Compensatory Time Off for Religious Observances and Other Miscellaneous Changes, 53695-53700 [2013-21221]
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53695
Proposed Rules
Federal Register
Vol. 78, No. 169
Friday, August 30, 2013
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Part 550
RIN 3206–AL55
Compensatory Time Off for Religious
Observances and Other Miscellaneous
Changes
U.S. Office of Personnel
Management.
ACTION: Proposed rule with request for
comments.
AGENCY:
The U.S. Office of Personnel
Management is issuing proposed
regulations to amend its current
regulations on compensatory time off for
religious observances. The proposal
would clarify employee and agency
responsibilities, provide timeframes for
earning and using religious
compensatory time off, and define key
terms. In addition, we are making other
miscellaneous changes in the pay and
leave area.
DATES: Comments must be received on
or before October 29, 2013.
ADDRESSES: You may submit comments,
identified by RIN number ‘‘3206–
AL55,’’ using any of the following
methods:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Email: pay-leave-policy@opm.gov.
Mail: Jeanne Jacobson, Acting Deputy
Associate Director, Pay and Leave,
Employee Services, U.S. Office of
Personnel Management, Room 7H31,
1900 E Street NW., Washington, DC
20415–8200.
FOR FURTHER INFORMATION CONTACT:
David Barash, by telephone at (202)
606–2858; by fax at (202) 606–0824; or
by email at pay-leave-policy@opm.gov.
SUPPLEMENTARY INFORMATION: Based on
comments we received on our proposed
regulations issued on January 5, 2005
(70 FR 1068), recent recommendations
made in the U.S. Government
Accountability Office’s report entitled
‘‘Religious Compensatory Time: Office
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SUMMARY:
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of Personnel Management Action
Needed to Clarify Policies for Agencies’’
(GAO–13–96, October 12, 2012), and
our general experience with the
adjustment of work schedules for
religious observances (i.e., religious
compensatory time off), the U.S. Office
of Personnel Management (OPM) is
proposing to amend its regulations in 5
CFR part 550, subpart J, Compensatory
Time Off for Religious Observances.
Under 5 U.S.C. 5550a, OPM is
responsible for issuing regulations
providing for work schedules under
which an employee, whose personal
religious beliefs require the abstention
from work during certain periods of
time, may elect to perform overtime
work to make up for time lost for
meeting those religious obligations. Any
employee who elects to perform such
overtime work must be granted equal
compensatory time off from his or her
scheduled tour of duty (in lieu of
overtime pay or other pay that would
otherwise apply) for such religious
observances, notwithstanding any other
provision of law. In summary, the
religious compensatory time off
authority permits an employee to
rearrange work hours to fulfill his or her
religious obligations. The intent of our
proposal is to help agencies more
effectively manage religious
compensatory time off by clarifying
employee and agency responsibilities,
providing timeframes for earning and
using religious compensatory time off,
and defining key terms.
OPM’s current regulations provide
only limited rules and information and
require agencies to provide
opportunities for employees to earn and
use religious compensatory time off to
the extent that doing so does not
interfere with the efficient carrying out
of agencies’ missions. The regulations
also explicitly allow the religious
compensatory time off to be earned
either before or after the corresponding
absence from work. Agencies must keep
appropriate records on religious
compensatory time off that is earned
and used to ensure effective
administration of religious
compensatory time off.
Previous Proposed Regulations
In 2005, OPM issued proposed
regulations to put safeguards in place to
address some problems with the
administration of the religious
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compensatory time off program that
were surfacing. Those regulations
proposed to expand the current
regulations to provide more structure
and consistency by adding new
definitions, allowing agencies to require
documentation of the need for religious
compensatory time off, and requiring
employees to perform additional work
within 3 pay periods to make up for
religious compensatory time off already
used. In addition, the regulations
proposed to place limits on an
employee’s accumulation of earned
religious compensatory time off, and to
provide rules regarding how agencies
must deal with employees who have a
negative or positive balance of earned
religious compensatory time off when
the employee’s Federal employment
ends or when the employee is
transferred to another Federal agency.
Comments on Previous Proposed
Regulations
Most of the comments we received on
the 2005 proposal focused on the
provisions regarding the documentation
requirements related to the need for
time off and the timeframe limits for
earning religious compensatory time off.
Several commenters expressed concern
that allowing agencies to require
documentation of the need for religious
compensatory time off would lead to
agencies making inappropriate
judgments about the legitimacy of these
requests for religious compensatory time
off. Other commenters believed the
proposed regulations were not clear
enough about the nature of the
documentation that could be required.
Meanwhile, some commenters thought
the requirement to perform overtime
work for purposes of earning religious
compensatory time off within 3 pay
periods after using advanced
compensatory time off was too
restrictive. It was noted, for example,
that there is a cluster of Jewish religious
holidays in the fall during which an
employee may need to abstain from
work for at least 7 days during a
1-month period. We have reexamined
our 2005 proposal and have
substantially altered the provisions
relating to documentation and
timeframes; therefore, we are now
reissuing proposed regulations with a
request for comments.
