Absence and Leave; Voluntary Leave Transfer and Voluntary Leave Bank Programs

Federal RegisterDec 29, 1994

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 591 and 630

RIN 3206-AF 75

Absence and Leave; Voluntary Leave Transfer and Voluntary Leave

Bank Programs

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management is issuing final rules to

enable agencies to administer permanent voluntary leave transfer and

leave bank programs and to make certain other changes required by the

Federal Employees Leave Sharing Amendments Act of 1993.

EFFECTIVE DATE: January 30, 1995.

FOR FURTHER INFORMATION CONTACT:

Bruce W. Valoris, (202) 606-2858.

SUPPLEMENTARY INFORMATION: On January 31, 1994, the Office of Personnel

Management (OPM) issued interim rules implementing the Federal

Employees Leave Sharing Amendments Act of 1993 (Public Law 103-103,

October 8, 1993) (the Act). Agencies were required to implement the

interim rules no later than February 5, 1994. The 60-day comment period

ended on April 1, 1994. OPM received comments from 11 agencies. One

agency supported the interim regulations as written. A summary of the

other comments and a description of the revisions in the interim

regulations follow.

Requirement to Permit Leave Transfer

The interim regulations require each agency, including leave bank

agencies, to permit employees to donate annual leave directly to other

employees experiencing medical emergencies through leave transfer. OPM

made this change based on the statutory requirements of the Federal

Employees Leave Sharing Amendments Act of 1993. Previously, the law

allowed an agency to have either one or more leave banks or a leave

transfer program, but not both. One agency questioned whether OPM

interpreted the Act correctly by requiring agencies with leave banks to

operate separate leave transfer programs. The agency requested that OPM

review the new law to determine if there is agency discretion in this

matter.

OPM has determined that agencies with leave banks do not have such

discretion. Section 5(a)(1) of the Act amended 5 U.S.C. 6373 to require

that OPM prescribe regulations under which an employee participating in

a leave bank program may make or receive donations of leave under the

leave transfer program. To comply with this statutory provision, each

agency is required to establish leave transfer procedures that meet the

requirements established by law and OPM regulations.

Qualifying to Become a Leave Recipient

To make it easier to qualify as a leave recipient, the Act provided

that an agency may not consider any leave advanced to an employee when

determining whether a medical emergency is likely to result in a

substantial loss of income. The interim regulations reflected this

change by requiring that advanced leave be disregarded as ``available

paid leave.'' Two agencies expressed strong support for this statutory

change.

The interim regulations also reduced from 80 to 24 the number of

hours of unpaid absence that constitutes a ``substantial loss of

income'' for a full-time employee. Before approving an application for

a full-time employee to become a leave recipient, an agency must

determine that the absence from duty without paid leave (excluding

advanced leave) is, or is expected to be, at least 24 hours. Prior to

the interim regulations, a full-time employee's absence from duty

without available paid leave must have been, or have been expected to

be, at least 80 hours. Eight agencies did not support this change, and

one agency supported it. Two of the eight agencies that opposed the

change to 24 hours suggested a compromise of 40 hours.

The eight agencies generally expressed concern that lowering the

threshold for determining ``substantial loss of income'' would make it

too easy to qualify as a leave recipient. They believed the change was

unnecessary and would promote increased leave use and abuse because

employees would no longer have an incentive to conserve their accrued

leave. In addition, the agencies feared that lowering the threshold

would discourage donations of leave, change the character of the

already successful leave sharing program, and generally be detrimental

to preserving the viability of the leave sharing and leave bank

programs.

One agency noted that lowering the threshold from 80 to 24 hours

would result in additional demands for leave from the leave banks. The

agency asserted that a major decline in a leave bank's balanced would

cause a deterioration in benefits for all members. Another agency was

concerned that the change to 24 hours would undermine a program

designed to deal with catastrophic situations, which now may be turned

into a leave supplement program for routine short-term illnesses. An

agency maintained that the leave sharing program was enacted to assist

employees in dealing with significant hardships rather than minor

inconveniences.

One agency commented that the change to 24 hours was not mandated

by any legislative language, congressional finding, or evidence of a

need to reduce the original 80-hour requirement. Another agency pointed

out that OPM had not mentioned a need to make this change in its April

30, 1993, final report to Congress on the leave sharing program. The

agency requested OPM to provide insight as to why the reduction from 80

hours was made as well as the rationale for the selection of 24 hours.

Agencies also raised concerns about increased costs to administer the

program. Since many more employees could potentially meet the new

``substantial loss of income'' threshold for short-term illnesses

throughout the leave year, there would be frequent movements in and out

of the leave sharing program.

As a result of these comments, OPM recently contacted several of

the agencies that commented on the interim regulations. We informally

surveyed the agencies to learn about their experiences in applying the

24-hour threshold. (The interim regulations have been in effect since

January 31, 1994.) While several of the agencies contacted continue to

oppose the change, in no case has a leave transfer or leave bank

program been adversely affected. OPM continues to believe the 24-hour

threshold constitutes a substantial loss of income. Further, we do not

believe that the agencies' fears of increased administrative costs and

increased use of the leave sharing program are good justifications for

changing the required time period for unpaid absence back to 80 hours.

In addition, on July 11, 1994, the President issued a directive to

heads of agencies to encourage and support the expansion of family-

friendly work arrangements and to identify barriers to implementing

family-friendly work arrangements. We believe that changing the

threshold back to 80 hours would indeed create a barrier to family-

friendly work arrangements. Such an action is clearly not consistent

with the President's directive.

