Absence and Leave; Use of Restored Annual Leave

SUMMARY: The Office of Personnel Management is issuing interim

regulations to provide employees with additional time in which to use

restored annual leave that was forfeited as a result of employment at a

Department of Defense installation undergoing closure or realignment.

DATES: The interim regulations are effective on December 7, 1994.

Comments must be received on or before February 6, 1995.

ADDRESSES: Comments may be sent or delivered to Donald J. Winstead,

Acting Assistant Director for Compensation Policy, Office of Personnel

Management, Room 6H31, 1900 E Street NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Jo Ann Perrini, (202) 606-2858.

SUPPLEMENTARY INFORMATION: Section 4434 of Public Law 102-484, the

National Defense Authorization Act for fiscal year 1993, amended

section 6304(d) of title 5, United States Code, to consider the closure

of an installation of the Department of Defense (DOD), during the

period from October 1, 1992, through December 31, 1997, as ``an

exigency of the public business'' for the purpose of restoring annual

leave accumulated in excess of the maximum permitted by law. This

amendment also provides that any annual leave in excess of the annual

maximum limitation under 5 U.S.C. 6304(a) accrued by an employee at a

closing DOD installation must be restored and credited to the employee

in a separate leave account. This provision enables installations to

keep their already reduced staffs at work while permitting employees to

avoid forfeiture of leave. In addition, it reduces the administrative

time that would have been spent by employees and managers in

scheduling, canceling, and restoring ``use or lose'' annual leave each

leave year.

Sections 341 and 2816 of Public Law 103-337, October 5, 1994, the

National Defense Authorization Act for fiscal year 1995, expanded 5

U.S.C. 6304(d)(3) to cover employees of DOD installations identified as

``realigning locations'' under the Defense Base Closure and Realignment

Act of 1990 (BRAC) and eliminated the time period for application of 5

U.S.C. 6304(d)(3) if the closure or realignment action is under BRAC.

The October 1, 1992, through December 31, 1997, time frame in 5 U.S.C.

6304(d)(3) continues to apply to the closure of DOD installations not

covered by BRAC.

Time Limit for Using Restored Annual Leave

Under the current 5 CFR 630.306, all restored leave must be

scheduled and used not later than the end of the leave year ending 2

years after the termination date of the exigency of the public

business--i.e., the closure or completion of the realignment of the DOD

installation and/or transfer of the employee to another installation or

agency. Employees remaining at closing DOD installations or BRAC

designated realignment installations over several leave years may

accumulate large amounts of restored leave in their separate accounts.

When the exigency of the public business terminates, the employee must

schedule and use all of the restored leave by the end of the leave year

ending 2 years after the termination date of the exigency of the public

business. As a result, the employer must deal with the consequence of

the employee using sizeable amounts of leave within 2 to 3 years after

the transfer or completion of the realignment. At the same time, annual

leave that accrues during that 2- to 3-year period routinely creates a

``use or lose'' situation.

To help alleviate this situation, the Office of Personnel

Management (OPM) is revising 5 CFR 630.306 to establish a longer period

of time for using annual leave restored under 5 U.S.C. 6304(d)(3) based

on the amount of restored leave in the employee's separate leave

account. The time limit would be calculated using a formula similar to

the formula used for determining the time limit for using annual leave

restored in back pay situations. (See 5 CFR 550.805(g).)

Under the interim regulations, a full-time employee would be

required to schedule and use excess annual leave of 416 hours or less

by the end of the leave year in progress 2 years after the date the

employee is no longer subject to 5 U.S.C. 6304(d)(3). The agency would

extend that period by 1 leave year for each additional 208 hours of

excess annual leave or any portion thereof. A part-time employee would

be required to schedule and use excess annual leave in an amount equal

to or less than 20 percent of the number of hours in the employee's

scheduled annual tour of duty by the end of the leave year in progress

2 years after the date the employee is no longer subject to 5 U.S.C.

6304(d)(3). The agency would extend this period by 1 leave year for

each additional number of hours of excess annual leave, or any portion

thereof, equal to 10 percent of the number of hours in the employee's

scheduled annual tour of duty.

Movement From One DOD Installation Undergoing Closure or Realignment to

Another Such Installation

Under the current 5 CFR 630.306, the time limit for using annual

leave restored under 5 U.S.C. 6304(d)(3) begins when an employee moves

from a closing DOD installation or a DOD installation undergoing

realignment, even if the employee is transferring to another DOD

installation subject to closure or realignment. This creates a

situation that is directly opposite to the result that 5 U.S.C.

