eligible to earn leave under Sec.
630.202 may, through the intermittent or extended use of leave without
pay, accumulate a number of hours in a nonpay status. When this number
equals the number of hours in the pay period, the employee forfeits the
leave that would have been earned in that pay period. For example,
employee A earns 8 hours of annual leave in each full biweekly pay
period. He or she is intermittently on leave without pay during the
months of February through the last pay period in September, but has
continued during this period to earn 8 hours of annual leave and 4
hours of sick leave each pay period. In the last pay period in
September, the employee's leave without pay balance reaches 80 hours
(the number of hours in the pay period), and he or she must forfeit the
hours of annual and sick leave he or she would have accrued. In effect,
the employee earns no leave in the last pay period in September. (Any
hours in a nonpay status that are not offset by the forfeiture of
annual and sick leave will be carried forward to the next pay period.)
The employee continues to earn annual and sick leave at his or her
regular rate until the leave without pay total again reaches 80 hours
(the number of hours in the pay period). If an employee who earns 6
hours of annual leave in a pay period reaches 80 hours of leave without
pay during the last full biweekly pay period of the year (the pay
period during which he or she would receive an additional 4 hours), the
employee forfeits the full 10 hours.
Employee B is carried on the rolls in a leave without pay status
while receiving disability compensation. The rules governing dual
compensation state that an employee who is receiving disability
compensation is not entitled to earn leave. Since employee B is in a
``non-leave earning period,'' no reduction in leave credits is
required. Employee B may earn leave on that portion of a pay period
during which he or she is eligible to earn leave under Sec. 630.207.
Employee C is on continuous leave without pay and is actually still
earning leave at his or her normal rate. However, the employee is
simultaneously forfeiting the leave he or she would have earned each
time he or she reaches a number of hours of leave without pay that is
equal to twice the number of hours in the regularly scheduled workweek.
Since the employee's leave without pay reaches 80 hours of leave
without pay each pay period, he or she earns no annual or sick leave.
If, at the end of the leave year, an employee has an accumulation
of hours of leave without pay that is less than the number of hours in
the pay period, the agency must drop those hours. An employee may have
one or more breaks in service in a year, during which he or she is
ineligible to accrue leave (e.g., as a result of the employee's
intermittent status or receipt of workers' compensation). However, when
counting hours of leave without pay, an agency may count only those
hours in a nonpay status that occurred during those periods in which
the employee was eligible to accrue leave, including fractional pay
periods under Sec. 630.207.
Minimum Charge for Leave
Section 630.205 of title 5, Code of Federal Regulations, currently
states that the minimum charge to an employee's leave account is 1
hour, unless an agency establishes a minimum charge of less than 1
hour, or establishes a different minimum charge through negotiations.
As a result, agencies have established policies that have resulted in
leave being charged in a variety of increments ranging from 1 minute to
1 hour. OPM, as the managing partner of e-Payroll consolidation and
standardization is proposing to establish a uniform, Governmentwide
policy on the minimum charge to leave. In Sec. 630.209, we are
proposing to provide two alternatives for charging leave. Agencies may
charge leave in increments of one-tenth of an hour (6 minutes) or one-
quarter of an hour (15 minutes). Limiting the charge to leave to just
two methods will simplify time and attendance recording and further our
goal to standardize payroll processing. In addition, this change will
further the work scheduling flexibilities available to agencies and
employees. The final issuance of the new rules for charging leave will
not invalidate the provisions of any existing collective bargaining
agreement (CBA). If the leave provisions of a CBA were proper under the
regulations existing at the time they were negotiated, but conflict
with the proposed changes, the existing provisions will stand for the
duration of the agreement. Upon expiration of the CBA, no provision
that conflicts with the new regulations may be renewed.
We are also proposing to modify the regulation concerning the
transfer of leave from one agency to another at Sec. 630.501, to
standardize and simplify that procedure. New Sec. 630.501 states that
when an employee transfers to a position covered by a different leave
accounting system, his or her leave must be converted by the gaining
agency into the minimum increment that can be accommodated.
Advancing Leave
In response to requests for clarification on the amount of annual
leave that may be advanced to an
[[Page 1073]]
employee, we are proposing to add 5 CFR 630.210 to provide that an
employee (full-time or part-time) may be advanced, at the beginning of
the leave year or at any time thereafter, only the amount of annual
leave that he or she is expected to accrue during the remainder of the
leave year.
A full-time employee may be advanced up to 30 days (240 hours) of
sick leave for serious disability or ailment or for purposes related to
the adoption of a child. Section 6302(c) of title 5, United States
Code, establishes that a part-time employee is entitled to leave
benefits under section 6307 (sick leave) on a pro rata basis.
Therefore, Sec. 630.210(b) would also provide that the maximum amount
of sick leave that may be advanced to a part-time employee or an
employee on an uncommon tour of duty is prorated according to the
number of hours in the employee's regularly scheduled administrative
workweek. For example, since a full-time employee is limited to a
maximum of 240 hours (6 weeks x 40 hours = 240) of advanced sick leave,
an employee who has a regularly scheduled administrative workweek of 24
hours may be advanced up to 144 hours (6 weeks x 24 hours = 144) of
sick leave for serious disability or ailment (including childbirth and
its recuperation) or for purposes relating to the adoption of a child.
We have been asked to clarify how an employee may repay advanced
leave. We propose to add paragraph (d) to Sec. 630.210 to clarify that
an employee may liquidate a debt for advanced leave through the
retroactive substitution of paid leave or through a cash payment that
equals the amount paid to the employee for the period of advanced
leave. In addition, we are proposing to add a definition of advanced
leave to Sec. 630.201 to clarify that advance of annual or sick leave
is left to the discretion of the employing agency.
Leave for Bone-Marrow and Organ Donation
Section 629 of Public Law 103-329, the Treasury, Postal Service and
General Government Appropriations Act for fiscal year 1995, added
section 6327 to title 5, United States Code, to provide employees with
an entitlement of up to 7 days of paid leave each calendar year (in
addition to annual and sick leave) to serve as a bone-marrow or organ
donor. The law provides that an employee is entitled to use this leave
without loss of or reduction in pay, leave to which otherwise entitled,
credit for time or service, or performance or efficiency rating. Public
Law 106-56, the ``Organ Donor Leave Act,'' amended section 6327 to
increase the amount of paid time off available for Federal employees to
serve as organ donors from 7 days to 30 days each calendar year. The
amount of leave available for bone-marrow donation remains at 7 days
each calendar year under 5 U.S.C. 6327.
We have been asked how these ``days'' of leave should be charged
for a full-time employee who works other than 8-hour days (e.g., an
employee on a flexible or compressed work schedule) or for a part-time
employee or an employee who has an uncommon tour of duty. We are
proposing the addition of 5 CFR 630.215 to make clear that a full-time
(80-hour per pay period) employee is entitled to 56 hours (7 days) of
leave each calendar year for bone-marrow donation purposes and 240
hours (30 days) of leave each calendar year to serve as an organ donor.
These amounts are prorated for part-time employees and employees on
uncommon tours of duty. In addition, we have been asked whether bone-
marrow or organ donation leave is appropriate for absences related to
compatibility testing that does not ultimately result in the employee's
actual donation. The legislative history of Public Law 103-329 makes
clear that this legislation was enacted in an effort to encourage
Federal employees to be tested for and participate in bone-marrow and
organ donation programs. It was hoped that giving time off for testing
would increase the pool of possible donors and the chances of finding a
match for someone in need of a transplant. Therefore, proposed Sec.
630.215 states that the employee is entitled to this leave for
compatibility testing purposes even if he or she ultimately does not
become a bone-marrow or organ donor.
We are also proposing to add a final paragraph establishing OPM's
authority to make future determinations that other medical procedures
are sufficiently similar to bone-marrow or organ donation to permit the
use of bone-marrow or organ donor leave for those purposes. For
example, we believe that peripheral blood stem cell donation is
sufficiently similar to bone-marrow donation in the commitment required
from an individual in the time needed for testing and actual donation
to warrant granting of bone-marrow donor leave. We believe that similar
medical procedures may be developed that will allow more Federal
employees to become part of the donation process and that it is within
the spirit of the legislation creating this program to grant OPM the
flexibility to approve the future use of bone-marrow or organ donor
leave for such donations.
Restoration of Annual Leave
Section 6304(d), of title 5, United States Code, provides that
annual leave in excess of the maximum limitations that is forfeited as
a result of exigencies of the public business or sickness of the
employee must have been scheduled in advance to be eligible for
restoration. Current 5 CFR 630.308(a) provides that such annual leave
must have been scheduled in writing before the start of the third
biweekly pay period prior to the end of the leave year. In the interest
of clarity and simplicity, OPM is proposing to provide that such annual
leave may be considered for restoration if the leave is scheduled in
writing before November 15 of each leave year. (See new Sec.
630.304(a).) Specifying a single, uniform date greatly simplifies the
process for both employees and agencies.
Accrual and Use of Sick Leave
We are proposing to add 5 CFR 630.205 to clarify the accrual rates
of sick leave for part-time employees. In addition, we are proposing to
modify Sec. 630.401 to remove the requirement that an employee must
maintain 80 hours of sick leave in his or her sick leave account in
order to use more than 40 hours of his or her sick leave for family
care or bereavement purposes. Removing the 80-hour sick leave balance
requirement greatly simplifies the administration of this policy and
eliminates the need for manual recordkeeping of employee sick leave
balances. Employees are responsible for managing their use of sick
leave to ensure that they retain enough sick leave for personal needs.
An employee would continue to be limited to 13 days of sick leave each
leave year for general family care and bereavement purposes and a
maximum of 12 weeks of sick leave each leave year to care for a family
member with a serious health condition. In addition, removing the 80-
hour sick leave balance requirement would permit agencies to advance up
to 30 days of sick leave to an employee so that he or she may care for
a family member with a ``serious disability or ailment.''
We are also proposing to modify Sec. 630.403(b) to establish a
Governmentwide policy on the time limit for the receipt of medical
documentation for an employee's use of sick leave. The proposed
regulation states that an employee must provide the written medical
certification required by the agency for use of sick leave under Sec.
630.401, signed by the health care provider, no later than 15 calendar
days after the date his or her agency requests such medical
[[Page 1074]]
certification. This will ensure that all employees are treated
equitably and aid in establishing standardized Governmentwide pay and
leave policies. We have also defined ``healthcare provider'' at Sec.
630.201 as well as 630.903 (Voluntary Leave Transfer Program) and
630.1003 (Voluntary Leave Ban Program), using the definition currently
used in the Family and Medical Leave regulations at Sec. 630.1204, so
that the term is used consistently throughout part 630.
Recredit of Leave
OPM has received inquiries from agencies and employees concerning
the transfer of annual and sick leave balances when an employee
transfers from a position in the U.S. Postal Service to a position
covered by chapter 63 of title 5, United States Code. We propose to add
5 CFR 630.502(b) and 630.503(d) to state that an individual who
transfers from the U.S. Postal Service to a position covered by chapter
63 is entitled to have his or her annual and sick leave transferred to
the new agency. This is consistent with section 1005(f) of Public Law
91-375, August 12, 1970, which permits the continuation of leave
benefits provided in chapter 63 to Postal Service employees unless
specifically changed by the U.S. Postal Service.
The maximum amount of annual leave that may be transferred from the
U.S. Postal Service to the new agency may not exceed the maximum annual
leave limitation allowed for the employee's former position in the U.S.
Postal Service. If the amount of annual leave transferred exceeds the
maximum annual leave accumulation limitations in 5 U.S.C. 6304(a), (b),
or (f), as applicable, the agency must establish a personal leave
ceiling for the employee, subject to reduction in the same manner as
provided in 5 U.S.C. 6304(c) until the employee's accumulated annual
leave is equivalent to or less than the maximum limitation for the new
position.
Under 5 U.S.C. 6301, employees of the Congress are not covered by
the Federal leave system established under 5 U.S.C. chapter 63.
Therefore, leave earned as an employee of the Congress cannot be
transferred to a position in an executive agency. We are proposing to
add paragraph (c) to Sec. 630.502 and paragraph (e) to Sec. 630.503
to clarify that employees of the House or Senate, or both, may not have
annual leave or sick leave transferred to an executive branch agency.
Application To Become a Leave Recipient Under the Leave Transfer/Leave
Bank Programs
Agencies have asked whether they may establish a time limit for
accepting an application to become a leave recipient from an employee
who was affected by a medical emergency that has since terminated
(e.g., for the birth of a child that occurred in a previous year). We
are proposing to revise 5 CFR 630.906(a) and 630.1010(b) to clarify
that agencies may designate a time period during which employees must
submit an application to become a leave recipient under the voluntary
leave transfer or leave bank programs if the employee was unable to
submit the application before the medical emergency terminated.
(Agencies and employees may download forms for donating or requesting
annual leave from OPM's Web site at http://www.opm.gov/FORMS/html/opm.asp.
)
Agencies have also questioned whether they must allow an employee
to use transferred annual leave indefinitely when there is a need to
fill the employee's position and there is little or no likelihood that
the employee will return to work. Agencies have discretion to approve
or disapprove an employee's requests to use donated annual leave and
the use of donated leave should be treated in the same manner as the
use of accrued annual leave. Participation in the leave transfer
program was not meant to be a substitute for disability retirement. If
there is little likelihood that an employee will be able to return to
work, either because of his or her own medical emergency or that of a
family member, we do not believe the agency should be obligated to
carry the employee in a transferred leave status indefinitely. In
addition, a decision by the United States Court of Appeals, Federal
Circuit, affirmed an agency's authority to deny the use of donated
leave when there is little likelihood that the employee will return to
Federal service. (See F. Paul Jones v. Department of Transportation,
295 F. 3d 1298 (Fed.Cir. 2002).) Therefore, we are proposing to add new
Sec. Sec. 630.914(f) and 630.1012(f) to provide that an agency may
choose to establish a maximum period of time, not less than 6 months,
during which an employee may remain a qualified leave recipient for any
particular medical emergency. When the applicant is approved for leave
transfer, the agency is required to notify him or her in writing of the
maximum period of time during which he or she may continue to be an
approved leave recipient, if the agency has chosen to establish such a
time limit.
Definition of a Medical Emergency Under the Leave Transfer/Leave Bank
Programs
In response to agency requests for assistance in recognizing what
constitutes a medical emergency under the voluntary leave transfer and
leave bank programs, we are proposing to clarify the definition of
medical emergency in 5 CFR 630.903. We are proposing to define a
medical emergency as a serious health condition as that term is defined
in Sec. 630.1204 (Family and Medical Leave) that affects an employee
or a family member of such employee and is likely to require the
employee's absence from duty for a prolonged period of time and to
result in a substantial loss of income to the employee because of the
unavailability of paid leave. We are also adding the definition of
transferred leave to Sec. 630.903.
Annual Leave That May Be Donated
We have received questions from agencies on whether employees may
donate restored annual leave or annual leave that has been advanced
under the voluntary leave transfer and leave bank programs. We are
proposing to clarify in new 5 CFR 630.910(a) and 630.1008(a) that an
employee may donate his or her accrued annual leave, including annual
leave restored under 5 U.S.C. 6304(d) and 5595(b)(1)(B)(i) (back pay),
but excluding annual leave advanced to an employee under 5 U.S.C.
6302(d).
An agency also asked whether a Presidential appointee whose annual
leave is being held in abeyance under 5 U.S.C. 5551(b) may donate that
leave to another employee. We are proposing to add Sec. 630.910(b) to
permit an employee to donate the leave held in abeyance as long as the
leave was earned under 5 U.S.C. chapter 63. In addition, we are
proposing to limit in new Sec. 630.912(c) the amount of annual leave a
leave donor who is no longer covered by chapter 63 may donate to no
more than one-half the amount of annual leave he or she was entitled to
accrue in the last leave year the donor was covered by chapter 63. An
agency may waive this limitation in the same manner that current
limitations on donated leave may be waived under the voluntary leave
transfer and leave bank programs.
Use of Donated Annual Leave
Agencies have questioned whether a leave recipient may use donated
annual leave for a purpose other than that for which the leave was
donated--e.g., to care for a different family member. We
[[Page 1075]]
have also received questions about whether an employee on leave
restriction continues to be subject to the conditions of the
restriction notice when using donated annual leave.
We have added language to proposed Sec. Sec. 630.914 and 630.1012
to clarify that donated leave may be used only for the particular
medical emergency for which it is donated. In addition, these sections
would make it clear that an employee on an official notice of leave
restriction continues to be subject to the terms and conditions of the
leave restriction notice when requesting and using donated leave.
Accrual of Annual and Sick Leave While Using Donated Leave
Some agency officials have expressed confusion regarding the
statutory requirement in 5 U.S.C. 6337 to establish separate ``set-
aside'' accounts for leave recipients using donated leave under the
voluntary leave transfer and leave bank programs. Section 6337(b)(1)(A)
and (B) provide that the maximum amount of annual or sick leave which
may be accrued by an employee while using donated leave ``in connection
with any particular emergency'' may not exceed 5 days (i.e., 40 hours
of annual leave and 40 hours of sick leave). Therefore, we propose to
revise 5 CFR 630.916 to clarify that ``set-aside'' leave accrual is
limited to 40 hours of annual leave and 40 hours of sick leave for each
medical emergency. If a leave recipient gains the use of leave in his
or her set-aside accounts, as provided in Sec. 630.917, before he or
she reaches the 40-hour limit, the recipient, in the event of receiving
more donated leave, continues to accrue leave in the set-aside account
until the total amount accrued during the particular medical emergency
has reached 40 hours of annual leave and 40 hours of sick leave. Once
the employee uses all of the 40 hours of annual leave and 40 hours of
sick leave allowable in the set-aside account, the set-aside account is
terminated and no more leave may be accrued by the employee while using
donated leave for that particular emergency.
In addition, we propose to revise Sec. 630.918 to clarify that
when a leave recipient's employing agency advances leave at the
beginning of the leave year and 40 hours of that advanced leave are
placed in a set-aside account, the employee may accrue leave while
using donated leave only to the extent necessary to liquidate the debt
incurred by placing that advanced leave in the set-aside account.
The rules concerning set-aside accounts under the leave bank
program are identical to those for the leave transfer program, and the
maximum accruals allowed under 5 U.S.C. 6337 apply to the total leave
accrued under both the leave transfer and leave bank programs.
Therefore, we propose to remove the instructions for set-aside accounts
under the leave bank program at current Sec. 630.1008. Instead, new
Sec. 630.1013 refers the reader to the applicable sections of the
leave transfer regulations at Sec. Sec. 630.915 through 630.919.
Inclusion of ``Excepted Agencies'' in the Leave Transfer Program
New section 322 of Public Law 107-307 (November 27, 2002) revised
5. U.S.C. 6339 to add a new paragraph (c)(1) which provides that the
head of an excepted agency may establish a program under which an
individual employed in or under an excepted agency may participate in a
leave transfer program. Under the provisions of section 322, a
previously excluded agency may now establish a voluntary leave transfer
program. The new provisions also provide previously excluded agencies
with the authority to establish procedures for administering a leave
transfer program, consistent with OPM's regulations governing the
administration of the Voluntary Leave Transfer Program.
We have added Sec. 630.922(a) to make it clear that the head of an
excepted agency may establish a program under which an individual
employed in or under such excepted agency may participate in the leave
transfer program under subpart I, including provisions permitting the
transfer of annual leave accrued or accumulated by such employee to, or
permitting such employee to receive transferred leave from, an employee
of any other agency (including another excepted agency). In addition,
we have added Sec. 630.922(b) to clarify that an excepted agency's
policy may include provisions that protect the anonymity of its
employees. Other agencies (including other excepted agencies that
choose to participate in the leave transfer program) must accept leave
from such an excepted agency, regardless of whether the donating
employee is identified.
Records and Reports
We are proposing to delete the reporting requirement at 5 CFR
610.122(c) concerning variations in work schedules for educational
purposes. In addition, we are proposing to delete the reporting
requirement currently in Sec. 630.211(d). The responsibility to make
decisions on excluding certain Presidential appointees from entitlement
to annual and sick leave consistent with requirements and criteria in
Sec. 630.211 has been delegated to the heads of agencies, and we no
longer require reports on these exclusions. The agency must continue to
maintain records of exclusions or revocations of exclusions.
We are proposing to remove the reporting requirements in current
Sec. 630.408 and to reduce the amount of information that agencies
must maintain on the use of sick leave for family care purposes.
Agencies would be required to maintain records sufficient to ensure
that employees do not exceed their entitlement to sick leave for family
care purposes.
We are proposing to delete the reporting requirements currently in
Sec. Sec. 630.913 and 630.1012 on the voluntary leave transfer and
leave bank programs. Agencies would be required to maintain sufficient
records to permit the transfer of donated leave when a leave recipient
transfers to a new agency.
We are also proposing to remove the reporting requirements for
family and medical leave currently in Sec. 630.1211. Agencies would be
required to maintain sufficient records to ensure that employees do not
exceed their entitlement to family and medical leave.
Miscellaneous
We are proposing to revise Sec. 630.101 to affirm OPM's authority
to administer Governmentwide leave policies and procedures. We are also
proposing to delete Sec. 630.407(b) concerning the holiday premium pay
entitlement of an employee on a compressed work schedule. This section
was numbered in error and the information is properly found in current
Sec. 610.407(b).
We are also proposing to delete Sec. 630.203 which gives
instructions for earning leave in other than biweekly pay periods,
since we have been assured by the Government's payroll providers that
there are no longer any employees to which such procedures would apply.
We are proposing to delete the procedures currently in Sec. 630.409
for the retroactive substitution of sick leave for annual leave used
for adoption related purposes between September 1991 and September
1994. The time limit for retroactive substitution under this section
expired on September 30, 1996, making this information obsolete.
We are also proposing to delete current Sec. Sec. 630.301(d)(1),
(d)(2), and (e) concerning the treatment of members of the Senior
Executive Service (SES) in 1994 when SES leave ceilings were first
established. Similarly, we are proposing to delete Sec. 630.309, which
dealt with the
[[Page 1076]]
treatment of Y2K essential personnel during the leave years 1999 and
2000.
We are also proposing to delete subpart M of part 630, the
Reservist Leave Bank, since these regulations now are obsolete. These
regulations implemented section 331 of Public Law 102-25, the
Department of Defense Desert Storm Supplemental Authorization and
Military Personnel Benefits Act for Fiscal Year 1991, April 6, 1991.
The regulations established a leave bank to provide time off for
Federal civilian employees returning from active military duty in
Operation Desert Storm and Operation Desert Shield in 1991. OPM
collected annual leave donations and divided the total amount
contributed among all eligible returnees in 1991.
In addition, we are proposing to delete the prohibitions against
coercion in the voluntary leave transfer and leave bank programs
currently in Sec. Sec. 630.912 and 630.1011, since these sections are
restatements of the law at 5 U.S.C. 6338 and 6370. Similarly, we
propose to delete paragraphs (c) and (d) currently in Sec. 630.1208
concerning employee protections under the Family and Medical Leave Act,
since these also are restatements of the law at 5 U.S.C. 6384(c).
Finally, we propose to revise the procedures in current Sec. 630.1108
for recrediting unused annual leave donated to the donors under the
emergency leave transfer program. New Sec. 630.1120 would eliminate
the requirement to return unused leave to the donors if the number of
hours of unused leave is less than the number of eligible donors. This
provision would simplify the administration of the emergency leave
transfer program and make its administration consistent with the
procedures for the voluntary leave transfer program at Sec. 630.921.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities because they
would apply only to Federal agencies and employees.
List of Subjects in 5 CFR Parts 353, 530, 531, 550, 551, 575, 610,
and 630
Administrative practice and procedure, Claims, Government
employees, Holidays, Law enforcement officers, Reporting and
recordkeeping requirements, Wages.
U.S. Office of Personnel Management.
Kay Coles James,
Director.
Accordingly, OPM is proposing to amend 5 CFR parts 353, 530, 531,
550, 575, 610, and 630 to read as follows:
PART 353--RESTORATION TO DUTY FROM UNIFORMED SERVICE OR COMPENSABLE
INJURY
1. The authority citation for part 353 continues to read as
follows:
Authority: 38 U.S.C. 4301 et seq., and 5 U.S.C. 8151.
Subpart B--Uniformed Service
2. Section 353.208 is revised to read as follows:
Sec. 353.208 Use of paid leave during uniformed service.
An employee performing service with the uniformed services must be
permitted, upon request, to use any accrued annual leave or military
leave during such service.
PART 530--PAY RATES AND SYSTEMS (GENERAL)
3. The authority citation for part 530 continues to read as
follows:
Authority: 5 U.S.C. 5305 and 5307; E.O. 12748, 56 FR 4521, 3
CFR, 1991 Comp., p. 316; Subpart B also issued under secs. 302(c)
and 404(c) of the Federal Employees Pay Comparability Act of 1990
(Pub. L. 101-509), 104 Stat. 1462 and 1466, respectively; Subpart C
also issued under sec. 4 of the Performance Management and
Recognition System Termination Act of 1993 (Pub. L. 103-89), 107
Stat. 981.
Subpart C--Special Salary Rate Schedules for Recruitment and
Retention
4. In Sec. 530.303, paragraph (i) is revised to read as follows:
Sec. 530.303 Establishing and adjusting special salary rate
schedules.
* * * * *
(i) The determination as to whether an employee is covered by a
special salary rate schedule must be based on the employee's position
of record and the official duty station for that position as those
terms are defined in 5 CFR 531.602.
PART 531--PAY UNDER THE GENERAL SCHEDULE
5. The authority citation for part 531 continues to read as
follows:
Authority: 5 U.S.C. 5115, 5307, and 5338; sec. 4 of Pub. L. 103-
89, 107 Stat. 981; and E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp., p.
316.
Subpart B also issued under 5 U.S.C. 5303(g), 5333, 5334(a), and
7701(b)(2);
Subpart C also issued under 5 U.S.C. 5304, 5305, and 5553;
sections 302 and 404 of the Federal Employees Pay Comparability Act
(FEPCA), Pub. L. 101-509, 104 Stat. 1462 and 1466; and section 3(7)
of Pub. L. 102-378, 106 Stat. 1356;
Subpart D also issued under 5 U.S.C. 5335(g) and 7701(b)(2);
Subpart E also issued under 5 U.S.C. 5336;
Subpart F also issued under 5 U.S.C. 5304, 5305(g)(1), and 5553;
and E.O. 12883, 58 FR 63281, 3 CFR, 1993 Comp., p. 682; and E.O.
13106, 63 FR 68151; 3 CFR 1998 Comp., p. 224;
Subpart G also issued under 5 U.S.C. 5304, 5305, and 5553;
section 302 of FEPCA, Pub. L. 101-509, 104 Stat. 1462; and E.O.
12786, 56 FR 67453, 3 CFR, 1991 Comp., p. 376.
Subpart C--Special Pay Adjustments for Law Enforcement Officers
6. In Sec. 531.301 the definition of position of record is added
in alphabetical order, and the definition of official duty station is
revised to read as follows:
Sec. 531.301 Definitions.