Based on the comments we received
in 2005, we are striving to balance the
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protection of an employee’s right to
practice his or her religious freedoms
with management’s responsibility to
carry out the agency’s mission. We
believe our proposal balances these
needs, and incorporates the comments
we received from our 2005 proposal to
improve the proposed regulations by (1)
increasing the number of pay periods
within which an employee can repay
advanced religious compensatory time
off after using it, and (2) requiring the
employee to provide the agency with
specific information regarding his or her
request to use religious compensatory
time off.
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Section-by-Section Analysis of
Proposed Regulations
OPM continues to believe there is a
need for a clearer regulatory structure
for the earning and use of religious
compensatory time off. However, we
found some of the objections to our
2005 proposal were persuasive.
Consequently, we are proposing to
restructure subpart J of 5 CFR part 550
with eight sections as follows:
Section 550.1001 Purpose. This
section sets forth the purpose of the
subpart, which is to implement the
statutory authority for religious
compensatory time off under 5 U.S.C.
5550a.
Section 550.1002 Coverage. The
proposed regulations provide that
coverage applies to each employee in or
under an Executive agency (as defined
in 5 U.S.C. 105) who has a scheduled
tour of duty.
Employees of the Federal Aviation
Administration (FAA) are excluded
from coverage under most title 5
provisions, including section 5550a.
(See 49 U.S.C. 40122(g).) Employees of
the Transportation Security
Administration (TSA) are excluded from
the same title 5 provisions as FAA
employees; thus, they are also not
covered by section 5550a. (See 49 U.S.C.
114(n).) Both FAA and TSA may adopt
a religious compensatory time off
program under their own personnel
authorities.
The proposed new coverage section,
section 550.1002, also provides that
section 5550a and OPM’s implementing
regulations apply only to employees
who have a ‘‘scheduled tour of duty.’’ In
5 U.S.C. 5550a(a), the law prescribes
that an employee is granted
compensatory time off ‘‘from his
scheduled tour of duty’’ when the
employee’s personal religious beliefs
require ‘‘the abstention from work
during certain periods of time.’’ A
further discussion of the term
‘‘scheduled tour of duty’’ is included in
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the definition section of this
supplementary information.
Section 550.1003 Definitions. This
section contains definitions of key terms
used in subpart J. These terms are
‘‘overtime work,’’ ‘‘rate of basic pay,’’
‘‘religious compensatory time off,’’ and
‘‘scheduled tour of duty.’’ All of these
proposed definitions are new and are
being added to this section.
We are providing further explanation
of certain terms that are defined in this
section. For the purposes of subpart J,
‘‘overtime work’’ is performed to earn
religious compensatory time off and
provides no entitlement to overtime pay
or other premium pay. ‘‘Overtime work’’
earned as religious compensatory time
off is a limited exception that is not
considered in applying the premium
pay limitations in 5 U.S.C. 5547 and 5
CFR 550.105–550.107. (See 62 Comp.
Gen. 589, July 26, 1983.) In contrast, the
dollar value of overtime work resulting
in compensatory time off in lieu of
overtime pay under 5 U.S.C. 5543 is
considered to be premium pay in
applying those limitations. We are
clarifying in the regulations that
overtime work is deemed to include (1)
work performed by a part-time
employee outside of his or her
scheduled tour of duty, even if that
work is below applicable overtime
thresholds (e.g., below 40 hours in a
week), and (2) work performed by an
employee on a legal holiday.
The term ‘‘rate of basic pay’’ is the
rate of pay fixed by law or
administrative action for the position
held by an employee, including any
applicable locality payment under 5
CFR part 531, subpart F; special rate
supplement under 5 CFR part 530,
subpart C; retained rate under 5 CFR
part 536; or similar payment or
supplement under other legal authority,
before any deductions and exclusive of
additional pay of any other kind. It is
used in determining the amount paid to
an employee upon separation or transfer
for any unused hours of religious
compensatory time off earned based on
the rate of basic pay in effect when the
extra hours of work were performed.
‘‘Religious compensatory time off’’ is
compensatory time off for an employee
whose personal religious beliefs require
that he or she abstain from work at
certain times of the workday or
workweek. To the extent that
modifications in work schedules do not
interfere with the efficient
accomplishment of an agency’s mission,
an employee must be permitted to work
overtime hours to meet the religious
obligation, and such hours do not create
any entitlement to premium pay.