6304(d)(3) was intended to correct. Employees who move from one DOD

installation undergoing closure or realignment to another such

installation without a break in service are under strict time

constraints to use their restored leave. At the same time, they are

needed at work because of reduced staff levels. Supervisors and

managers may be hesitant to deny leave requests because restored leave

that is forfeited cannot be recovered. Further complicating the

situation is the fact that these employees may be entitled to

additional restored leave under 5 U.S.C. 6304(d)(3).

OPM agrees with DOD's conclusion that the exigency of the public

business that allows for the accrual of annual leave above the annual

maximum limitation does not terminate when an employee moves from one

closing or realigning installation to another such installation without

a break in service. Therefore, OPM's regulations will defer starting

the time limit for using restored leave until the employee no longer

works at a closing DOD installation or a DOD installation undergoing

realignment.

Movement to an Installation Undergoing Closure or Realignment

When an employee moves to a closing DOD installation or a DOD

installation undergoing realignment, 5 U.S.C. 6304(d)(3) only permits

the restoration of annual leave that exceeds the annual maximum carry-

over limitation. There is no similar protection for an ``active''

restored annual leave account--i.e., an account of restored annual

leave that was established under other conditions permitting

restoration of annual leave under 5 U.S.C. 6304(d). Although the

employee is needed to work at the installation that is undergoing

closure or realignment, the employee (and the agency) have little

option but to use (or permit the use of) the leave in the ``active''

restored leave account to avoid the forfeiture of annual leave. This

situation is also inconsistent with the overall intent of 5 U.S.C.

6304(d)(3).

OPM's revision of Sec. 630.306, as discussed above, will also

alleviate this problem, since the time limitation for using a restored

leave account will be canceled for the entire period during which an

employee is subject to 5 U.S.C. 6304(d)(3). After the employee's

coverage under 5 U.S.C. 6304(d)(3) ends, a new time limit will be

established for all restored leave available to the employee under 5

U.S.C. 6304(d). The new time limit for using restored leave will begin

on the date the employee is no longer subject to 5 U.S.C. 6304(d)(3).

Advance Scheduling of Annual Leave

Under the current 5 CFR 630.308, before annual leave forfeited

under section 6304 of title 5, United States Code, may be considered

for restoration under that section, use of the 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. Under 5 U.S.C. 6304(d)(3),

employees at closing DOD installations or DOD installations undergoing

realignment are permitted to have excess annual leave restored without

meeting the requirement for advance scheduling of annual leave.

DOD has identified two problems that are encountered by an employee

whose coverage under 5 U.S.C. 6304(d)(3) ends during the leave year.

Some of these employees face forfeiting ``use or lose'' annual leave at

the end of the leave year at the new installation because they are

unable to show any evidence of advance scheduling of annual leave.

Other employees request that a ``restored'' annual leave account be

established at the time of their transfer or the completion of the

realignment of the DOD installation, even though accrued annual leave

is not subject to forfeiture until the end of the leave year. Under 5

U.S.C. 6304(d), excess annual leave cannot be considered for

restoration until after the end of the leave year in which it is

forfeited.

An employee whose coverage under 5 U.S.C. 6304(d)(3) ends late in

the leave year may find it impossible to schedule all annual leave that

would be subject to forfeiture before the end of the leave year. DOD

has requested that OPM amend Sec. 630.308 to allow agencies to consider

restoration of annual leave forfeited at the end of the leave year to

an employee whose coverage under 5 U.S.C. 6304(d)(3) ends during the

leave year if the employee can demonstrate a correlation between the

lack of advance scheduling and coverage under 5 U.S.C. 6304(d)(3).

OPM agrees that such annual leave may be considered for

restoration. We have revised the regulations to require affected

employees to make a reasonable effort to comply with the advance

scheduling requirement in 5 CFR 630.308(a). However, the head of the

agency may exempt employees from the advance scheduling requirement if

the employee can show that he or she was covered by 5 U.S.C. 6304(d)(3)

during the leave year and that he or she was unable to comply with the

scheduling requirement due to circumstances beyond his or her control.

Although an employee may be exempt from the advance scheduling

requirement, this does not guarantee that the employee's excess annual

leave will be restored, since there may have been sufficient time to

schedule and use his or her annual leave before the end of the leave

year. Annual leave restored to the employee for the current leave year

is subject to the time limitations established in 5 CFR 630.306(a).

Waiver of Notice of Proposed Rule Making and Delay in Effective Date

Sections 341 and 2816 of Public Law 103-337, which broadened

coverage under 5 U.S.C. 6304(d)(3), were effective on October 5, 1994.