* * * * *
Official duty station means the duty station for the law
enforcement officer's position of record where the officer performs his
or her duties as determined by the requirements in Sec. 531.605.
Position of record has the same meaning given that term in Sec.
531.602.
* * * * *
Subpart F--Locality-Based Comparability Payments
7. In Sec. 531.602 the definition of official duty station is
revised, and the definitions of position of record, telework, and
telework arrangement are added in alphabetical order to read as
follows:
Sec. 531.602 Definitions.
In this subpart:
* * * * *
Official duty station means the location of the employee's position
of record where he or she performs more of his or her duties as
determined by the requirements in Sec. 531.605.
Position of record means an employee's official position (defined
by employing agency, grade, occupational series, and position duties)
as documented on the employee's most recent notification of personnel
action and the current position description. This excludes any position
to which an employee is temporarily detailed without a change in the
official position. For an employee whose change in his or her official
position is followed within 3 workdays by a reduction in force
[[Page 1077]]
resulting in the employee's separation before he or she is required to
report for duty in the new position, the position of record in effect
immediately before the position change is deemed to remain the position
of record through the date of separation.
* * * * *
Telework means work performed by an employee at an alternative work
site instead of the location of the employee's assigned organization.
Alternative work sites may include the employee's home, telecenter,
satellite office, field installation or other location.
Telework arrangement means a formal oral or written agreement
between a supervisor and employee to permit an employee to work at an
alternative work site (i.e., telework) instead of the location of the
employee's assigned organization.
Sec. Sec. 531.605, 531.606, 531.607 [Redesignated]
8. Sections 531.605, 531.606, and 531.607 are redesignated as
Sec. Sec. 531.606, 531.607, and 531.608, respectively, and a new Sec.
531.605 is added to read as follows:
Sec. 531.605 Determining an employee's official duty station.
(a) Except as otherwise provided in this section, the official duty
station is the location of the employee's position of record where the
employee regularly performs his or her duties or, if his or her work
involves regular travel, where his or her work activities are based, as
determined by the employing agency. An agency must document an
employee's official duty station on an employee's notification of
personnel action (Standard Form 50 or equivalent).
(b) For an employee who is relocated and authorized to receive
relocation expenses under 5 U.S.C. chapter 57, subchapter II (or
similar authority), the official duty station is the established work
site in the area to which the employee has been relocated. This
includes employees authorized to receive relocation expenses under 5
U.S.C. 5737 in connection with an extended assignment resulting in a
temporary change of station, in which case the duty station associated
with the extended assignment is the official duty station. (See 41 CFR
part 302-1.1.)
(c) For an employee whose assignment to a new duty station is
followed within 3 workdays by a reduction in force resulting in the
employee's separation before he or she is required to report for duty
at the new location, the official duty station in effect immediately
before the assignment remains the official duty station through the
date of separation.
(d) For an employee who is under a telework agreement, the official
duty station must be the location of the employee's telework site
unless the employee is scheduled (while in duty status) to report at
least once a week to the regular work site for the employee's position
of record, in which case the regular work site is the official duty
station. Agencies may make temporary exceptions to this requirement in
appropriate situations, such as when an employee is recovering from an
injury or medical condition that prevents the employee from commuting
to the regular work site. Agencies must determine a telework employee's
official duty station on a case-by-case basis.
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart A--Premium Pay
9. The authority citation for subpart A continues to read as
follows:
Authority: 5 U.S.C. 5304 note, 5305 note, 5541(2)(iv),
5545a(h)(2)(B) and (i), 5547(b) and (c), 5548, and 6101(c); sections
407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5
U.S.C. 5545a); E.O. 12748, 3 CFR, 1992 Comp., p. 316.
10. In Sec. 550.114, paragraph (d) is revised, paragraph (e) is
redesignated as paragraph (f) and a new paragraph (e) is added to read
as follows:
Sec. 550.114 Compensatory time off.
* * * * *
(d) Except as provided in paragraph (e)(2) of this section, an
employee must use accrued compensatory time off to which he is entitled
under paragraph (a) or (b) of this section by the end of the 26th pay
period after the pay period during which it was credited. Compensatory
time off to an employee's credit as of [insert effective date of final
regulations] must be used by the end of the 26th pay period following
[insert effective date of final regulations]. The head of an agency, at
his or her sole and exclusive discretion, may provide that an employee
who fails to take compensatory time off to which he is entitled within
26 pay periods after the pay period during which it was credited must--
(1) Receive payment for such unused compensatory time off at the
dollar value prescribed in paragraph (f) of this section; or
(2) Forfeit the unused compensatory time off, unless the failure to
take the compensatory time off is due to an exigency of the service
beyond the employee's control, in which case the agency head must
provide payment for the unused compensatory time off at the dollar
value prescribed in paragraph (f) of this section.
(e)(1) Except as provided in paragraph (e)(2) of this section, an
employee with unused compensatory time off under paragraph (a) or (b)
of this section who transfers to another agency or separates from
Federal service before the expiration of the time limit established
under paragraph (d) of this section may receive overtime pay or forfeit
the unused compensatory time off, consistent with the employing
agency's policy established under paragraph (d) of this section.
(2) If an employee with unused compensatory time off under
paragraph (a) or (b) of this section separates from Federal service or
is placed in a leave without pay status under the following
circumstances, the employee must be paid for unused compensatory time
off at the dollar value prescribed in paragraph (f) of this section:
(i) The employee separates or is placed in a leave without pay
status to perform service in the uniformed services (as defined in 38
U.S.C. 4303 and 5 CFR 353.102); or
(ii) The employee separates or is placed in a leave without pay
status because of an on-the-job injury with entitlement to injury
compensation under 5 U.S.C. chapter 81.
* * * * *
Subpart J--Compensatory Time Off for Religious Observances
11. Subpart J is revised to read as follows:
550.1001 Purpose.
550.1002 Definitions.
550.1003 Agency requirements.
550.1004 Time limits.
550.1005 Limits on the amount of earned compensatory time off an
employee may accumulate.
550.1006 Crediting and recording of compensatory time off.
550.1007 Premium pay and compensatory overtime work.
550.1008 Transfer or separation of an employee with a positive or
negative balance of compensatory time off for religious observances.
Authority: 5 U.S.C. 5550a.
Subpart J--Compensatory Time Off for Religious Observances
Sec. 550.1001 Purpose.
This subpart contains OPM regulations implementing 5 U.S.C. 5550a,
which allows employees to earn and use compensatory time off to modify
work schedules to satisfy religious obligations to abstain from work.
When an employee has personal
[[Page 1078]]
religious beliefs that require him or her to abstain from work during
the employee's scheduled tour of duty established for leave purposes,
the employee may be granted time off to meet those religious
requirements. The employee earns this time off by performing an equal
amount of compensatory overtime work at another time.
Sec. 550.1002 Definitions.
In this subpart:
Agency means an Executive agency as defined in 5 U.S.C. 105.
Employee means an employee who satisfies the definition of that
term in 5 U.S.C. 2105.
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by the employee, including
the following types of pay, as applicable, but not including any other
additional pay of any kind:
(1) A locality payment under 5 U.S.C. 5304 or similar geographic-
based payment under another authority (provided that the similar
payment is creditable as part of basic pay for retirement purposes);
(2) A special pay adjustment for law enforcement officers under
section 404 of the Federal Employees Pay Comparability Act of 1990
(Public Law 101-509); and
(3) A continued rate adjustment under 5 CFR part 531, subpart G.
Scheduled tour of duty for leave purposes means an employee's
regular hours for which he or she may be charged leave under 5 CFR part
630 when absent. For full-time employees, it is the 40-hour basic
workweek as defined in 5 CFR 610.102. For employees with an uncommon
tour of duty as defined in 5 CFR 630.201, it is the uncommon tour of
duty.
Sec. 550.1003 Agency requirements.
An agency must grant an employee's request to take time off to meet
religious requirements to abstain from work and to work compensatory
overtime unless granting the request would interfere with the efficient
accomplishment of the agency's mission. An agency may require an
employee requesting time off under these provisions to submit written
requests for an adjusted schedule in advance and to provide acceptable
written documentation of the employee's religious requirement to
abstain from work.
Sec. 550.1004 Time limits.
(a) The employee may perform compensatory overtime work before or
after using the compensatory time off for religious observances,
subject to agency approval. The agency must take into account its
mission requirements and operational efficiencies in determining when
to schedule compensatory overtime work.
(b) When an agency grants advanced compensatory time off for
religious observances to an employee, the agency must require that the
employee perform the required amount of compensatory overtime work
within 3 pay periods. If the employee fails to perform compensatory
overtime work within 3 pay periods, the agency must charge the employee
annual leave to eliminate the negative balance, even if this results in
a negative annual leave balance.
Sec. 550.1005 Limits on the amount of earned compensatory time off an
employee may accumulate.
An agency may allow an employee to accumulate only the number of
hours of earned compensatory time off (based on the performance of
compensatory overtime work) needed to make up for previous approved
absences or anticipated absences for specific religious observances.
Sec. 550.1006 Crediting and recording of compensatory time off.
The agency must credit an employee with compensatory time off for
performing compensatory overtime work on an hour-for-hour basis. The
agency may authorize credit in increments of one-tenth of an hour (6
minutes) or one-quarter of an hour (15 minutes). The agency must keep
appropriate records of the compensatory time off each employee earns
and uses.
Sec. 550.1007 Premium pay and compensatory overtime work.
The overtime hours worked to earn compensatory time off under this
subpart do not create any entitlement to premium pay (including
overtime pay) under 5 CFR part 550, subpart A, or overtime pay under 5
CFR part 551. Earned compensatory time off for religious observances is
not considered in applying the premium pay limitations described in 5
CFR 550.105, 550.106, and 550.107.
Sec. 550.1008 Transfer or separation of an employee with a positive
or negative balance of compensatory time off for religious observances.
(a) If an employee separates from Federal service or transfers to
another agency, the losing agency must compensate the employee for any
positive amount of earned compensatory time off to his or her credit.
The agency must pay the employee for hours of earned compensatory time
off for religious observances at the hourly rate of basic pay in effect
when the extra hours of work were performed.
(b) If an employee separates from Federal service or transfers to
another agency and owes the losing agency for used compensatory time
off that was advanced and not yet repaid through compensatory overtime
work, the losing agency must reduce the employee's annual leave balance
by the amount of the negative balance of hours to the extent possible.
If the negative balance cannot be eliminated by adjusting the
employee's annual leave balance, the employee owes a monetary debt to
the agency for any remaining hours of advanced compensatory time off.
The hours must be valued using the hourly rate of basic pay in effect
at the time the hours of religious compensatory time off were used.
(c) For purposes of applying paragraphs (a) and (b) of this
section, an hourly rate of basic pay is computed by dividing the annual
rate of basic pay by 2087 hours (or 2756 hours for firefighter hours
subject to that divisor under subpart F of this part).
Subpart L--Lump-Sum Payment for Accumulated and Accrued Annual
Leave
12. The authority citation for subpart L continues to read as
follows:
Authority: 5 U.S.C. 5553, 6306, and 6311.
13. In Sec. 550.1205, revise paragraph (b)(5)(i) to read as
follows:
Sec. 550.1205 Calculating a lump-sum payment.
* * * * *
(b) * * *
(5) * * *
(i) Night differential under 5 U.S.C. 5343(f) at the applicable
percentage rate received by a prevailing rate employee for all
regularly scheduled periods of night shift duty covered by the unused
annual leave as if the employee had continued to work beyond the
effective date of separation, death, or transfer. In the case of an
employee who is assigned to a regular rotating schedule involving work
on both day and night shifts, the night differential is payable for
that portion of the lump-sum period that would have occurred when the
employee was scheduled to work night shifts.
* * * * *
PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT
14. The authority citation for part 551 continues to read as
follows:
[[Page 1079]]
Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the Fair Labor
Standards Act of 1938, as amended by Pub. L. 93-259, 88 Stat. 55 (29
U.S.C. 204f).
Subpart E--Overtime Pay Provisions
15. In Sec. 551.531, paragraph (d) is revised, paragraph (e) is
redesignated as paragraph (f) and a new paragraph (e) is added to read
as follows:
Sec. 551.531 Compensatory time off.
* * * * *
(d) If compensatory time off earned under paragraph (a) or (b) of
this section is not taken within 26 pay periods or if the employee
separates before using the compensatory time, the employee must be paid
for overtime work at the dollar value prescribed in paragraph (f) of
this section. Compensatory time off to an employee's credit as of
[insert effective date of final regulations] must be used by the end of
the 26th pay period following [insert effective date of final
regulations].
(e) If an employee with unused compensatory time off under
paragraph (a) or (b) of this section is placed in a leave without pay
status under the following circumstances, the employee must be paid for
overtime work at the overtime rate at the dollar value prescribed in
paragraph (f) of this section:
(1) The employee is placed in a leave without pay status to perform
service in the uniformed services (as defined in 38 U.S.C. 4303 and 5
CFR 353.102); or
(2) The employee is placed in a leave without pay status because of
an on-the-job injury with entitlement to injury compensation under 5
U.S.C. chapter 81.
* * * * *
PART 575--RECRUITMENT AND RELOCATION BONUSES; RETENTION ALLOWANCES;
SUPERVISORY DIFFERENTIALS
16. The authority citation for part 575 continues to read as
follows:
Authority: 5 U.S.C. 1104(a)(2), 5753, 5754, and 5755; secs. 302
and 404 of the Federal Employees Pay Comparability Act of 1990
(FEPCA) (Pub. L. 101-509), 104 Stat. 1462 and 1466, respectively;
E.O. 12748, 3 CFR, 1992 Comp., p. 316.
Subpart A--Recruitment Bonuses
17. In Sec. 575.103, the definition of rate of basic pay is
revised to read as follows:
Sec. 575.103 Definitions.
* * * * *
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position to which the employee is or will
be newly appointed before deductions and exclusive of additional pay of
any kind, such as locality-based comparability payments under 5 U.S.C.
5304, special pay adjustments for law enforcement officers under
section 404 of the Federal Employees Pay Comparability Act of 1990
(Pub. L. 101-509), night shift differentials under 5 U.S.C. 5343(f), or
environmental differentials under 5 U.S.C. 5343(c)(4).
* * * * *
Subpart B--Relocation Bonuses
18. In Sec. 575.203, the definition of rate of basic pay is
revised to read as follows:
Sec. 575.203 Definitions.
* * * * *
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position to which the employee is being
relocated or, in the case of an employee who is entitled to grade or
pay retention, the employee's retained rate of pay, before deductions
and exclusive of additional pay of any kind, such as locality-based
comparability payments under 5 U.S.C. 5304, special pay adjustments for
law enforcement officers under section 404 of the Federal Employees Pay
Comparability Act of 1990 (Pub. L. 101-509), night shift differentials
under 5 U.S.C. 5343(f), or environmental differentials under 5 U.S.C.
5343(c)(4).
* * * * *
Subpart C--Retention Allowances
19. In Sec. 575.303, the definition of rate of basic pay is
revised to read as follows:
Sec. 575.303 Definitions.
* * * * *
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by the employee or, in the
case of an employee who is entitled to grade or pay retention, the
employee's retained rate of pay, before deductions and exclusive of
additional pay of any kind, such as locality-based comparability
payments under 5 U.S.C. 5304, special pay adjustments for law
enforcement officers under section 404 of the Federal Employees Pay
Comparability Act of 1990 (Pub. L. 101-509), night shift differentials
under 5 U.S.C. 5343(f), or environmental differentials under 5 U.S.C.
5343(c)(4).
20. Part 610 is revised to read as follows:
PART 610--HOURS OF WORK
Subpart A--Weekly and Daily Scheduling of Work
Sec.
610.101 Coverage.
610.102 Definitions.
Workweeks
610.111 Establishing workweeks.
Work Schedules
610.121 Establishing work schedules.
610.122 Variation for educational purposes.
610.123 Travel outside duty hours.
610.124 Unpaid meal periods.
Subpart B--Holidays
610.201 Definitions
610.202 Entitlement to paid holidays.
601.203 How to determine a holiday.
610.204 Employee in nonpay status immediately preceding or following
a holiday.
Subpart C--Administrative Dismissal of Daily, Hourly, and Piecework
Employees
610.301 Purpose.
610.302 Definitions.
610.303 Coverage.
610.304 Use of administrative dismissal.
610.305 Supplemental agency regulations.
Subpart D--Flexible and Compressed Work Schedules
General Provisions
610.401 Purpose.
610.402 Definitions.
610.403 Covered work schedules.
610.404 Time-accounting method.
Flexible Work Schedules
610.411 Overtime hours for employees on flexible work schedules.
610.412 Pay for a holiday for employees on flexible work schedules.
610.413 Holiday premium pay for employees on flexible work
schedules.
610.414 Credit hours.
Compressed Work Schedules
610.421 Overtime hours for employees on compressed work schedules.
610.422 Pay for a holiday for employees on compressed work
schedules.
610.423 Holiday premium pay for employees on compressed work
schedules.
Subpart A--Weekly and Daily Scheduling of Work
Authority: 5 U.S.C. 6101; sec. 1(1) of E.O. 11228, 3 CFR, 1964-
1965 Comp., p. 317.
Sec. 610.101 Coverage.
Notwithstanding subpart D of this part, implementing flexible work
schedules and compressed work schedules established under 5 U.S.C.
chapter 61, subchapter II, the regulations on the weekly and daily
scheduling of work in this subpart apply to--
[[Page 1080]]
(a) Each employee to whom 5 CFR part 550, subpart A, applies; and
(b) Each employee whose pay is fixed and adjusted from time to time
under 5 U.S.C. 5343 or 5349 or by a wage board or similar
administrative authority serving the same purpose.
Sec. 610.102 Definitions.
In this subpart:
Administrative workweek means any period of 7 consecutive 24-hour
periods designated in advance by the head of the agency under 5 U.S.C.
6101.
Agency means an executive agency as defined in 5 U.S.C. 105. For
the purposes of this subpart, a military department as defined in 5
U.S.C. 102 is treated as a separate agency.
Authorized agency official means the head of an agency or an
official who is authorized to act for the head of the agency in the
matter concerned.
Basic workweek, for full-time employees, means the 40-hour workweek
established under Sec. 610.111.
Employee means an employee of an agency to whom this subpart
applies, as described in Sec. 610.101.
Regularly scheduled administrative workweek, for a full-time
employee, means the period within an administrative workweek,
established under Sec. 610.111, within which the employee is regularly
scheduled to work. For a part-time employee, this term means the
officially prescribed days and hours within an administrative workweek
during which the employee is regularly scheduled to work.
Regularly scheduled work means work that is scheduled in advance of
an administrative workweek under an agency's procedures for
establishing workweeks in accordance with Sec. 610.111.
Tour of duty means the hours of a day (a daily tour of duty) and
the days of an administrative workweek (a weekly tour of duty) that
constitute an employee's regularly scheduled administrative workweek.
Unpaid meal period means an approved period of time in a nonpay and
nonwork status that interrupts a daily tour of duty or a period of
overtime work for the purpose of permitting employees to eat or engage
in permitted personal activities.
Workweeks
Sec. 610.111 Establishing workweeks.
(a)(1) For each full-time employee, an authorized agency official
must establish the following by a written agency policy statement:
(i) A basic workweek of 40 hours which does not extend over more
than 6 of any 7 consecutive days. The written agency policy statement
must specify the days and hours within the administrative workweek that
constitute the basic workweek, except as provided in paragraphs (b),
(c), and (d) of this section.
(ii) A regularly scheduled administrative workweek that consists of
the 40-hour basic workweek established under paragraph (a)(1) of this
section, plus the period of regularly scheduled overtime work, if any,
required of each employee. The written agency policy statement, for
leave and premium pay administration purposes, must specify by days and
hours of each day the periods included in the regularly scheduled
administrative workweek that do not constitute a part of the basic
workweek, except as provided in paragraphs (b), (c), and (d) of this
section.
(2) The basic workweek and regularly scheduled administrative
workweek established under paragraph (a)(1) of this section must be
used for premium pay and leave administration purposes, as appropriate.
(b) When it is impracticable to prescribe a regular schedule of
definite hours of work for each workday of a regularly scheduled
administrative workweek, an authorized agency official may establish
the first 40 hours of work performed within a period of not more than 6
days of the administrative workweek as the basic workweek. A first 40-
hour tour of duty is the basic workweek without the requirement for
specific days and hours within the administrative workweek. All work
performed by an employee within the first 40 hours is considered
regularly scheduled work for premium pay and leave administration
purposes. Any additional hours of officially ordered or approved work
within the administrative workweek are overtime hours.
(c) (1) When an employee receives annual premium pay for regularly
scheduled standby duty under 5 U.S.C. 5545(c)(1), his or her regularly
scheduled administrative workweek is the total number of regularly
scheduled hours of duty a week, including on-duty sleep and meal
periods. (See 5 CFR 550.112(m)(2) and 551.432(e).)
(2) When an employee has a tour of duty which includes a period
during which he or she remains at or within the confines of his or her
station in a standby status rather than performing actual work, his or
her regularly scheduled administrative workweek is the total number of
regularly scheduled hours of duty each week. This includes time in a
standby status, but does not include time that is allowed for sleep and
meal periods by a written agency policy statement, subject to the
requirements of 5 CFR 550.112(k) and (m), 551.411(c), 551.431, and
551.432.
(3) When an employee is a firefighter compensated under 5 U.S.C.
5545b, the agency must establish a regular tour of duty instead of a
basic workweek and a regularly scheduled administrative workweek,
consistent with the requirements of 5 CFR part 550, subpart M.
(d) When an authorized agency official establishes a flexible or
compressed work schedule under 5 U.S.C. 6122 or 6127, he or she must
establish a basic work requirement for each employee as defined in 5
U.S.C. 6121 and subpart D of this part. A flexible or compressed work
schedule is a scheduled tour of duty, and all work performed by an
employee within the basic work requirement is considered regularly
scheduled work for premium pay and leave administration purposes.
(e) The basic workweeks established under this section are not
affected by a holiday. Employees are entitled to paid holidays as
provided in subpart B of this part.
Work Schedules
Sec. 610.121 Establishing work schedules.
(a) Except when an authorized agency official determines that the
agency would be seriously handicapped in carrying out its functions or
that costs would be substantially increased, he or she must provide
that--
(1) Assignments to tours of duty are scheduled in advance of the
administrative workweek over periods of not less than 1 week;
(2) The 40-hour basic workweek is scheduled on 5 days, Monday
through Friday when possible, and the 2 days outside the basic workweek
are consecutive;
(3) The working hours in each day of the basic workweek are the
same;
(4) The basic nonovertime workday may not exceed 8 hours;
(5) The occurrence of holidays may not affect the designation of
the basic workweek; and
(6) Breaks in working hours of more than 1 hour may not be
scheduled in a basic workday.
(b) An authorized agency official must schedule the work of his or
her employees to accomplish the mission of the agency. An authorized
agency official must schedule an employee's regularly scheduled
administrative workweek so that it corresponds with his or her actual
work requirements.
(c) When an authorized agency official knows in advance of an
[[Page 1081]]
administrative workweek that the specific days and/or hours of a day
actually required of an employee in that administrative workweek will
differ from those required in the current administrative workweek, he
or she must reschedule the employee's regularly scheduled
administrative workweek to correspond with those specific days and
hours. An authorized agency official must inform the employee of the
change and must record the change on the agency's official document for
recording work schedules.
(d) If it is determined that an authorized agency official should
have scheduled a period of work as part of the employee's regularly
scheduled administrative workweek and failed to do so in accordance
with paragraphs (b) and (c) of this section, the employee is entitled
to the payment of premium pay for that period of work as regularly
scheduled work under 5 CFR part 550, subpart A. In this regard, it must
be determined that the authorized agency official--
(1) Had knowledge of the specific days and hours of the work
requirement in advance of the administrative workweek; and
(2) Had the opportunity to determine which employee had to be
scheduled, or rescheduled, to meet the specific days and hours of that
work requirement.
(e) To the extent that the requirements of this section are
inconsistent with the provisions for flexible and compressed work
schedules in 5 U.S.C. chapter 61, subchapter II, and subpart D of this
part, the requirements of this section do not apply to employees on
such flexible or compressed work schedules.
Sec. 610.122 Variation for educational purposes.
(a) Notwithstanding Sec. 610.121, an authorized agency official
may authorize a special tour of duty of not less than 40 hours to
permit an employee to take one or more courses in a college,
university, or other educational institution when he or she determines
that--
(1) The courses the employee takes are not training under 5 U.S.C.
chapter 41;
(2) The rearrangement of the employee's tour of duty will not
appreciably interfere with the accomplishment of the work required to
be performed;
(3) Additional costs for personal services will not be incurred;
and
(4) Completion of the courses will equip the employee for more
effective work in the agency.
(b) An agency may not pay an employee any premium pay solely
because the special tour of duty authorized under this section causes
the employee to work on a day, or at a time during the day, for which
premium pay otherwise would be payable.
Sec. 610.123 Travel outside duty hours.
(a) An employee may earn overtime pay or earn compensatory time off
for travel outside his or her regularly scheduled administrative
workweek only under the limited conditions prescribed in 5 CFR
550.112(g)(2) for all employees, whether exempt or non-exempt from
coverage by the Fair Labor Standards Act, and in 5 CFR 551.422 for
employees who are covered by the Fair Labor Standards Act. Insofar as
practicable, an authorized agency official should not require an
employee to travel during nonduty hours. When it is essential that an
employee travel during nonduty hours under circumstances that do not
permit payment of overtime pay under 5 CFR 550.112(e), the supervisor
or other approving official must record his or her reasons for ordering
travel at those hours and must, upon request, furnish a copy of this
statement to the employee concerned.
(b) An agency must not adjust the regular working hours that
normally apply to an employee solely for the purpose of including time
spent traveling that would not otherwise be considered hours of work
under 5 CFR 550.112 or 5 CFR 551.422.
Sec. 610.124 Unpaid meal periods.
An authorized agency official may schedule employees for an unpaid
meal period during the basic workday in accordance with Sec.
610.121(a)(6). An unpaid meal period may not be counted as hours of
work. If an agency schedules an unpaid meal period, an employee may not
choose to work through that meal period to shorten his or her workday
or to earn overtime pay.
Subpart B--Holidays
Authority: 5 U.S.C. 6101; sec. 1(1) of E.O. 11228, 3 CFR, 1964-
1965 Comp., p. 317.
Sec. 610.201 Definitions.
In this subpart:
Administrative workweek means any period of 7 consecutive 24-hour
periods designated in advance by the head of the agency under 5 U.S.C.
6101.
Agency means an executive agency as defined in 5 U.S.C. 105. For
the purposes of this subpart, a military department as defined in 5
U.S.C. 102 is treated as a separate agency.
Authorized agency official means the head of an executive agency or
an official who is authorized to act for the head of the executive
agency in the matter concerned.
Basic workday means the hours within an employee's basic workweek
that occur during one of the 24-hour periods comprising the employee's
administrative workweek. For employees on flexible or compressed work
schedules as described in subpart D of this part, this term also means
the daily basic work requirement.
