[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 ap