# 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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A04-28544

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** January 5, 2005
- **Citation:** 70 FR 1068

## Text

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.

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 § 353.208.

In addition, the last sentence of § 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 § 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 § 531.605 also addresses the official duty station determination for employees temporarily working at another location or teleworking from an alternative worksite. Under § 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 §§ 531.301 and 531.602 to refer to the new requirements found at revised § 531.605. In addition, we propose to add the definition of
position of record
to §§ 531.301 and 531.602. The definition of
position of record
builds on the language found in current regulations in § 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 § 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 § 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 § 550.114(d), the head of

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 § 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 § 550.114 or § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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

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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 §§ 610.405 and 610.406 to § 610.203(d) for ease of administration. New § 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 § 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 § 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 § 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 § 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 § 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 § 610.405, which will be renumbered as § 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 § 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 § 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 § 610.408, which prohibits members of the Senior Executive Service from earning credit hours.

We are proposing to add § 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

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 §§ 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 § 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 § 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 § 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 § 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 § 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 × 240 hours).

In addition, consistent with the “directly proportional rule” applied in § 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 × 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 § 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 § 630.905 (currently found at § 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

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 § 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 § 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 § 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 § 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 § 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 § 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 § 630.501, to standardize and simplify that procedure. New § 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

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, § 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 × 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 × 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 § 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 § 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 § 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 § 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 § 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 § 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 § 630.401, signed by the health care provider, no later than 15 calendar days after the date his or her agency requests such medical

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 § 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 § 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 § 630.502 and paragraph (e) to § 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 §§ 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 § 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 § 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 § 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 § 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

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 §§ 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 § 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 § 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 § 630.1008. Instead, new § 630.1013 refers the reader to the applicable sections of the leave transfer regulations at §§ 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 § 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 § 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 § 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 § 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 § 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 §§ 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 § 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 § 630.101 to affirm OPM's authority to administer Governmentwide leave policies and procedures. We are also proposing to delete § 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 § 610.407(b).

We are also proposing to delete § 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 § 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 §§ 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 § 630.309, which dealt with the

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 §§ 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 § 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 § 630.1108 for recrediting unused annual leave donated to the donors under the emergency leave transfer program. New § 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 § 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:

§ 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 § 530.303, paragraph (i) is revised to read as follows:

§ 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 § 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:

§ 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 § 531.605.

Position of record
has the same meaning given that term in § 531.602.

Subpart F—Locality-Based Comparability Payments

7. In § 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:

§ 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 § 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

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.

§§ 531.605, 531.606, 531.607
[Redesignated]
8. Sections 531.605, 531.606, and 531.607 are redesignated as §§ 531.606, 531.607, and 531.608, respectively, and a new § 531.605 is added to read as follows:

§ 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 § 550.114, paragraph (d) is revised, paragraph (e) is redesignated as paragraph (f) and a new paragraph (e) is added to read as follows:

§ 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

§ 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

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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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 § 550.1205, revise paragraph (b)(5)(i) to read as follows:

§ 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:

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 § 551.531, paragraph (d) is revised, paragraph (e) is redesignated as paragraph (f) and a new paragraph (e) is added to read as follows:

§ 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 § 575.103, the definition of
rate of basic pay
is revised to read as follows:

§ 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 § 575.203, the definition of
rate of basic pay
is revised to read as follows:

§ 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 § 575.303, the definition of
rate of basic pay
is revised to read as follows:

§ 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.

§ 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—

(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.

§ 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 § 610.111.

Employee
means an employee of an agency to whom this subpart applies, as described in § 610.101.

Regularly scheduled administrative workweek
, for a full-time employee, means the period within an administrative workweek, established under § 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 § 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

§ 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

§ 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

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.

§ 610.122
Variation for educational purposes.
(a) Notwithstanding § 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.

§ 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.

§ 610.124
Unpaid meal periods.
An authorized agency official may schedule employees for an unpaid meal period during the basic workday in accordance with § 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.

§ 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 § 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.

§ 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

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 § 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 § 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 § 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.

§ 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 § 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 § 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.

§ 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.

§ 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.

§ 610.302
Definitions.
In this subpart:

Administrative order
means an order issued by an authorized official of an agency relieving regular employees from

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).

§ 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.

§ 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.

§ 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

§ 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.

§ 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.

§ 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

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.

§ 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

§ 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.

§ 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.

§ 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 § 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.

§ 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

§ 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.

§ 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.

§ 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 § 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A04-28544. Public record. Not legal advice.