Absence and Leave; Use of Restored Annual Leave

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AI71

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 aid agencies and employees involved in Year 2000 (Y2K)

computer conversion efforts. The regulations provide that excess annual

leave forfeited by employees who are unable to schedule and use their

leave as a result of Y2K computer conversion efforts will be deemed to

have been scheduled in advance and therefore eligible for restoration.

EFFECTIVE DATE: August 25, 1999.

FOR FURTHER INFORMATION CONTACT: Sharon Herzberg, (202) 606-2858, FAX

(202) 606-0824, or email to [email protected].

SUPPLEMENTARY INFORMATION: On June 14, 1999, the Office of Personnel

Management (OPM) published proposed regulations (64 FR 31735) that

would provide relief to Federal employees involved in Year 2000 (Y2K)

computer conversion efforts. Many of these employees would have faced

the possible forfeiture of ``use or lose'' annual leave because they

must remain on the job until the Y2K computer conversions have been

implemented and thoroughly tested. Under the normal rules, agencies

would be faced with the administrative burden of scheduling, canceling,

and restoring such leave for these employees at a time when all

available attention and energy should be focused on Y2K conversion

efforts. Therefore, OPM issued proposed regulations to simplify the

procedures for restoring annual leave forfeited as a result of the Y2K

exigency. Section 630.310(a) of title 5, Code of Federal Regulations,

as added by these final regulations, deems the Y2K computer conversion

project an exigency of the public business and establishes January 31,

2000, as the Governmentwide termination date for the Y2K exigency. In

addition, under Sec. 630.310(b), annual leave forfeited as a result of

the Y2K exigency is deemed to have been scheduled in advance for the

purpose of satisfying the requirements in 5 U.S.C. 6304(d) and 5 CFR

630.308.

The 30-day comment period closed on July 14, 1999. During the

comment period, OPM received six comments, five from agencies and one

from an individual. The agency that initially requested this regulatory

action expressed its gratitude to OPM for taking the lead in protecting

employees involved in Y2K conversion efforts and its satisfaction with

the proposed regulations, which they found well-thought out and

comprehensive. The other four agencies that commented also fully

supported OPM's proposed regulations.

The individual strongly objected to OPM's proposed regulations,

believing that our regulations are not consistent with the statute at 5

U.S.C. 6304(d)(1)(B), which requires that annual leave lost as the

result of an exigency of the public business may be restored when it

was scheduled in advance. We believe it is necessary to consider the

intent of Congress and what has happened since the enactment of the

law. In this case, we believe the intent of Congress was to have

employees use their annual leave. However, when the statutes outlining

procedures for restoration of excess annual leave were enacted,

Congress could not have foreseen the consequences of the law in

emergency situations, such as the Y2K computer conversion problem.

Obviously, Congress believes there are situations in which this law

needs to be more flexible. For example, legislation was enacted in 1993

to consider closure of DOD installations as ``an exigency of the public

business'' and to exempt affected employees from the advance scheduling

requirement in 5 U.S.C. 6304(d). Congress has set a precedent for

permitting the restoration of annual leave without advance scheduling.

While we cannot exempt employees who have been determined to be

necessary for Y2K conversion from the statutory requirements, we

believe we can provide that any leave lost as a result of the Y2K

exigency can, by regulation, be deemed to have been scheduled in

advance and therefore eligible for restoration.

The individual questioned the need for the proposed regulations,

stating that the Y2K conversion is not sufficient reason to exempt

employees from the scheduling requirements. We strongly disagree. OPM

recognizes that the Y2K conversion is a major effort that has required

and is continuing to require employees to perform not just their

regularly scheduled work, but overtime work on nights and weekends as

well. Further, we believe forcing employees and agencies to go through

the charade of scheduling and canceling annual leave that both parties

know cannot be taken places an administrative burden on agencies

already dealing with other problems caused by the Y2K conversion.