Two agencies suggested that any change in the ``substantial loss of

income'' threshold for full-time employees should result in a

corresponding change for part-time employees. Under the interim rule,

before a part-time employee can be qualified to become a leave

recipient, he or she is expected to experience an unpaid absence from

duty that is (or is expected to be) equal to the average number of

hours of work in the employee's biweekly scheduled tour of duty. In

many cases, this resulted in more hours of unpaid absence than the 24-

hours requirement for a full-time employee. OPM agrees with this

suggestion. In the final rule, a ``substantial loss of income'' for a

part-time employee or an employee with an uncommon tour of duty,

requires that the number of hours without available paid leave must be

equal to at least 30 percent of the average number of hours of work in

the employee's biweekly scheduled tour of duty. (See 5 CFR 630.903 and

630.1002.)

Prorating Contributions of Donated Leave for Part-time Employees

One agency commented that it did not believe a part-time employee

should have to contribute as much annual leave as a full-time employee

to join a leave bank. However, the statute makes no distinction between

full-time and part-time employees for this purpose, and the statutory

requirement cannot be modified by regulation. (See 5 U.S.C.

6366(b)(1).)

Agency's Waiver Authority to Accept Donations of Leave

One agency expressed concern about the possible consequences of

eliminating the phrase ``in unusual circumstances'' in 5 CFR 630.908(c)

and 630.105(c), since it provides agencies unrestricted authority to

waive the limitations on the amount of annual leave a leave donor may

donate in a leave year. The agency was concerned that this change might

result in donations of leave that would otherwise be subject to

forfeiture and thereby increase the cost of the program in a manner

inconsistent with the intent of Congress. OPM believes the elimination

of the phrase ``in unusual circumstances'' is consistent with the

original statutory language that was unchanged by the Act. (See 5

U.S.C. 6334(b)(3) and 6335(c).) It is not OPM's intent to encourage

agencies to accept donations of leave that would otherwise be subject

to forfeiture. Waivers should continue to be granted on a case-by-case

basis. The statutory and regulatory requirements to document all such

waivers (in writing) should provide adequate protection against abuse.

``Set-Aside'' Leave Accounts

Two agencies expressed disappointment that the new law retained the

separate (``set-aside'') leave account provision for leave earned while

an employee is using shared leave. OPM supported abolishing the

requirement for separate accounts in its April 30, 1993, report to

Congress. However, the change was not enacted. Both of these agencies

requested OPM to consider seeking future legislative action that would

eliminate these accounts.

One agency asked if leave in an employee's ``set aside'' sick leave

and ``set aside'' annual leave account transfers automatically to the

employee's regular sick leave and regular annual leave account or

whether the employee has to elect to have it transferred. When the

conditions set forth in 5 CFR 630.907(c) or 630.1008(c) exist, the

leave is transferred automatically to the employee's regular leave

accounts. The regulations do not require that the employee make an

election or request the transfer.

The same agency asked whether leave transferred from the employee's

``set aside'' account to his or her regular account could be used for

purposes other than an employee's ongoing medical emergency. Another

agency questioned whether sick or annual leave in an approved leave

recipient's ``set aside'' account may be used in connection with a

family member's medical emergency if that employee had exhausted shared

leave. The same agency asked whether an employee could use ``set

aside'' sick leave for personal medical reasons. Under 5 CFR 630.908(c)

and 630.1008(c), leave in an employee's ``set-aside'' leave accounts

may not be transferred for use until the medical emergency terminates

or the employee has exhausted all donated leave. However, once the

leave is transferred into the employee's regular leave accounts, it is

the employee's accrued leave (not shared leave) and can be used as any

other annual or sick leave.

An agency asked whether leave transferred from a leave recipient's

``set-aside'' accounts to his or her ``regular'' leave accounts must be

completely exhausted before the employee is permitted to use additional

shared leave that becomes available. Since this leave is available to

the employee as accrued leave in the employee's regular leave

account(s), the leave must be exhausted before shared leave may

continue to be used. (See 5 CFR 630.909(b) and 630.1009(b)).

An agency asked whether an employee's ``set-aside'' leave account

should be replenished when the employee returns to shared leave status

after he or she uses a portion of the ``set-aside'' leave. Under 5 CFR

630.907(a) (1) and (2) and 630.1008(a) (1) and (2), ``set-aside'' leave

accrual is limited to 40 hours per medical emergency. Once the ``set-

aside'' leave accounts reach the maximum of 40 hours, they may not be

replenished even if the employee uses a portion of the leave in the

``set-aside'' accounts and then returns to a shared leave status for

the same medical emergency.

Agency Administrative Matters

Two agencies requested more regulatory guidance regarding the

procedure an agency should follow to terminate an employee's

participation in the voluntary leave sharing program, particularly when

the employee has been absent for so long a period as to adversely

affect the agency or work unit mission. OPM believes the current

regulations provide sufficient authority and discretion for agencies to

terminate an employee's participation as a leave recipient. Sections

630.910(a)(3) and 630.1010(a)(4) vest agencies with the authority to

terminate the medical emergency of a leave recipient unilaterally when

it determines a leave recipient is no longer affected by the medical

emergency. Before terminating the medical emergency, the agency must

give the leave recipient written notice and an opportunity to answer

the notice.

In all cases, the agency has a responsibility to monitor the status

of the medical emergency affecting the leave recipient continually to

ensure that the leave recipient continues to be affected by the medical

emergency. (See 5 CFR 630.910(b)). When an agency is uncertain whether

an employee is experiencing (or continuing to experience) a legitimate

medical emergency, the agency may require the recipient to provide

appropriate medical documentation to ascertain the correct medical

status of the affected individual. If necessary, the agency may require

the employee or family member to be examined by one or more qualified

physicians of the agency's choosing. (The employee cannot be required

to pay the expenses associated with obtaining medical documentation

from more than one source.)