Basic workweek, for full-time employees, means the 40-hour workweek
established in accordance with Sec. 610.111. For employees on flexible
or compressed work schedules, as described in subpart D of this part,
this term also means the basic work requirement.
Employee means an employee of an agency who satisfies the
definition of that term in 5 U.S.C. 2105.
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by the employee, including
the following types of pay, as applicable, but not including additional
pay of any other kind:
(1) A locality payment under 5 U.S.C. 5304 or similar geographic-
based payment under another authority (provided that the similar
payment is treated as part of basic pay for computing retirement
contributions and benefits);
(2) A special pay adjustment for law enforcement officers under
section 404 of the Federal Employees Pay Comparability Act of 1990
(Public Law 101-509); and
(3) A continued rate adjustment under 5 CFR part 531, subpart G.
The United States means--
(1) A State of the United States;
(2) The District of Columbia;
(3) Puerto Rico;
(4) The U.S. Virgin Islands;
(5) Outer Continental Shelf Lands, as defined in the Outer
Continental Shelf Lands Act (67 Stat. 462);
(6) American Samoa;
(7) Guam;
(8) Midway Atoll;
(9) Wake Island;
(10) Johnston Island; and
(11) Palmyra.
Workday means hours of the day that constitute an employee's daily
tour of duty. For purposes of this subpart, a workday includes a day on
which employees may be excused from duty by statute, Executive order,
or administrative action.
Sec. 610.202 Entitlement to paid holidays.
(a) Employees are entitled to paid holidays under the conditions
set forth in this subpart. Agencies must determine the legal holidays
on which
[[Page 1082]]
employees may be excused from duty with pay consistent with the
requirements of 5 U.S.C. 6103, Executive Order 11582 of February 11,
1971, and Sec. 610.203.
(b) Employees are excused from duty with pay on a holiday as
follows:
(1) Full-time employees are excused for 8 hours.
(2) Part-time employees are excused for the number of nonovertime
hours in the employee's daily tour of duty on the holiday (not to
exceed 8 hours).
(3) Notwithstanding paragraphs (b)(1) and (2) of this section,
employees on compressed work schedules are excused for the number of
hours in the employee's daily basic work requirement on the holiday,
consistent with Sec. 610.422.
(4) If an employee on a flexible work schedule has a daily basic
work requirement in excess of 8 hours on a holiday, the agency must
charge the employee leave for any excess hours, allow the employee to
use credit hours or compensatory time off, or arrange for the employee
to meet the work requirement on another day.
(c) An agency must compute the basic pay for a holiday on which an
employee is excused from duty by multiplying the appropriate number of
hours as provided in paragraph (b) of this section by the employee's
hourly rate of basic pay.
(d) If any part of an employee's basic workday falls on a holiday,
the entire basic workday must be treated as if it fell on the holiday.
However, if an employee has two basic workdays that overlap a single
holiday, the employee is entitled to a paid holiday only with respect
to the basic workday commencing on the legal holiday.
(e) An employee is not entitled to pay when not working on a
holiday if the employee is barred from receiving premium pay for
working on a holiday under 5 U.S.C. 5546(b) based on receipt of standby
duty premium pay under 5 U.S.C. 5545(c)(1) or compensation under 5
U.S.C. 5545b (dealing with firefighters).
Note to Sec. 610.202: The President may excuse specified
employees from duty on a given day by Executive order and require
that the day be considered as falling within the scope of Executive
Order 11582 of February 11, 1971, and of 5 U.S.C. 5546 and 6103(b)
and other similar statutes insofar as they relate to the pay and
leave of affected employees.
Sec. 610.203 How to determine a holiday.
(a) An employee's holiday is the day designated by 5 U.S.C. 6103(a)
whenever that day is part of the employee's basic workweek or basic
work requirement, except as provided in paragraph (e) of this section.
(b) When a holiday falls on a nonworkday outside an employee's
basic workweek, an agency must determine the day to be treated as his
or her holiday (i.e., ``in-lieu-of'' holiday) in accordance with 5
U.S.C. 6103(b) and Executive Order 11582 as follows:
(1) For employees whose basic workweek is Monday through Friday--
(i) If a holiday falls on a Saturday, the Friday immediately before
is the legal holiday.
(ii) If a holiday falls on a Sunday, the following Monday is the
legal holiday.
(2) For employees whose basic workweek is other than Monday through
Friday, but does not include Sunday--
(i) If a holiday falls on one of the employee's regular nonworkdays
other than a Sunday, the employee's workday immediately before that
regular nonworkday is the legal holiday.
(ii) If a designated holiday falls on a Sunday, the employee's next
workday is the legal holiday.
(3) For employees whose basic workweek includes Sunday, the agency
must designate one of the employee's nonworkdays to be the employee's
deemed Sunday and determine the holiday as follows:
(i) If a holiday falls on one of the employee's regular nonworkdays
other than the deemed Sunday, the employee's workday immediately before
that regular nonworkday is the legal holiday.
(ii) If a holiday falls on the deemed Sunday, the employee's next
workday is the legal holiday.
(c) As authorized by 5 U.S.C. 6103(d), an agency may prescribe
rules under which an employee (as defined in 5 U.S.C. 6121) under a
compressed work schedule (as established under subpart D of this part)
may be required to observe a holiday on another workday other than
would otherwise be required by paragraph (b) of this section, provided
that--
(1) The actual holiday falls on a regularly scheduled nonworkday;
(2) An authorized agency official has determined that selection of
an alternative legal holiday (as compared to the legal holiday that
would be designated under paragraph (b) of this section) is necessary
to prevent an adverse agency impact, as defined in 5 U.S.C. 6131(b);
and
(3) The alternative legal holiday is in the same biweekly pay
period as the date of the actual holiday designated under 5 U.S.C.
6103(a) or in the biweekly pay period immediately preceding or
following that pay period.
Note to Sec. 610.203(c): In the event that the designated
alternate legal holiday for an employee on a compressed work
schedule occurs on a workday on which his or her duty station is
closed by administrative action, that workday continues to be the
alternate legal holiday.
(d) Part-time employees, including part-time employees on flexible
or compressed work schedules, are not entitled to an ``in-lieu-of''
holiday, as provided in paragraph (b) of this section, when a holiday
falls on the employee's regularly scheduled nonworkday.
(e) The holiday for employees under a first 40-hour tour of duty,
as described in Sec. 610.111(b), is determined as provided in section
4 of E.O. 11582.
(f) The provisions of 5 U.S.C. 6103(b)(3) on determining holidays
for certain employees at duty posts outside the United States apply to
covered employees who are working outside the United States at a
permanent or temporary station or under travel orders.
Sec. 610.204 Employee in nonpay status immediately preceding or
following a holiday.
An employee who is in a nonpay status on his or her entire workday
immediately preceding and following a holiday is not entitled to
receive pay for that holiday. A full-time employee who is in a pay
status for at least 4 hours during any part of his or her workday
immediately preceding or following a holiday is entitled to receive pay
for that holiday. For a part-time employee or an employee on an
uncommon tour of duty, the required number of hours in a pay status on
the day immediately preceding or following the holiday must be
prorated, based upon the number of hours the employee was scheduled to
work on that day in relation to an 8-hour day.
Subpart C--Administrative Dismissal of Daily, Hourly, and Piecework
Employees
Authority: 5 U.S.C. 6104; E.O. 10552, 3 CFR, 1954-1958 Comp., p.
201.
Sec. 610.301 Purpose.
This subpart contains OPM regulations implementing 5 U.S.C. 6104,
which authorizes agencies to grant administrative dismissals for
certain daily, hourly, and piece-work employees.
Sec. 610.302 Definitions.
In this subpart:
Administrative order means an order issued by an authorized
official of an agency relieving regular employees from
[[Page 1083]]
an authorized duty without charge to leave or loss of pay.
Regular employees means employees paid at daily, hourly, or
piecework rates who have a regular tour of duty and whose appointments
are not limited to 90 days or less or who have been currently employed
for a continuous period of 90 days under one or more appointments
without a break in service. Regular employees do not include employees
who have a scheduled annual rate of pay (e.g., employees under the
General Schedule).
Sec. 610.303 Coverage.
This subpart applies to regular employees of the Federal Government
paid at daily, hourly, or piecework rates. This subpart does not apply
to--
(a) Federal Wage System employees as described in section
610.101(b); or
(b) Experts and consultants appointed under 5 U.S.C. 3109.
Sec. 610.304 Use of administrative dismissal.
(a) An agency may grant administrative dismissal for employees paid
at daily, hourly, or piece work rates only to the extent warranted by
good administration and only for short periods of time not generally
exceeding 3 consecutive workdays in a single period of excused absence.
An agency may not use this authority in situations of extensive
duration or for periods of interrupted or suspended operations that
ordinarily would be covered by the scheduling of leave, furlough, or
the assignment of other work. Insofar as practicable, each
administrative order issued under this subpart must provide benefits
for regular employees paid at daily, hourly, or piecework rates similar
to those provided for employees who have a scheduled annual rate of
pay.
(b) A Federal agency may issue an administrative order under this
subpart when--
(1) Normal operations of an establishment are interrupted by events
beyond the control of management or employees;
(2) For managerial reasons, the closing of an establishment or
portions thereof is required for short periods;
(3) It is in the public interest to relieve employees from work to
participate in civil activities which the Government is interested in
encouraging; or
(4) The circumstances are such that an administrative order under
paragraph (b)(1), (b)(2), or (b)(3) of this section is not appropriate
and the agency under its regulations excuses, or is authorized to
excuse, without charge to leave or loss of pay, employees paid a
scheduled annual rate of pay.
Sec. 610.305 Supplemental agency regulations.
Agencies may issue supplemental regulations for their regular
employees consistent with this subpart.
Subpart D--Flexible and Compressed Work Schedules
Authority: 5 U.S.C. 5548, 5 U.S.C. 6124, and 5 U.S.C. 6133(a).
General Provisions
Sec. 610.401 Purpose.
Notwithstanding 5 U.S.C. 6101 and subpart A of this part, this
subpart implements certain provisions of 5 U.S.C., chapter 61,
subchapter II, which authorizes the use of alternative work schedules.
These regulations supplement that subchapter and must be read together
with those provisions of law.
Sec. 610.402 Definitions.
Agency means an executive agency as defined in 5 U.S.C. 105, the
Government Printing Office, and the Library of Congress. For the
purpose of this subpart, a military department as defined in 5 U.S.C.
102 is treated as a separate agency.
Alternative work schedule means a flexible work schedule or a
compressed work schedule.
Basic work requirement means the number of hours, excluding
overtime hours, an employee is required to work or to account for by
charging leave (including leave without pay), credit hours, excused
absence, holiday hours, compensatory time off, or time off as an award.
Compressed work schedule means, for a full time-employee, an 80-
hour biweekly basic work requirement that is scheduled by an agency for
less than 10 workdays. For a part-time employee, a compressed work
schedule means a biweekly basic work requirement of less than 80 hours
which is scheduled by an agency for less than 10 workdays and which may
require the employee to work more than 8 hours in a day. A compressed
work schedule is a schedule that is fixed by the agency--i.e., a
schedule with arrival and departure times that are fixed by the agency
and days fixed by the agency that comprise the basic work requirement.
Core hours means the time periods during the workday, workweek, or
pay period that are within the tour of duty during which an employee
covered by a flexible work schedule is required by the agency to be
present for work or to be in an approved leave status or other paid
time off status.
Credit hours means those hours within a flexible work schedule
which an employee elects to work, with supervisory approval, in excess
of his or her basic work requirement so as to vary the length of a
workweek or workday. An employee covered by a compressed work schedule
may not earn credit hours.
Employee has the meaning given that term in 5 U.S.C. 6121.
Flexible hours means the time during the workday, workweek, or pay
period within the tour of duty during which an employee covered by a
flexible work schedule may choose to vary his or her times of arrival
to and departure from the worksite consistent with the duties and
requirements of the position.
Flexible work schedule means, for a full-time employee, a work
schedule that has an 80-hour biweekly basic work requirement that
allows an employee to determine his or her own schedule within the
limits set by the agency. For a part-time employee, a flexible work
schedule means a biweekly basic work requirement of less than 80 hours
that allows an employee to determine his or her own schedule within
limits set by the agency.
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an employee, including
the following types of pay, as applicable, but not including additional
pay of any other kind:
(1) A locality payment under 5 U.S.C. 5304 or similar geographic-
based payment under another authority (provided that the similar
payment is treated as part of basic pay for the purpose of computing
retirement contributions and benefits);
(2) A special pay adjustment for law enforcement officers under
section 404 of the Federal Employees Pay Comparability Act of 1990
(Public Law 101-509); and
(3) A continued rate adjustment under 5 CFR part 531, subpart G.
Tour of duty under a flexible work schedule means the limits set by
an agency within which an employee must complete his or her basic work
requirement. Under a compressed work schedule or other fixed work
schedule, tour of duty is synonymous with an employee's basic work
requirement.
Sec. 610.403 Covered work schedules.
This subpart applies only to flexible work schedules (including
maxiflex schedules) and compressed work schedules established under 5
U.S.C. chapter 61, subchapter II. Agencies may not combine provisions
from the flexible work schedule and compressed work schedule
authorities in subchapter
[[Page 1084]]
II in an effort to create a hybrid alternative work schedule program--
for example, a compressed schedule in which the employee has the
flexibility to change his or her hours or a flexible schedule that
permits more than 8 hours of paid absence on a holiday.
Sec. 610.404 Time-accounting method.
An agency that authorizes a flexible work schedule or a compressed
work schedule under this subpart must establish a time-accounting
method that will provide affirmative evidence that each employee
subject to the schedule has worked the proper number of hours in a
biweekly pay period.
Flexible Work Schedules
Sec. 610.411 Overtime hours for employees on flexible work schedules.
For an employee on a flexible work schedule, overtime hours are all
hours of work in excess of 8 hours in a day or 40 hours in a week that
are officially ordered and approved in advance by management. An
employee on a flexible work schedule who is covered by the Fair Labor
Standards Act may not earn overtime compensation as a result of
``suffered or permitted'' work as defined in 5 CFR 551.104.
Sec. 610.412 Pay for a holiday for employees on flexible work
schedules.
A full-time employee on a flexible work schedule who is relieved or
prevented from working on a day within his or her scheduled tour of
duty that is designated as a holiday by Federal statute or Executive
order is entitled to basic pay with respect to that holiday for 8
hours. A part-time employee on a flexible work schedule is entitled to
basic pay with respect to the holiday for the number of hours the
employee is scheduled to work on that day, not to exceed 8 hours.
Sec. 610.413 Holiday premium pay for employees on flexible work
schedules.
(a) A full-time employee on a flexible work schedule who performs
nonovertime work on a holiday that is ordered and approved is entitled
to his or her rate of basic pay plus premium pay equal to his or her
rate of basic pay for up to 8 hours of holiday work. For work in excess
of 8 hours that is ordered and approved, a full-time employee is
entitled to overtime compensation under the applicable provisions of
law.
(b) A part-time employee on a flexible work schedule is entitled to
his or her rate of basic pay plus premium pay equal to his or her rate
of basic pay for up to 8 hours of work that is ordered and approved
performed during his or her basic work requirement on a holiday. For
work in excess of 8 hours that is ordered and approved, a part-time
employee is entitled to overtime compensation under the applicable
provisions of law. However, a part-time employee scheduled to work on a
day designated as an ``in-lieu-of'' holiday for full-time employees
under Sec. 610.203(b) is not entitled to holiday premium pay for
working on the ``in-lieu-of'' holiday.
(c) An employee on a flexible work schedule is not entitled to
holiday premium pay while engaged in training, except as provided in 5
CFR 410.402.
Sec. 610.414 Credit hours.
(a) An agency may permit a full-time or a part-time employee on a
flexible work schedule to earn credit hours by performing work in
excess of the employee's biweekly basic work requirement. An employee
uses credit hours by being excused from duty during the employee's
basic work requirement, as approved by the employee's supervisor or
other authorized official. Members of the Senior Executive Service and
employees on compressed work schedules may not earn credit hours.
(b) A full-time employee may carry forward up to 24 credit hours
from one pay period to the next. A part-time employee may carry forward
from one pay period to the next a number of credit hours that
represents up to one-fourth of his or her biweekly basic work
requirement.
(c) An employee may not use credit hours before they are earned.
Agencies may permit employees to use credit hours in the same biweekly
pay period within which they are earned.
(d) An agency may establish a timeframe within which accumulated
credit hours must be used. If an employee does not use his or her
accumulated credit hours within the established timeframe, he or she is
entitled to be paid for each credit hour at his or her hourly rate of
basic pay in effect at the time of payment. Members of the Senior
Executive Service may not receive compensation in lieu of unused credit
hours accumulated prior to their appointment in the Senior Executive
Service; however, they may use such credit hours subject to approval by
their supervisor or other authorized official.
(e) When an employee is no longer covered by a flexible work
schedule, he or she must be paid for accumulated credit hours at his or
her rate of basic pay in effect at the time of payment, up to a maximum
of 24 unused credit hours for full-time employees and one-fourth of the
biweekly basic work requirement for part-time employees.
(f) An employee may not receive overtime, Sunday, or holiday
premium pay or night pay under 5 U.S.C. 5545(a) when he or she earns or
uses credit hours.
Compressed Work Schedules
Sec. 610.421 Overtime hours for employees on compressed work
schedules.
(a) For a full-time employee on a compressed work schedule who is
exempt from the Fair Labor Standards Act (FLSA), overtime hours are
those hours in excess of the compressed work schedule that are
officially ordered and approved. For a part-time employee on a
compressed work schedule who is exempt from the FLSA, overtime hours
are those hours in excess of the compressed work schedule for the day
or week that are officially ordered and approved, but must be in excess
of 8 hours in a day or 40 hours in a week.
(b) For a full-time employee on a compressed work schedule who is
covered by the FLSA, overtime hours are those hours in excess of the
compressed work schedule that are officially ordered and approved or
are ``suffered or permitted.'' For a part-time employee on a compressed
work schedule who is covered by the FLSA, overtime hours are those
hours in excess of the compressed work schedule for the day or week
that are officially ordered and approved or are ``suffered or
permitted,'' but must be in excess of 8 hours in a day or 40 hours in a
week. Full-time and part-time employees may not be credited with FLSA
overtime hours on the basis of periods of duty in excess of 8 hours in
a day when the hours are not hours of work for purposes of computing
overtime pay under 5 CFR 410.402, 5 CFR Parts 550 or 532 and 5 U.S.C.
5544 (e.g., suffered or permitted overtime work). Suffered or permitted
overtime work is always credited towards an employee's weekly FLSA
overtime standard. The daily overtime standard applies only to hours of
work that would be considered overtime hours under title 5, United
States Code, for General Schedule or prevailing rate (wage) employees.
Sec. 610.422 Pay for a holiday for employees on compressed work
schedules.
A full-time or part-time employee on a compressed work schedule who
is relieved or prevented from working on a day within his or her
scheduled tour of duty that is designated as a holiday by Federal
statute or Executive order is entitled to basic pay with respect to
that holiday for the number of hours of his or her compressed work
schedule on that day.
[[Page 1085]]
Sec. 610.423 Holiday premium pay for employees on compressed work
schedules.
(a) An employee on a compressed schedule who performs work on a
holiday is entitled to his or her rate of basic pay, plus premium pay
at a rate equal to his or her rate of basic pay, for the work that is
not in excess of the employee's compressed work schedule for that day.
For hours worked on a holiday in excess of the compressed work
schedule, a full-time employee is entitled to overtime compensation
under applicable provisions of law.
(b) A part-time employee on a compressed work schedule who performs
work on a holiday is entitled to his or her rate of basic pay plus
premium pay equal to his or her rate of basic pay for work that is not
in excess of the employee's compressed work schedule for that day.
However, a part-time employee scheduled to work on a day designated as
an ``in-lieu-of'' holiday for full-time employees under Sec.
610.203(b) is not entitled to premium pay for working on the ``in-lieu-
of'' holiday.
(c) An employee on a compressed work schedule is not entitled to
holiday premium pay while engaged in training, except as provided in 5
CFR 410.402.
21. Part 630 is revised to read as follows:
PART 630--ABSENCE AND LEAVE
Subpart A--General Provisions
Sec.
630.101 Responsibility for administration.
Subpart B--General Provisions for Annual and Sick Leave
630.201 Definitions.
630.202 Earning leave in a full biweekly pay period.
630.203 [Reserved]
630.204 Leave accrual for employees on uncommon tours of duty.
630.205 Leave accrual for part-time employees.
630.206 Appointments limited to fewer than 90 calendar days.
630.207 Earning leave in a fractional pay period.
630.208 Effect of nonpay status on earning leave.
630.209 Minimum charge for leave.
630.210 Advanced annual and sick leave.
630.211 Excusing employees from work for less than 1 hour.
630.212 Travel time for employees whose post of duty is outside the
U.S.
630.213 Exclusion of Presidential appointees.
630.214 Use of annual leave to establish initial eligibility for
retirement or continuation of health benefits.
630.215 Leave for bone-marrow and organ donation.
Subpart C--Annual Leave
630.301 Maximum annual leave limitation for employees stationed in
the U.S.
630.302 Maximum annual leave limitation for employees stationed
outside the U.S.
630.303 Maximum annual leave limitation for members of the Senior
Executive Service.
630.304 Scheduling annual leave to ensure its restoration.
630.305 Designating an agency official to approve exigencies of the
public business.
630.306 Time limits for using restored annual leave.
630.307 Time limit for using restored annual leave for a former
missing employee.
630.308 Time limits for using restored annual leave in the event of
an extended exigency of the public business.
630.309 Restoring annual leave to employees determined necessary to
respond to the ``National Emergency by Reason of Certain Terrorist
Attacks.''
Subpart D--Sick Leave
630.401 Granting sick leave.
630.402 Requesting sick leave.
630.403 Supporting evidence for the use of sick leave.
630.404 Use of sick leave during annual leave.
630.405 Sick leave used in the computation of an annuity.
630.406 Records on the use of sick leave.
Subpart E--Recredit of Leave
630.501 Transferring annual and sick leave between agencies.
630.502 Transferring annual leave between different leave systems.
630.503 Transferring sick leave between different leave systems.
630.504 Recrediting sick leave following a break in service.
630.505 Recrediting leave earned under a former leave system.
630.506 Treatment of leave account when an employee goes on active
military duty.
630.507 Restoration of leave following an appeal.
Subpart F--Home Leave
630.601 Definitions.
630.602 Coverage.
630.603 Computation of service abroad.
630.604 Earning rates.
630.605 Computing home leave.
630.606 Granting home leave.
630.607 Transfer or recredit of home leave.
Subpart G--Shore Leave
630.701 Coverage.
630.702 Definitions.
630.703 Earning shore leave.
630.704 Granting shore leave.
Subpart H--Funeral Leave
630.801 Purpose.
630.802 Coverage.
630.803 Definitions.
630.804 Granting funeral leave.
Subpart I--Voluntary Leave Transfer Program
630.901 Purpose.
630.902 Coverage.
630.903 Definitions.
630.904 Administration.
630.905 Uncommon tour of duty.
630.906 Application to become a leave recipient.
630.907 Approval of an application to become a leave recipient.
630.908 Notification of approval of an application.
630.909 Disapproval of an application to become a leave recipient.
630.910 Donating annual leave through a leave transfer program.
630.911 Donation of leave to an employee in a different agency.
630.912 Limitations on the amount of annual leave that may be
donated through a leave transfer program.
630.913 Prohibition against donation of leave to an immediate
supervisor.
630.914 Restrictions on the use of transferred annual leave by a
leave recipient.
630.915 Accrual of leave in set-aside accounts while using donated
leave.
630.916 Limitations on the accrual of annual and sick leave in set-
aside accounts while using donated leave.
630.917 Using annual and sick leave in set-aside accounts.
630.918 Accrual of leave in set-aside accounts when annual and sick
leave have been advanced at the beginning of a leave year.
630.919 Terminating set-aside accounts when a leave recipient is
terminated from Federal service.
630.920 Termination of a medical emergency.
630.921 Restoration of unused transferred annual leave to leave
donors.
630.922 Participation by an excepted agency.
630.923 Records.
Subpart J--Voluntary Leave Bank Program
630.1001 Purpose.
630.1002 Coverage.
630.1003 Definitions.
630.1004 Establishing and operating leave banks.
630.1005 Operation of a leave bank board.
630.1006 Application to become a leave bank member.
630.1007 Minimum contribution of a leave bank member.
630.1008 Application to become a leave bank contributor.
630.1009 Maximum limitation on contribution of annual leave to a
leave bank.
630.1010 Application to become a leave recipient under a leave bank.
630.1011 Approval of a leave recipient under a leave bank program.
630.1012 Restrictions on the use of annual leave withdrawn from a
leave bank.
630.1013 Accrual and use of leave in set-aside accounts under a
leave bank program.
630.1014 Termination of a medical emergency under the leave bank
program.
[[Page 1086]]
630.1015 Restoration of unused leave to a leave bank.
630.1016 Participation in both the voluntary leave transfer and
leave bank programs.
630.1017 Transferring to a new leave bank.
630.1018 Transferring to an agency that does not have a leave bank.
630.1019 Termination of a voluntary leave bank program.
630.1020 Records.
Subpart K--Emergency Leave Transfer Program
630.1101 Purpose.
630.1102 Coverage.
630.1103 Administration.
630.1104 Definitions.
630.1105 Establishment of an emergency leave transfer program.
630.1106 Donations from a leave bank to an emergency leave transfer
program.
630.1107 Application to become an emergency leave recipient.
630.1108 Approval of an application to become an emergency leave
recipient.
630.1109 Notification of approval of an application.
630.1110 Disapproval of an application to become an emergency leave
recipient.
630.1111 Use of available paid leave.
630.1112 Donating annual leave.
630.1113 Limitation on the amount of leave donated by an emergency
leave donor.
630.1114 Limitation on the amount of leave received by an emergency
leave recipient.
630.1115 Transferring donated leave between agencies.
630.1116 Using donated annual leave.
630.1117 Accrual of leave while using donated leave.
630.1118 Purposes for which donated leave may not be credited.
630.1119 Termination of a disaster or emergency.
630.1120 Provisions for returning unused leave to emergency leave
donors.
630.1121 Protection against coercion.
Subpart L--Family and Medical Leave
630.1201 Purpose.
630.1202 Coverage.
630.1203 Administration.
630.1204 Definitions.
630.1205 Entitlement to family and medical leave.
630.1206 Procedures for invoking entitlement to family and medical
leave.
630.1207 Calculating the 12-month period.
630.1208 Calculating 12 administrative workweeks of family and
medical leave.
630.1209 Agency obligation.
630.1210 Involuntary placement on family and medical leave.
630.1211 Intermittent use of family and medical leave.
630.1212 Substitution of paid leave for unpaid family and medical
leave.
630.1213 Notification of intent to invoke entitlement to family and
medical leave.