The commenter feels that employees should have to show they made a

``good faith effort'' by attempting to schedule annual leave, pointing

out that employees who forfeited leave as a result of Government

furloughs in 1996 were required to have scheduled leave in advance to

qualify for restoration. However, during the furlough period in 1996,

employees were prevented from using leave only briefly, at the end of

the leave year. The Y2K exigency has prevented and will continue to

prevent employees from using leave throughout the 1999 leave year. When

there is no possibility that an employee can be away from the

workplace, we believe requiring efforts to schedule and cancel leave

flies in the face of OPM's commitment to provide agencies with the

human resources management tools they need to address Y2K computer

conversion problems.

The commenter also objects to the extension of time limits for

using previously restored leave because of the preference given to

employees in the Y2K situation over those affected by extended

exigencies not related to the Y2K conversion effort. Extended

exigencies are already recognized as unique situations and have special

time limits under 5 CFR 530.309. The Y2K

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conversion effort does not qualify for these special time limits

because it does not meet the definition of ``extended exigency'' in 5

CFR 630.309, i.e., an exigency lasting more that 3 years. OPM has the

authority to set time limits for using restored annual leave (5 U.S.C.

6304(d)(2)), and there is precedent for extending the time for using

previously restored leave. In regulations published on December 7,

1994, OPM provided new time limits for using previously restored leave

for employees at Department of Defense installations undergoing closure

or realignment. Those employees, like employees involved in Y2K

conversion, needed to be at work and also needed to use their

previously restored leave or it would have been forfeited with no

possibility of further restoration. We believe the situation

experienced by employees involved in the Y2K conversion effort is

similar enough to the experiences of DOD employees involved in base

closure and realignment to justify extending the time limits for using

previously restored leave.

Finally, the commenter objects to the budgetary implications of

OPM's regulations, saying that the restoration of forfeited leave has

cost implications for agencies at a time when many are faced with

serious downsizing and budget cuts. Employees earn annual leave as a

part of their total compensation. When a work situation prevents an

employee from scheduling annual leave, an agency is required to make

every effort to help the employee reschedule that leave. If this cannot

be done because of circumstances beyond the control of the employee and

the agency, and the employee forfeits annual leave in excess of the

amount allowable, the employee must be able to have that leave restored

for use at a later date. We do not believe the regulations will

increase costs for agencies because employees would not have forfeited

large amounts of annual leave at the end of leave year 1999. Most, if

not all, affected employees would have gone through the conventions of

scheduling leave in order to qualify for restoration of forfeited

leave. OPM's regulations merely simplify the procedures for restoring

forfeited annual leave and reduce the administrative burden on

agencies. In addition, denial of restoration of forfeited annual leave

should never be based on projected budgetary savings, but rather on

failure to meet the requirements of 5 U.S.C. 6304(d)(1).

An agency requested clarification of Sec. 630.310(e), which deals

with employees who transfer from positions deemed necessary for Y2K

conversion efforts to other positions during the latter portion of

leave year 1999. The agency asked whether this section applies to

reassignments within an agency, transfers to positions at other

agencies, or both. The regulation applies to any employee who moves

from a position deemed essential to Y2K conversion efforts to a

position not deemed essential for those purposes. The agency also asked

which agency would then be responsible for exempting the employee from

the scheduling requirement. If a transfer involves two agencies, the

gaining agency will be responsible for determining whether the employee

``was unable to comply with the advance scheduling requirement due to

circumstances beyond his or her control'' and therefore should be

exempt from the scheduling requirements and able to have the forfeited

leave restored.

One agency requested that the proposed date of the exigency be

changed from January 31, 2000, to March 31, 2000, the end of the first

quarter in Y2K. OPM considered several ending dates in drafting the

proposed regulations. Lengthening the period of the exigency would have

no bearing on the employee's inability to use sufficient annual leave

during the 1999 leave year to avoid forfeiture. We realize that there

may continue to be computer problems associated with Y2K after January

31, 2000. However, we are confident that employees will have sufficient

time in the year 2000 to schedule and use their annual leave to avoid

forfeiture. In addition, a change in the ending date of the exigency

would have no effect on the time limits for using any restored leave.