An agency has the authority to deny an employee's request to use

shared annual leave just as it may deny an employee's request to use

other annual leave. Each agency must use the existing regulatory

authorities at its disposal to prevent abuse of the voluntary leave

sharing and leave bank programs. OPM believes these are matters that

are best handled on a case-by-case basis within the flexibility of

policies developed by each agency rather than through additional

regulation.

Miscellaneous Technical and Editorial Comments

Under 5 U.S.C. 6369, procedures must be established for restoring

to the leave bank any transferred leave remaining to the credit of a

leave recipient after the medical emergency terminates. One agency

questioned whether leave banks are required under 5 CFR 630.1013 to

restore unused donated leave to individual leave donors if that leave

had been donated by employees under a leave transfer program. The same

agency asked whether procedures could be established that would permit

the leave bank to keep all such remaining unused leave. If not, the

agency questioned whether procedures could be established to permit

leave banks to keep donated leave that cannot be restored under 5 CFR

630.911.

Section 6369 of title 5, United States Code, is included in

subchapter IV (Voluntary Leave Bank Program) of chapter 63 and relates

to leave transferred from a leave bank. Leave that is donated by an

individual donor via the voluntary leave transfer program and not used

must, to the extent possible, be restored to the leave donor's account

(or, at the election of the leave donor, to another leave recipient).

Unused leave donated under subchapter III (Voluntary Transfers of

Leave) may not be credited to or appropriated by a leave bank. (See 5

U.S.C. 6336.) Only unused leave drawn from a leave bank is to be

restored to that leave bank.

An agency asked whether it could permit an employee to continue to

use donated leave for the period of time needed to arrange and/or

attend a funeral and settle other remaining matters in cases when a

medical emergency results in a family member's death. A medical

emergency terminates at the end of the biweekly pay period in which the

leave recipient is no longer affected by a medical emergency. (See 5

CFR 630.910.) OPM believes an agency may permit leave recipients to use

donated annual leave to arrange or attend the funeral of a family

member because the employee is still ``affected'' by the emergency. The

agency should ensure that the shared leave is being used by the

employee solely for activities specifically related to the medical

emergency and resultant death of the family member. The medical

emergency should be terminated promptly once these activities are

completed.

One agency asked whether the interim rule that was effective on

January 31, 1994, applies to leave sharing cases that were approved

prior to that date. The interim rule may not be applied retroactively

prior to January 31, 1994. However, the interim rule must be applied to

leave recipients participating in a leave sharing program on or after

January 31, 1994. For example, effective on or after January 31, 1994,

a leave recipient of a leave bank will also be eligible for leave

donated under the agency's voluntary leave transfer program.

Finally, two agencies suggested technical or editorial changes to

clarify or simplify language in 5 CFR 630.907(c)(1), 630.1002, and

630.1008(c)(1). OPM has modified the language in these sections of the

final regulations. In addition, the final regulations define

``available paid leave'' to assist agencies in determining an

employee's eligibility for shared leave. (See 5 CFR 630.902 and

630.1002.) Also, we have reduced the recordkeeping requirements in

Secs. 630.913 and 630.1012.

For the convenience of the reader, OPM is publishing the complete

text of the final voluntary leave transfer and leave bank program

regulations.

Technical Corrections

This notice also contains two technical corrections. In the final

regulations for uniform allowances, published in the Federal Register

on August 25, 1994 (59 FR 43703), the authority citation for part 591

is removed and an authority citation for subpart A of part 591 is

added. Also, in the final sick leave regulations published in the

Federal Register on December 2, 1994 (59 FR 62266), the reference to

paragraph (b) in Sec. 630.401(d) is removed and replaced by a reference

to paragraph (c).

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 employees and agencies.

List of Subjects

5 CFR Part 591

Government employees, Travel and transportation expenses, Wages.

5 CFR Part 630

Government employees.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is amending parts 591 and 630 of title 5 of the

Code of Federal Regulations as follows:

PART 591--ALLOWANCES AND DIFFERENTIALS

1. The authority citation for part 591 is removed.

2. A new authority citation for subpart A of part 591 is added to

read as follows:

Subpart A--Uniform Allowances

Authority: 5 U.S.C. 5903; E.O. 12748, 3 CFR 1991 Comp., p. 316.

PART 630--ABSENCE AND LEAVE

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

follows:

Authority: (5 U.S.C. 6311; Sec. 630.301 also issued under Public

Law 103-356 (108 Stat. 3410); 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), Public Law 102-484 (106 Stat. 2722) and Public Law 103-

337 (108 Stat. 2663); subpart D also issued under Public Law 103-329

(108 Stat. 2423); 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 Public Laws 100-

566 (102 Stat. 2834) and 103-103 (107 Stat. 1022); subpart J also

issued under 5 U.S.C. 6362 and Public Laws 100-566 and 103-103;

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

subpart L also issued under 5 U.S.C. 6387 and Public Law 103-3 (107

Stat. 23).

Sec. 630.401 Grant of sick leave.

4. In paragraph (d), the reference to paragraph ``(b)'' is removed

and a reference to paragraph ``(c)'' is added in its place.

5. Subpart I is added to read as follows:

Subpart I--Voluntary Leave Transfer Program

Sec.

630.901 Purpose and applicability.

630.902 Definitions.

630.903 Administrative procedures.

630.904 Application to become a leave recipient.

630.905 Approval of application to become a leave recipient.

630.906 Transfer of annual leave.

630.907 Accrual of annual and sick leave.

630.908 Limitations on donation of annual leave.

630.909 Use of transferred annual leave.

630.910 Termination of medical emergency.

630.911 Restoration of transferred annual leave.

630.912 Prohibition of coercion.

630.913 Records and reports.

Subpart I--Voluntary Leave Transfer Program

Sec. 630.901 Purpose and applicability.