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A ‘‘scheduled tour of duty’’ means the
regular work hours in an established
full-time or part-time work schedule
during which the employee is charged
leave or time off when absent. The law
(5 U.S.C. 5550a) specifically refers to
employees using religious compensatory
time off by taking time off out of their
‘‘scheduled tour of duty.’’ Only
employees with an established full-time
or part-time schedule have a scheduled
tour of duty. Employees who do not
have a scheduled tour of duty, such as
intermittent employees or leave-exempt
Presidential appointees (see 5 CFR
630.211), cannot use leave or other time
off, including religious compensatory
time off. However, in the spirit of the
religious compensatory time off law,
supervisors should strive to
accommodate such employees in their
observance of religious activities
required by their personal religious
beliefs.
Section 550.1004 Employee
responsibilities. This section enumerates
an employee’s responsibilities when he
or she requests to earn and use religious
compensatory time off. An employee is
required to provide his or her supervisor
with a request for religious
compensatory time off in advance of the
religious observance. Under paragraph
(b) of this section, at the time the
religious compensatory time off is
requested, the employee must provide
the agency with (1) the name and/or
description of the particular religious
observance for which the employee’s
absence is required; (2) the date(s) and
time(s) the employee plans to be absent
for religious observances; and (3) the
date(s) and time(s) the employee plans
to perform overtime work to earn
religious compensatory time off to make
up for the absence. This information
provides appropriate documentation to
enable the agency to consider the
request. An employee must comply with
the agency’s procedures for requesting,
earning, and using religious
compensatory time off, including time
limitations, as prescribed in sections
550.1004 and 550.1005.
Section 550.1005 Agency
responsibilities. This section enumerates
agency responsibilities when
considering an employee’s request to
earn and use religious compensatory
time off. Paragraph (a) of this section
permits an agency to require an
employee to submit his or her religious
compensatory time off request either
orally or in writing, including the
information listed in section
550.1004(b), in a manner that is
administratively acceptable to the
agency. Although this paragraph
provides authority for an agency to
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require an employee to submit his or her
request in writing under section
550.1004(b), the agency may allow
supervisors to approve requests on a
more informal basis as long as the
supervisor documents the required
information regarding the employee’s
request.
Paragraph (b) of this section states
that an agency is required to approve
religious compensatory time off to the
extent that modifications in work
schedules do not interfere with the
efficient accomplishment of its mission,
consistent with 5 U.S.C. 5550(c).
Paragraph (c) of this section states that
the agency must provide the employee
with an opportunity to earn religious
compensatory time off before the end of
the 26th pay period following the use of
the time off. However, the specific
timing of when an employee is allowed
to earn religious compensatory time off
is at the agency’s discretion. This is
consistent with guidance in former
Federal Personnel Manual Letter 550–
71, September 29, 1978, which stated
that ‘‘[A]n agency is expected to
accommodate to an employee’s request
to work compensatory overtime. If no
productive overtime is available to be
worked by the employee at such time as
he or she may initially request,
alternative times should be arranged for
the performance of the compensatory
overtime work.’’ A key difference
between using and earning religious
compensatory time off is that using
religious compensatory time off is tied
to a specific religious observance on a
fixed date, whereas greater flexibility
exists regarding when religious
compensatory time off may be earned.
However, the agency must provide an
opportunity for the employee to earn
religious compensatory time off before
the end of 26th pay period after it was
used. Agencies have latitude in
scheduling exactly when overtime hours
will be worked to earn religious
compensatory time off.
Section 550.1006 Scheduling time to
earn and use religious compensatory
time off. This section provides rules for
scheduling time to earn and use
religious compensatory time off to
establish a consistent and effective
Governmentwide approach. An
employee must inform his or her agency
of the date(s) and time(s) he or she plans
to be absent for religious observances
and the date(s) and time(s) he or she
plans to work to earn religious
compensatory time off to make up for
the absence. The agency must consider
its mission requirements when
determining whether to approve
changes in work schedules for
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scheduling religious compensatory time
off, as explained in section 550.1005.
This section also empowers agencies
to require employees who are
submitting requests for this time off to
make the requests sufficiently in
advance to allow for workforce
adjustments that may be required to
accommodate the religious
compensatory time off.
For an employee who earns religious
compensatory time off prior to using it,
religious compensatory time off may be
earned up to 26 pay periods in advance
of the pay period in which it is intended
to be used, as long as the scheduling of
religious compensatory time off is
linked to specific dates and times and
its scheduling is compatible with
agency mission requirements. While
most agencies may have always required
employees to identify specific, future
religious observances as a condition for
allowing them to earn religious
compensatory time off, this proposal
now provides a common approach, with
specific information regarding the
details the employee must supply under
section 550.1004.
Where an employee uses religious
compensatory time off prior to earning
it (i.e., spending an equal amount of
time in overtime work), that employee
must schedule and fulfill his or her
obligation to perform overtime work in
exchange for religious compensatory
time off within 26 pay periods (52
weeks) after the pay period in which he
or she used religious compensatory time
off. The 26 pay periods are calculated
beginning with the first pay period after
the pay period in which the religious
compensatory time off was used.
