Absence and Leave; Use of Restored Annual Leave

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AG45

Absence and Leave; Use of Restored Annual Leave

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management is issuing final

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.

EFFECTIVE DATE: June 7, 1995.

FOR FURTHER INFORMATION CONTACT:

Sharon Herzberg, (202) 606-2858.

SUPPLEMENTARY INFORMATION: On December 7, 1994, the Office of Personnel

Management (OPM) published interim regulations (59 FR 62971) that

provided relief to Federal employees at Department of Defense (DOD)

installations undergoing closure or realignment who accumulate large

amounts of restored annual leave under the provisions of section 4434

of Public Law 102-484, the National Defense Authorization Act for

fiscal year 1993, and sections 341 and 2816 of Public Law 103-337,

October 5, 1994, the National Defense Authorization Act for fiscal year

1995. These provisions of law amended 5 U.S.C. 6304(d) to provide that

any annual leave in excess of the maximum limitation that is accrued by

an employee at a DOD installation undergoing closure or realignment

must be restored and credited to the employee in a separate leave

account.

During the 60-day comment period, OPM received two comments, one

from a labor organization and one from an individual. Following is a

summary of the comments.

Time Limit for Using Restored Annual Leave

Employees remaining for several years at closing DOD installations

or DOD installations undergoing realignment may accumulate large

amounts of restored annual leave in their separate accounts established

under 5 U.S.C. 6304(d)(3). After the employee leaves the DOD base

undergoing closure or realignment, the employee and the employer are

confronted with the prospect of the employee having to use sizable

amounts of annual leave at the gaining agency or organization within a

limited period of time. The interim regulations provided relief to

affected employees by--

Establishing 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 and using

formulas similar to the formulas used in back pay computations under 5

CFR 550.805(g);

Deferring the start of the time period for using restored

annual leave under 5 U.S.C. 6304(d)(3) until the employee no longer

works at a closing DOD installation or a DOD installation undergoing

realignment; and

Permitting the head of an agency to exempt covered

employees who move during the leave year to an installation not

undergoing closure or realignment from the requirement to schedule

excess annual leave in advance in order for such leave to be considered

for restoration.

Both the individual and the labor organization objected to OPM's

formula for calculating the time limit for use of restored annual leave

and suggested increasing the limit. The individual suggested that all

employees be given 5 years to use restored annual leave. The labor

organization also suggested that OPM allow employees 5 years to use the

restored annual leave or that OPM designate base closures and

realignments as ``extended exigencies of the public business'' and

follow the procedures outlined in 5 CFR 630.309. The labor organization

alternatively proposed that, under the procedures outlined for extended

exigencies, affected employees be given 2 years to use excess annual

leave for every year or portion of a year the employee was covered

under 5 U.S.C. 6304(d)(3)--i.e., an employee covered under 5 U.S.C.

[[Page 22456]] 6304 for 4 years would be given 8 years to use

accumulated annual leave.

Base closings and realignments do not meet the definition of

``extended exigencies of the public business.'' Under 5 CFR 630.308, an

extended exigency must be an exigency of such significance as to

threaten the national security, safety, or welfare; last more than 3

calendar years; affect a segment of an agency or an occupational class;

and preclude subsequent use of both restored and accrued annual leave

within the period specified in 5 CFR 630.306.

OPM regulations calculate the time limit for using restored annual

leave based on the amount of leave restored rather than the time served

at a closing or realigning DOD installation. We believe this provides a

more equitable approach, since employees who serve the same amount of

time at a closing installation may leave that installation with vastly

different amounts of annual leave restored in their accounts due to

different leave accrual rates. Linking the time limit for using

restored leave solely to the amount of time served at a closing or

realigning base would disadvantage employees who are in the 8-hour

leave accrual category, as compared to employees in the 4-hour leave

accrual category. Therefore, OPM has not revised the rule in this

regard.

The individual suggested that, as an alternative to establishing

new time limits for the use of restored annual leave, the losing

installation by the restored excess annual leave from the employee at

the time of transfer. Under 5 U.S.C. 5551, lump-sum payments for

accumulated and accrued annual leave are authorized only upon

separation from the Federal Government or transfer to another leave

system to which annual leave accrued under chapter 63 of title 5,

United States Code, cannot be transferred. There is no provision in law

or regulation for lump-sum payments for accumulated and accrued annual

leave upon transfer between positions that are covered under chapter 63

of title 5, United States Code.

The labor organization recommended that an employee who becomes

subject to another closure or realignment during the time period in

which he or she must use restored annual leave should be considered as

continuing under the exigency of the public business. OPM believes this

situation is already addressed in the interim rule. Under 5 CFR

630.306(c), ``time limits for using restored annual leave shall not

apply for the entire period under which an employee is subject to 5

U.S.C. 6304(d)(3).'' When an employee with an active restored leave

account becomes subject to another closure or realignment, the time

limit for using the 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 annual

leave available to the employee under 5 U.S.C. 6304(d). The new time

limit for using restored annual leave will begin on the date the

employee is no longer subject to 5 U.S.C. 6304(d)(3). Therefore, OPM

believes no change is necessary in the regulations.

When an employee moves during the leave year to an agency or DOD

base not undergoing closure or realignment, OPM's interim regulations

state that the employee must show that a ``reasonable attempt'' was

made to schedule leave, in order to have any excess annual leave for

the leave year considered for restoration. The labor organization

believes its recommended alternative of shielding excess annual leave

under the extended exigency language in 5 CFR 630.308 alleviates any

capricious or arbitrary determination by an agency head as to whether

the employee made a reasonable attempt to schedule excess annual leave.

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. Although an employee may have been exempt from

the advance scheduling requirement for that portion of the year during

which he or she was employed at a DOD closing or realigning

installation, 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 after leaving the DOD

installation and before the end of the leave year. Under 5 CFR

630.308(b), 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 because of

circumstances beyond his or her control.

OPM believes no changes are necessary in the interim regulations.

Therefore, OPM is adopting as final the interim rule to provide

employees with additional time in which to use restored annual leave

that was forfeited as a result of employment at a DOD installation

undergoing closure or realignment.

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.

Office of Personnel Management.

James B. King,

Director.

Accordingly, under the authority of 5 U.S.C. 6304(d)(2), the

interim rule amending subpart C of 5 CFR part 630, published at 59 FR

62971 on December 7, 1994, is adopted as a final rule without change.

[FR Doc. 95-11179 Filed 5-5-95; 8:45 am]

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