(a) Purpose. The purpose of this subpart is to set forth procedures

and requirements for a voluntary leave transfer program under which the

unused accrued annual leave of one agency officer or employee may be

transferred for use by another agency officer or employee who needs

such leave because of a medical emergency.

(b) Applicability. This subpart applies to officers and employees

to whom subchapter I of chapter 63 of title 5, United States Code,

applies.

Sec. 630.902 Definitions.

Agency means--

(a) An Executive agency, as defined in 5 U.S.C. 105;

(b) A military department, as defined in 5 U.S.C. 102; or

officers or employees to whom subchapter I of chapter 63 of title 5,

United States Code, applies. Agency does not include the Central

Intelligence Agency; the Defense Intelligence Agency; the National

Security Agency; the Federal Bureau of Investigation; or any other

Executive agency or unit thereof, as determined by the President, whose

principal function is the conduct of foreign intelligence or

counterintelligence activities.

Available paid leave means accrued or accumulated annual or sick

leave under subchapter I of chapter 63 of title 5, United States Code,

and recredited and restored annual or sick leave under subpart E of

this part. Available paid leave does not include annual or sick leave

advanced to an employee under 5 U.S.C. 6302(d) or 6307(c) or any annual

or sick leave accrued under Sec. 630.907(a) that has not been

transferred to the appropriate leave account under Sec. 630.907(c).

Employee has the meaning given that term in 5 U.S.C. 6301(2),

except an individual employed by the government of the District of

Columbia.

Family member means the following relatives of the employee:

(a) Spouse, and parents thereof;

(b) Children, including adopted children, and spouses thereof;

(d) Brothers and sisters, and spouses thereof; and

(e) Any individual related by blood or affinity whose close

association with the employee is the equivalent of a family

relationship.

Leave donor means an employee whose voluntary written request for

transfer of annual leave to the annual leave account of a leave

recipient is approved by his or her own employing agency.

Leave recipient means a current employee for whom the employing

agency has approved an application to receive annual leave from the

annual leave accounts of one or more leave donors.

Medical emergency means a medical condition of an employee or a

family member of such employee that is likely to require an employee's

absence from duty for a prolonged period of time and to result in a

substantial loss of income to the employee because of the

unavailability of paid leave.

Paid leave status under subchapter I means the administrative

status of an employee while the employee is using annual or sick leave

accrued or accumulated under subchapter I of chapter 63 of title 5,

United States Code.

Shared leave status means the administrative status of an employee

while the employee is using transferred leave under this subpart or

leave transferred from a leave bank under subpart J of this part.

Sec. 630.903 Administrative procedures.

Each Federal agency shall establish and administer procedures to

permit the voluntary transfer of annual leave consistent with this

subpart.

Sec. 630.904 Application to become a leave recipient.

(a) An employee may make written application to his or her

employing agency to become a leave recipient. If an employee is not

capable of making application on his or her own behalf, a personal

representative of the potential leave recipient may make written

application on his or her behalf.

(b) Each application shall be accompanied by the following

information concerning each potential leave recipient:

(1) The name, position title, and grade or pay level of the

potential leave recipient;

(2) The reasons transferred leave is needed, including a brief

description of the nature, severity, and anticipated duration of the

medical emergency, and if it is a recurring one, the approximate

frequency of the medical emergency affecting the potential leave

recipient;

(3) Certification from one or more physicians, or other appropriate

experts, with respect to the medical emergency, if the potential leave

recipient's employing agency so requires; and

(4) Any additional information that may be required by the

potential leave recipient's employing agency.

that a potential leave recipient obtain certification from two or more

sources under paragraph (b)(3) of this section, the potential leave

recipient's employing agency shall ensure, either by direct payment to

the expert involved or by reimbursement, that the potential leave

recipient is not required to pay for the expenses associated with

obtaining certification from more than one source.

Sec. 630.905 Approval of application to become a leave recipient.

(a) The potential leave recipient's employing agency shall review

an application to become a leave recipient under procedures established

by the employing agency for the purpose of determining that the

potential leave recipient is or has been affected by a medical

emergency.

(b) Before approving an application to become a leave recipient,

the potential leave recipient's employing agency shall determine that

the absence from duty without available paid leave because of the

medical emergency is (or is expected to be) at least 24 hours (or, in

the case of a part-time employee or an employee with an uncommon tour

of duty, at least 30 percent of the average number of hours of work in

the employee's biweekly scheduled tour of duty).

likely to result in a substantial loss of income, an agency shall not

consider factors other than whether the absence from duty without

available paid leave is (or is expected to be) at least 24 hours (or,

in the case of a party-time employee or an employee with an uncommon

tour of duty, at least 30 percent of the average number of hours of

work in the employee's biweekly scheduled tour of duty).

(d) If the application is approved, the employing agency shall

notify the leave recipient (or the personal representative who made

application on behalf of the leave recipient), within 10 calendar days

(excluding Saturdays, Sundays, and legal public holidays) after the

date the application was received (or the date the employing agency

established its administrative procedures, if that date is later),

that--

(1) The application has been approved; and

(2) Other employees of the leave recipient's employing agency may

request the transfer of annual leave to the account of the leave

recipient.

(e) If the application is not approved, the employing agency shall

notify the applicant (or the personal representative who made

application on behalf of the potential leave recipient), within 10

calendar days (excluding Saturdays, Sundays, and legal public holidays)

after the date the application was received (or the date the employing

agency established its administrative procedures, if that date is

later)--

(1) That the application has not been approved; and

(2) The reasons for its disapproval.

Sec. 630.906 Transfer of annual leave.

(a) An employee may submit a voluntary written request to his or

her own employing agency that a specified number of hours of his or her

accrued annual leave be transferred from his or her annual leave

account to the annual leave account of a specified leave recipient.