630.1214 Medical certification of a serious health condition.
630.1215 Contents of a medical certification.
630.1216 Limitations on the medical certification.
630.1217 Second and third opinions on a serious health condition.
630.1218 Time limits for providing medical certification.
630.1219 Periodic recertification of a serious health condition.
630.1220 Protection of confidentiality.
630.1221 Employee protections upon return to work.
630.1222 Equivalent position upon return to work.
630.1223 Medical certification of fitness to return to work.
630.1224 Intent to return to work.
630.1225 Adverse actions.
630.1226 Denial of family and medical leave.
630.1227 Continuation of health benefits.
630.1228 Greater leave entitlements.
630.1229 Records on the use of family and medical leave.
Authority: 5 U.S.C. 6311; Sec. 630.205 also issued under 5
U.S.C. 6133(a); Sec. 630.303 also issued under Pub. L. 103-356, 108
Stat. 3410; Secs. 630.305 and 630.307 also issued under 5 U.S.C.
6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-337,
108 Stat. 2663; subpart D also issued under Pub. L. 103-329, 108
Stat. 2423; Sec. 630.501, 630.502, and subpart F also issued under
E.O. 11228, 30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also
issued under 5 U.S.C. 6305; subpart H also issued under 5 U.S.C.
6326; subpart I also issued under 5 U.S.C. 6332, Pub. L. 100-566,
102 Stat. 2834, and Pub. L. 103-103, 107 Stat. 1022; subpart J also
issued under 5 U.S.C. 6362, Pub. L. 100-566 and Pub. L. 103-103;
subpart K also issued under Pub. L. 105-18, 111 Stat. 158; and
subpart L also issued under 5 U.S.C. 6387 and Pub. L. 103-3, 107
Stat. 23.
Subpart A--General Provisions
Sec. 630.101 Responsibility for administration.
The head of each agency having employees subject to this part is
responsible for the proper administration of this part so far as it
pertains to employees under his or her jurisdiction and for maintaining
an account of leave for each employee in accordance with policies and
procedures prescribed by OPM.
Subpart B--General Provisions for Annual and Sick Leave
Sec. 630.201 Definitions.
(a) In 5 U.S.C. 6301(2)(iii), the term temporary employee engaged
in construction work at an hourly rate means an employee hired on a
temporary basis solely for the purpose of work on a specific
construction project and paid an hourly rate.
(b) In subparts B through G of this part:
Accrued leave means leave earned by an employee during the current
leave year which remains unused at any given time during that year.
Accumulated leave means unused leave remaining to the credit of an
employee at the beginning of a leave year.
Advanced leave means annual or sick leave an agency may choose to
advance to an employee in advance of the date the leave is accrued
(earned).
Authorized agency official means the head of an executive agency or
an official who is authorized to act for the head of the executive
agency in the matter concerned.
Employee means an employee to whom 5 U.S.C. chapter 63, subchapter
I, applies.
Family member means the following relatives of the employee:
(1) Spouse, and parents thereof;
(2) Children, including adopted children and spouses thereof;
(3) Parents;
(4) Brothers and sisters, and spouses thereof; and
(5) Any individual related by blood or affinity whose close
association with the employee is the equivalent of a family
relationship.
Health care provider has the meaning given that term in Sec.
630.1204.
Intermittent work schedule means employment without a regularly
scheduled tour of duty during each administrative workweek.
Leave year means the period beginning with the first day of the
first full pay period in a calendar year and ending with the day
immediately before the first day of the first full pay period in the
following calendar year.
Medical certificate means a written statement signed by a
healthcare provider certifying to the incapacitation, examination, or
treatment or to the period of disability while the patient was
receiving professional treatment.
Regularly scheduled administrative workweek has the meaning given
that term in 5 CFR 610.102.
Serious health condition has the meaning given that term in Sec.
630.1204.
Uncommon tour of duty means an established tour of duty that
exceeds 80 hours of work in a biweekly pay period, provided the tour--
(1) Includes hours for which the employee is compensated by standby
duty pay under 5 U.S.C. 5545(c)(1) and 5 CFR 550.141;
(2) Is a regular tour of duty (as defined in 5 CFR 550.1302)
established for firefighters compensated under 5 U.S.C. 5545b and 5 CFR
part 550, subpart M; or
(3) Is authorized for a category of employees by OPM.
United States means the several States and the District of
Columbia.
[[Page 1087]]
Sec. 630.202 Earning leave in a full biweekly pay period.
A full-time employee earns leave during each full biweekly pay
period during which the employee is in a pay status or in a combination
of a pay status and a nonpay status, except as provided in Sec.
630.207. A full-time employee earns and uses leave based on the hours
in his or her regularly scheduled administrative workweek (excluding
overtime hours as defined in 5 CFR 550.111(a)), except as provided in
Sec. Sec. 630.204, 630.915, and 630.1013. Employees who enter Federal
service after the beginning of a biweekly pay period or before the end
of a biweekly pay period do not earn leave during that pay period
unless they complete their full biweekly work requirement for that pay
period.
Sec. 630.203 [Reserved]
Sec. 630.204 Leave accrual for employees on uncommon tours of duty.
(a) An agency may require that a Federal employee on an uncommon
tour of duty accrue and use leave on the basis of that uncommon tour of
duty. The employee's leave accrual rates must be directly proportional
(based on the number of hours in the biweekly tour of duty and the
accrual rate of the corresponding leave category) to the standard leave
accrual rates for employees who accrue and use leave on the basis of an
80-hour biweekly tour of duty. The agency must charge 1 hour (or
appropriate fraction thereof) of leave for each hour (or appropriate
fraction thereof) of absence from the uncommon tour of duty.
(b) When an employee is converted to a different tour of duty for
leave purposes, his or her leave balances must be converted to the
proper number of hours based on the proportion of hours in the new tour
of duty compared to a standard 80-hour tour of duty.
(c) An agency must establish an uncommon tour of duty for each
firefighter compensated under 5 CFR part 550, subpart M. The uncommon
tour of duty must correspond directly to the firefighter's regular tour
of duty, as defined in 5 CFR 550.1302, so that each firefighter accrues
and uses leave on the basis of that regular tour of duty.
Sec. 630.205 Leave accrual for part-time employees.
(a) A part-time employee for whom an agency has established in
advance of a biweekly pay period a regular tour of duty on 1 or more
days during each administrative workweek, or a part-time employee on a
flexible work schedule for whom an agency has established only a
biweekly work requirement, earns leave under 5 U.S.C. 6303 and 6307
based on the total number of hours in a pay status in each biweekly pay
period, excluding overtime hours as defined in 5 CFR 550.111(a), except
as provided in Sec. Sec. 630.204, 630.915, and 630.1013.
(b) A part-time employee earns annual leave as follows:
(1) A part-time employee with fewer than 3 years of service earns 1
hour of annual leave for each 20 hours in a pay status.
(2) A part-time employee with at least 3 but fewer than 15 years of
service earns 1 hour of annual leave for each 13 hours in a pay status.
(3) A part-time employee with 15 or more years of service earns 1
hour of annual leave for each 10 hours in a pay status.
(c) A part-time employee earns 1 hour of sick leave for each 20
hours in a pay status.
(d) When a part-time employee has hours in a pay status that are
fewer than the number necessary to accrue 1 hour of leave, the agency
must carry forward those hours into the next pay period and credit them
toward the employee's leave accrual.
(1) When a part-time employee moves to a full-time position, he or
she loses any unapplied hours not previously used towards a leave
accrual.
(2) When a part-time employee moves to or from a part-time position
from or to an intermittent position, he or she may carry the unapplied
hours.
(e) A part-time employee may be charged leave only for the hours
not worked that were scheduled in advance of his or her regularly
scheduled administrative workweek. A part-time employee may not be
charged leave for hours not worked that were scheduled in addition to
the employee's regularly scheduled administrative workweek after the
beginning of the pay period.
Sec. 630.206 Appointments limited to fewer than 90 calendar days.
An employee whose appointment is limited to fewer than 90 calendar
days is not entitled to accrue annual leave but is entitled to accrue
sick leave under 5 U.S.C. 6307. If the appointment is extended or the
employee receives one or more successive appointments without a break
in service that extend the period of employment to 90 calendar days or
more, the employee is entitled to accrue annual leave, and the agency
must, on the 90th day, credit the employee with the annual leave that
would have accrued to him or her under 5 U.S.C. 6303(a) during the 90-
day period. Employees who transfer without a break in service from a
leave-earning position to a less-than-90-day appointment are not
subject to this provision.
Sec. 630.207 Earning leave in a fractional pay period.
An employee is ineligible to earn leave when he or she is receiving
benefits from the Office of Workers' Compensation Programs (OWCP) under
20 U.S.C. chapter I or subject to an intermittent work schedule. When
an employee's service is interrupted by such an event, he or she earns
leave only for that portion of each pay period during which he or she
is eligible to earn leave (i.e., not receiving OWCP benefits or moving
from an intermittent work schedule to a full-time or part-time work
schedule.) This section does not apply to employees who enter Federal
service after the beginning of a pay period or who separate from
Federal service before the end of a pay period.
Sec. 630.208 Effect of nonpay status on earning leave.
(a) If an employee is in an extended nonpay status (e.g., leave
without pay), he or she continues to earn annual and sick leave until
the number of hours in the nonpay status equals the number of hours in
a pay period. An employee does not earn any annual or sick leave during
a pay period (including the last pay period in the year when he or she
might normally earn 10 hours of annual leave) in which he or she
reaches the cumulative number of hours in a nonpay status that is equal
to the number of hours in a pay period (80 hours for most full-time
employees). The agency must carry forward and apply to the next pay
period any hours in a nonpay status in excess of the number of hours in
a pay period. The employee earns leave in the next and succeeding pay
periods until he or she again accumulates the number of hours in a
nonpay status that is equal to the number of hours in a pay period. At
the end of the leave year, the agency must drop any remaining time in a
nonpay status that does not require a reduction in leave earnings.
(b) If an employee is in a nonpay status for the entire leave year,
he or she does not earn leave.
(c) When a reduction in leave earnings results in a negative leave
balance in an employee's annual leave account at the end of a leave
year, the agency must--
(1) Carry the negative balance forward as a charge against the
annual leave the employee will earn in the next leave year; or
(2) Require the employee to refund the amount paid him or her for
the
[[Page 1088]]
period covering the excess leave that resulted in the debit.
(d) A period covered by a refund for unearned advanced leave is
deemed not a period of nonpay status under this section.
Sec. 630.209 Minimum charge for leave.
(a) An agency may charge leave in increments of one-tenth of an
hour (6 minutes) or one-quarter of an hour (15 minutes). Additional
charges to leave must be made in multiples thereof.
(b) When an employee is charged leave for an unauthorized absence
or tardiness, the agency may not require him or her to perform work for
any part of the leave period charged against the employee's account.
Sec. 630.210 Advanced annual and sick leave.
(a) At the beginning of the leave year or at any time thereafter,
an agency may advance the amount of annual leave an employee is
expected to accrue during the remainder of that leave year.
(b) An agency may advance a maximum of 30 days of sick leave to a
full-time employee at the beginning of a leave year or at any time
thereafter when required by the exigencies of the situation for a
serious disability or ailment of the employee or a family member or for
purposes relating to the adoption of a child. Thirty days is the
maximum amount of advanced sick leave that an employee may have to his
or her credit at any one time. For a part-time employee (or an employee
on an uncommon tour of duty), the maximum amount of sick leave an
agency may advance must be prorated according to the number of hours in
the employee's regularly scheduled administrative workweek.
(c) When an employee is serving under a time-limited appointment or
one that will terminate on a specified date, an agency may advance sick
leave to him or her up to the total amount of sick leave the employee
would otherwise earn during the term of his or her appointment, not to
exceed the 30-day maximum in 630.210(b). For the purposes of this
paragraph, an employee serving a probationary or trial period is not
serving under a limited appointment.
(d) An employee may liquidate a debt for advanced leave in the
following ways:
(1) Through the retroactive substitution of accumulated annual
leave;
(2) Through the retroactive substitution of donated annual leave;
(3) Through the application of annual leave as it is accrued;
(4) Through the application of sick leave as it is accrued if the
debt is for advanced sick leave; or
(5) Through a cash payment equal to the amount paid to the employee
for the period covered by the advanced leave.
(e) When an employee separates from Federal service under
circumstances other than those listed in paragraphs (g)(1) through (3)
of this section with an indebtedness for advanced leave, the agency
must--
(1) Require the employee to refund the amount paid him or her for
the period covering the leave for which the employee is indebted; or
(2) Deduct that amount from any pay due the employee.
(f) An employee who enters active military service with a right of
restoration is deemed not separated for the purpose of paragraph (e) of
this section.
(g) An employee is not required to pay back advanced leave when he
or she--
(1) Dies;
(2) Retires for disability; or
(3) Resigns or is separated because of a disability that prevents
him or her from returning to duty or continuing in the service, and
which is the basis of the separation, as determined by the agency on
medical evidence acceptable to the agency.
Sec. 630.211 Excusing employees from work for less than 1 hour.
If an employee is unavoidably or necessarily tardy or absent for
less than 1 hour, an authorized agency official may excuse him or her
without charge to leave or loss of pay if there is adequate reason for
the absence.
Sec. 630.212 Travel time for employees whose post of duty is outside
the U.S.
Under 5 U.S.C. 6303(d), the travel time granted to a Federal
employee whose post of duty is outside the United States includes the
time necessary to travel to and from the post of duty and the United
States or to and from the employee's place of residence if the place of
residence is outside the employee's area of employment and in the
Commonwealth of Puerto Rico or the territories or possessions of the
United States. The employee must designate his or her place of
residence in any request for leave under 5 U.S.C. 6303(d).
Sec. 630.213 Exclusion of Presidential appointees.
(a) Authority. (1) Section 6301(2)(B)(xi) of title 5, United States
Code, authorizes the President to exclude certain Presidential
appointees in the executive branch or the government of the District of
Columbia from the annual and sick leave provisions of 5 U.S.C. chapter
63, subchapter I, and from the related provisions of this part.
(2) The President, by Executive Order 10540, as amended, has
delegated to OPM the responsibility for making exclusions under 5
U.S.C. 6301(2)(B)(xi), and OPM has delegated this responsibility to the
head of each agency, consistent with the provisions of this section.
(3) Presidential appointees in positions where the rate of basic
pay is equal to or exceeds the rate for level V of the Executive
Schedule are already excluded from the annual and sick leave provisions
by 5 U.S.C. 6301(2)(B)(x). Therefore, no further action by an agency is
necessary to exclude these appointees.
(b) Criteria for exclusions. The head of an agency may exclude an
officer in the agency from the annual and sick leave provisions only if
the officer meets all of the following criteria:
(1) The officer is a Presidential appointee;
(2) The officer is not a United States attorney or United States
marshal; and
(3) The officer's responsibilities for carrying out the duties of
the position continue outside normal duty hours and while away from the
normal duty post.
(c) Revocation of exclusion. An authorized agency official may
revoke an exclusion from the annual and sick leave provisions which was
made under this section.
(d) Records. The agency must maintain records of any exclusion, or
revocation of an exclusion, authorized under this section.
(e) Continuation of previous authorizations. Any officer in an
agency who was excluded by action of the President or the Civil Service
Commission prior to February 15, 1979, from the annual and sick leave
provisions under the authority of 5 U.S.C. 6301(2)(B)(xi) must continue
to be excluded from annual and sick leave unless the exclusion is
revoked by the agency under the provisions of this section.
Sec. 630.214 Use of annual leave to establish initial eligibility for
retirement or continuation of health benefits.
(a) An employee may elect to use annual leave and remain on the
agency's rolls in order to establish initial eligibility for immediate
retirement under 5 U.S.C. 8336, 8412, or 8414, and/or to establish
initial eligibility under 5 U.S.C. 8905 to continue health benefits
coverage into retirement, as provided in:
(1) 5 CFR 351.606(b)(1) for an employee who otherwise would have
[[Page 1089]]
been separated by reduction-in-force procedures under 5 CFR part 351;
or
(2) 5 CFR 351.606(b)(2) for an employee who otherwise would have
been separated by adverse action procedures under 5 CFR part 752
because of the employee's decision to decline relocation (including
transfer of function).
(b)(1) Annual leave that may be used for the purposes described in
paragraph (a) of this section includes all accumulated, accrued, and
restored annual leave to the employee's credit prior to the effective
date of the reduction in force or relocation (including transfer of
function) and annual leave earned by an employee while in a paid leave
status after the effective date of the reduction in force or relocation
(including transfer of function).
(2) Annual leave that is advanced to an employee under 5 U.S.C.
6302(d), including any advanced annual leave that may be credited to an
employee's leave account after the effective date of the reduction in
force or relocation (including transfer of function), may not be used
for purposes of this section.
(3) For purposes of this section, an authorized agency official may
approve the use of any or all annual leave donated to an employee under
subpart I of this part (Voluntary Leave Transfer Program), or made
available to the employee under subpart J of this part (Voluntary Leave
Bank Program), as of the effective date of the reduction in force or
relocation.
Sec. 630.215 Leave for bone-marrow and organ donation.
(a) A full-time employee is entitled to up to 7 days (56 hours) of
leave in a leave year to serve as a bone-marrow donor. The amount of
bone-marrow donation leave available to a part-time employee or an
employee on an uncommon tour of duty must be prorated according to the
number of regularly scheduled hours in his or her biweekly pay period.
Leave for bone-marrow donation may be used for compatibility testing as
well as actual donation and recuperation.
(b) A full-time employee is entitled to up to 30 days (240 hours)
of leave in a leave year to serve as an organ donor. The amount of
organ donation leave available to a part-time employee or an employee
on an uncommon tour of duty must be prorated according to the number of
regularly scheduled hours in his or her biweekly pay period. Leave for
organ donation may be used for compatibility testing as well as actual
donation and recuperation.
(c) OPM may make a determination that other donation procedures are
sufficiently similar to bone-marrow donation or organ donation to
warrant the granting of bone-marrow or organ donor leave.
Subpart C--Annual Leave
Sec. 630.301 Maximum annual leave limitation for employees stationed
in the U.S.
A full-time or part-time employee whose official duty station is in
the United States may accumulate annual leave for use in succeeding
years until it totals not more than 30 days (240 hours) at the
beginning of the first full biweekly pay period in a leave year, except
as provided in Sec. 630.204.
Sec. 630.302 Maximum annual leave limitation for employees stationed
outside the U.S.
(a) A full-time or part-time employee whose official duty station
is outside the United States may accumulate annual leave for use in
succeeding years until it totals not more than 45 days (360 hours) at
the beginning of the first full biweekly pay period in a leave year,
except as provided in Sec. 630.204.
(b) The effective date on which an otherwise eligible employee
becomes subject to the 45-day maximum annual leave limitation is--
(1) The date of the employee's entry on duty when he or she is
employed locally;
(2) The date of the employee's arrival at a post of regular
assignment for duty; or
(3) The date on which he or she begins to perform that duty in an
area outside the United States, if the employee is required to perform
that duty en route to his or her post of regular assignment and is
outside the area of recruitment or the area from which he or she was
transferred.
(c) Subject to 5 U.S.C. 6304(c), the maximum amount of annual leave
an employee may carry forward into the next leave year when he or she
is transferred or reassigned to a position in which he or she is no
longer subject to section 6304(b) of that title is determined as
follows:
(1) When, on the date prescribed by paragraph (d) of this section,
the amount of an employee's accumulated and accrued annual leave is 30
days or less, he or she may carry forward up to 30 days as prescribed
by 5 U.S.C. 6304(a).
(2) When, on the date prescribed by paragraph (d) of this section,
the amount of an employee's accumulated and accrued annual leave is
more than 30 days but not more than 45 days, he or she may carry
forward the full amount thereof that is unused at the end of the
current leave year, not to exceed 45 days.
(3) When, on the date prescribed by paragraph (d) of this section,
the amount of an employee's accumulated and accrued annual leave is
more than 45 days, he or she may carry forward the amount of unused
annual leave to the employee's credit at the end of the current leave
year that does not exceed--
(i) Forty-five days, if he or she is not entitled to a greater
accumulation under 5 U.S.C. 6304(c); or
(ii) The amount he or she is entitled to accumulate under section 5
U.S.C. 6304(c), if that amount is greater than 45 days.
(d) For the purposes of paragraph (c) of this section, an agency
must determine the amount of an employee's accumulated and accrued
annual leave at the end of the pay period that includes:
(1) The date on which the employee departs from his or her post of
regular assignment for transfer or reassignment;
(2) The date on which an employee ceases to perform duty, when he
or she is required to perform that duty en route to an area in which he
or she would be subject to 5 U.S.C. 6304(b) if assigned there; or
(3) The date on which final administrative approval is given to
effect a change in an employee's duty station when he or she is on
detail or on leave in the United States or in the Commonwealth of
Puerto Rico or a territory or possession of the United States if that
is the area from which he or she was recruited or transferred.
Sec. 630.303 Maximum annual leave limitation for members of the
Senior Executive Service.
(a) Unused annual leave accrued by an employee while serving under
an appointment in the Senior Executive Service (SES) under 5 U.S.C.
chapter 33, subchapter VIII, may accumulate for use in succeeding years
until it totals not more than 90 days (720 hours) at the beginning of
the first full biweekly pay period in a leave year.
(b) When an employee in a position outside of the SES moves to a
position in the SES, all unused accumulated annual leave remains to the
employee's credit and is subject to the 90-day limitation in paragraph
(a) of this section.
(c) If an employee serves less than a full pay period under an
appointment in the SES, his or her unused accumulated annual leave is
subject to the maximum annual leave limitations in 5 U.S.C. 6304(a),
(b), or (c), as appropriate.
(d) When an employee in the SES moves to a position outside the
SES, any
[[Page 1090]]
unused accumulated annual leave that is in excess of the amount allowed
for the new position by 5 U.S.C. 6304(a), (b), or (c) remains to the
employee's credit and is subject to reduction under procedures
identical to those described in 5 U.S.C. 6304(c).
(e) Agencies must maintain records on the accumulated annual leave
credited to each employee under this section. If the employee transfers
to another agency, the losing agency must provide such records to the
gaining agency.
Sec. 630.304 Scheduling annual leave to ensure its restoration.
(a) Except as provided in paragraph (b) of this section and Sec.
630.309, before an agency may consider restoration of annual leave
forfeited at the beginning of the leave year under 5 U.S.C 6304, the
annual leave that was forfeited must have been scheduled in writing
before November 15 of the previous leave year.
(b) The requirement for advance scheduling of annual leave in
paragraph (a) of this section does not apply to an employee who is
covered by 5 U.S.C. 6304(d)(3) which exempts employees of the
Department of Defense at installations undergoing closure or
realignment pursuant to the Defense Base Closure and Realignment Act of
1990 (part A of title XXIX of Public Law 101-510; 10 U.S.C. 2687 note).
When coverage under 5 U.S.C. 6304(d)(3) terminates during a leave year,
the employee must make a reasonable effort to comply with the
scheduling requirement in paragraph (a) of this section. An authorized
agency official may exempt an employee from the advance scheduling
requirement in paragraph (a) of this section if coverage under
6304(d)(3) terminated during the leave year and the employee was unable
to comply with the advance scheduling requirement because of
circumstances beyond his or her control.
Sec. 630.305 Designating an agency official to approve exigencies of
the public business.
An authorized agency official must make the determination that an
exigency exists and that the exigency is of such major importance that
employees may not use annual leave to avoid forfeiture. This
determination must be made before an agency may restore annual leave
under 5 U.S.C. 6304. An agency official whose leave would be affected
by the decision (except the head of the agency) may not make this
determination.
Sec. 630.306 Time limits for using restored annual leave.
(a) Except as otherwise authorized under paragraphs (b) and (c) of
this section or other regulation, an employee must schedule and use
annual leave restored under 5 U.S.C. 6304(d) not later than the end of
the leave year ending 2 years after--
(1) The date of restoration of the annual leave, if the annual
leave was forfeited because of administrative error;
(2) The date fixed by an authorized agency official as the
termination date of the exigency of the public business that resulted
in forfeiture of the annual leave; or
(3) The date the employee is determined to be recovered and able to
return to duty if the leave was forfeited because of his or her
sickness.
(b) An employee must schedule and use annual leave restored under 5
U.S.C. 6304(d)(3) within the time limits prescribed in paragraphs
(b)(1) and (b)(2) of this section, as follows:
(1) A full-time employee must schedule and use excess annual leave
of 416 hours or less by the end of the leave year in progress 2 years
after the date he or she is no longer subject to 5 U.S.C. 6304(d)(3).
The agency must extend this period by 1 leave year for each additional
208 hours of excess annual leave or any portion thereof.
(2) A part-time employee must schedule and use excess annual leave
in an amount equal to or less than 20 percent of the number of hours in
his or her scheduled annual tour of duty by the end of the leave year
in progress 2 years after the date the employee is no longer subject to
5 U.S.C. 6304(d)(3). The agency must extend this period by 1 leave year
for each additional number of hours of excess annual leave, or any
portion thereof, equal to 10 percent of the number of hours in the
employee's scheduled annual tour of duty.
(c) The time limits established under paragraphs (a) and (b) of
this section for using restored annual leave accounts do not apply for
the entire period during which an employee is subject to 5 U.S.C.
6304(d)(3). When coverage under 5 U.S.C. 6304(d)(3) ends, the agency
must establish a new time limit under paragraph (b) of this section for
all annual leave restored to an employee under 5 U.S.C. 6304(d).
Sec. 630.307 Time limit for using restored annual leave for a former
missing employee.
Annual leave restored under 5 U.S.C. 5562 must be used within a
time limit to be prescribed by OPM, in each case taking into
consideration the amount of the restored leave and other relevant
factors.
Sec. 630.308 Time limits for using restored annual leave in the event
of an extended exigency of the public business.
(a) An employee must schedule and use annual leave restored under 5
U.S.C. 6304(d)(1)(B) because of an extended exigency, as defined in
paragraph (b) of this section, within a time period that equals twice
the number of full calendar years, or parts thereof, that the exigency
existed. This time period begins at the beginning of the leave year
following the leave year in which the exigency is declared to be ended.
(b) An extended exigency means an exigency of such significance as
to--
(1) Threaten the national security, safety, or welfare;
(2) Last more than 3 calendar years;
(3) Affect a segment of an agency or occupational class; and
(4) Preclude subsequent use of both restored and accrued annual
leave within the time limit specified in Sec. 630.306.
Sec. 630.309 Restoring annual leave to employees determined necessary
to respond to the ``National Emergency by Reason of Certain Terrorist
Attacks.''
(a) OPM deemed the ``National Emergency by Reason of Certain
Terrorist Attacks'' (Presidential Proclamation of September 14, 2001)
to be an exigency of the public business for the purpose of restoring
annual leave forfeited under 5 U.S.C. 6304.
(b) If an employee forfeits annual leave under 5 U.S.C. 6304 at the
beginning of a leave year because his or her agency determines the
employee's services are required in response to the national emergency,
the forfeited annual leave is deemed to have been scheduled in advance
for the purposes of 5 U.S.C. 6304(d)(1)(B) and Sec. 630.304.
