May 13, 2020

Question:  Which agency is responsible for enforcing compliance with the provisions of the Emergency Paid Sick Leave Act (EPSLA) for Federal employees? 

The U.S. Department of Labor (DOL) is responsible for issuing regulations regarding EPSLA.  DOL is also generally responsible for enforcing employer compliance with EPSLA; however, the U.S. Office of Personnel Management (OPM) is tasked with certain duties related to employing agency compliance for certain Federal employees. 

Section 5105 of the Families First Coronavirus Response Act (FFCRA) provides that employers (such as Federal agencies) who violate the EPSLA paid sick leave provisions shall be considered to have failed to pay minimum wages in violation of the Fair Labor Standards Act (FLSA) (29 U.S.C. 206).   

OPM is authorized to administer the FLSA for most Federal employees.  (See 29 U.S.C. 204(f).)  Under its FLSA authority, OPM adjudicates FLSA minimum wage and overtime claims under 5 CFR part 551, subpart G.   (See section 551.701(a), which specifically includes claims for FLSA minimum wages.)  Accordingly, DOL and OPM have determined that Federal employees covered by OPM’s FLSA regulations would file any EPSLA paid sick leave claims with their employing agency or with OPM in accordance with the claim filing requirements in 5 CFR part 551, subpart G.  As with other FLSA claims covered under that subpart, employees who want to file EPSLA paid sick leave claims are not required to obtain a final agency decision before filing with OPM.  (For more information on OPM’s FLSA claims filing procedures, go to https://www.opm.gov/policy-data-oversight/pay-leave/claim-decisions/fair-labor-standards-act/#url=Overview.) 

OPM regulations describe which Federal employees are covered by OPM’s FLSA regulations.  (See 5 CFR 551.102, 551.103, and the definitions of “agency” and “employee” in 551.104.)  In general, employees of executive branch agencies are covered by OPM’s FLSA regulations, except for employees of the United States Postal Service, the Postal Regulatory Commission, and the Tennessee Valley Authority.  Certain executive branch employees may not be covered by the FLSA based on a special agency personnel authority. 

NOTE:  For more information on EPSLA paid sick leave, go to https://www.opm.gov/policy-data-oversight/covid-19/opm-summary-of-statutory-and-regulatory-requirements-in-connection-with-the-emergency-paid-sick-leave-act-epsla.pdf.