Except as provided in paragraph (f) of this section, annual leave may

be transferred only to a leave recipient employed by the leave donor's

employing agency.

(b) Except as provided in paragraph (d) of this section and subject

to the limitations on the amount of annual leave that may be donated by

a leave donor under Sec. 630.908, all or any portion of the annual

leave requested under paragraph (a) of this section may be transferred

to the annual leave account of the specified leave recipient under

procedures established by the leave recipient's employing agency.

basis of an uncommon tour of duty shall establish procedures for

administering the transfer of annual leave to or from such employees

under this subpart.

(d) A leave recipient's employing agency shall not transfer annual

leave to a leave donor's immediate supervisor.

(e) Annual leave transferred under this section may be substituted

retroactively for period of leave without pay (LWOP) or used to

liquidate an indebtedness for advanced annual or sick leave granted on

or after a date fixed by the leave recipient's employing agency as the

beginning of the period of medical emergency for which LWOP or advanced

annual or sick leave was granted.

(f) A leave recipient's employing agency shall accept the transfer

of annual leave from leave donors employed by one or more other

agencies when--

(1) A family member of a leave recipient is employed by another

agency and requests the transfer of annual leave to the leave

recipient;

(2) In the judgment of the leave recipient's employing agency, the

amount of annual leave transferred from leave donors employed by the

leave recipient's employing agency may not be sufficient to meet the

needs of the leave recipient; or

(3) In the judgment of the leave recipient's employing agency,

acceptance of leave transferred from another agency would further the

purpose of the voluntary leave transfer program.

(g) The employing agency of a leave donor who wishes to donate

annual leave to a leave recipient in another agency shall verify the

availability of annual leave in the leave donor's annual leave account,

determine that the amount of annual leave to be donated does not exceed

the limitations in Sec. 630.908, and ascertain that the leave

recipient's employing agency has made any determination that may be

required under paragraph (f) of this section. Upon satisfying these

requirements, the leave donor's employing agency shall--

(1) Reduce the amount of annual leave credited to the leave donor's

annual leave account, as appropriate; and

(2) Notify the leave recipient's employing agency in writing of the

amount of annual leave to be credited to the leave recipient's annual

leave account.

Sec. 630.907 Accrual of annual and sick leave.

(a) Except as otherwise provided in this section, while an employee

is in a shared leave status, annual and sick leave shall accrue to the

credit of the employee at the same rate as if the employee where then

in a paid leave status under subchapter I of chapter 63 of title 5,

United States Code, except that--

(1) The maximum amount of annual leave that may be accrued by an

employee while in a shared leave status in connection with any

particular medical emergency may not exceed 40 hours (or, in the case

of a part-time employee or an employee with an uncommon tour of duty,

the average number of hours of work in the employee's weekly scheduled

tour of duty); and

(2) The maximum amount of sick leave that may be accrued by an

employee while in a shared leave status in connection with any

particular medical emergency may not exceed 40 hours (or, in the case

of a part-time employee or an employee with an uncommon tour of duty,

the average number of hours of work in the employee's weekly scheduled

tour of duty).

(b) Any annual or sick leave accrued by an employee under this

subpart and subpart J of this part--

(1) Shall be credited to an annual or sick leave account, as

appropriate, separate from any leave account of the employee under

subchapter I of chapter 63 of title 5, United States Code; and

(2) Shall not become available for use by the employee and may not

otherwise be taken into account under subchapter I of chapter 63 of

title 5, United States Code, until it is transferred to the appropriate

leave account of the employee under subchapter I of chapter 63 of title

5, United States Code, as provided in paragraph (c) of this section.

section shall be transferred to the appropriate leave account of the

employee under subchapter I of chapter I of chapter 63 of title 5,

United States Code, and shall become available for use--

(1) As of the beginning of the first pay period beginning on or

after the date on which the employee's medical emergency terminates as

described in Sec. 630.910(a)(2) or (3); or

(2) If the employee's medical emergency has not yet terminated,

once the employee has exhausted all leave made available to such

employee under this subpart or subpart J of this part.

(d) If the leave recipient's employing agency advances at the

beginning of the leave year the amount of annual leave the employee

normally would accrue during the entire leave year under 5 U.S.C.

6302(d)--

(1) The leave recipient's employing agency shall establish

procedures to ensure that 40 hours (or, in the case of a part-time

employee or an employee with an uncommon tour of duty, the average

number of hours of work in the employee's weekly scheduled tour of

duty) of annual leave are placed in a separate annual leave account and

made available for use by the employee as described in paragraph (c) of

this section; and

(2) The employee shall continue to accrue annual leave while in a

shared leave status to the extent necessary for the purpose of reducing

an indebtedness caused by the use of annual leave advanced by the

beginning of the leave year.

(e) If the employee's medical emergency terminates as described in

Sec. 630.910(a)(1), no leave shall be credited to the employee under

this section.

Sec. 630.908 Limitations on donation of annual leave.

(a) In any one leave year, a leave donor may donate no more than a

total of one-half of the amount of annual leave he or she would be

entitled to accrue during the leave year in which the donation is made.

(b) In the case of a leave donor who is projected to have annual

leave that otherwise would be subject to forfeiture at the end of the

leave year under 5 U.S.C. 6304(a), the maximum amount of annual leave

that may be donated during the leave year shall be the lesser of--

(1) One-half of the amount of annual leave he or she would be

entitled to accrue during the leave year in which the donation is made;

(2) The number of hours remaining in the leave year (as of the date

of the transfer) for which the leave donor is scheduled to work and

receive pay.

limitations on donating annual leave under paragraphs (a) and (b) of

this section. Any such waiver shall be documented in writing.