OPM believes that providing 26 pay
periods before and after a religious
observance is a sufficient timeframe for
an employee to earn religious
compensatory time, and is consistent
with the 26 pay period rule for using
compensatory time off in lieu of
overtime pay after it is earned.
If the employee fails to perform
overtime work in exchange for advanced
religious compensatory time off within
26 pay periods after the pay period in
which it was used, section 550.1006(c)
provides that the agency may take
corrective action to eliminate or reduce
the negative balance by making a
corresponding reduction in the
employee’s annual leave balance. Any
remaining negative balance must be
resolved by charging the employee leave
without pay, which will result in an
indebtedness that is subject to the
agency’s internal debt collection
procedures. This approach is consistent
with OPM’s longstanding position that
if an employee has taken advanced
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religious compensatory time off and has
a negative balance, the employee must
be charged annual leave or leave
without pay to account for that negative
balance. (See also the more detailed
discussion regarding section
550.1008(b).)
OPM reminds agencies and
employees of the availability of
additional workforce flexibilities,
including annual leave, advanced
annual leave, regular compensatory time
off, alternative work schedules, and
leave without pay, all of which may
play a part in accommodating an
employee’s need to abstain from work
for religious observances. We believe
providing 26 pay periods for employees
to repay such advanced religious
compensatory time off, permitting
employees to perform work in advance
of a religious observance, and using
other existing workforce flexibilities
will provide employees with several
viable alternatives for meeting religious
requirements, while ensuring agencies
are able to carry out their missions in a
timely manner.
Section 550.1007 Accumulation and
documentation. This section requires
agencies to keep appropriate records on
the amount of religious compensatory
time off each employee earns and uses.
The agency must credit religious
compensatory time off for work
performed on a time-for-time basis,
under an agency’s time and attendance
procedures. Except as provided in
paragraph (c) of section 550.1007, an
employee may accumulate only the
amount of religious compensatory time
off needed to cover an approved absence
for a religious observance or an
anticipated absence for a future
religious observance for specific dates
and times that the employee has
identified.
Under section 550.1007(c), if the
employee does not use his or her earned
religious compensatory time off as
planned, the employee may not earn
any additional religious compensatory
time off until the retained amount of
religious compensatory time off has
been used or the need to earn additional
religious compensatory time off has
been established and documented. In
other words, earned religious
compensatory time off that has not been
used as planned may be applied toward
a future religious observance that has
been properly requested and
approved—even if that event is more
than 26 pay periods after when the
religious compensatory time off was
originally earned. If the number of hours
of unused religious compensatory time
off is not sufficient to cover the future
religious observance, the employee may
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earn additional religious compensatory
time off to cover extra hours—either 26
pay periods before or after the pay
period in which the employee takes
time off for the approved future
religious observance, as provided in
section 550.1006.
For example, an employee earns 16
hours of religious compensatory time off
toward religious observance ‘‘A.’’ The
employee is unable to use the 16 hours
as planned due to unforeseen
circumstances. The employee then
requests and receives approval for
religious observance ‘‘B.’’ The employee
needs an additional 8 hours to attend
the new religious observance. The 16
hours of earned religious compensatory
time off from religious observance ‘‘A’’
may be applied toward 24 hours needed
for religious observance ‘‘B.’’ The
employee may earn the additional 8
hours of religious compensatory time off
within 26 pay periods before or after
religious observance ‘‘B’’ to cover the
religious observance.
Agencies must monitor any
accumulation to ensure that the
employee is using the religious
compensatory time off for the intended
religious observance and is not
stockpiling the compensatory time off
for purposes that do not meet the intent
of the law and regulations.
Section 550.1008 Employee
separation or transfer. This section
addresses how positive and negative
balances of religious compensatory time
off are to be treated when employees
leave Federal service or transfer to
another Federal agency. In the case of an
employee with a positive balance who
is separating from Federal service or
transferring to another Federal agency,
the losing agency pays the employee at
the hourly rate of basic pay in effect
when the religious compensatory time
off was earned. Though OPM has
published this disposition procedure as
guidance on its Web site, it is now
including it in the regulations to ensure
compliance throughout the Federal
Government.
Any earned religious compensatory
time off may be paid only when an
employee separates or transfers to
another Federal agency. Religious
compensatory time off cannot be
forfeited, nor can it be paid out as
compensatory time off in lieu of
overtime or any other forms of time off.
Since religious compensatory time off is
earned and approved for specific dates
and times, the amount of religious
compensatory time off paid out in a
lump sum should be minimal.
Regarding the case of an employee
with a negative balance of religious
compensatory time off who is separating
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from Federal service or transferring to
another Federal agency under 5 CFR
550.1008(b), an agency may take
corrective action to eliminate or reduce
the negative balance by making a
corresponding charge of annual leave. In
other words, since the religious
compensatory time off was never earned
by working overtime hours, the prior
use of religious compensatory time off
was invalid. Accordingly, the hours
improperly used as religious
compensatory time off would be
converted to annual leave hours by
reducing the employee’s annual leave
balance. Any negative balance
remaining after charging annual leave
would be resolved by charging leave
without pay. The resulting indebtedness
is subject to the agency’s internal debt
collection procedures. The losing
agency is required to determine the
monetary value of the employee’s
remaining negative balance and use
applicable debt collection procedures
(e.g., those authorized under 5 U.S.C.