For these reasons, the termination date of the exigency remains January

31, 2000.

Another agency requested that OPM consider extending the policy

established by these final regulations to other situations, as well.

Such as extension would require the issuance of further proposed

regulations for comment. Since we do not wish to delay the publication

of the final Y2K leave restoration regulations, we will consider this

suggestion as we continue to review the Federal leave program.

We believe no changes are necessary in the proposed regulations.

Therefore, we are adopting as final the proposed rule to provide that

excess annual leave forfeited by employees who are unable to schedule

and use their leave as a result of Y2K computer conversion efforts will

be deemed to have been scheduled in advance and therefore eligible for

restoration.

Waiver of Delay in Effective Date

Pursuant to 5 U.S.C. 553(d)(3), we find that good cause exists to

make this rule effective in less than 30 days in order to give agencies

ample time to plan and implement procedures prior to the end of the

leave year. An immediate effective date is necessary to provide

agencies with an additional human resources management tool to address

Y2K computer conversion problems.

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.

E.O. 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 630

Government employees.

Office of Personnel Management.

Janice R. Lachance,

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 continues to read as

follows:

Authority: 5 U.S.C. 6311; Sec. 630.301 also issued under Pub. L.

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), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-337,

108 Stat. 2663; subpart D also issued under Pub. L. 103-329, 108

Stat. 2423; Sec. 630.501 and subpart F also issued under E.O. 11228,

30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5

U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I

also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834,

and Pub. L. 103-103, 107 Stat. 1022; subpart J also issued under 5

U.S.C. 6362, Pub. L. 100-566, and Pub. L. 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. In Sec. 630.308, paragraph (a) is revised to read as follows:

Sec. 630.308 Scheduling of annual leave.

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

Sec. 630.310, 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

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the start of the third biweekly pay period prior to the end of the

leave year.

* * * * *

3. A new Sec. 630.310 is added to read as follows:

Sec. 630.310 Scheduling of annual leave by employees determined

necessary for Year 2000 computer conversion efforts.

(a) Year 2000 computer conversion efforts are deemed to be an

exigency of the public business for the purpose of restoring annual

leave forfeited under 5 U.S.C. 6304. This exigency terminates on

January 31, 2000.

(b) For any employee who forfeits annual leave under 5 U.S.C. 6304

at the beginning of leave year 2000 because the agency determined the

employee's services were required during the Year 2000 computer

conversion exigency, the forfeited annual leave is deemed to have been

scheduled in advance for the purpose of 5 U.S.C. 6304(d)(1)(B) and

Sec. 630.208.

(c) Annual leave restored under 5 U.S.C. 6304(d) because of the

Year 2000 computer conversion exigency must be scheduled and used not

later than the end of leave year 2002.

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

Sec. 630.308 for using previously restored annual leave do not apply

for the period during which an employee's services were determined

necessary for the completion of Year 2000 computer conversion efforts.

On January 31, 2000, a new time limit will be established under

paragraph (c) of this section for all annual leave restored to such an

employee.

(e) An employee whose services were determined necessary during the

Year 2000 computer conversion exigency for a portion of leave year

1999, but who subsequently moves to a position not involving Year 2000

computer conversion efforts, must make a reasonable effort to comply

with the scheduling requirement in Sec. 630.308(a). The head of the

agency or his or her designee may exempt such an employee from the

advance scheduling requirement in Sec. 630.308(a) if coverage under

paragraphs (a) and (b) of this section terminated during leave year

1999 and the employee can demonstrate that he or she was unable to

comply with the advance scheduling requirement due to circumstances

beyond his or her control.

[FR Doc. 99-22081 Filed 8-24-99; 8:45 am]

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