(d) The limitations in this section shall apply to the total amount

of annual leave donated or contributed under subparts I and J of this

part.

Sec. 630.909 Use of transferred annual leave.

(a) A leave recipient may use annual leave transferred to his or

her annual leave account under Sec. 630.906 only for the purpose of a

medical emergency for which the leave recipient was approved.

(b) Except as provided in Sec. 630.907, during each biweekly pay

period that a leave recipient is affected by a medical emergency, he or

she shall use any accrued annual leave (and sick leave, if applicable)

before using transferred annual leave.

subject to all of the conditions and requirements imposed by chapter 63

of title 5, United States Code, part 630 of this chapter, and the

employing agency on the approval and use of annual leave accrued under

5 U.S.C. 6303, except that transferred annual leave may accumulate

without regard to the limitation imposed by 5 U.S.C. 6304(a).

(d) Transferred annual leave may be substituted retroactively for

any period of leave without pay or used to liquidate an indebtedness

for any period of advanced leave that began on or after the date fixed

by the agency as the beginning of the medical emergency.

(e) Transferred annual leave may not be--

(1) Transferred to another leave recipient under this subpart,

except as provided in Sec. 630.911(e)(3);

(2) Included in a lump-sum payment under 5 U.S.C. 5551 or 5552; or

(3) Made available for recredit under 5 U.S.C. 6306 upon

reemployment by a Federal agency.

Sec. 630.910 Termination of medical emergency.

(a) The medical emergency affecting a leave recipient shall

terminate--

(1) When the leave recipient's Federal service is terminated;

(2) At the end of the biweekly pay period in which the leave

recipient's employing agency receives written notice from the leave

recipient or from a personal representative of the leave recipient that

the leave recipient is no longer affected by a medical emergency;

(3) At the end of the biweekly pay period in which the leave

recipient's employing agency determines, after written notice from the

agency and an opportunity for the leave recipient (or, if appropriate,

a personal representative of the leave recipient) to answer orally or

in writing, that the leave recipient is no longer affected by a medical

emergency; or

(4) At the end of the biweekly pay period in which the leave

recipient's employing agency receives notice that the Office of

Personnel Management has approved an application for disability

retirement for the leave recipient under the Civil Service Retirement

System or the Federal Employees' Retirement System.

(b) The leave recipient's employing agency shall continuously

monitor the status of the medical emergency affecting the leave

recipient to ensure that the leave recipient continues to be affected

by a medical emergency.

terminates, no further requests for transfer of annual leave to the

leave recipient may be granted, and any unused transferred annual leave

remaining to the credit of the leave recipient shall be restored to the

leave donors under Sec. 630.911.

(d) An agency may deem a medical emergency to continue for the

purpose of providing a leave recipient an adequate period of time

within which to receive donations of annual leave.

Sec. 630.911 Restoration of transferred annual leave.

(a) Under procedures established by the leave recipient's employing

agency, any transferred annual leave remaining to the credit of a leave

recipient when the medical emergency terminates shall be restored, as

provided in paragraphs (b) and (c) of this section and to the extent

administratively feasible, by transfer to the annual leave accounts of

leave donors who, on the date leave restoration is made, are employed

by a Federal agency and subject to chapter 63 of title 5, United States

Code.

(b) The amount of unused transferred annual leave to be restored to

each leave donor shall be determined as follows:

(1) Divide the number of hours of unused transferred annual leave

by the total number of hours of annual leave transferred to the leave

recipient;

(2) Multiply the ratio obtained in paragraph (b)(1) of this section

by the number of hours of annual leave transferred by each leave donor

eligible for restoration under paragraph (a) of this section; and

(3) Round the result obtained in paragraph (b)(2) of this section

to the nearest increment of time established by the leave donor's

employing agency to account for annual leave.

number of hours of annual leave to be restored, no unused transferred

annual leave shall be restored. In no case shall the amount of annual

leave restored to a leave donor exceed the amount transferred to the

leave recipient by the leave donor.

(d) If the leave donor retires from Federal service, dies, or is

otherwise separated from Federal service before the date unused

transferred annual leave can be restored, the employing agency of the

leave recipient shall not restore the unused transferred annual leave.

(e) At the election of the leave donor, unused transferred annual

leave restored to the leave donor under paragraph (a) of this section

may be restored by--

(1) Crediting the restored annual leave to the leave donor's annual

leave account in the current leave year;

(2) Crediting the restored annual leave to the leave donor's annual

leave account effective as of the first day of the first leave year

beginning after the date of election; or

(3) Donating such leave in whole or part to another leave

recipient.

(f) If a leave donor elects to donate only part of his or her

restored leave to another leave recipient under paragraph (e)(3) of

this section, the donor may elect to have the remaining leave credited

to the leave donor's annual leave account under paragraph (e)(1) or

(e)(2) of this section.

(g) Transferred annual leave restored to the account of a leave

donor under paragraph (e) (1) or (2) of this section shall be subject

to the limitation imposed by 5 U.S.C. 6304(a) at the end of the leave

year in which the restored leave is credited to the leave donor's

annual leave account.

Sec. 630.912 Prohibition of coercion.

(a) An employee may not directly or indirectly intimidate,

threaten, or coerce, or attempt to intimidate, threaten, or coerce, any

other employee for the purpose of interfering with any right such

employee may have with respect to donating, receiving, or using annual

leave under this subpart.

(b) For the purpose of paragraph (a) of this section, the term

``intimidate, threaten, or coerce'' includes promising to confer or

conferring any benefit (such as an appointment or promotion or

compensation) or effecting or threatening to effect any reprisal (such

as deprivation of appointment, promotion, or compensation).

Sec. 630.913 Records and reports.