5514 and applicable agency regulations
prepared consistent with subpart K of 5
CFR part 550). The same approach
applies to employees covered by section
550.1006(c) who fail to earn advanced
religious compensatory time off within
26 pay periods after using religious
compensatory time off.
It should be noted that, unlike annual
and sick leave, there is no statutory
authority to provide for a transfer of
unused earned religious compensatory
time off when an employee transfers to
another agency. Therefore, the proposed
regulations do not authorize employees
to transfer a balance of earned religious
compensatory time off when they move
to another agency.
Section 550.1009 Relationship to
premium pay and overtime work. This
section makes explicit that an employee
who earned religious compensatory
time off under subpart J will have no
entitlement to overtime pay or other
premium pay based on the overtime
work performed. It further clarifies that
religious compensatory time off under
subpart J is fundamentally different
from other types of compensatory time
off in that religious compensatory time
off is only for the purpose of adjusting
an employee’s work schedule so that the
employee may perform overtime work
to take time off for religious
observances, and such time off is not
considered premium pay, as defined in
section 550.103.
We are also taking this opportunity to
make the following miscellaneous
regulatory changes that are unrelated to
compensatory time off for religious
observances:
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Section 550.103 Miscellaneous Change
to Definition of Rate of Basic Pay
We propose amending the definition
of rate of basic pay in 5 CFR 550.103 to
include a retained rate under 5 CFR part
536. This is consistent with the
provision in 5 CFR 536.307(a)(3) that a
retained rate is considered to be an
employee’s rate of basic pay for the
purpose of computing premium pay
under 5 U.S.C. chapter 55, subchapter
V, and 5 CFR part 532 and part 550,
subparts A and I.
Section 550.1302 Miscellaneous
Change to Citation Referenced in the
Definition of Firefighter
In section 550.1302, we are correcting
a citation referencing section 362.203(e)
in paragraph (2)(iii) of the definition of
firefighter. The correct citation is
section 362.203(f).
E.O. 13563 and E.O. 12866, Regulatory
Review
This rule has been reviewed by the
Office of Management and Budget in
accordance with Executive Orders
13563 and 12866.
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 apply only to Federal
agencies and employees.
List of Subjects in 5 CFR Part 550
Administrative practice and
procedure, Claims, Government
employees, Wages.
U.S. Office of Personnel Management.
Elaine Kaplan,
Acting Director.
Accordingly, OPM is proposing to
amend 5 CFR part 550 as follows:
PART 550—PAY ADMINISTRATION
(GENERAL)
Subpart A—Premium Pay
1. Revise the authority citation for
subpart A to read as follows:
■
Authority: 5 U.S.C. 5304 note, 5305 note,
5504(d), 5541(2)(iv), 5545a(h)(2)(B) and (i),
5547(b) and (c), 5548, and 6101(c); sections
407 and 2316, Pub. L. 105–277, 112 Stat.
2681–101 and 2681–828 (5 U.S.C. 5545a);
E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp.,
p. 316.
2. In § 550.103, revise the definition of
rate of basic pay to read as follows:
■
§ 550.103
Definitions.
*
*
*
*
*
Rate of basic pay means the rate of
pay fixed by law or administrative
action for the position held by an
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employee, including any applicable
locality payment under 5 CFR part 531,
subpart F; special rate supplement
under 5 CFR part 530, subpart C;
retained rate under 5 CFR part 536; or
similar payment or supplement under
other legal authority, before any
deductions and exclusive of additional
pay of any other kind.
*
*
*
*
*
■ 3. Revise subpart J to read as follows:
Subpart J—Compensatory Time Off for
Religious Observances
Sec.
550.1001 Purpose.
550.1002 Coverage.
550.1003 Definitions.
550.1004 Employee responsibilities.
550.1005 Agency responsibilities.
550.1006 Scheduling time to earn and use
religious compensatory time off.
550.1007 Accumulation and
documentation.
550.1008 Employee separation or transfer.
550.1009 Relationship to premium pay and
overtime work.
Authority: 5 U.S.C. 5550a.
Subpart J—Compensatory Time Off for
Religious Observances
§ 550.1001
Purpose.
This subpart implements 5 U.S.C.
5550a, which permits an employee
whose personal religious beliefs require
the abstention from work during certain
periods of time to elect to engage in
overtime work and earn a special form
of compensatory time off to make up for
the time lost in meeting those religious
requirements. Religious compensatory
time off differs from other forms of
compensatory time off in that the sole
purpose is to adjust an employee’s work
schedule to accommodate a religious
observance. The employee earns
religious compensatory time off by
spending an equal amount of time in
overtime work either before or after
taking time from the employee’s
scheduled tour of duty to meet religious
requirements.