(c) An employee must schedule and use annual leave restored under 5
U.S.C. 6304(d) because of the national emergency within the following
time limits:
(1) A full-time employee must schedule and use excess annual leave
of 416 hours or less by the end of the leave year in progress 2 years
after the date his or her services are no longer required by the
national emergency. The agency must extend this period by 1 leave year
for each additional 208 hours of excess annual leave or any portion
thereof.
(2) A part-time employee must schedule and use excess annual leave
in an amount equal to or less than 20 percent of the number of hours in
his or her scheduled annual tour of duty by the end of the leave year
in progress 2 years after the date the employee's services are no
longer required by the
[[Page 1091]]
national emergency. The agency must extend this period by 1 leave year
for each additional number of hours of excess annual leave, or any
portion thereof, equal to 10 percent of the number of hours in the
employee's scheduled annual tour of duty.
(d) The time limits established in paragraph (c) of this section
for using restored annual leave accounts are suspended for the entire
period during which an employee's services are required for the
national emergency. When coverage under paragraphs (a) and (b) of this
section ends, the agency must establish a new time limit under
paragraph (c) of this section for all annual leave restored to an
employee under 5 U.S.C. 6304(d).
(e) If an employee's services are determined essential during the
national emergency, but he or she subsequently moves to a position not
considered essential, the employee must make a reasonable effort to
comply with the scheduling requirement in Sec. 630.304(a). An
authorized agency official may exempt such an employee from the advance
scheduling requirement in Sec. 630.304(a) if coverage under paragraphs
(a) and (b) of this section terminated during the leave year and the
employee can demonstrate that he or she was unable to comply with the
advance scheduling requirement because of circumstances beyond his or
her control.
Subpart D--Sick Leave
Sec. 630.401 Granting sick leave.
(a) Subject to paragraphs (b) through (e) of this section, an
agency must grant sick leave to an employee when he or she--
(1) Receives medical, dental, or optical examination or treatment;
(2) Is incapacitated for the performance of his or her duties by
physical or mental illness, injury, pregnancy, or childbirth;
(3)(i) Provides care for a family member who is incapacitated by a
medical or mental condition or attends to a family member receiving
medical, dental, or optical examination or treatment; or
(ii) Provides care for a family member with a serious health
condition;
(4) Makes arrangements necessitated by the death of a family member
or attends the funeral of a family member;
(5) Would, as determined by the health authorities having
jurisdiction or by a health care provider, jeopardize the health of
others by his or her presence on the job because of exposure to a
communicable disease; or
(6) Must be absent from duty for purposes relating to his or her
adoption of a child, including appointments with adoption agencies,
social workers, and attorneys; court proceedings; required travel; and
any other activities necessary to allow the adoption to proceed.
(b) The maximum amount of sick leave that may be granted to an
employee during any leave year for the purposes described in paragraphs
(a)(3)(i) and (4) of this section may not exceed a total of 104 hours
(or, for a part-time employee or an employee with an uncommon tour of
duty, the number of hours of sick leave he or she normally accrues
during a leave year).
(c) The maximum amount of sick leave that may be granted to an
employee during any leave year for the purposes described in paragraph
(a)(3)(ii) of this section may not exceed a total of 480 hours (or, for
a part-time employee or an employee with an uncommon tour of duty, an
amount of sick leave equal to 12 times the average number of hours in
his or her scheduled tour of duty each week), subject to the limitation
found in paragraph (d) of this section.
(d) If, at the time an employee uses sick leave to care for a
family member with a serious health condition under paragraph (c) of
this section, he or she has used any portion of the sick leave
authorized under paragraph (b) of this section during that leave year,
the agency must subtract that amount from the maximum number of hours
authorized under paragraph (c) of this section to determine the total
amount of sick leave the employee may use during the remainder of the
leave year to care for a family member with a serious health condition.
If an employee has previously used the maximum amount of sick leave
permitted under paragraph (c) of this section in a leave year, he or
she is not entitled to use additional sick leave under paragraph (b) of
this section.
(e) If the number of hours in the employee's tour of duty is
changed during the leave year, his or her entitlement to use sick leave
for the purposes described in paragraphs (a)(3) and (4) of this section
must be recalculated based on the new tour of duty.
Sec. 630.402 Requesting sick leave.
An employee must file an application--written, oral, or electronic,
as required by the agency--for sick leave within such time limits as
the agency may require. The employee must request advance approval for
sick leave for the purpose of receiving medical, dental, or optical
examination or treatment and, to the extent possible, for the purposes
described in Sec. 630.401(a)(3), (4), and (6).
Sec. 630.403 Supporting evidence for the use of sick leave.
(a) An agency may grant sick leave only when the need for sick
leave is supported by administratively acceptable evidence. An agency
may consider an employee's self-certification as to the reason for his
or her absence as administratively acceptable evidence, regardless of
the duration of the absence. An agency may also require a medical
certificate or other administratively acceptable evidence as to the
reason for an absence for any of the purposes described in Sec.
630.401(a) for an absence in excess of 3 workdays, or for a lesser
period when the agency determines it is necessary.
(b) An employee must provide administratively acceptable evidence
or medical certification for a request for sick leave within 15 days of
his or her agency's request. An employee who does not provide the
required evidence or medical certification within the 15 days is not
entitled to sick leave.
(c) An agency may require an employee requesting sick leave to care
for a family member under Sec. 630.401(a)(3)(ii) to provide an
additional written statement from the health care provider concerning
the family member's need for psychological comfort and/or physical
care. The statement must certify that --
(1) The family member requires psychological comfort and/or
physical care;
(2) The family member would benefit from the employee's care or
presence; and
(3) The employee is needed to care for the family member for a
specified period of time.
Sec. 630.404 Use of sick leave during annual leave.
Subject to Sec. 630.401(b) through (e), an agency may grant sick
leave to an employee during a period of annual leave for any of the
purposes described in Sec. 630.401(a).
Sec. 630.405 Sick leave used in the computation of an annuity.
Sick leave used in the computation of an annuity is charged against
an employee's sick leave account and may not thereafter be used,
transferred, or recredited. All sick leave to the credit of an employee
as of the date of his or her retirement (or death) and reported to OPM
for credit towards the calculation of an annuity is considered to have
been used.
[[Page 1092]]
Sec. 630.406 Records on the use of sick leave.
An agency must maintain records of the amount of sick leave used
for family care purposes and to make arrangements for or attend the
funeral of a family member under Sec. 630.401(a)(3) and (4). The
records must be sufficient to ensure that employees do not exceed the
limitations in Sec. 630.401(b) and (c).
Subpart E--Recredit of Leave
Sec. 630.501 Transferring annual and sick leave between agencies.
When an employee transfers between positions under 5 U.S.C.,
chapter 63, subchapter I, the agency from which the employee transfers
must certify the employee's annual and sick leave accounts to the
employing agency for credit or charge. When an employee transfers
between positions under 5 U.S.C., chapter 63, subchapter I, the gaining
agency must convert his or her leave into the minimum increments that
can be accommodated by the gaining agency.
Sec. 630.502 Transferring annual leave between different leave
systems.
(a) When annual leave is transferred between different leave
systems under 5 U.S.C. 6308 or is recredited under a different leave
system as the result of a refund under 5 U.S.C. 6306, 7 calendar days
of annual leave are deemed equal to 5 workdays of annual leave.
(b) When an employee of the U.S. Postal Service transfers without a
break in service to a position under 5 U.S.C. chapter 63, subchapter I,
the employing agency must transfer and credit his or her accumulated
annual leave to the employee's annual leave account. If the total
amount of transferred annual leave exceeds the maximum amount of annual
leave limitations under 5 U.S.C. 6304(a), (c), or (f), the maximum
annual the leave that may be transferred is limited to the employee's
former maximum annual leave limitation at the U.S. Postal Service. The
employee's maximum annual leave limitation is subject to reduction in
the same manner as provided in 5 U.S.C. 6304(c) until the employee's
annual leave account is equal to or less than the limitations under 5
U.S.C. 6304(a), (b), or (f).
(c) The annual leave of an employee employed by the U.S. House of
Representatives or Senate or both may not be transferred to an
executive branch agency.
Sec. 630.503 Transferring sick leave between different leave systems.
(a) When sick leave is transferred between different leave systems
under 5 U.S.C. 6308, 7 calendar days of sick leave are deemed equal to
5 workdays of sick leave.
(b) An employee who transfers to a position under a different leave
system to which he or she may transfer only a part of his or her sick
leave is entitled to a recredit of the untransferred sick leave
(without regard to the date of the original transfer) if the employee
returns to the leave system under which it was earned on or after
December 2, 1994.
(c) An employee who transfers to a position to which he or she
cannot transfer his or her sick leave is entitled to a recredit of the
untransferred sick leave (without regard to the date of the original
transfer) if the employee returns to the leave system under which it
was earned on or after December 2, 1994.
(d) Except as provided in Sec. 630.405, when an employee of the
U.S. Postal Service transfers without a break in service to a position
under 5 U.S.C. chapter 63, subchapter I, the employing agency must
transfer and credit the employee's accumulated sick leave to his or her
sick leave account. If the employee has a break in service, he or she
is entitled to a recredit of sick leave if he or she is employed in a
position under 5 U.S.C. chapter 63, subchapter I.
(e) The sick leave of an employee employed by the U.S. House of
Representatives or Senate or both may not be transferred to an
executive branch agency.
Sec. 630.504 Recrediting sick leave following a break in service.
(a) Except as provided in Sec. 630.405 and in paragraph (b) of
this section, an employee who has had a break in service is entitled to
a recredit of sick leave (without regard to the date of his or her
separation), if he or she returns to Federal employment on or after
December 2, 1994, unless the sick leave was previously forfeited upon
reemployment in the Federal Government before December 2, 1994.
(b) Except as provided in Sec. 630.405, an employee of the
government of the District of Columbia who was first employed by the
government of the District of Columbia before October 1, 1987, who has
had a break in service is entitled to a recredit of sick leave (without
regard to the date of his or her separation) if he or she returns to
Federal employment on or after December 2, 1994, unless the sick leave
was previously forfeited upon reemployment in the Federal Government
before December 2, 1994.
(c) The recredit of sick leave under this section must be supported
by written documentation available to the employing agency in the
employee's official personnel records, the official records of the
former employing agency, copies of contemporaneous earnings and leave
statements provided by the employee, or copies of other contemporaneous
written documentation acceptable to the agency.
(d) The sick leave to be recredited under this section must have
been accrued under 5 U.S.C. 6307 or transferred to an employee's sick
leave account under 5 U.S.C. 6308 (or the corresponding provisions of
prior statutes).
Sec. 630.505 Recrediting leave earned under a former leave system.
An employee who earned leave under another leave system that was
merged under 5 U.S.C. chapter 63, subchapter I, is entitled to a
recredit of that leave under subchapter I if he or she would have been
entitled to recredit for it on reentering the leave system under which
it was earned. However, this section does not revive leave already
forfeited.
Sec. 630.506 Treatment of leave account when an employee goes on
active military duty.
(a) When an employee leaves his or her civilian position to enter
the military service, the employing agency must certify his or her
annual and sick leave accounts for credit or charge. However, an
employee entering the military service may choose to receive a lump-sum
payment for unused annual leave under 5 CFR 550.1203(c).
(b) If the employee returns to a civilian position following
military service, the agency to which the employee returns must
reestablish the certified annual and sick leave accounts as a credit or
charge (without regard to the date he or she left the civilian
position) when the employee is--
(1) Restored in accordance with a right of restoration after
separation from active military duty or hospitalization continuing
thereafter as provided by law or in accordance with the mandatory
provisions of a statute, Executive order, or regulation; or
(2) Reemployed in a position under 5 U.S.C. chapter 63, subchapter
I, on or after December 2, 1994.
(c) For the purpose of documenting a returning employee's
entitlement to a recredit of sick leave under this section, the
employing agency must apply the documentation criteria established in
Sec. 630.504(c).
Sec. 630.507 Restoration of leave following an appeal.
When an employee is restored to duty as a result of an appeal, the
agency must reestablish his or her leave account as a credit or charge
as it was at the time of separation.
[[Page 1093]]
Subpart F--Home Leave
Sec. 630.601 Definitions.
In this subpart:
Home leave means leave authorized by 5 U.S.C. 6305(a) and earned by
service abroad for use in the United States, the Commonwealth of Puerto
Rico, or the territories or possessions of the United States.
Month means a period which runs from a given day in 1 month through
the date preceding the numerically corresponding day in the next month.
Service abroad means service on and after September 6, 1960, by an
employee at a post of duty outside the United States and outside the
employee's place of residence if his place of residence is in the
Commonwealth of Puerto Rico or a territory or possession of the United
States.
Sec. 630.602 Coverage.
An employee who is stationed overseas and meets the requirements of
5 U.S.C. 6304(b) for the accumulation of a maximum of 45 days of annual
leave earns and may be granted home leave in accordance with 5 U.S.C.
6305(a) and this subpart.
Sec. 630.603 Computation of service abroad.
(a) For the purpose of this subpart, service abroad--
(1) Begins on the date of the employee's arrival at a post of duty
outside the United States or on the date of his or her entrance on
duty, when recruited abroad;
(2) Ends on the date of the employee's departure from the post for
separation or for assignment in the United States or on the date of his
or her separation from duty, when separated abroad; and
(3) Includes any absence in a nonpay status up to a maximum of 2
workweeks within each 12 months of service abroad, authorized leave
with pay, time spent in the Armed Forces of the United States which
interrupts service abroad (but only for eligibility, not leave-earning,
purposes), and any period on detail.
(b) In computing service abroad, full credit is given for the day
of arrival and the day of departure.
Sec. 630.604 Earning rates.
(a) For each 12 months of service abroad, an employee earns home
leave at the following rates:
(1) An employee who accepts an appointment to or occupies a
position for which the agency has prescribed the requirement that the
incumbent accept assignments anywhere in the world as the needs of the
agency dictate earns 15 days.
(2) An employee who is serving with a U.S. mission to a public
international organization earns 15 days.
(3) An employee who is serving at a post for which payment of a
foreign or nonforeign (but not a tropical) differential of 20 percent
or more is authorized by law or regulation earns 15 days.
(4) An employee who is not included in paragraph (a)(1), (2), or
(3) of this section, but is serving at a post for which payment of a
foreign or territorial (but not a tropical) differential of at least 10
percent, but less than 20 percent, is authorized by law or regulation,
earns 10 days.
(5) An employee who is not included in paragraph (a)(1), (2), (3),
or (4) of this section earns 5 days.
(6) An employee who is included in paragraph (a)(1) through (5) of
this section and whose civilian service abroad is interrupted by a tour
of duty in the Armed Forces of the United States does not earn home
leave for the duration of such tour.
(b) An agency must credit home leave to an employee's leave
account, as earned, in multiples of 1 day.
Sec. 630.605 Computing home leave.
(a) For each month of service abroad, an employee earns home leave
at the rates fixed by Sec. 630.604(a) in the amounts set forth in the
following table:
Home Leave-Earning Table
[Days earned]
------------------------------------------------------------------------
Earning rate (days for each 12
months)
Months of service abroad --------------------------------------
15 10 5
------------------------------------------------------------------------
1................................ 1 0 0
2................................ 2 1 0
3................................ 3 2 1
4................................ 5 3 1
5................................ 6 4 2
6................................ 7 5 2
7................................ 8 5 2
8................................ 10 6 3
9................................ 11 7 3
10............................... 12 8 4
11............................... 13 9 4
12............................... 15 10 5
------------------------------------------------------------------------
(b) When an employee moves between different home leave-earning
rates during a month of service abroad, or when a change in the
differential during a month of service abroad results in a different
home leave-earning rate, the agency must credit the employee with an
amount of home leave for the month at the rate to which he or she was
entitled before the change in his or her home leave-earning rate.
Sec. 630.606 Granting home leave.
(a) Entitlement. Except as otherwise authorized by statute, an
employee is entitled to use home leave only when he or she has
completed a basic service period of 24 months of continuous service
abroad. If the employee has a break in service of 1 or more workdays or
an assignment (other than a detail) to a position in which he or she is
no longer subject to 5 U.S.C. 6305(a), he or she must complete another
basic service period of 24 continuous months before becoming entitled
to use home leave.
(b) Agency authority. Agencies have discretionary authority to
grant home leave to an employee. An agency may grant home leave in
combination with other leaves of absence in accordance with established
agency policy.
(c) Limitations. An agency may grant home leave only--
(1) For use in the United States, the Commonwealth of Puerto Rico,
or a
[[Page 1094]]
territory or possession of the United States; and
(2) During an employee's period of service abroad, or within a
reasonable period after his or her return from service abroad when it
is contemplated that the employee will return to service abroad
immediately or on completion of an assignment in the United States.
Home leave not granted during the period of service abroad or within a
reasonable period after the employee's return from service abroad may
be granted only after the employee has completed a further substantial
period of service abroad. This further substantial period of service
abroad may not be shorter than the tour of duty prescribed for the
employee's post of assignment. However, an agency may determine in an
individual case that an earlier grant of home leave is warranted.
(d) Charging of home leave. The minimum charge for home leave is 1
day, and additional charges are in multiples thereof.
(e) Refund for home leave. If an employee fails to return to
service abroad after a period of home leave or after the completion of
an assignment in the United States, he or she is indebted for the home
leave he or she has used. However, an agency may not require a
repayment of this debt for home leave when--
(1) The employee has completed at least 6 months of service in an
assignment in the United States following the period of home leave;
(2) The agency determines that the employee's failure to return was
due to compelling personal reasons of a humanitarian or compassionate
nature, such as may involve physical or mental health or circumstances
over which he or she has no control; or
(3) The agency that granted the home leave determines that it is in
the public interest not to return the employee to his or her overseas
assignment.
Sec. 630.607 Transfer or recredit of home leave.
An employee is entitled to have his or her home leave account
transferred or recredited when he or she moves between agencies or is
reemployed without a break in service of more than 90 days. An employee
may not receive a lump-sum payment for unused home leave upon
separation from Federal service.
Subpart G--Shore Leave
Sec. 630.701 Coverage.
An employee, as defined in 5 U.S.C. 6301, is eligible to accrue
shore leave if he or she is regularly assigned to duties aboard an
oceangoing vessel. An employee is considered to be regularly assigned
when his or her continuing duties are such that all or a significant
part of them require him or her to serve aboard an oceangoing vessel.
Temporary assignments of a shore-based employee, such as for limited
work projects or for training, do not constitute a regular assignment.
Sec. 630.702 Definitions.
Extended voyage means a voyage of not less than 7 consecutive
calendar days duration.
Oceangoing vessel means a vessel in use on the high seas or the
Great Lakes, but does not include a vessel that operates primarily on
rivers, other lakes, bays, sounds or within the 3-nautical-mile limit
of the coastal area of the 48 contiguous States, except when used in
mapping, charting, or surveying operations or when in or sailing to or
from foreign, territorial, Hawaiian, or Alaskan waters or waters
outside its normal area of operation or outside the 3-nautical-mile
limit.
Shore leave means leave authorized by 5 U.S.C. 6305(c) and this
subpart.
Voyage means the sailing of an oceangoing vessel from one port and
its return to that port or the final port of discharge.
Sec. 630.703 Earning shore leave.
(a) An employee earns shore leave at the rate of 1 day of shore
leave for each 15 calendar days of absence on one or more extended
voyages.
(b)(1) For an employee who is an officer or crewmember, a voyage
begins on the date he or she assumes his or her duties aboard an
oceangoing vessel to begin preparation for a voyage or on the date he
or she comes aboard when a voyage is in progress. The voyage terminates
on the date the employee ceases to be an officer or crewmember of the
oceangoing vessel or on the date on which he or she is released from
assigned duties relating to that voyage aboard the oceangoing vessel at
the earlier of the employee's arrival at the port of origin or the port
of final discharge.
(2) For an employee other than an officer or crewmember, a voyage
begins on the date of sailing and terminates on the date the oceangoing
vessel returns to a port at which the employee will disembark in
completion of his or her assignment aboard the vessel or on the date
the employee is released from assigned duties aboard the vessel,
whichever is earlier.
(c) In computing days of absence, an agency must include--
(1) The beginning date of a voyage and the termination date of a
voyage;
(2) The days an employee spends traveling to join an oceangoing
vessel to which assigned when the vessel is at a place other than the
port of origin;
(3) The days an employee spends traveling between oceangoing
vessels when he or she is assigned from one vessel to another;
(4) The period representing the number of days within which an
employee is reasonably expected to return to the port of origin when
his or her oceangoing vessel's voyage is terminated, or the employee's
employment as an officer or crewmember is terminated, at a port other
than the port of origin;
(5) For an employee who is an officer or crewmember, the days on
which the employee is on sick leave when he or she becomes sick during
a voyage (whether or not continued as a member of the crew), but not
beyond the earlier of the termination date of the voyage of the
oceangoing vessel or the date of the employee's repatriation to the
port of origin;
(6) For an employee who is other than an officer or crewmember, the
days on which he or she is carried on sick leave, but not beyond the
earlier of the date on which he or she returns to the port of origin or
the termination date of the voyage; and
(7) The days of approved leave from a vessel (paid or unpaid)
during a voyage.
Sec. 630.704 Granting shore leave.
(a) Authority. (1) An employee has an absolute right to use shore
leave, subject to the right of the head of the agency to fix the time
at which shore leave may be used.
(2) An agency may grant shore leave during a voyage only when
requested by an employee.
(3) An employee must submit a written request to use shore leave.
Whenever a request to use shore leave is denied, the agency must
provide the employee with a written denial.
(b) Accumulation. Shore leave is in addition to annual leave, and
an employee may accumulate shore leave for future use without
limitation.
(c) Charge for shore leave. The minimum charge for shore leave is 1
day, and additional charges are in multiples thereof.
(d) Lump sum payment. An employee may not receive a lump-sum
payment for unused shore leave when he or she separates from Federal
service, except as provided in 5 U.S.C. 6305(c)(2).
(e) Terminal leave. (1) Except as provided by paragraph (e)(2) of
this
[[Page 1095]]
section, an agency may not grant shore leave to an employee as terminal
leave. For the purpose of this paragraph, terminal leave is an approved
absence immediately before an employee's separation when the agency
knows the employee will not return to duty before the date of his or
her separation.
(2) An agency must grant shore leave as terminal leave when an
employee's inability to use shore leave was because of circumstances
beyond his or her control and not his or her own act or omission.
(f) Forfeiture of shore leave. Shore leave is forfeited if it is
not granted before separation from Federal service or official
assignment (other than by temporary detail) to a position in which an
employee does not earn shore leave. When an official assignment will
result in forfeiture of shore leave, the agency must, to the extent
administratively practicable, give the employee an opportunity to use
the shore leave to his or her credit before the reassignment or, when
the agency is unable to grant the shore leave before the reassignment,
not later than 6 months after the date of the employee's reassignment.
Subpart H--Funeral Leave
Sec. 630.801 Purpose.
This subpart and 5 U.S.C. 6326 authorize an agency to grant funeral
leave to an employee in connection with the funeral of, or memorial
service for, his or her immediate relative who died as a result of
wounds, disease, or injury incurred while serving as a member of the
Armed Forces in a combat zone.
Sec. 630.802 Coverage.
This subpart applies to an employee, as defined in 5 U.S.C. 2105,
who is employed by an executive agency, as defined in 5 U.S.C. 105.
Sec. 630.803 Definitions.
In this subpart:
Armed Forces means the Army, Navy, Air Force, Marine Corps, and
Coast Guard.
Combat zone means those areas determined by the President in
accordance with section 112 of the Internal Revenue Code.
Funeral leave means leave authorized by 5 U.S.C. 6326 and this
subpart.
Immediate relative means the following relatives of the deceased
member of the armed forces:
(1) Spouse, and parents thereof;
(2) Children, including adopted children, and spouses thereof;
(3) Parents;
(4) Brothers and sisters, and spouses thereof; and
(5) Any individual related by blood or affinity whose close
association with the deceased was the equivalent of a family
relationship.
Sec. 630.804 Granting funeral leave.
(a) An agency must grant an employee up to 3 workdays of funeral
leave without loss of pay, charge to leave to which the employee is
otherwise entitled, or loss of credit for time or service and without
adversely affecting his or her performance or efficiency rating.
Funeral leave is granted to allow an employee to make arrangements for
or to attend the funeral or memorial service for an immediate relative
who died as the result of a wound, disease, or injury incurred while
serving as a member of the Armed Forces in a combat zone. The 3 days
need not be consecutive, but if not, the employee must furnish the
approving authority with satisfactory reasons justifying a grant of
funeral leave for nonconsecutive days.
(b) An agency may grant funeral leave only from an established tour
of duty, including regularly scheduled overtime.
Subpart I--Voluntary Leave Transfer Program
Sec. 630.901 Purpose.
This subpart sets forth procedures and requirements for a voluntary
leave transfer program under which the unused accrued annual leave of
one agency employee or officer may be transferred for use by another
agency employee or officer who needs such leave because of a medical
emergency. This subpart implements the provisions of 5 U.S.C., chapter
63, subchapter III, and must be read together with those provisions of
law.
Sec. 630.902 Coverage.
Employees and officers to whom the definition of employee under 5
U.S.C. 6301 applies are covered by the voluntary leave transfer
program.
Sec. 630.903 Definitions.
In this subpart:
Agency means--
(a) An executive agency, as defined in 5 U.S.C. 105;
(b) A military department, as defined in 5 U.S.C. 102; or
(c) Any other entity of the Federal Government that employs
officers or employees to whom the definition of employee under 5 U.S.C.
6301 applies. Except as provided in Sec. 630.922, it does not include
the Central Intelligence Agency; the Defense Intelligence Agency; the
National Security Agency; the Federal Bureau of Investigation; or any
other executive agency or unit thereof, as determined by the President,
whose principal function is the conduct of foreign intelligence or
counterintelligence activities.
Available paid leave means accrued or accumulated annual or sick
leave under 5 U.S.C. 6302-6304 and 6307 and recredited and restored
annual or sick leave under subpart C or E of this part. If the medical
emergency involves a family member of the employee, his or her
available paid leave includes that amount of sick leave which he or she
is entitled to use to care for a family member under Sec. 630.401.
Available paid leave does not include annual or sick leave advanced to
an employee under 5 U.S.C. 6302(d) or 6307(d) or any annual or sick
leave accrued under Sec. 630.915 that has not been transferred to the
appropriate leave account under Sec. 630.917.
Employee has the meaning given that term in 5 U.S.C. 6301(2), but
does not include an individual employed by the government of the
District of Columbia.
Family member means the following relatives of the employee:
(1) Spouse, and parents thereof;
(2) Children, including adopted children, and spouses thereof;
(3) Parents;
(4) Brothers and sisters, and spouses thereof; and
(5) Any individual related by blood or affinity whose close
association with the employee is the equivalent of a family
relationship.
Healthcare provider has the meaning given that term in Sec.
630.1204.
Leave donor means an employee whose voluntary written request for
transfer of annual leave to the annual leave account of a leave
recipient is approved by his or her own employing agency.
Leave recipient means a current employee for whom the employing
agency has approved an application to receive annual leave from the
annual leave accounts of one or more leave donors.