(a) Each agency shall maintain records concerning the

administration of the voluntary leave transfer program and may be

required by the Office of Personnel Management to report any

information necessary to evaluate the effectiveness of the program.

(b) Agencies shall maintain the following information:

(1) The number of applications approved for medical emergencies

affecting the employee and the number of applications approved for

medical emergencies affecting an employee's family member;

(2) The grade or pay level of each leave recipient and leave donor,

the gender of each leave recipient, and the total amount of transferred

annual leave used by each leave recipient; and

(3) Any additional information OPM may require.

5. Subpart J is added to read as follows:

Subpart J--Voluntary Leave Bank Program

Sec.

630.1001 Purpose and applicability.

630.1002 Definitions.

630.1003 Establishing leave banks and leave bank boards.

630.1004 Application to become a leave contributor and leave bank

member.

630.1005 Limitations on contribution of annual leave.

630.1006 Application to become a leave recipient.

630.1007 Approval of application to become a leave recipient.

630.1008 Accrual of annual and sick leave.

630.1009 Use of annual leave withdrawn from a leave bank.

630.1010 Termination of medical emergency.

630.1011 Prohibition of coercion.

630.1012 Records and reports.

630.1013 Participation in voluntary leave transfer and leave bank

programs.

630.1014 Movement between voluntary leave bank programs.

630.1015 Movement between voluntary leave bank and leave transfer

programs.

630.1016 Termination of a voluntary leave bank program.

Subpart J--Voluntary Leave Bank Program

Sec. 630.1001 Purpose and applicability.

(a) Purpose. The purpose of this subpart is to establish procedures

and requirements for a voluntary leave bank program under which the

unused accrued annual leave of an employee may be contributed to a

leave bank for use by a leave bank member who needs such leave because

of a medical emergency.

(b) Applicability. This subpart applies to officers and employees--

(1) To whom subchapter I of chapter 63 of title 5, United States

Code applies; and

(2) Who are employed in agencies and their organizational subunits

operating a voluntary leave bank program under this subpart.

Sec. 630.1002 Definitions.

Agency means an ``Executive agency,'' as defined in 5 U.S.C. 105,

or a ``military department,'' as defined in 5 U.S.C. 102. ``Agency''

does not include the Central Intelligence Agency, the Defense

Intelligence Agency, the National Security Agency, the Federal Bureau

of Investigation, or any other Executive agency or subunit thereof, as

determined by the President, whose principal function is the conduct of

foreign intelligence or counterintelligence activities.

Available paid leave has the meaning given that term in subpart I

of this part.

Employee has the meaning given that term in subpart I of this part.

Family member has the meaning given that term in subpart I of this

part.

Leave bank means a pooled fund of annual leave established by an

agency under Sec. 630.1003.

Leave bank member means a leave contributor who has contributed, in

an open enrollment period (or individual enrollment period, as

applicable) of the current leave year, at least the minimum amount of

annual leave required by Sec. 630.1004.

Leave contributor means an employee who contributes annual leave to

a leave bank under Sec. 630.1004.

Leave recipient means a leave bank member whose application to

receive contributions of annual leave from a leave bank has been

approved under Sec. 630.1007.

Medical emergency has the meaning given that term in subpart I of

this part.

Paid leave status under subchapter I has the meaning given that

term in subpart I of this part.

Shared leave status has the meaning given that term in subpart I of

this part.

Sec. 630.1003 Establishing leave banks and leave bank boards.

(a) Each agency that participates in the voluntary leave bank

program shall, in accordance with this subpart--

(1) Develop written policies and procedures for establishing and

administering leave banks and leave bank boards;

(2) Establish one or more leave bank boards to perform the duties

authorized by this subpart; and

(3) Establish and begin operating one or more leave banks.

(b) No more than one leave bank board may be established for each

leave bank.

one member shall represent a labor organization or employee group.

(d) Each leave bank board shall--

(1) Establish its internal decision-making procedures;

(2) Review and approve or disapprove each application to become a

leave contributor under Sec. 630.1004 and a leave recipient under

Secs. 630.1006 and 630.1007;

(3) Monitor the status of each leave recipient's medical emergency;

(4) Monitor the amount of leave in the leave bank and the number of

applications to become a leave recipient;

(5) Maintain an adequate amount of annual leave in the leave bank

to the greatest extent practicable in accordance with Sec. 630.1004;

and

(6) Perform other functions prescribed in this subpart.

(e) Annual leave may not be borrowed, contributed, or otherwise

transferred between leave banks.

Sec. 630.1004 Application to become a leave contributor and leave bank

member.

(a) An employee may make voluntary written application to the leave

bank board to become a leave contributor. The application shall specify

the number of hours of annual leave to be contributed and any other

information the leave bank board may reasonably require.

(b) An employee may request that annual leave be contributed to a

specified bank member other than the leave contributor's immediate

supervisor.

particular leave year if he or she submits an application meeting the

requirements of this section during an open enrollment period

established by the leave bank board under paragraphs (d) and (e) of

this section (or where applicable, during an individual enrollment

period established under paragraph (f) of this section).

(d) The leave bank board shall establish at least one open

enrollment period for each leave year of leave bank operation.

(e) An open enrollment period shall last at least 30 calendar days.

The agency shall take appropriate action to inform employees of each

open enrollment period.

(f) An employee entering the agency or participating organizational

subunit or returning from an extended absence outside an open

enrollment period may become a leave bank member for the leave year by

submitting an application meeting the requirements of this section

during an individual enrollment period lasting at least 30 calendar

days, beginning on the date the employee entered or returned to the

agency or organizational subunit.