§ 550.1002
Coverage.
This subpart applies to each employee
in or under an Executive agency (as
defined in 5 U.S.C. 105) who has a
scheduled tour of duty.
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
§ 550.1003
Definitions.
In this subpart:
Overtime work means work performed
by an employee outside his or her
scheduled tour of duty for the purpose
of making up time lost for meeting
religious requirements, for which
overtime pay would normally be
payable. It is also deemed to include
work performed by a part-time
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14:23 Aug 29, 2013
Jkt 229001
employee outside of his or her
scheduled tour of duty, even if that
work is below applicable overtime
thresholds (e.g., below 40 hours in a
week), and work performed by an
employee on a legal holiday.
Rate of basic pay means the rate of
pay fixed by law or administrative
action for the position held by an
employee, including any special rate
under 5 CFR part 530, subpart C;
locality rate under 5 CFR part 531,
subpart F; retained rate under 5 CFR
part 536; or similar rate under other
legal authority, before any deductions
and excluding additional pay of any
other kind. For example, a rate of basic
pay does not include additional pay
such as night shift differentials under 5
U.S.C. 5343(f) or environmental
differentials under 5 U.S.C. 5343(c)(4).
Religious compensatory time off
means compensatory time off, as
authorized by 5 U.S.C. 5550a, under
which an employee whose personal
religious beliefs require the abstention
from work during certain periods of
time may elect to perform overtime
work in order to make up for time the
employee takes off to meet those
religious requirements. An employee
approved to perform overtime work
under this subpart will be granted an
equal amount of compensatory time off
from his or her scheduled tour of duty
(in lieu of overtime pay or other pay
otherwise payable) to meet his or her
religious obligations.
Scheduled tour of duty means the
regular work hours in an established
full-time or part-time work schedule
during which the employee is charged
leave or time off when absent.
§ 550.1004
Employee responsibilities.
(a) An employee is required to
provide his or her supervisor with a
request for religious compensatory time
off in advance of the religious
observance by following the agency’s
procedures established in accordance
with §§ 550.1005 and 550.1006.
(b) At the time the religious
compensatory time off is requested, the
employee must provide the agency with
the following information:
(1) The name and/or description of
the religious observance for which the
employee’s absence from work is
required based on the employee’s
personal religious beliefs;
(2) The date(s) and time(s) the
employee plans to be absent to
participate in the religious observances
identified in paragraph (b)(1) of this
section; and
(3) The date(s) and time(s) the
employee plans to perform overtime
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
53699
work to earn religious compensatory
time off to make up for the absence.
(c) An employee must comply with
the agency’s procedures for requesting
religious compensatory time off,
including any time limitations
prescribed under § 550.1006.
§ 550.1005
Agency responsibilities.
(a) An agency may require an
employee to submit his or her request to
use religious compensatory time off in
writing (including electronic
communications) with all the
information specified in § 550.1004(b)
in a manner that is administratively
acceptable to the agency. If the agency
accepts an oral request, the supervisor
must document all the information
specified in § 550.1004(b). An agency
may require an employee to submit a
request to use religious compensatory
time off sufficiently in advance to
accommodate necessary scheduling
changes without interfering with the
agency’s ability to efficiently carry out
its mission.
(b) An agency must approve an
employee’s request to use religious
compensatory time off unless the agency
determines that approving the request
would interfere with the agency’s ability
to efficiently carry out its mission.
(c) The agency must provide the
employee with an opportunity to earn
religious compensatory time off before
the end of the 26th pay period following
the use of the time off, although the
specific timing of when an employee
will be allowed to earn religious
compensatory time off by performing
overtime work is a matter of agency
discretion based on the needs of the
agency.
§ 550.1006 Scheduling time to earn and
use religious compensatory time off.
(a) The scheduling of time to earn and
use religious compensatory time off by
an employee is subject to the agency’s
approval as provided in § 550.1005.
(b) For an employee who earns
religious compensatory time off prior to
using it, religious compensatory time off
may be earned up to 26 pay periods in
advance of the pay period in which the
targeted religious observance
commences and must be linked to
specific dates and times for future use,
as compatible with agency mission
requirements.
(c)(1) An employee who uses religious
compensatory time off prior to earning
it must fulfill his or her obligation to
perform overtime work in exchange for
the advanced religious compensatory
time off within 26 pay periods after the
pay period in which he or she used
religious compensatory time off, or the
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Federal Register / Vol. 78, No. 169 / Friday, August 30, 2013 / Proposed Rules
agency must take action as provided in
paragraph (c)(3) of this section.
(2) The 26 pay periods described in
paragraph (c)(1) of this section are
calculated beginning with the first pay
period beginning after the date on
which the religious compensatory time
off was used.