In order to give practical effect to this legislation, I find good

cause exists to waive the general notice of proposed rulemaking

pursuant to 5 U.S.C. 553(b)(3)(B). Also, I find that good cause exists

for making this rule effective in less than 30 days. The delay in the

effective date is being waived to give affected employees the benefit

of these new provisions.

Regulatory Flexibility Act

I certify that these regulations will not have a significant

economic impact on a substantial number of small entities because they

will affect only Federal agencies and employees.

List of Subjects in 5 CFR Part 630

Government employees.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is amending part 630 of title 5 of the Code of

Federal Regulations as follows:

PART 630--ABSENCE AND LEAVE

1. The authority citation for part 630 is revised to read as

follows:

Authority: 5 U.S.C. 6311; Sec. 630.303 also issued under 5

U.S.C. 6133(a); Secs. 630.306 and 630.308 also issued under 5 U.S.C.

6304(d)(3), Pub. L. 102-484 (106 Stat. 2722) and Pub. L. 103-337

(108 Stat. 2663); Sec. 630.501 and subpart F also issued under E.O.

11228, 30 FR 7739, June 16, 1965, 3 CFR 1974 Comp., p. 163; subpart

G also issued under 5 U.S.C. 6305; subpart H issued under 5 U.S.C.

6326; subpart I also issued under 5 U.S.C. 6332 and Pub. L. 100-566

(102 Stat. 2834), and 103-103 (107 Stat. 1022); subpart J also

issued under 5 U.S.C. 6362 and Pub. L. 100-566 and 103-103; subpart

K also issued under Pub. L. 102-25 (105 Stat. 92); and subpart L

also issued under 5 U.S.C. 6387 and Pub. L. 103-3 (107 Stat. 23).

Subpart C--Annual Leave

2. Section Sec. 630.306 is revised to read as follows:

Sec. 630.306 Time limit for use of restored annual leave.

(a) Except as otherwise authorized under paragraphs (b) and (c) of

this section or other regulation, annual leave restored under 5 U.S.C.

6304(d) must be scheduled and used not later than the end of the leave

year ending 2 years after:

(1) The date of restoration of the annual leave forfeited because

of administrative error; or

(2) The date fixed by the agency head, or his or her designee, as

the termination date of the exigency of the public business that

resulted in forfeiture of the annual leave; or,

(3) The date the employee is determined to be recovered and able to

return to duty if the leave was forfeited because of sickness.

(b) Annual leave restored to an employee under 5 U.S.C. 6304(d)(3)

must be scheduled and used within the time limits prescribed in

paragraphs (b)(1) and (b)(2) of this section:

(1) A full-time employee shall schedule and use excess annual leave

of 416 hours or less by the end of the leave year in progress 2 years

after the date the employee is no longer subject to 5 U.S.C.

6304(d)(3). The agency shall extend this period by 1 leave year for

each additional 208 hours of excess annual leave or any portion

thereof.

(2) A part-time employee shall schedule and use excess annual leave

in an amount equal to or less than 20 percent of the number of hours in

the employee's scheduled annual tour of duty by the end of the leave

year in progress 2 years after the date the employee is no longer

subject to 5 U.S.C. 6304(d)(3). The agency shall extend this period by

1 leave year for each additional number of hours of excess annual

leave, or any portion thereof, equal to 10 percent of the number of

hours in the employee's scheduled annual tour of duty.

(c) The time limits established under paragraphs (a) and (b) of

this section for using restored annual leave accounts shall not apply

for the entire period during which an employee is subject to 5 U.S.C.

6304(d)(3). When coverage under 5 U.S.C. 6304(d)(3) ends, a new time

limit shall be established under paragraph (b) of this section for all

annual leave restored to an employee under 5 U.S.C. 6304(d).

3. Section 630.308 is revised to read as follows:

Sec. 630.308 Scheduling of annual leave.

(a) Except as provided in paragraph (b) of this section, before

annual leave forfeited under section 6304 of title 5, United States

Code, may be considered for restoration under that section, use of the

annual leave must have been scheduled in writing before the start of

the third biweekly pay period rather to the end of the leave year.

(b) The requirement for advance scheduling of annual leave in

paragraph (a) of this section shall not apply to an employee who is

covered by 5 U.S.C. 6304(d)(3). When coverage under 5 U.S.C. 6304(d)(3)

terminates during a leave year, the employee shall make a reasonable

effort to comply with the scheduling requirement in paragraph (a) of

this section. The head of the agency or his or her designee may exempt

employees from the advance scheduling requirement in paragraph (a) of

this section if coverage under 6304(d)(3) terminated during the leave

year and the employee was unable to comply with the advance scheduling

requirement due to circumstances beyond his or her control.

[FR Doc. 94-30010 Filed 12-6-94; 8:45 am]

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