Medical emergency means a serious health condition, as that term is
defined in Sec. 630.1204, which affects an employee or a family member
of such employee and is likely to require the employee's absence from
duty for a prolonged period of time and to result in a substantial loss
of income to the employee because of the unavailability of paid leave.
Paid leave status means the administrative status of an employee
while the employee is using annual or sick leave accrued or accumulated
under 5 U.S.C. 6302-6304 and 6307.
Shared leave status means the administrative status of an employee
[[Page 1096]]
while the employee is using transferred leave under this subpart or
leave transferred from a leave bank under subpart J of this part.
Transferred leave means donated annual leave credited to an
approved leave recipient's annual leave account.
Sec. 630.904 Administration.
Each Federal agency must establish and administer procedures to
permit the voluntary transfer of annual leave consistent with this
subpart.
Sec. 630.905 Uncommon tour of duty.
An agency having employees who earn and use annual leave on the
basis of an uncommon tour of duty, as that term is defined in Sec.
630.201, must establish procedures for administering the transfer of
annual leave to or from such employees under this subpart. Those
procedures must be based on the ``directly proportional'' rules the
agency uses to determine rates of leave accrual under 5 CFR 630.204.
Sec. 630.906 Application to become a leave recipient.
(a) An employee must make written application to his or her
employing agency to become a leave recipient. If the employee is not
capable of making application, a personal representative may make
written application on his or her behalf. An agency may establish a
time limit during which an employee must make a written application to
become a leave recipient following the termination of a medical
emergency.
(b) The following information must accompany an application for
donated leave:
(1) The employee's name, position title, and grade or pay level;
(2) The reasons transferred leave is needed, including a brief
description of the nature, severity, and anticipated duration of the
medical emergency, and if it is a recurring one, the approximate
frequency of the medical emergency affecting the employee;
(3) Certification from one or more healthcare providers, with
respect to the medical emergency, if the employing agency so requires;
(4) The date the medical emergency terminated, if the employee is
applying to become a leave recipient after the medical emergency has
terminated; and
(5) Any additional information required by the employing agency.
(c) If an employee is required to obtain certification from two or
more healthcare providers under paragraph (b)(3) of this section, the
employing agency must ensure, by direct payment to the healthcare
provider involved or by reimbursement, that the employee is not
required to pay for the expenses associated with obtaining
certification from more than one healthcare provider.
Sec. 630.907 Approval of an application to become a leave recipient.
(a) The potential leave recipient's employing agency must review an
application to become a leave recipient under procedures established by
the agency for the purpose of determining that the employee is or has
been affected by a medical emergency.
(b) Before approving an employee's application to become a leave
recipient, the employing agency must determine that his or her absence
from duty without available paid leave because of the medical emergency
is (or is expected to be) at least 24 hours (or, in the case of a part-
time employee or an employee with an uncommon tour of duty, at least 30
percent of the average number of hours in the employee's biweekly
scheduled tour of duty).
(c) In making a determination as to whether a medical emergency is
likely to result in a substantial loss of income because of the
unavailability of paid leave, an agency may not consider an employee's
grade or pay level or financial status.
Sec. 630.908 Notification of approval of an application.
If an employee's application to become a leave recipient is
approved, the employing agency must notify the employee (or the
personal representative who made application on the employee's behalf)
within 10 calendar days (excluding Saturdays, Sundays, and legal public
holidays) after the date the application was received, that--
(a) The application has been approved; and
(b) Other employees of the employing agency may request the
transfer of their annual leave to the employee's leave account.
Sec. 630.909 Disapproval of an application to become a leave
recipient.
If an employee's application to become a leave recipient is not
approved, the employing agency must notify the employee (or his or her
personal representative who made application on the employee's behalf)
within 10 calendar days (excluding Saturdays, Sundays, and legal public
holidays) after the date the application was received, that--
(a) The application has not been approved, and
(b) The reasons for its disapproval.
Sec. 630.910 Donating annual leave through a leave transfer program.
(a) A leave donor may submit a voluntary written request to his or
her employing agency that a specified number of hours of the donor's
accrued annual leave, including annual leave restored under 5 U.S.C.
6304(d) and 5596(b)(1)(B)(i), but excluding annual leave advanced to
the employee under 5 U.S.C. 6302(d) and Sec. 630.210(a), be
transferred from his or her annual leave account to the annual leave
account of a specified leave recipient. Except as provided in Sec.
630.911, annual leave may be transferred only to an approved leave
recipient employed by the donor's employing agency.
(b) An employee who transfers to a position excepted from 5 U.S.C.
chapter 63, subchapter I, by 5 U.S.C. 6301(2)(x)-(xii) may submit a
voluntary written request to his or her employing agency that a
specified number of hours of his or her accrued or accumulated annual
leave that is being held in abeyance be transferred from his or her
annual leave account to the annual leave account of a specified leave
recipient. Except as provided in Sec. 630.911, annual leave may be
transferred only to a leave recipient employed by the leave donor's
employing agency.
(c) Except as provided in Sec. 630.913, and subject to the
limitations on the amount of annual leave that may be donated by a
leave donor under Sec. 630.912, all or any portion of the annual leave
the donor requested under paragraph (a) of this section may be
transferred to the annual leave account of the specified leave
recipient under procedures established by his or her employing agency.
Sec. 630.911 Donation of leave to an employee in a different agency.
(a) If a leave donor wishes to donate annual leave to an approved
leave recipient in another agency, the donor's agency must verify the
availability of annual leave in his or her annual leave account,
determine that the amount of annual leave to be donated does not exceed
the limitations in Sec. 630.912, and ascertain that the leave
recipient's employing agency has made the determination required by
paragraph (b) of this section. Upon satisfying these requirements, the
donor's agency must--
(1) Reduce the amount of annual leave credited to the donor's
annual leave account, as appropriate; and
(2) Notify the approved leave recipient's employing agency in
writing of the amount of annual leave to be credited to his or her
annual leave account.
[[Page 1097]]
(b) The employing agency of an approved leave recipient must accept
the transfer of annual leave from leave donors employed by one or more
other agencies when--
(1) The leave recipient has a family member employed by another
agency who requests the transfer of annual leave to him or her;
(2) In the judgment of the employing agency, the amount of annual
leave transferred from leave donors employed by the employing agency
may not be sufficient to meet the employee's needs; or
(3) In the judgment of the employing agency, acceptance of leave
transferred from another agency would further the purpose of the
voluntary leave transfer program.
Sec. 630.912 Limitations on the amount of annual leave that may be
donated through a leave transfer program.
(a) In any one leave year, a leave donor may donate no more than a
total of one-half of the amount of annual leave he or she would be
entitled to accrue during the leave year in which the donation is made.
(b) If a leave donor is projected to have annual leave that
otherwise would be subject to forfeiture at the end of the leave year
under 5 U.S.C. 6304(a), the maximum amount of annual leave that may be
donated during the leave year is the lesser of--
(1) One-half of the amount of annual leave the donor would be
entitled to accrue during the leave year in which the donation is made;
or
(2) The number of hours remaining in the leave year (as of the date
of the transfer) for which the donor is scheduled to work and receive
pay, excluding any period of paid or unpaid leave.
(c) In any one leave year, an employee who transfers to a position
excepted from 5 U.S.C. chapter 63, subchapter I, by 5 U.S.C.
6301(2)(x)-(xii) may donate not more than a total of one-half of the
amount of annual leave he or she was entitled to accrue in the leave
year in effect prior to transfer to the excepted position.
(d) An agency may waive the limitations on donating annual leave in
paragraphs (a), (b), and (c) of this section by establishing written
criteria for such waivers. All waivers must be documented in writing.
(e) The limitations in this section apply to the total amount of
annual leave donated or contributed under subparts I and J of this part
(the voluntary leave transfer and leave bank programs).
Sec. 630.913 Prohibition against donation of leave to an immediate
supervisor.
An employee may not donate annual leave to his or her immediate
supervisor.
Sec. 630.914 Restrictions on the use of transferred annual leave by a
leave recipient.
(a) A leave recipient may use annual leave transferred to his or
her annual leave account only for the purpose of the medical emergency
for which the recipient was approved. An approved leave recipient who
has received an official notice of leave restriction from his or her
agency is subject to the terms and conditions of the leave restriction
notice when requesting and using donated annual leave under this
subpart.
(b) Except as provided in Sec. 630.915(b), in each biweekly pay
period during which a leave recipient is affected by a medical
emergency, he or she must use any accrued annual leave, and sick leave,
if applicable, before using transferred annual leave.
(c) The approval and use of transferred annual leave is subject to
all of the conditions and requirements imposed by 5 U.S.C. 6302-6304,
this part, and the employing agency on the approval and use of annual
leave accrued under 5 U.S.C. 6303, except that transferred annual leave
may accumulate without regard to the limitation imposed by 5 U.S.C.
6304.
(d) A leave recipient may choose to substitute transferred annual
leave retroactively for any period of leave without pay or use it to
liquidate any indebtedness for any period of advanced annual or sick
leave that began on or after the date fixed by the employing agency as
the beginning of the medical emergency.
(e) A leave recipient may not--
(1) Transfer the leave he or she receives to another leave
recipient;
(2) Receive a lump-sum payment for transferred leave under 5 U.S.C.
5551 or 5552; or
(3) Receive recredit under 5 U.S.C. 6306 for the transferred leave
upon reemployment by a Federal agency.
(f) An agency may establish a maximum period of time, not less than
6 months, during which a qualified employee may continue to be an
approved leave recipient under subparts I and J of this part (the
voluntary leave transfer and leave bank programs) for any particular
medical emergency. When an employee is approved as a leave transfer
recipient, an agency which has established such a time limit must
provide the leave recipient with written notification of the maximum
period of time for which an employee may continue to be an approved
leave recipient.
Sec. 630.915 Accrual of leave in set-aside accounts while using
donated leave.
(a) An agency must credit any annual or sick leave a leave
recipient accrues while using transferred leave under this section and
Sec. 630.1013 to a set-aside annual or sick leave account, as
appropriate, that is separate from any leave account under 5 U.S.C.
6302-6304 and 6307.
(b) Any annual and sick leave an employee accrues in his or her
set-aside accounts while using transferred leave may not become
available for his or her use and may not otherwise be taken into
account under 5 U.S.C. 6302-6304 until it is transferred to the
appropriate annual and sick leave accounts under 5 U.S.C. 6303, as
provided in Sec. 630.917.
Sec. 630.916 Limitations on the accrual of annual and sick leave in
set-aside accounts while using donated leave.
Except as otherwise provided in Sec. 630.918, while an employee is
in a shared leave status as a leave recipient, annual and sick leave
must accrue to his or her credit at the same rate as if he or she were
in a paid leave status under 5 U.S.C. 6303, 6304, and 6307, except
that--
(a) The total amount of annual leave a leave recipient may accrue
while in a shared leave status under Sec. Sec. 630.915 and 630.1013 in
connection with any particular medical emergency may not exceed 40
hours (or, in the case of a part-time employee or an employee with an
uncommon tour of duty, the average number of hours in the employee's
weekly scheduled tour of duty); and
(b) The total amount of sick leave a leave recipient may accrue
while in a shared leave status under Sec. Sec. 630.915 and 630.1013 in
connection with any particular medical emergency may not exceed 40
hours (or, in the case of a part-time employee or an employee with an
uncommon tour of duty, the average number of hours in the employee's
weekly scheduled tour of duty).
Sec. 630.917 Using annual and sick leave in set-aside accounts.
Any annual or sick leave an employee accrues in his or her set-
aside accounts as a leave recipient under subparts I and J of this part
(the voluntary leave transfer and leave bank programs), must be
transferred to the employee's annual or sick leave account, as
appropriate, under 5 U.S.C. 6303 and 6307 and must become available for
use--
(a) As of the beginning of the first pay period beginning on or
after the date the
[[Page 1098]]
medical emergency terminates, as prescribed in Sec. 630.920(a)(2) or
(3); or
(b) Once the employee has exhausted all leave made available under
5 CFR subparts I or J (the voluntary leave transfer and leave bank
programs), if the medical emergency has not yet terminated. If annual
or sick leave accrued in the set-aside accounts under Sec. 630.915 is
transferred to the employee's appropriate leave account under 5 U.S.C.
chapter 63, subchapter I, before the set-aside accounts have reached
their maximum limits under Sec. 630.916, annual leave and sick leave
will continue to accrue in the set-aside accounts, in the event the
leave recipient receives and uses additional donated leave, until the
total amount accrued during the particular medical emergency has
reached the maximum limit of 40 hours of annual leave and 40 hours of
sick leave.
Sec. 630.918 Accrual of leave in set-aside accounts when annual and
sick leave have been advanced at the beginning of a leave year.
If, at the beginning of a leave year, an employing agency advances
the amount of annual leave an employee normally would accrue during the
entire leave year under 5 U.S.C. 6302(d)--
(a) The employing agency must establish procedures to ensure that
40 hours (or, in the case of a part-time employee or an employee with
an uncommon tour of duty, the average number of hours in his or her
weekly scheduled tour of duty) of annual leave is placed in a separate
set-aside annual leave account and made available for the leave
recipient's use as described in Sec. 630.917; and
(b) The leave recipient may continue to accrue annual leave while
in a shared leave status to the extent necessary for the purpose of
reducing any indebtedness caused by the use of annual leave advanced at
the beginning of the leave year.
Sec. 630.919 Terminating set-aside accounts when a leave recipient is
terminated from Federal service.
If a leave recipient is terminated from Federal service as
described in Sec. 630.920(a)(1) or Sec. 630.1014(a), he or she may
not receive credit or lump-sum payment for any leave accrued in the
set-aside accounts under Sec. Sec. 630.915 or 630.1013, and the
employing agency must terminate the set-aside accounts.
Sec. 630.920 Termination of a medical emergency.
(a) A leave recipient's medical emergency terminates--
(1) When his or her Federal service terminates;
(2) At the end of the biweekly pay period in which the employing
agency receives written notice from the employee or his or her personal
representative that the employee is no longer affected by a medical
emergency;
(3) At the end of the biweekly pay period in which the employing
agency determines that the employee is no longer affected by a medical
emergency, after giving the employee (or, if appropriate, his or her
personal representative) written notice and giving the employee (or, if
appropriate, his or her personal representative) an opportunity to
answer orally or in writing; or
(4) At the end of the biweekly pay period in which the employing
agency receives notice that OPM has approved the employee's application
for disability retirement under the Civil Service Retirement System or
the Federal Employees' Retirement System.
(b) The employing agency must continuously monitor the status of
the medical emergency affecting a leave recipient to ensure that he or
she continues to be affected by a medical emergency.
(c) When the medical emergency affecting an employee terminates, no
further requests for transfer of annual leave to him or her may be
granted, and any unused transferred annual leave remaining to the
employee's credit must be restored to the leave donors under Sec.
630.921.
(d) An agency may deem a medical emergency to continue for the
purpose of providing an employee with an adequate period of time within
which to receive donations of annual leave.
Sec. 630.921 Restoration of unused transferred annual leave to leave
donors.
(a) When a medical emergency terminates, any transferred annual
leave remaining to the credit of a leave recipient must be credited to
the annual leave accounts of leave donors who, on the date leave
restoration is made, are employed by a Federal agency and subject to 5
U.S.C. chapter 63. The employing agency must establish procedures for
restoring such unused transferred leave (as provided in paragraphs (b)
and (c) of this section and to the extent administratively feasible) by
transfer to the annual leave accounts of the leave donors who, on the
date leave restoration is made, are employed by a Federal agency and
subject to 5 U.S.C. chapter 63.
(b) The amount of unused transferred annual leave to be restored to
each leave donor must be determined as follows:
(1) Divide the number of hours of unused transferred annual leave
by the total number of hours of annual leave transferred to the leave
recipient;
(2) Multiply the ratio obtained in paragraph (b)(1) of this section
by the number of hours of annual leave transferred by each leave donor
eligible for restoration under paragraph (a) of this section; and
(3) Round the result obtained in paragraph (b)(2) of this section
to the nearest increment of time, either one-tenth of an hour (6
minutes) or one-quarter of an hour (15 minutes), as established by the
leave donor's employing agency to account for annual leave.
(c) If the total number of eligible leave donors exceeds the total
number of hours of annual leave to be restored, no unused transferred
annual leave may be restored. In no case may the amount of annual leave
restored to a leave donor exceed the amount donated by the leave donor
to the leave recipient.
(d) If the leave donor retires from Federal service, dies, or is
otherwise separated from Federal service before the date unused
transferred annual leave can be restored, the employing agency of the
leave recipient may not restore the unused transferred annual leave.
(e) At the election of a leave donor, unused transferred annual
leave restored under paragraph (a) of this section may be restored by--
(1) Crediting the restored annual leave to his or her annual leave
account in the current leave year;
(2) Crediting the restored annual leave to his or her annual leave
account effective as of the first day of the first leave year beginning
after the date of election;
(3) Donating such leave in its entirety to another leave recipient;
or
(4) Donating such leave in part to another leave recipient and
electing to have the remaining unused transferred leave credited to his
or her account under paragraphs (e)(1) or (e)(2) of this section.
(f) Transferred annual leave restored to a leave donor under
paragraph (e)(1) or (e)(2) of this section is subject to the limitation
imposed by 5 U.S.C. 6304(a) at the end of the leave year in which the
restored leave is credited to the leave donor's annual leave account.
(g) If a leave recipient elects to buy back annual leave as a
result of a claim for an employment-related injury approved by the
Office of Workers' Compensation Programs under 20 CFR part 10, and the
annual leave was leave transferred under Sec. 630.910, the amount of
annual leave bought back must be restored to the leave donor(s).
[[Page 1099]]
Sec. 630.922 Participation by an excepted agency.
(a) The head of an agency excepted from these regulations under 5
U.S.C. 6339(a)(1) may, at his or her sole discretion, establish a
program under which an individual employed in or under such excepted
agency may participate in a leave transfer program established under
the provisions of this subpart, including provisions permitting the
transfer of annual leave accrued or accumulated by such employee to, or
permitting such employee to receive transferred leave from, an employee
of any other agency (including another excepted agency having a program
under this subpart).
(b) An excepted agency choosing to participate in a leave transfer
program established under this subpart may develop a policy that
includes provisions that protect the anonymity of its employees. Leave
transferred to and from employees of such excepted agencies must be
accepted by other agencies (including another excepted agency having a
program under this subpart), regardless of whether the donating
employee is identified.
Sec. 630.923 Records.
An agency must record the status of a current leave recipient under
the voluntary leave transfer program when he or she transfers to
another Federal agency without a break in service. The employing agency
from which the leave recipient is transferring must document and
forward the following information to the new employing agency:
(a) The dates the medical emergency began and terminated (if
applicable);
(b) The date the employee was approved to become a leave recipient;
(c) The effective date of the transfer; and
(d) The hours of donated annual leave received, used, and remaining
at the time the leave recipient transfers to the new employing agency.
Subpart J--Voluntary Leave Bank Program
Sec. 630.1001 Purpose.
This subpart establishes procedures and requirements for a
voluntary leave bank program under which the unused accrued annual
leave of an employee or officer may be contributed to a leave bank for
use by a leave bank member who needs such leave because of a medical
emergency. This subpart implements the provisions of 5 U.S.C., chapter
63, subchapter IV, and must be read together with those provisions of
law.
Sec. 630.1002 Coverage.
This subpart applies to employees and officers--
(a) To whom the definition of employee under U.S.C. 6301 applies;
and
(b) Who are employed in agencies and their organizational subunits
operating a voluntary leave bank program under this subpart.
Sec. 630.1003 Definitions.
In this subpart:
Agency has the meaning given that term in Sec. 630.903.
Available paid leave has the meaning given that term in Sec.
630.903.
Employee has the meaning given that term in Sec. 630.903.
Family member has the meaning given that term in Sec. 630.903.
Healthcare provider has the meaning given that term in Sec.
630.1204.
Leave bank means a pooled fund of annual leave established by an
agency under Sec. 630.1004.
Leave bank contributor means an employee who contributes annual
leave to a leave bank under Sec. 630.1008.
Leave bank member means a leave bank contributor who has
contributed, in an open enrollment period (or individual enrollment
period, as applicable) of the current leave year, at least the minimum
amount of annual leave required by Sec. 630.1007.
Leave recipient means a leave bank member whose application to
receive contributions of annual leave from a leave bank has been
approved under Sec. 630.1011.
Medical emergency has the meaning given that term in Sec. 630.903.
Paid leave status has the meaning given that term in Sec. 630.903.
Shared leave status has the meaning given that term in Sec.
630.903.
Sec. 630.1004 Establishing and operating leave banks.
(a) An agency participating in the voluntary leave bank program
must--
(1) Develop written policies and procedures for establishing and
administering leave banks and leave bank boards consistent with this
subpart;
(2) Establish one or more leave bank boards to perform the duties
authorized by this subpart; and
(3) Establish and begin operating one or more leave banks.
(b) Annual leave may not be borrowed, contributed, or otherwise
transferred between leave banks, except as provided in Sec. 630.1106.
Sec. 630.1005 Operation of a leave bank board.
(a) Each leave bank board must consist of three members. At least
one member must represent a labor organization or employee group.
(b) Each leave bank board must--
(1) Establish its internal decision-making procedures;
(2) Review and approve or disapprove each application to become a
leave contributor under Sec. Sec. 630.1006 and 630.1008 and a leave
recipient under Sec. Sec. 630.1010 and 630.1011;
(3) Monitor the status of each leave recipient's medical emergency;
(4) Monitor the amount of leave in the leave bank and the number of
applications to become a leave recipient;
(5) Maintain an adequate amount of annual leave in the leave bank
to the greatest extent practicable in accordance with Sec. 630.1007;
and
(6) Perform other functions prescribed in this subpart.
(c) No more than one leave bank board may be established for each
leave bank.
(d) An agency having employees who earn and use annual leave on the
basis of an uncommon tour of duty must establish procedures for
administering the contribution and withdrawal of annual leave by such
employees under this subpart.
Sec. 630.1006 Application to become a leave bank member.
(a) An employee may become a leave bank member for a particular
leave year if he or she submits an application that meets the
requirements of this section and Sec. 630.1007 during an open
enrollment period established by the leave bank board under paragraphs
(b) and (c) of this section (or, where applicable, during an individual
enrollment period established under paragraph (d) of this section).
(b) A leave bank board must establish at least one open enrollment
period for each leave year of leave bank operation.
(c) An open enrollment period must last at least 30 calendar days.
An agency must take appropriate action to inform employees of each open
enrollment period.
(d) If an employee is entering the agency or participating
organizational subunit or returning from an extended absence outside an
open enrollment period, he or she may become a leave bank member for
the current leave year by submitting an application meeting the
requirements of this section during an individual enrollment period
lasting at least 30 calendar days, beginning on the date the employee
entered or returned to the agency or organizational subunit.
[[Page 1100]]
Sec. 630.1007 Minimum contribution of a leave bank member.
(a) Except as provided in paragraph (b) of this section, the
minimum contribution of annual leave required to become a leave bank
member for a leave year is--
(1) Four hours of annual leave for an employee who has less than 3
years of service at the time he or she submits an application to
contribute annual leave;
(2) Six hours of annual leave for an employee who has at least 3,
but less than 15, years of service at the time he or she submits an
application to contribute annual leave; and
(3) Eight hours of annual leave for an employee who has 15 or more
years of service at the time he or she submits an application to
contribute annual leave.
(b) A leave bank board may--
(1) Decrease the minimum contribution required by paragraph (a) of
this section for the following leave year when the board determines
that there is a surplus of leave in the bank;
(2) Increase the minimum contribution required by paragraph (a) of
this section for the following leave year when the board determines
that such action is necessary to maintain an adequate balance of annual
leave in the leave bank; or
(3) Eliminate the requirement for a minimum contribution under
paragraph (a) of this section when a leave bank member transfers within
his or her employing agency to an organization covered by a different
leave bank.
(c) If a leave recipient does not have sufficient available accrued
annual leave to his or her credit to make the full minimum contribution
required by this section, he or she must be deemed to have made the
minimum contribution.
(d) A leave bank board must deposit all contributions of annual
leave under this subpart in the leave bank.
(e) A leave bank member may apply to contribute additional annual
leave at any time.
Sec. 630.1008 Application to become a leave bank contributor.
(a) An employee may make voluntary written application to the leave
bank board to become a leave bank contributor at any time. The leave
contributor must specify on the application the number of hours of his
or her accrued annual leave, including annual leave restored under 5
U.S.C. 6304(d) and 5596(b)(1)(B)(i), but excluding annual leave
advanced under 5 U.S.C. 6302(d) and 5 CFR 630.210(a), to be contributed
and any other information the leave bank board may reasonably require.
(b) An employee may request that annual leave be contributed to a
specified bank member other than his or her immediate supervisor.
(c) Except as provided in Sec. 630.1019(c), a leave bank board may
not return a contribution of annual leave to a leave contributor after
deposit in the leave bank.
Sec. 630.1009 Maximum limitation on contribution of annual leave to a
leave bank.
(a) In any one leave year, a leave contributor may contribute no
more than a total of one-half of the amount of annual leave he or she
would be entitled to accrue during the leave year in which the
contribution is made.
(b) If a leave contributor is projected to have annual leave that
otherwise would be subject to forfeiture at the end of the leave year
under 5 U.S.C. 6304(a), the maximum amount of annual leave he or she
may contribute during the leave year is the lesser of--
(1) One-half of the amount of annual leave the employee would be
entitled to accrue during the leave year in which the contribution is
made; or
(2) The number of hours remaining in the leave year (as of the date
of the contribution) for which the employee is scheduled to work and
receive pay (excluding any periods of paid or unpaid leave).
(c) An agency may waive the limitations on donating annual leave
under paragraphs (a) and (b) of this section by establishing written
criteria permitting the leave bank board to approve such waivers. All
waivers must be documented in writing.
(d) The limitations in this section apply to the total amount of
annual leave donated or contributed under subparts I and J of this part
(the voluntary leave transfer and leave bank programs).
Sec. 630.1010 Application to become a leave recipient under a leave
bank.
(a) A leave bank member may make written application to the leave
bank board to become a leave recipient. If the leave bank member is not
capable of making application on his or her own behalf, a personal
representative may make written application on his or her behalf.
(b) For a medical emergency that has terminated, a leave bank board
may establish a maximum period during which it will accept a leave bank
member's written application to become a leave recipient following the
termination of the medical emergency.
(c) A leave bank member's application to become a leave recipient
must be accompanied by the following information:
(1) The leave bank member's name, position title, and grade or pay
level;
(2) The reasons leave is needed, including a brief description of
the nature, severity, anticipated duration, and if it is a recurring
one, the approximate frequency of the medical emergency affecting the
leave bank member;
(3) The date the medical emergency terminated if the leave bank
member is applying to become a leave recipient after the medical
emergency has terminated.
(4) Certification from one or more healthcare providers, with
respect to the medical emergency, if the leave bank board so requires;
and
(5) Any additional information that may be required by the leave
bank board.
(d) If the leave bank board requires a leave bank member to submit
certification from two or more sources under paragraph (c)(4) of this
section, the agency must ensure, either by direct payment to the
healthcare provider involved or by reimbursement, that the leave bank
member is not required to pay for the expenses associated with
obtaining certification from more than one source.