(3) If the employee fails to earn
religious compensatory time off within
26 pay periods after taking religious
compensatory time off, the agency may
take corrective action to eliminate or
reduce the negative balance by making
a corresponding reduction in the
employee’s annual leave balance. Any
negative balance of religious
compensatory time off remaining after
charging annual leave must be resolved
by charging the employee leave without
pay, which would result in an
indebtedness that is subject to the
agency’s internal debt collection
procedures.
ehiers on DSK2VPTVN1PROD with PROPOSALS-1
§ 550.1007 Accumulation and
documentation.
(a) Agencies must keep appropriate
records of the name and/or description
of the religious observance, and the
dates, times, and amount of religious
compensatory time off each employee
earns and uses. An agency must credit
religious compensatory time off for
work performed on a time-for-time
basis, under its time and attendance
procedures.
(b) Except as provided in paragraph
(c) of this section, an employee may
accumulate only the amount of religious
compensatory time off needed to cover
an approved absence for a religious
observance that has already occurred or
to cover an approved absence for a
future religious observance. An
employee may only accumulate the
amount of religious compensatory time
off needed to cover the specific dates
and times for which the employee has
submitted a request for religious
compensatory time off under
§ 550.1004.
(c) If the employee does not use his
or her earned religious compensatory
time off as planned—
(1) The positive balance of unused
compensatory time off may be
redirected toward a future religious
observance that has been approved,
even if that future observance is more
than 26 pay periods after the
compensatory time off was originally
earned (notwithstanding § 550.1006(b));
(2) The employee may not earn any
additional religious compensatory time
off until the retained amount of
religious compensatory time off has
been used or the need to earn additional
religious compensatory time off has
VerDate Mar<15>2010
14:23 Aug 29, 2013
Jkt 229001
been properly established and
documented.
§ 550.1008
transfer.
Employee separation or
§ 550.1302
(a) Upon an employee’s separation
from Federal service or transfer to
another Federal agency, the losing
agency must compensate the employee
for any positive balance of earned
religious compensatory time off to his or
her credit. The agency must pay the
employee for hours of earned religious
compensatory time off at the hourly rate
of basic pay in effect at the time
religious compensatory time off was
earned.
(b) For an employee who has a
negative balance of religious
compensatory time off upon an
employee’s separation from Federal
service or transfer to another Federal
agency, the losing agency may take
corrective action to eliminate or reduce
the negative balance by making a
corresponding reduction in the
employee’s annual leave balance. Any
negative balance of religious
compensatory time off remaining after
charging annual leave must be resolved
by charging the employee leave without
pay, which would result in an
indebtedness that is subject to the
agency’s internal debt collection
procedures.
(c) For purposes of applying
paragraphs (a) and (b) of this section, an
hourly rate of basic pay is computed by
dividing the annual rate of basic pay by
2,087 hours (or 2,756 hours for
firefighter hours subject to that divisor
under subpart F of this part).
§ 550.1009 Relationship to premium pay
and overtime work.
The premium pay provisions for
overtime work in subpart A of this part
and section 7 of the Fair Labor
Standards Act of 1938, as amended
(FLSA), do not apply to overtime work
performed by an employee that is used
to earn religious compensatory time off
under this subpart. The overtime hours
worked to earn religious compensatory
time off under this subpart do not create
an entitlement to premium pay
(including overtime pay) under subpart
A of this part or FLSA overtime pay
under 5 CFR part 551. Religious
compensatory time off is not considered
in applying the premium pay
limitations described in §§ 550.105,
550.106, and 550.107 of this part.
Subpart M—Firefighter Pay
4. The authority citation for subpart M
of part 550 continues to read as follows:
■
Authority: 5 U.S.C. 5545b, 5548, and 5553.
PO 00000
Frm 00006
5. In § 550.1302, revise paragraph
(2)(iii) of the definition of ‘‘firefighter’’
to read as follows:
■
Fmt 4702
Sfmt 4702
Definitions.
*
*
*
*
*
Firefighter * * *
(2) * * *
(iii) Covered by the General Schedule
and classified in the GS–0099, General
Student Trainee Series (as required by
§ 362.203(f) of this chapter), if the
position otherwise would be classified
in the GS–0081 series.
*
*
*
*
*
[FR Doc. 2013–21221 Filed 8–29–13; 8:45 am]
BILLING CODE 6325–39–P
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 404
[Docket No. SSA–2012–0075]
RIN 0960–AH54
Revised Medical Criteria for Evaluating
Hearing Loss and Disturbances of
Labyrinthine-Vestibular Function
Social Security Administration.
Advance notice of proposed
rulemaking (ANPRM).
AGENCY:
ACTION:
We are requesting your
comments on whether and how we
should revise the criteria in our Listing
of Impairments (listings) for evaluating
hearing loss and disturbances of
labyrinthine-vestibular function in
adults and children. We are requesting
your comments as part of our ongoing
effort to ensure that our listings reflect
current medical knowledge. If we
propose specific revisions, we will
publish a notice of proposed rulemaking
in the Federal Register.
