Reduction in Force and Mandatory Exceptions

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 351 and 630

RIN 3206-AH64

Reduction in Force and Mandatory Exceptions

AGENCY: Office of Personnel Management.

ACTION: Final rulemaking.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final

regulations that implement legislation giving employees the right to

use annual leave to establish initial retirement eligibility for

employees in reduction in force and other restructuring situations.

These regulations also implement related provisions concerning the

availability of annual leave to qualify for continuance of health

benefits in the same situation.

DATES: These regulations are effective June 12, 1998.

FOR FURTHER INFORMATION CONTACT: (part 351) Thomas A. Glennon or

Jacqueline R. Yeatman, (202) 606-0960, FAX (202) 606-2329; (part 630)

Jo Ann Perrini, (202) 606-2858, FAX (202) 606-0824.

SUPPLEMENTARY INFORMATION:

Background

On March 10, 1997, OPM published interim regulations at 62 FR 10681

to implement section 634 of the Treasury, Postal Service, and General

Government Appropriations Act, 1997, as contained in section 101(f) of

the Omnibus Consolidated Appropriations Act, 1997 (P.L. 104-208,

approved September 30, 1996). Section 634 of the Act is codified in 5

U.S.C. 6302(g).

The regulations were effective upon publication in the Federal

Register. Interested parties could submit written comments to OPM

concerning the regulations in the 60 day period following publication

of the regulations.

As authorized by section 634 of the Act, the interim regulations

provide that an employee who has received a specific notice of

involuntary separation by reduction in force, or by adverse action

after declining relocation (including transfer of function), has the

right to use annual leave past the effective date the employee would

otherwise have been separated in order to establish initial eligibility

for immediate retirement, including discontinued service or voluntary

early retirement. The same option is also available for the employee to

acquire initial eligibility for continuation of health benefits into

retirement.

Comments

OPM received four comments, all from Federal agencies, on the

interim regulations.

One agency concurred with the regulations as published.

The second agency asks that sections 351.606(b) (1) and (2), and

section 351.608(e)(1), be revised to specify that an agency must elect

to provide voluntary early retirement authority in order for an

employee retained under Section 634 to separate under that early

retirement option.

After reviewing the regulations, no further revision was made

because even without the voluntary early retirement option, the

employee would still have the right to separate under the discontinued

service retirement option.

The third agency asked that 5 CFR part 630 be revised to provide

that an employee retained under section 634 of the Act would not be

required to return to duty for the last day of employment in order to

receive a lump sum payment for terminal leave. Specifically, the agency

commented that under 5 U.S.C. 5551, the employee would be entitled to a

lump-sum payment for the annual leave earned during this period of

terminal leave.

The agency stated that a previous Comptroller General opinion

required that an employee on terminal leave report for duty on his or

her last workday to receive leave credit (B-223876, June 12, 1987). The

agency recommended that OPM waive the requirement that an employee on

terminal leave must return to duty on his or her last workday in order

to accrue annual leave for that period so as to allow such annual leave

to be included in a lump-sum payment.

Under 5 U.S.C. 6302(g), Congress specifically provided employees an

entitlement to elect to use their annual leave to remain on the

agency's rolls for the time needed to establish initial eligibility for

immediate retirement and/or to acquire eligibility to continue health

benefits into retirement. There is no statutory requirement that

employees must return to work on their last workday in order to accrue

annual leave for the period of absence. For purposes of Sec. 630.212,

an employee continues to accrue annual leave while in a paid leave

status. We do not believe a waiver or a new regulatory provision is

necessary, since the entitlement in 5 U.S.C. 6302(b) supersedes any

previous Comptroller General opinion to the contrary.

The fourth agency asks for clarification of 5 CFR part 630

concerning whether a leave recipient would be permitted to continue to

use donated annual leave if the medical emergency that served as the

basis for the donated leave ends before the employee attains first

eligibility for benefits under section 634 of the Act.

In section 630.212(b)(3), an agency may permit an approved leave

recipient to use any or all donated annual leave made available to the

employee under the agency's voluntary leave transfer and/or leave bank

programs for the purpose of establishing initial retirement eligibility

and/or qualifying for continuance of health benefits.

Under Sec. 630.910(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 (e.g.,

to permit retroactive substitution of donated annual leave for any

advance leave or leave without pay taken during the medical emergency

or to arrange for or attend the funeral of the family member affected

by the medical emergency). However, Sec. 630.910(c) states that when a

medical emergency terminates, no further requests for donated annual

leave may be granted and any unused donated annual leave must be

returned to the leave donor(s). Therefore, if a medical emergency

terminates prior to establishing initial retirement eligibility and/or

qualifying for continuance of health benefits, the employee may not

continue to use donated annual leave. Agencies are responsible for

continuously monitoring

[[Page 26422]]

the status of a medical emergency affecting a leave recipient to ensure

that the leave recipient continues to be affected by the medical

emergency. We encourage agencies to verify the status of a medical

emergency before granting approval to a leave recipient to use any and

all donated annual leave for the purpose of establishing initial

retirement eligibility and/or qualifying for continuance of health

benefits.

Final Regulations

After consideration of all comments, the interim regulations

published at 62 FR 10681 are published as final regulations without

further revision.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic

impact on a substantial number of small entities because it only

affects Federal employees.

List of Subjects in Parts 351 and 630

Administrative practice and procedure, Government employees.

U.S. Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, the interim rule published March 10, 1997 (62 FR

10681) is adopted as final without change.

[FR Doc. 98-12632 Filed 5-12-98; 8:45 am]

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