Sec. 630.1011 Approval of a leave recipient under a leave bank
program.
(a) The leave bank board must review an employee's application to
become a leave recipient under procedures established by the agency for
the purpose of determining whether the employee is a leave bank member
who is or has been affected by a medical emergency that is likely to
result in a substantial loss of income.
(b) Before approving an application to become a leave recipient,
the leave bank board must determine that the employee's absence from
duty without available paid leave because of the medical emergency is
(or is expected to be) at least 24 hours (or, in the case of a part-
time employee or an employee with an uncommon tour of duty, at least 30
percent of the average number of hours in the employee's biweekly
scheduled tour of duty).
(c) An agency may not consider an employee's grade or pay level or
financial status in making a determination as to whether the medical
emergency is likely to result in a substantial loss of income because
of the unavailability of paid leave.
(d) The leave bank board must provide timely written notification
to the applicant of the action taken on the application. If the leave
bank board disapproves the application, notification
[[Page 1101]]
must include the reasons for disapproval.
Sec. 630.1012 Restrictions on the use of annual leave withdrawn from
a leave bank.
(a) A leave recipient may use annual leave withdrawn from a leave
bank only for the purpose of the medical emergency for which the leave
recipient was approved. An approved leave recipient who has received an
official notice of leave restriction from his or her agency is subject
to the terms and conditions of the leave restriction notice when
requesting and using donated annual leave under this subpart.
(b) Except as provided in Sec. 630.1013, in each biweekly pay
period during which a leave recipient is affected by a medical
emergency, he or she must use any accrued annual leave (and sick leave,
if applicable) before using annual leave withdrawn from a leave bank.
(c) The approval and use of annual leave withdrawn from a leave
bank is subject to all of the conditions and requirements imposed by 5
U.S.C. 6302-6304, this part, and the agency on the approval and use of
annual leave accrued under 5 U.S.C. 6303, except that annual leave
withdrawn from a leave bank may accumulate without regard to any
limitation imposed by 5 U.S.C. 6304(a).
(d) Annual leave withdrawn from a leave bank may be substituted
retroactively for any period of leave without pay or used to liquidate
an indebtedness for any period of advanced leave that began on or after
the date fixed by the leave bank board as the beginning of the medical
emergency.
(e) Annual leave withdrawn from a leave bank may not be--
(1) Transferred to another leave recipient;
(2) Included in a lump-sum payment under 5 U.S.C. 5551 or 5552; or
(3) Made available for recredit under 5 U.S.C. 6306 upon
reemployment by a Federal agency.
(f) An agency may establish a maximum period of time, not less than
6 months, during which an employee may continue to be an approved leave
recipient under subparts I and J of this part (the voluntary leave
transfer and leave bank programs) for any particular medical emergency.
An agency which has established such a time limitation must provide the
leave recipient with written notification of the maximum continuous
period of time for which an employee may continue to be an approved
leave recipient.
Sec. 630.1013 Accrual and use of leave in set-aside accounts under a
leave bank program.
When an employee is receiving donated leave from a leave bank,
annual leave and sick leave will accrue to his or her credit as
provided in Sec. Sec. 630.915, 630.916, and 630.918 and will become
available for his or her use as provided in Sec. Sec. 630.917 and
630.919.
Sec. 630.1014 Termination of a medical emergency under the leave bank
program.
A leave recipient's medical emergency terminates--
(a) When his or her Federal service terminates;
(b) When he or she leaves the agency or participating
organizational subunit, if the bank board so determines;
(c) At the end of the biweekly pay period in which the leave bank
board receives written notice from the leave recipient or his or her
personal representative that the leave recipient is no longer affected
by a medical emergency;
(d) At the end of the biweekly pay period in which the leave bank
board determines, after written notice from the bank board and an
opportunity for the leave recipient (or, if appropriate, his or her
personal representative) to answer orally or in writing, that the leave
recipient is no longer affected by a medical emergency; or
(e) At the end of the biweekly pay period in which the employing
agency receives notice that OPM has approved the leave recipient's
application for disability retirement under the Civil Service
Retirement System or the Federal Employees' Retirement System.
Sec. 630.1015 Restoration of unused leave to a leave bank.
(a) A leave bank board must ensure that annual leave withdrawn from
the leave bank and not used before the termination of the medical
emergency is returned to the leave bank.
(b) A leave bank board may deem a medical emergency to continue for
the purpose of providing the leave recipient with an adequate period of
time within which to receive contributions of annual leave.
(c) If a leave recipient elects to buy back annual leave as a
result of a claim for an employment-related injury approved by the
Office of Workers' Compensation Programs under 20 CFR part 10, and the
annual leave was leave withdrawn from a leave bank under Sec.
630.1012, the amount of annual leave bought back must be restored to
the leave bank.
Sec. 630.1016 Participation in both the voluntary leave transfer and
leave bank programs.
(a) If an agency or organizational subunit establishes a voluntary
leave bank program under this subpart--
(1) A covered employee may also participate in a voluntary leave
transfer program under subpart I of this part;
(2) Any annual leave previously transferred to an employee under
the voluntary leave transfer program must remain to his or her credit
if the employee later becomes a leave recipient in a leave bank and
must become subject to the agency's policies and procedures for
administering this subpart, except as provided in paragraphs (b) and
(c) of this section; and
(3) The agency or organizational subunit must establish policies or
procedures governing the use of donated or transferred leave if an
employee receives leave under both a voluntary leave transfer program
and a voluntary leave bank program for the same medical emergency.
(b) Upon termination of a medical emergency, any annual leave
previously transferred under the voluntary leave transfer program and
remaining to the employee's credit must be restored under Sec.
630.921(a) through (d).
(c) Transferred annual leave restored to the account of a leave
donor under paragraph (b) of this section is subject to the limitation
imposed by 5 U.S.C. 6304(a) and (b) at the end of the leave year in
which the annual leave is restored.
Sec. 630.1017 Transferring to a new leave bank.
If an employee moves from an agency or organizational subunit
operating a leave bank to an agency or organizational subunit operating
a different leave bank, the following procedures apply:
(a) On the date of the leave recipient's transfer, he or she
becomes subject to the policies and procedures of the voluntary leave
bank program of the new agency or organizational subunit; and
(b) Nothing in Sec. Sec. 630.1014(b) or 630.1015(a) may interfere
with the employee's right to submit an application to become a leave
contributor or leave recipient under the policies and procedures of the
voluntary leave bank program of the new agency or organizational
subunit.
Sec. 630.1018 Transferring to an agency that does not have a leave
bank.
If an employee moves from an agency or organizational subunit
covered by a
[[Page 1102]]
voluntary leave bank program under this subpart to an agency or
organizational subunit covered only by a voluntary leave transfer
program under subpart I of this part, the following procedures apply:
(a) On the date of the employee's transfer, he or she becomes
subject to the policies and procedures of the voluntary leave transfer
program of the new agency or organizational subunit; and
(b) Nothing in Sec. Sec. 630.1014(b) or 630.1015(a) may interfere
with the employee's right to submit an application to become a leave
donor or leave recipient under the voluntary leave transfer program of
the new agency or organizational subunit.
Sec. 630.1019 Termination of a voluntary leave bank program.
(a) An agency may terminate a voluntary leave bank program only
after providing at least 30 calendar days advance written notice to
current leave bank members.
(b) If an agency terminates a voluntary leave bank program before
the termination of the medical emergency affecting a leave bank
recipient, annual leave transferred to the leave recipient must remain
available for use under the rules set forth in subpart I of this part.
(c) If an agency terminates a voluntary leave bank program, the
agency must make provisions for the timely and equitable distribution
of any leave remaining in the leave bank. The agency may allocate the
leave to current leave recipients, recredit the leave to the accounts
of current voluntary leave bank members, or a combination of both. The
agency may distribute the leave immediately or may delay the
distribution, in whole or part, until the beginning of the following
leave year.
Sec. 630.1020 Records.
Each agency must maintain records concerning the administration of
the voluntary leave bank program.
Subpart K--Emergency Leave Transfer Program
Sec. 630.1101 Purpose.
This subpart provides regulations to implement 5 U.S.C. 6391, which
authorizes the President to direct OPM to establish an emergency leave
transfer program under which an employee may donate unused annual leave
for transfer to employees of his or her agency or to employees in other
executive agencies who are adversely affected by a major disaster or
emergency, as declared by the President.
Sec. 630.1102 Coverage.
This subpart applies to any individual who is defined as an
employee in 5 U.S.C. 6331(1) and who is employed in an executive
agency.
Sec. 630.1103 Administration.
The head of each agency having employees subject to this subpart is
responsible for the proper administration of this subpart. Each Federal
agency must establish and administer procedures to permit the voluntary
transfer of annual leave consistent with this subpart.
Sec. 630.1104 Definitions.
In this subpart:
Agency means an executive agency, as defined in 5 U.S.C. 105.
Disaster or emergency means a major disaster or emergency, as
declared by the President, that results in severe adverse effects for a
substantial number of employees (e.g., loss of life or property,
serious injury, or mental illness as a result of a direct threat to
life or health).
Emergency leave donor means a current employee whose voluntary
written request for transfer of annual leave to an emergency leave
transfer program is approved by his or her employing agency.
Emergency leave recipient means a current employee for whom the
employing agency has approved an application to receive annual leave
under an emergency leave transfer program.
Emergency leave transfer program means a program established by OPM
that permits Federal employees to transfer their unused annual leave to
other Federal employees adversely affected by a disaster or emergency,
as declared by the President.
Employee has the meaning given that term in 5 U.S.C. 6331(1).
Family member has the meaning given that term in Sec. 630.903.
Leave year has the meaning given that term in Sec. 630.201.
Paid leave status has the meaning given that term in Sec. 630.903.
Transferred leave means donated leave credited to an approved
emergency leave recipient's annual leave account.
Sec. 630.1105 Establishment of an emergency leave transfer program.
(a) When directed by the President, OPM will establish an emergency
leave transfer program that permits an employee to donate his or her
accrued annual leave to employees of the same or other executive
agencies who are adversely affected by a major disaster or emergency
that results in severe adverse effects for a substantial number of
employees. In certain situations, OPM may delegate to an agency the
authority to establish an emergency leave transfer program.
(b) OPM will notify agencies of the establishment of an emergency
leave transfer program for a specific disaster or emergency, as
declared by the President. Once notified, an agency affected by the
disaster or emergency is authorized to do the following:
(1) Determine whether, and how much, donated annual leave is needed
by affected employees;
(2) Approve emergency leave donors and/or emergency leave
recipients within the agency, as appropriate;
(3) Facilitate the distribution of donated annual leave from
approved emergency leave donors to approved emergency leave recipients
within the agency; and
(4) Determine the period of time for which donated annual leave may
be accepted for distribution to approved emergency leave recipients.
Sec. 630.1106 Donations from a leave bank to an emergency leave
transfer program.
A leave bank established under 5 U.S.C. 6362 and subpart J of this
part may, with the concurrence of the leave bank board established
under Sec. 630.1004, donate annual leave to an emergency leave
transfer program administered by the employing agency.
Sec. 630.1107 Application to become an emergency leave recipient.
(a) An employee who has been adversely affected by a disaster or
emergency may make written application to his or her employing agency
to become an emergency leave recipient. If an employee is not capable
of making written application, a personal representative may make
written application on behalf of the employee.
(b) An employee who has a family member who has been adversely
affected by a disaster or emergency also may make written application
to his or her employing agency to become an emergency leave recipient.
An emergency leave recipient may use donated annual leave to assist an
affected family member, provided such family member has no reasonable
access to other forms of assistance.
(c) For the purpose of this subpart, an employee is considered to
be adversely affected by a major disaster or emergency if the disaster
or emergency has caused the employee or a family member of the employee
severe hardship to such a degree that his or her absence from work is
required.
[[Page 1103]]
(d) The employee's application must be accompanied by the following
information:
(1) The name, position title, and grade or pay level of the
potential leave recipient;
(2) A statement describing his or her need for leave from the
emergency leave transfer program; and
(3) Any additional information that may be required by the
potential leave recipient's employing agency.
(e) An agency may determine a time period by which employees must
apply to become an emergency leave recipient after the occurrence of a
major disaster or emergency.
Sec. 630.1108 Approval of an application to become an emergency leave
recipient.
An agency must review an application to become an emergency leave
recipient under procedures the agency has established for the purpose
of determining that a potential leave recipient is or has been affected
by a major disaster or emergency.
Sec. 630.1109 Notification of approval of an application.
If an employee's application to become an emergency leave recipient
is approved, the agency must notify the employee (or his or her
personal representative) within 10 calendar days (excluding Saturdays,
Sundays, and legal public holidays) after the date the application was
received (or the date established by the agency, if that date is
later).
Sec. 630.1110 Disapproval of an application to become an emergency
leave recipient.
If an employee's application to become an emergency leave recipient
is not approved, the employing agency must notify the employee (or his
or her personal representative who made application on the employee's
behalf) within 10 calendar days (excluding Saturdays, Sundays, and
legal public holidays) after the date the application was received (or
the date established by the agency, if that date is later). The agency
must give the reasons for its disapproval.
Sec. 630.1111 Use of available paid leave.
An approved emergency leave recipient is not required to exhaust
his or her accrued annual and sick leave before receiving donated leave
under the emergency leave transfer program.
Sec. 630.1112 Donating annual leave.
An employee may voluntarily submit a written request to his or her
agency that a specified number of hours of his or her accrued annual
leave, consistent with the limitations in Sec. 630.1113, be
transferred from his or her annual leave account to an emergency leave
transfer program established under Sec. 630.1105. An emergency leave
donor may not donate annual leave for transfer to a specific emergency
leave recipient under this subpart. Any donated leave not used by an
emergency leave recipient may not be returned to the emergency leave
donor(s), except as provided in Sec. 630.1120(a).
Sec. 630.1113 Limitation on the amount of leave donated by an
emergency leave donor.
(a) An emergency leave donor may not contribute less than 1 hour
nor more than 104 hours of annual leave in a leave year to an emergency
leave transfer program. Each agency may establish written criteria for
waiving the 104-hour limitation on donating annual leave in a leave
year.
(b) Annual leave donated to an emergency leave transfer program may
not be applied against the limitations on the donation of annual leave
under the voluntary leave transfer or leave bank programs established
under 5 U.S.C. 6332 and 6362, respectively.
Sec. 630.1114 Limitation on the amount of leave received by an
emergency leave recipient.
An emergency leave recipient may receive a maximum of 240 hours of
donated annual leave at any one time from an emergency leave transfer
program for each disaster or emergency.
Sec. 630.1115 Transferring donated leave between agencies.
(a) If an agency does not receive sufficient amounts of donated
annual leave to meet the needs of approved emergency leave recipients
within the agency, the agency may contact OPM to obtain assistance in
receiving donated leave from other agencies. The agency must notify OPM
of the total amount of donated annual leave needed for transfer to the
agency's approved emergency leave recipients. OPM will solicit and
coordinate the transfer of donated annual leave from other Federal
agencies to affected agencies who may have a shortfall of donated
annual leave. OPM will determine the period of time for which donations
of accrued annual leave may be accepted for transfer to affected
agencies.
(b) Each Federal agency OPM contacts for the purpose of providing
donated annual leave to an agency in need must--
(1) Approve emergency leave donors under the conditions specified
in Sec. Sec. 630.1112 and 630.1113 and determine how much donated
annual leave is available for transfer to an affected agency;
(2) Report the total amount of annual leave donated to the
emergency leave transfer program to OPM; and
(3) When OPM has accepted the donated annual leave, debit the
amount of annual leave donated to the emergency leave transfer program
from each emergency leave donor's annual leave account.
(c) OPM will notify each affected agency of the aggregate amount of
donated annual leave that will be credited to it for transfer to its
approved emergency leave recipient(s). The affected agency will
determine the amount of donated annual leave to be transferred to each
emergency leave recipient (an amount that may vary according to
individual needs).
(d) The affected agency must credit the annual leave account of
each approved emergency leave recipient as soon as possible after the
date OPM notifies the agency of the amount of donated annual leave that
will be credited to the agency under paragraph (c) of this section.
Sec. 630.1116 Using donated annual leave.
(a) Any donated leave an emergency leave recipient receives from an
emergency leave transfer program may be used only for purposes related
to the disaster or emergency for which the emergency leave recipient
was approved. Each agency is responsible for ensuring that leave
donated under the emergency leave transfer program is used
appropriately.
(b) Annual leave transferred under this subpart may be--
(1) Substituted retroactively for any period of leave without pay
used because of the adverse effects of the disaster or emergency; or
(2) Used to liquidate an indebtedness incurred by the emergency
leave recipient for advanced annual or sick leave used because of the
adverse effects of the disaster or emergency. The agency may advance
annual or sick leave, as appropriate (even if the employee has
available annual and sick leave), so that the emergency leave recipient
is not forced to use his or her accrued leave before donated annual
leave becomes available.
Sec. 630.1117 Accrual of leave while using donated leave.
While an emergency leave recipient is using donated annual leave
from an emergency leave transfer program, annual and sick leave
continue to accrue to the credit of the employee at the same rate as if
he or she were in a paid leave status under 5 U.S.C. chapter
[[Page 1104]]
63, subchapter I, and will be subject to the limitations imposed by 5
U.S.C. 6304(a), (b), (c), and (f) at the end of the leave year in which
the transferred annual leave is received.
Sec. 630.1118 Purposes for which donated leave may not be credited.
An agency may not--
(a) Include annual leave transferred under this subpart in a lump-
sum payment under 5 U.S.C. 5551 or 5552;
(b) Recredit the annual leave transferred under this subpart to an
employee who is reemployed by a Federal agency under 5 U.S.C. 6306; or
(c) Use annual leave transferred under this subpart to establish
initial eligibility for immediate retirement or acquire eligibility to
continue health benefits into retirement under 5 U.S.C. 6302(g) and
Sec. 630.214.
Sec. 630.1119 Termination of a disaster or emergency.
The disaster or emergency affecting the employee as an emergency
leave recipient terminates--
(a) When the employing agency determines that the disaster or
emergency has terminated;
(b) When the employee's Federal service terminates;
(c) At the end of the biweekly pay period in which the employee, or
his or her personal representative, notifies the emergency leave
recipient's agency that he or she is no longer affected by such
disaster or emergency;
(d) At the end of the biweekly pay period in which the employee's
agency determines, after giving the employee or his or her personal
representative written notice and an opportunity to answer orally or in
writing, that the employee is no longer affected by such disaster or
emergency; or
(e) At the end of the biweekly pay period in which the employee's
agency receives notice that OPM has approved an application for
disability retirement for the emergency leave recipient under the Civil
Service Retirement System or the Federal Employees' Retirement System,
as appropriate.
Sec. 630.1120 Procedures for returning unused leave to emergency
leave donors.
(a) When a disaster or emergency is terminated, any unused annual
leave donated to an emergency leave transfer program must be returned
to the emergency leave donors. The amount of remaining annual leave to
be returned to each emergency leave donor must be proportional to the
amount of annual leave donated by the employee to the emergency leave
transfer program for such disaster or emergency. Annual leave donated
to an emergency leave transfer program for a specific disaster or
emergency may not be transferred to another emergency leave transfer
program established for a different disaster or emergency.
(b) Each agency must establish procedures to return unused donated
annual leave to emergency leave donors. Each agency must determine the
amount of annual leave to be restored to each of the emergency leave
donors who, on the date leave restoration is made, is employed by a
Federal agency. If the total number of eligible leave donors exceeds
the total number of hours of annual leave to be restored, no unused
transferred annual leave will be restored. At the election of the
emergency leave donor, the agency may restore unused annual leave to
the emergency leave donor by--
(1) Crediting the restored annual leave to the emergency leave
donor's annual leave account in the current leave year; or
(2) Crediting the restored annual leave to the emergency leave
donor's annual leave account effective as of the 1st day of the
following leave year.
Sec. 630.1121 Protection against coercion.
(a) An employee may not directly or indirectly intimidate,
threaten, or coerce, or attempt to intimidate, threaten, or coerce, any
emergency leave donor or emergency leave recipient for the purpose of
interfering with any right such employee may have with respect to
donating, receiving, or using annual leave under this subpart.
(b) For the purpose of paragraph (a) of this section, the term
intimidate, threaten, or coerce includes promising to confer or
conferring any benefit (such as appointment or promotion or
compensation) or effecting or threatening to effect any reprisal (such
as deprivation of appointment, promotion, or compensation).
Subpart L--Family and Medical Leave
Sec. 630.1201 Purpose.
This subpart provides regulations to implement 5 U.S.C. 6381
through 6387 and must be read together with those sections of law.
Sections 6381 through 6387 of title 5, United States Code, entitle most
Federal employees to a total of up to 12 administrative workweeks of
unpaid leave during any 12-month period for certain family and medical
needs, as specified in Sec. 630.1205.
Sec. 630.1202 Coverage.
(a) Except as otherwise provided in this paragraph, this subpart
applies to any employee who--
(1) Is defined as an employee in 5 U.S.C. 6301(2), excluding
employees covered by paragraph (b) of this section; and
(2) Has completed at least 12 months of service as--
(i) An employee, as defined in 5 U.S.C. 6301(2), excluding any
service as an employee under paragraph (b) of this section;
(ii) An employee of the Veterans Health Administration appointed
under title 38, United States Code, in occupations listed in 38 U.S.C.
7401(1);
(iii) A teacher or an individual holding a teaching position, as
defined in 20 U.S.C. 901; or
(iv) An employee identified in 5 U.S.C. 2105(c) who is paid from
nonappropriated funds.
(b) This subpart does not apply to--
(1) An individual employed by the government of the District of
Columbia;
(2) An employee serving under a temporary appointment with a time
limitation of 1 year or less;
(3) An employee on an intermittent work schedule as defined in
Sec. 630.201; or
(4) Any employee covered by Title I or Title V of the Family and
Medical Leave Act of 1993 (Pub. L. 103-3, February 5, 1993). The
Department of Labor has issued regulations implementing Title I at 29
CFR part 825.
(c) For the purpose of applying 5 U.S.C. 6381 through 6387--
(1) An employee of the Veterans Health Administration appointed
under title 38, United States Code, in occupations listed in 38 U.S.C.
7401(1) must be governed by the terms and conditions of regulations
prescribed by the Secretary of Veterans Affairs;
(2) A teacher or an individual holding a teaching position, as
defined in 20 U.S.C. 901, must be governed by the terms and conditions
of regulations prescribed by the Secretary of Defense; and
(3) An employee identified in 5 U.S.C. 2105(c) who is paid from
nonappropriated funds must be governed by the terms and conditions of
regulations prescribed by the Secretary of Defense or the Secretary of
Transportation, as appropriate.
(d) The regulations prescribed by the Secretary of Veterans
Affairs, the Secretary of Defense, or the Secretary of Transportation
under paragraph (c) of this section must, to the extent appropriate, be
consistent with the regulations prescribed in this subpart and the
regulations prescribed by the Secretary of Labor to carry out Title I
of the Family and Medical Leave Act of 1993 at 29 CFR part 825.
Sec. 630.1203 Administration.
The head of an agency having employees subject to this subpart is
[[Page 1105]]
responsible for the proper administration of family and medical leave.
Sec. 630.1204 Definitions.
In this subpart:
Accrued leave has the meaning given that term in Sec. 630.201.
Accumulated leave has the meaning given that term in Sec. 630.201.
Administrative workweek has the meaning given that term in 5 CFR
610.102.
Adoption refers to a legal process in which an individual becomes
the legal parent of another's child. The source of an adopted child--
e.g., whether from a licensed placement agency or otherwise--is not a
factor in determining eligibility for leave under this subpart.
Employee means an individual to whom this subpart applies.
Essential functions means the fundamental job duties of the
employee's position, as defined in 29 CFR 1630.2(n). An employee who
must be absent from work to receive medical treatment for a serious
health condition is considered to be unable to perform the essential
functions of the position during the absence for treatment.
Family and medical leave means an employee's entitlement to up to
12 administrative workweeks of unpaid leave for certain family and
medical needs, as prescribed in 5 U.S.C. 6381 through 6387.
Foster care means 24-hour care for children in substitution for,
and away from, their parent(s) or guardian. Such placement is made by
or with the agreement of the State as a result of a voluntary agreement
by the parent(s) or guardian that the child be removed from the home,
or pursuant to a judicial determination of the necessity for foster
care, and involves agreement between the State and foster family to
take the child. Although foster care may be with relatives of the
child, State action is involved in the removal of the child from
parental custody.
Health care provider means--
(1) A licensed Doctor of Medicine or Doctor of Osteopathy or a
physician who is serving on active duty in the uniformed services and
is designated by the uniformed service to conduct examinations under
this subpart;
(2) Any health care provider recognized by the Federal Employees
Health Benefits Program or who is licensed or certified under Federal
or State law to provide the service in question;
(3) A health care provider as defined in paragraph (2) of this
definition who practices in a country other than the United States, who
is authorized to practice in accordance with the laws of that country,
and who is performing within the scope of his or her practice as
defined under such law;
(4) A Christian Science practitioner listed with the First Church
of Christ, Scientist, in Boston, Massachusetts; or
(5) A Native American, including an Eskimo, Aleut, and Native
Hawaiian, who is recognized as a traditional healing practitioner by
native traditional religious leaders and who practices traditional
healing methods as believed, expressed, and exercised in Indian
religions of the American Indian, Eskimo, Aleut, and Native Hawaiians,
consistent with Public Law 95-341, August 11, 1978 (92 Stat. 469), as
amended by Public Law 103-344, October 6, 1994 (108 Stat. 3125).
In loco parentis refers to the situation of an individual who has
day-to-day responsibility for the care and financial support of a child
or, in the case of an employee, who had such responsibility for the
employee when the employee was a child. A biological or legal
relationship is not necessary.
Incapacity means the inability to work, attend school, or perform
other regular daily activities because of a serious health condition or
treatment for or recovery from a serious health condition.
Intermittent leave or leave taken intermittently means leave taken
in separate blocks of time, rather than for one continuous period of
time, and may include leave periods of 1 hour to several weeks. Leave
may be taken for a period of less than 1 hour if an agency policy
provides for a minimum charge for leave of less than 1 hour under Sec.
630.209.
Leave without pay means an absence from duty in a nonpay status.
Leave without pay may be taken only for those hours of duty comprising
an employee's basic workweek.
Parent means a biological parent or an individual who stands or
stood in loco parentis to an employee when the employee was a son or
daughter. This term does not include parents ``in law.''
Reduced leave schedule means a work schedule under which the usual
number of hours of regularly scheduled work per workday or workweek of
an employee is reduced. The number of hours by which the daily or
weekly tour of duty is reduced are counted as leave for this purpose.
Regularly scheduled has the meaning given that term in 5 CFR
610.102.
Regularly scheduled administrative workweek has the meaning given
that term in 5 CFR 610.102.