(g) Except as provided in paragraph (h) of this section, the

minimum contribution required to become a leave bank member for a leave

year shall be--

(1) 4 hours of annual leave for an employee who has less than 3

years of service at the time he or she submits an application to

contribute annual leave;

(2) 6 hours of annual leave for an employee who has at least 3, but

less than 15, years of service at the time he or she submits an

application to contribute annual leave; and

(3) 8 hours of annual leave for an employee who has 15 or more

years of service at the time he or she submits an application to

contribute annual leave.

(h) The leave bank board may--

(1) Decrease the minimum contribution required by paragraph (g) of

this section for the following leave year when the leave bank board

determines that there is a surplus of leave in the bank;

(2) Increase the minimum contribution required by paragraph (g) of

this section for the following leave year when the leave bank board

determines that such action is necessary to maintain an adequate

balance of annual leave in the leave bank; or

(3) Eliminate the requirement for a minimum contribution under

paragraph (g) of this section when a leave bank member transfers within

his or her employing agency to an organization covered by a different

leave bank.

(i) If a leave recipient does not have sufficient available accrued

annual leave to his or her credit to make the full minimum contribution

required by this section, he or she shall be deemed to have made the

minimum contribution.

(j) The leave bank board shall deposit all contributions of annual

leave under this subpart in the leave bank. Except as provided in

Sec. 630.1016(c), the leave bank board may not return a contribution of

annual leave to a leave contributor after deposit in the leave bank.

(k) A leave bank member may apply to contribute additional annual

leave at any time. An employee who is not a leave bank member may apply

to become a leave contributor at any time.

Sec. 630.1005 Limitations on contribution of annual leave.

(a) In any one leave year, a leave contributor may contribute no

more than a total of one-half of the amount of annual leave he or she

would be entitled to accrue during the leave year in which the

contribution is made.

(b) In the case of a leave contributor who is projected to have

annual leave that otherwise would be subject to forfeiture at the end

of the leave year under 5 U.S.C. 6304(a), the maximum amount of annual

leave that may be contributed during the leave year shall be the lesser

of--

(1) One-half of the amount of annual leave he or she would be

entitled to accrue during the leave year in which the contribution is

made; or

(2) The number of hours remaining in the leave year (as of the date

of the contribution) for which the leave contributor is scheduled to

work and receive pay.

bank board to waive the limitations on contributing annual leave under

paragraphs (a) and (b) of this section. Any such waiver shall be

documented in writing.

(d) The limitations in this section shall apply to the total amount

of annual leave donated or contributed during the leave year under

subparts I and J of this part.

Sec. 630.1006 Application to become a leave recipient.

(a) A leave bank member may make written application to the leave

bank board to become a leave recipient. If a leave bank member is not

capable of making application on his or her own behalf, a personal

representative may make written application on his or her behalf.

(b) The leave bank board may require leave bank members to submit

applications under this section within a prescribed period of time

following the termination of a medical emergency.

recipient shall be accompanied by the following information concerning

the potential leave recipient:

(1) The leave bank member's name, position title, and grade or pay

level;

(2) The reasons leave is needed, including a brief description of

the nature, severity, anticipated duration, and if it is a recurring

one, the approximate frequency of the medical emergency affecting the

leave bank member;

(3) Certification from one or more physicians, or other appropriate

experts, with respect to the medical emergency, if the leave bank board

so requires; and

(4) Any additional information that may be required by the leave

bank board.

(d) If the leave bank board requires a leave bank member to submit

certification from two or more sources under paragraph (b)(3) of this

section, the agency shall ensure, either by direct payment to the

expert involved or by reimbursement, that the leave bank member is not

required to pay for the expenses associated with obtaining

certification from more than one source.

Sec. 630.1007 Approval of application to become a leave recipient.

(a) The leave bank board shall review an employee's application to

become a leave recipient under procedures established by the agency for

the purpose of determining whether the employee is a leave bank member

who is or has been affected by a medical emergency.

(b) Before approving an application to become a leave recipient,

the leave bank board shall determine that the absence from duty without

available paid leave because of the medical emergency is (or is

expected to be) at least 24 hours (or, in the case of a part-time

employee or an employee with an uncommon tour of duty, at least 30

percent of the average number of hours of work in the employee's

biweekly scheduled tour of duty).

likely to result in a substantial loss of income, the leave bank board

shall not consider factors other than whether the absence from duty

without available paid leave is (or is expected to be) at least 24

hours (or, in the case of a part-time employee or an employee with an

uncommon tour of duty, at least 30 percent of the average number of

hours of work in the employee's biweekly scheduled tour of duty).

(d) The leave bank board shall provide timely written notification

to the applicant of the action taken on the application. If the leave

bank board disapproves the application, notification shall include the

reasons for disapproval.

(e) The leave bank board may establish written policies limiting

the amount of annual leave that may be granted to a leave recipient.

Sec. 630.1008 Accrual of annual and sick leave.

(a) Except as otherwise provided in this section, while an employee

is in a shared leave status, annual and sick leave shall accrue to the

credit of the employee at the same rate as if the employee were then in

a paid leave status under subchapter I of chapter 63 of title 5, United

States Code, except that--

(1) The maximum amount of annual leave that may be accrued by a

leave recipient while in a shared leave status in connection with any

particular medical emergency may not exceed 40 hours (or, in the case

of a part-time employee or an employee with an uncommon tour of duty,

the average number of hours of work in the employee's weekly scheduled

tour of duty); and

(2) The maximum amount of sick leave that may be accrued by a leave

recipient while in a shared leave status in connection with any

particular medical emergency may not exceed 40 hours (or, in the case

of a part-time employee or an employee with an uncommon tour of duty,

the average number of hours of work in the employee's weekly scheduled

tour of duty).

(b) Any annual or sick leave accrued by an employee under this

subpart and subpart I of this part--