Serious health condition. (1) Serious health condition means an
illness, injury, impairment, or physical or mental condition that
involves--
(i) Inpatient care (i.e., an overnight stay) in a hospital,
hospice, or residential medical care facility, including any period of
incapacity or any subsequent treatment in connection with such
inpatient care; or
(ii) Continuing treatment by a health care provider that includes
(but is not limited to) examinations to determine if there is a serious
health condition and evaluations of such conditions if the examinations
or evaluations determine that a serious health condition exists.
Continuing treatment by a health care provider may include one or more
of the following--
(A) A period of incapacity of more than 3 consecutive calendar
days, including any subsequent treatment or period of incapacity
relating to the same condition, that also involves--
(1) Treatment two or more times by a health care provider, by a
health care provider under the direct supervision of the affected
individual's health care provider, or by a provider of health care
services under orders of, or on referral by, a health care provider; or
(2) Treatment by a health care provider on at least one occasion
which results in a regimen of continuing treatment under the
supervision of the health care provider (e.g., a course of prescription
medication or therapy requiring special equipment to resolve or
alleviate the health condition).
(B) Any period of incapacity due to pregnancy or childbirth, or for
prenatal care, even if the affected individual does not receive active
treatment from a health care provider during the period of incapacity
or the period of incapacity does not last more than 3 consecutive
calendar days.
(C) Any period of incapacity or treatment for such incapacity due
to a chronic serious health condition that--
(1) Requires periodic visits for treatment by a health care
provider or by a health care provider under the direct supervision of
the affected individual's health care provider,
(2) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of
incapacity (e.g., asthma, diabetes, or epilepsy). The condition is
covered even if the affected individual does not receive active
treatment from a health care provider during the period of incapacity
or the period of incapacity does not last more than 3 consecutive
calendar days.
[[Page 1106]]
(D) A period of incapacity which is permanent or long-term because
of a condition for which treatment may not be effective. The affected
individual must be under the continuing supervision of, but need not be
receiving active treatment by, a health care provider (e.g.,
Alzheimer's disease, severe stroke, or the terminal stages of a
disease).
(E) Any period of absence to receive multiple treatments (including
any period of recovery) by a health care provider or by a provider of
health care services under orders of, or on referral by, a health care
provider, either for restorative surgery after an accident or other
injury or for a condition that would likely result in a period of
incapacity of more than 3 consecutive calendar days in the absence of
medical intervention or treatment (e.g., chemotherapy/radiation for
cancer, physical therapy for severe arthritis, or dialysis for kidney
disease).
(2) A serious health condition does not include routine physical,
optical, or dental examinations; a regimen of continuing treatment that
includes the taking of over-the-counter medications, bed-rest,
exercise, and other similar activities that can be initiated without a
visit to a health care provider; a condition for which cosmetic
treatments are administered, unless inpatient hospital care is required
or unless complications develop; or an absence because of an employee's
use of an illegal substance, unless the employee is receiving treatment
for substance abuse by a health care provider or by a provider of
health care services on referral by a health care provider. Ordinarily,
unless complications arise, the common cold, the flu, earaches, upset
stomach, minor ulcers, headaches (other than migraines), routine dental
or orthodontia problems, and periodontal disease are not serious health
conditions. Allergies, restorative dental or plastic surgery after an
injury, removal of a cancerous growth, or mental illness resulting from
stress may be serious health conditions only if such conditions require
inpatient care or continuing treatment by a health care provider.
Son or daughter means a biological, adopted, or foster child; a
step child; a legal ward; or a child of a person standing in loco
parentis who is--
(1) Under 18 years of age; or
(2) 18 years of age or older and incapable of self-care because of
a mental or physical disability. A son or daughter incapable of self-
care requires active assistance or supervision to provide daily self-
care in three or more of the ``activities of daily living'' (ADLs) or
``instrumental activities of daily living'' (IADLs). Activities of
daily living include adaptive activities such as caring appropriately
for one's grooming and hygiene, bathing, dressing, and eating.
Instrumental activities of daily living include cooking, cleaning,
shopping, taking public transportation, paying bills, maintaining a
residence, using the telephone and directories, and using a post
office. A ``physical or mental disability'' refers to a physical or
mental impairment that substantially limits one or more of the major
life activities of an individual as defined in 29 CFR 1630.2 (h), (i)
and (j).
Spouse means an individual who is a husband or wife pursuant to a
marriage that is a legal union between one man and one woman, including
common law marriage between one man and one woman in States where it is
recognized.
Tour of duty has the meaning given that term in 5 CFR 610.102.
Sec. 630.1205 Entitlement to family and medical leave.
An employee is entitled to a total of up to 12 administrative
workweeks of unpaid leave during any 12-month period for one or more of
the following reasons:
(a) The birth of his or her son or daughter and the care of such
son or daughter;
(b) The placement of a son or daughter with the employee for
adoption or foster care;
(c) The care of a spouse, son or daughter, or parent, if such
spouse, son or daughter, or parent has a serious health condition; or
(d) The employee's own serious health condition that makes him or
her unable to perform any one or more of the essential functions of his
or her position.
Sec. 630.1206 Procedures for invoking entitlement to family and
medical leave.
An employee must invoke his or her entitlement to family and
medical leave under Sec. 630.1205, subject to the notification and
medical certification requirements in Sec. Sec. 630.1213 through
630.1216. An employee may not retroactively invoke his or her
entitlement to family and medical leave. However, if the employee and
his or her personal representative are physically or mentally incapable
of invoking his or her entitlement to FMLA leave during the entire
period in which the employee is absent from work for an FMLA-qualifying
purpose under Sec. 630.1205, the employee may retroactively invoke his
or her entitlement to FMLA leave within 2 workdays after returning to
work. In such cases, the employee's incapacity must be documented by a
written medical certification from a health care provider. In addition,
the employee must provide documentation acceptable to his or her agency
explaining the inability of his or her personal representative to
contact the agency and invoke his or her entitlement to FMLA leave
during the entire period the employee was absent from work for an FMLA-
qualifying purpose. An employee may take only the amount of family and
medical leave necessary to manage the circumstances that prompted the
need for leave under Sec. 630.1205.
Sec. 630.1207 Calculating the 12-month period.
(a) An agency must calculate the 12-month period referred to in
Sec. 630.1205 beginning on the date the employee first takes leave for
a family or medical need specified in Sec. 630.1205 and continuing for
12 months. An employee is not entitled to 12 additional workweeks of
leave until the previous 12-month period ends and an event or situation
occurs that entitles him or her to another period of family or medical
leave. (This may include a continuation of a previous situation or
circumstance.)
(b) The entitlement to leave under Sec. 630.1205(a) and (b)
expires at the end of the 12-month period beginning on the date of
birth or placement. Leave for a birth or placement must be concluded
within this 12-month period. Leave taken under Sec. 630.1205(a) and
(b), may begin prior to or on the actual date of birth or placement for
adoption or foster care, and the 12-month period referred to in
paragraph (a) of this section begins on that date.
Sec. 630.1208 Calculating 12 administrative workweeks of family and
medical leave.
(a) An agency must make available a total of up to 12
administrative workweeks equally for full-time or part-time employees
in direct proportion to the number of hours in their regularly
scheduled administrative workweeks. An agency must calculate the 12
administrative workweeks of leave on an hourly basis, and the 12
administrative workweeks must equal 12 times the average number of
hours in the employee's regularly scheduled administrative workweek. If
the number of hours in the employee's workweek varies from week to
week, the agency must use a weekly average of the hours scheduled over
the 12 weeks prior to the date leave commences for this calculation. An
agency may not count toward the 12-week entitlement to family and
medical leave any holidays
[[Page 1107]]
authorized under 5 U.S.C. 6103 or by Executive order or nonworkdays
established by Federal statute, Executive order, or administrative
order that occur during the period in which the employee is on family
and medical leave.
(b) If the number of hours in an employee's regularly scheduled
administrative workweek is changed during the 12-month period of family
and medical leave, the agency must recalculate the employee's
entitlement to any remaining family and medical leave based on the
number of hours in the employee's current regularly scheduled
administrative workweek.
Sec. 630.1209 Agency obligation.
An agency must inform all employees of their entitlements and
responsibilities under this subpart, including the employees'
requirements and obligations.
Sec. 630.1210 Involuntary placement on family and medical leave.
An agency may not place an employee on family and medical leave and
may not subtract leave from his or her entitlement to leave under Sec.
630.1205 unless the agency has obtained confirmation from the employee
of his or her intent to invoke his or her entitlement to leave under
Sec. 630.1206. The employee's notice of his or her intent to take
leave under Sec. 630.1213 may suffice as his or her confirmation.
Sec. 630.1211 Intermittent use of family and medical leave.
(a) An employee may not take leave under Sec. 630.1205(a) or (b)
(leave for childbirth or adoption) intermittently or on a reduced leave
schedule unless the employee and his or her agency agree to do so.
(b) An employee may take leave under Sec. 630.1205(c) or (d)
intermittently or on a reduced leave schedule when medically necessary,
subject to the notification and medical certification requirements in
Sec. Sec. 630.1213 and 630.1215(f).
(c) If an employee takes leave under Sec. 630.1205(c) or (d)
intermittently or on a reduced leave schedule that is foreseeable based
on planned medical treatment or recovery from a serious health
condition, his or her agency may place the employee temporarily in an
available alternative position for which he or she is qualified and
which can better accommodate recurring periods of leave. Upon returning
from leave, the employee is entitled to be returned to his or her
permanent position or an equivalent position, as provided in Sec.
630.1222.
(d) For the purpose of applying paragraph (c) of this section, an
alternative position need not consist of equivalent duties, but must be
in the same commuting area and must provide--
(1) An equivalent grade or pay level, including any applicable
locality-based comparability payment under 5 U.S.C. 5304; special rate
of pay for law enforcement officers or special pay adjustment for law
enforcement officers under section 403 or 404 of the Federal Employees
Pay Comparability Act of 1990 (Pub. L. 101-509), respectively;
continued rate of pay under 5 CFR part 531; or special salary rate
under 5 U.S.C. 5305 or similar provision of law;
(2) The same type of appointment, work schedule, status, and
tenure; and
(3) The same employment benefits made available to the employee in
his or her previous position (e.g., life insurance, health benefits,
retirement coverage, and leave accrual).
(e) An agency must determine the available alternative position
that has equivalent pay and benefits consistent with Federal laws,
including the Rehabilitation Act of 1973 (29 U.S.C. 701) and the
Pregnancy Discrimination Act of 1978 (42 U.S.C. 2000e).
(f) Only the amount of leave taken intermittently or on a reduced
leave schedule may be subtracted from the total amount of leave
available to an employee under Sec. 630.1208 (a) and (b).
Sec. 630.1212 Substitution of paid leave for unpaid family and
medical leave.
(a) Except as provided in paragraph (b) of this section, leave
taken under Sec. 630.1205 must be leave without pay.
(b) An employee may elect to substitute the following paid leave
for any or all of the period of leave without pay that may be taken
under Sec. 630.1205:
(1) Accrued or accumulated annual or sick leave under 5 U.S.C.
6302-6304 and 6307, consistent with current law and regulations
governing the granting and use of annual or sick leave;
(2) Advanced annual or sick leave approved under the same terms and
conditions that apply to any other agency employee who requests
advanced annual or sick leave; and
(3) Leave made available to an employee under the voluntary leave
transfer program or the voluntary leave bank program consistent with
subparts I and J of this part.
(c) An agency may not deny an employee's right to substitute paid
leave under paragraph (b) of this section for any or all of the period
of leave without pay to be taken under Sec. 630.1205, consistent with
current laws and regulations governing the granting and use of annual
and sick leave.
(d) An agency may not require an employee to substitute paid leave
under paragraph (b) of this section for any or all of the period of
leave without pay to be taken under Sec. 630.1205.
(e) An employee must notify his or her agency of his or her intent
to substitute paid leave under paragraph (b) of this section for the
period of leave without pay to be taken under Sec. 630.1205 prior to
the date such paid leave begins. An employee may not retroactively
substitute paid leave for leave without pay previously taken under
Sec. 630.1205, except as provided in Sec. Sec. 630.914(d) and
630.1012(d).
Sec. 630.1213 Notification of intent to invoke entitlement to family
and medical leave.
(a) If leave taken under Sec. 630.1205 is foreseeable based on an
expected birth, placement for adoption or foster care, or planned
medical treatment, an employee must provide notice to the agency of his
or her intent to take leave not less than 30 calendar days before the
date the leave is to begin. If the date of birth or placement or
planned medical treatment requires leave to begin within 30 calendar
days, the employee must provide such notice as is practicable.
(b) If leave taken under Sec. 630.1205(c) or (d) is foreseeable
based on planned medical treatment, an employee must consult with his
or her agency and make a reasonable effort to schedule medical
treatment so as not to disrupt unduly the operations of his or her
agency, subject to the approval of the health care provider. An
employee's agency may, for justifiable cause, request that he or she
reschedule medical treatment, subject to the approval of the health
care provider.
(c) If the need for leave is not foreseeable--e.g., because of a
medical emergency or the unexpected availability of a child for
adoption or foster care--and the employee cannot provide 30 calendar
days' notice of his or her need for leave, the employee must provide
notice within a reasonable period of time appropriate to the
circumstances involved. If necessary, notice may be given by his or her
personal representative (e.g., a family member or other responsible
party). If the need for leave is not foreseeable and the employee is
unable, because of circumstances beyond his or her control, to provide
notice of his or her need for leave, the agency may not delay or deny
the requested leave.
(d) If the need for leave is foreseeable and an employee fails to
give 30 calendar days' notice with no reasonable excuse for the delay
of
[[Page 1108]]
notification, his or her agency may delay the taking of leave under
Sec. 630.1205 until at least 30 calendar days after the date the
employee provides notice of his or her need for family and medical
leave.
(e) An agency may waive the notification requirements under
paragraph (a) of this section and instead impose the agency's usual and
customary policies or procedures for providing notification of leave.
The agency's policies or procedures for providing notification of leave
must not be more stringent than the requirements of this section.
However, an agency may not deny an employee's entitlement to leave
under Sec. 630.1205 if the employee fails to follow such agency
policies or procedures.
(f) An agency may require that a request for leave under Sec.
630.1205(a) and (b) (for childbirth or adoption) be supported by
evidence that is administratively acceptable to the agency.
Sec. 630.1214 Medical certification of a serious health condition.
(a) An agency may require that a request for leave for a serious
health condition under Sec. 630.1205(c) or (d) be supported by written
medical certification issued by the employee's health care provider or
the health care provider of his or her spouse, son or daughter, or
parent, as appropriate. An agency may waive the requirement for an
initial medical certificate for a serious health condition in a
subsequent 12-month period if the leave under Sec. 630.1205(c) or (d)
is for the same chronic or continuing condition.
(b) If an employee is unable to provide the requested medical
certification before leave begins, or if the agency questions the
validity of the original certification the employee provides and the
medical treatment requires the leave to begin, the agency must grant
provisional leave pending final written medical certification.
(c) If, after the leave has commenced, the employee fails to
provide the requested medical certification, the agency may--
(1) Charge the employee as absent without leave (AWOL); or
(2) Allow the employee to request that the provisional leave be
charged as leave without pay or charged to his or her annual and/or
sick leave account, as appropriate.
Sec. 630.1215 Contents of a medical certification.
A written medical certification must include--
(a) The date the serious health condition commenced;
(b) The probable duration of the serious health condition or a
specific indication that the serious health condition is a chronic or
continuing condition with an unknown duration, including a finding that
the patient is presently incapacitated, and the likely duration and
frequency of episodes of incapacity;
(c) The appropriate medical facts within the knowledge of the
health care provider regarding the serious health condition, including
a general statement as to the incapacitation, examination, or treatment
that may be required by a health care provider;
(d) If an employee is taking leave under Sec. 630.1205(c)--
(1) A statement from the health care provider that the employee's
spouse, son or daughter, or parent requires psychological comfort and/
or physical care; needs assistance for basic medical, hygienic,
nutritional, safety, or transportation needs or in making arrangements
to meet such needs; and would benefit from his or her care or presence;
and
(2) A statement from the employee on the care he or she will
provide and an estimate of the amount of time needed to care for his or
her spouse, son or daughter, or parent;
(e) If an employee is taking leave under Sec. 630.1205(d), a
statement that the employee requires medical treatment for a serious
health condition or is unable to perform one or more of the essential
functions of his or her position, based on written information provided
by the employee's agency on the essential functions of his or her
position or, if not provided, discussion with the employee about the
essential functions of his or her position; and
(f) In the case of certification for intermittent leave or leave on
a reduced leave schedule under Sec. 630.1205(c) or (d) for planned
medical treatment--
(1) A certification of the dates (actual or estimated) on which
such treatment is expected to be given, the duration of such treatment,
and the period of recovery, if any; or
(2) A certification that the serious health condition is a chronic
or continuing condition with an unknown duration, specifying whether
the patient is presently incapacitated and stating the likely duration
and frequency of episodes of incapacity.
Sec. 630.1216 Limitations on the medical certification.
The information an employee must provide in the written medical
certification must relate only to the serious health condition for
which the current need for family and medical leave exists. An agency
may not require any personal or confidential information in the written
medical certification other than that required by Sec. 630.1215. If an
employee submits a completed medical certification signed by a health
care provider, his or her agency may not request new information from
the health care provider. However, a health care provider representing
the agency, including a health care provider employed by the agency or
under its administrative oversight, may contact the health care
provider who completed the medical certification, with the employee's
permission, for the purpose of clarifying the medical certification.
Sec. 630.1217 Second and third opinions on a serious health
condition.
(a) If an agency questions the validity of the original medical
certification that an employee provided under Sec. 630.1214, the
agency may require, at its expense, that the employee obtain the
opinion of a second health care provider designated or approved by the
agency concerning the information certified under Sec. Sec. 630.1214
and 630.1215. The agency may not designate or approve any health care
provider who is employed by the agency or is under its administrative
oversight on a regular basis unless the agency is located in an area
where access to health care is extremely limited--e.g., a rural area or
an overseas location where no more than one or two health care
providers practice in the relevant specialty, or the only health care
providers available are employed by the agency.
(b) If the opinion of the second health care provider differs from
the original certification provided under Sec. 630.1214, an agency may
require, at its expense, that the employee obtain the opinion of a
third health care provider designated or approved jointly by the
employee and his or her agency concerning the information certified
under Sec. 630.1215. The opinion of the third health care provider is
binding on the employee and the agency.
(c) To remain entitled to family and medical leave under Sec.
630.1205(c) or (d), the employee or his or her spouse, son or daughter,
or parent must comply with any requirement from the agency that the
employee or his or her spouse, son or daughter, or parent submit to
examination (though not treatment) to obtain a second or third medical
certification from a health care provider other than the individual's
health care provider.
[[Page 1109]]
Sec. 630.1218 Time limits for providing medical certification.
An employee must provide the written medical certification required
by Sec. Sec. 630.1214, 630.1215, and 630.1217, signed by the health
care provider, no later than 15 calendar days after the date his or her
agency requests such medical certification. If it is not practicable
under the particular circumstances to provide the requested medical
certification no later than 15 calendar days after the date requested
by the agency despite the employee's diligent, good faith efforts, he
or she must provide the medical certification within a reasonable
period of time under the circumstances involved, but no later than 30
calendar days after the date the agency requests such medical
certification.
Sec. 630.1219 Periodic recertification of a serious health condition.
An agency may require that an employee obtain subsequent medical
recertification on a periodic basis, but not more than once every 30
calendar days, for leave taken for purposes relating to pregnancy,
chronic conditions, or long-term conditions, as these terms are used in
the definition of serious health condition in Sec. 630.1204. For leave
taken for all other serious health conditions, including leave taken on
an intermittent or reduced leave schedule, if the health care provider
has specified on the medical certification a minimum duration of the
period of incapacity, his or her agency may not request recertification
until that period has passed. However, the agency may require
subsequent medical recertification more frequently than once every 30
calendar days, or more frequently than the minimum duration of the
period of incapacity specified on the medical certification, if the
employee requests that the original leave period be extended, the
circumstances described in the original medical certification have
changed significantly, or the agency receives information that casts
doubt upon the continuing validity of the medical certification. The
agency must pay for any periodic recertification it requires.
Sec. 630.1220 Protection of confidentiality.
To ensure the security and confidentiality of any written medical
certification under Sec. Sec. 630.1214, 630.1215, 630.1217 or
630.1224, the medical certification must be subject to the provisions
for safeguarding information about individuals under 5 CFR part 293 or
subpart A of this part.
Sec. 630.1221 Employee protections upon return to work.
If an employee takes family and medical leave under Sec. 630.1205,
he or she is entitled, upon return to his or her agency, to be returned
to --
(a) The same position the employee held when the leave commenced;
or
(b) An equivalent position with equivalent benefits, pay, status,
and other terms and conditions of employment.
Sec. 630.1222 Equivalent position upon return to work.
(a) An equivalent position under Sec. 630.1221(b) must be in the
same commuting area and must carry or provide, at a minimum--
(1) The same or substantially similar duties and responsibilities,
which must entail substantially equivalent skill, effort,
responsibility, and authority;
(2) An equivalent grade or pay level, including any applicable
locality-based comparability payment under 5 U.S.C. 5304; special rate
of pay for law enforcement officers or special pay adjustment for law
enforcement officers under section 403 or 404 of the Federal Employees
Pay Comparability Act of 1990 (Pub. L. 101-509), respectively;
continued rate of pay under 5 CFR part 531, subpart G; or special
salary rate under 5 U.S.C. 5305 or similar provision of law;
(3) The same type of appointment, work schedule, status, and
tenure;
(4) The same employment benefits made available to the employee in
his or her previous position (e.g., life insurance, health benefits,
retirement coverage, and leave accrual);
(5) The same or equivalent opportunity for a within-grade increase,
performance award, incentive award, or other similar discretionary and
non-discretionary payments, consistent with applicable laws and
regulations. However, the entitlement to be returned to an equivalent
position does not extend to intangible or unmeasurable aspects of the
job;
(6) The same or equivalent opportunity for premium pay consistent
with applicable law and regulations under 5 CFR part 550, subpart A, or
5 CFR part 551, subpart E; and
(7) The same or equivalent opportunity for training or education
benefits consistent with applicable laws and regulations, including any
training the employee may be required to complete to qualify for his or
her previous position.
(b) For the purpose of applying paragraph (c) of this section, the
same entitlements and limitations in law and regulations that apply to
the position, pay, benefits, status, and other terms and conditions of
employment of an employee in a leave without pay status must apply when
an employee is on leave without pay under this subpart, except where
different entitlements and limitations are specifically provided in
this subpart.
(c) An employee is not entitled to be returned to the same or
equivalent position under paragraph (a) of this section if he or she
would not otherwise have been employed in that position at the time he
or she returns from leave.
(d) An agency may not return an employee to an equivalent position
where written notification has been provided that the equivalent
position will be affected by a reduction in force if the employee's
previous position is not affected by a reduction in force.
Sec. 630.1223 Medical certification of fitness to return to work.
(a) An agency may establish, as a condition for returning to work
for employees who take leave for a serious health condition under Sec.
630.1205(d), a uniformly applied practice or policy that requires an
employee, and all similarly-situated employees (i.e., in the same
occupation, with the same serious health condition), to obtain written
medical certification from his or her health care provider that the
employee is able to perform the essential functions of his or her
position. An agency may delay an employee's return until the medical
certification is provided. The same conditions for verifying the
adequacy of a medical certification in Sec. 630.1216 apply to the
medical certification to return to work. An agency may not require a
second or third opinion on the medical certification to return to work.
An agency may not require a medical certification to return to work
during the period the employee takes leave intermittently or under a
reduced leave schedule under Sec. 630.1211.
(b) If an agency requires an employee to obtain written medical
certification under paragraph (a) of this section before he or she
returns to work, the agency must notify the employee of this
requirement before leave commences, or as soon as practicable in
emergency medical situations, and pay the expenses for obtaining the
written medical certification. An employee's refusal or failure to
provide written medical certification under paragraph (a) of this
section may be grounds for appropriate disciplinary or adverse action,
as provided in 5 CFR part 752.
[[Page 1110]]
Sec. 630.1224 Intent to return to work.
An agency may require that an employee report periodically on his
or her status and his or her intent to return to work. An agency's
policy requiring such reports must take into account all of the
relevant facts and circumstances of the employee's situation.
Sec. 630.1225 Adverse actions.
An employee's decision to invoke FMLA leave under Sec. 630.1205
does not prohibit an agency from proceeding with appropriate actions
under 5 CFR part 432 or 5 CFR part 752.
Sec. 630.1226 Denial of family and medical leave.
If an employee does not comply with the notification requirements
in Sec. 630.1213 and does not provide medical certification signed by
the health care provider that includes all of the information required
in Sec. 630.1215 within the time limits prescribed in Sec. 630.1218,
he or she is not entitled to family and medical leave.
Sec. 630.1227 Continuation of health benefits.
If an employee is enrolled in a health benefits plan under the
Federal Employees Health Benefits Program (established under 5 U.S.C.
chapter 89) and is in a leave without pay status as a result of using
his or her entitlement to family and medical leave under Sec.
630.1205, he or she may continue his or her health benefits enrollment
while in the leave without pay status and arrange to pay the
appropriate employee contributions into the Employees Health Benefits
Fund (established under 5 U.S.C. 8909). The employee must make such
contributions consistent with 5 CFR 890.502.
Sec. 630.1228 Greater leave entitlements.
(a) An agency must comply with any collective bargaining agreement
and any agency employment benefit program or plan that provides greater
family or medical leave entitlements to an employee than those provided
under this subpart. Nothing in this subpart prevents an agency from
amending such policies, provided the policies comply with the
requirements of this subpart.
(b) Any collective bargaining agreement or any employee benefit
program or plan may not diminish the entitlements established for
employees under this subpart.
(c) An agency may adopt leave policies more generous than those
provided in this subpart, except that such policies may not provide
entitlement to paid time off in an amount greater than that otherwise
authorized by law or provide sick leave in any situation in which sick
leave would not normally be allowed by law or regulation.
(d) The entitlements under 5 U.S.C. 6381 through 6387 and this
subpart do not modify or affect any Federal law prohibiting
discrimination. If the entitlements under 5 U.S.C. 6381 through 6387
and this subpart conflict with any Federal law prohibiting
discrimination, an agency must comply with whichever statute provides
greater entitlements to employees.
Sec. 630.1229 Records on the use of family and medical leave.
(a) An agency must maintain records of the amount of family and
medical leave used by an employee under Sec. 630.1205. The records
must be sufficient to ensure that employees do not exceed the
entitlement to 12 administrative workweeks within a 12 month period as
described in Sec. 630.1207.
(b) When an employee transfers to a different agency, the losing
agency must provide the gaining agency with information on family and
medical leave taken under Sec. 630.1205 by the employee during the 12
months prior to the date of transfer. The losing agency must provide
the following information:
(1) The beginning and ending dates of the employee's 12-month
period, as determined under Sec. 630.1207; and
(2) The number of hours of leave taken under Sec. 630.1205 of the
subpart during the employee's 12-month period.
[FR Doc. 04-28544 Filed 12-30-04; 8:45 am]
BILLING CODE 6325-39-P