DATES: To ensure that we consider your
comments, we must receive them by no
later than October 29, 2013.
ADDRESSES: You may submit comments
by any one of three methods—Internet,
fax, or mail. Do not submit the same
comments multiple times or by more
than one method. Regardless of which
method you choose, please state that
your comments refer to Docket No.
SSA–2012–0075 so that we may
associate your comments with this
ANPRM.
Caution: You should be careful to
include in your comments only
information that you wish to make
publicly available. We strongly urge you
not to include in your comments any
personal information, such as Social
Security numbers or medical
information.
1. Internet: We strongly recommend
that you submit your comments via the
SUMMARY:
E:\FR\FM\30AUP1.SGM
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Agencies
[Federal Register Volume 78, Number 169 (Friday, August 30, 2013)]
[Proposed Rules]
[Pages 53695-53700]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21221]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 78, No. 169 / Friday, August 30, 2013 /
Proposed Rules
[[Page 53695]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 550
RIN 3206-AL55
Compensatory Time Off for Religious Observances and Other
Miscellaneous Changes
AGENCY: U.S. Office of Personnel Management.
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The U.S. Office of Personnel Management is issuing proposed
regulations to amend its current regulations on compensatory time off
for religious observances. The proposal would clarify employee and
agency responsibilities, provide timeframes for earning and using
religious compensatory time off, and define key terms. In addition, we
are making other miscellaneous changes in the pay and leave area.
DATES: Comments must be received on or before October 29, 2013.
ADDRESSES: You may submit comments, identified by RIN number ``3206-
AL55,'' using any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for submitting comments.
Email: pay-leave-policy@opm.gov.
Mail: Jeanne Jacobson, Acting Deputy Associate Director, Pay and
Leave, Employee Services, U.S. Office of Personnel Management, Room
7H31, 1900 E Street NW., Washington, DC 20415-8200.
FOR FURTHER INFORMATION CONTACT: David Barash, by telephone at (202)
606-2858; by fax at (202) 606-0824; or by email at pay-leave-policy@opm.gov.
SUPPLEMENTARY INFORMATION: Based on comments we received on our
proposed regulations issued on January 5, 2005 (70 FR 1068), recent
recommendations made in the U.S. Government Accountability Office's
report entitled ``Religious Compensatory Time: Office of Personnel
Management Action Needed to Clarify Policies for Agencies'' (GAO-13-96,
October 12, 2012), and our general experience with the adjustment of
work schedules for religious observances (i.e., religious compensatory
time off), the U.S. Office of Personnel Management (OPM) is proposing
to amend its regulations in 5 CFR part 550, subpart J, Compensatory
Time Off for Religious Observances. Under 5 U.S.C. 5550a, OPM is
responsible for issuing regulations providing for work schedules under
which an employee, whose personal religious beliefs require the
abstention from work during certain periods of time, may elect to
perform overtime work to make up for time lost for meeting those
religious obligations. Any employee who elects to perform such overtime
work must be granted equal compensatory time off from his or her
scheduled tour of duty (in lieu of overtime pay or other pay that would
otherwise apply) for such religious observances, notwithstanding any
other provision of law. In summary, the religious compensatory time off
authority permits an employee to rearrange work hours to fulfill his or
her religious obligations. The intent of our proposal is to help
agencies more effectively manage religious compensatory time off by
clarifying employee and agency responsibilities, providing timeframes
for earning and using religious compensatory time off, and defining key
terms.
OPM's current regulations provide only limited rules and
information and require agencies to provide opportunities for employees
to earn and use religious compensatory time off to the extent that
doing so does not interfere with the efficient carrying out of
agencies' missions. The regulations also explicitly allow the religious
compensatory time off to be earned either before or after the
corresponding absence from work. Agencies must keep appropriate records
on religious compensatory time off that is earned and used to ensure
effective administration of religious compensatory time off.
Previous Proposed Regulations
In 2005, OPM issued proposed regulations to put safeguards in place
to address some problems with the administration of the religious
compensatory time off program that were surfacing. Those regulations
proposed to expand the current regulations to provide more structure
and consistency by adding new definitions, allowing agencies to require
documentation of the need for religious compensatory time off, and
requiring employees to perform additional work within 3 pay periods to
make up for religious compensatory time off already used. In addition,
the regulations proposed to place limits on an employee's accumulation
of earned religious compensatory time off, and to provide rules
regarding how agencies must deal with employees who have a negative or
positive balance of earned religious compensatory time off when the
employee's Federal employment ends or when the employee is transferred
to another Federal agency.
Comments on Previous Proposed Regulations
Most of the comments we received on the 2005 proposal focused on
the provisions regarding the documentation requirements related to the
need for time off and the timeframe limits for earning religious
compensatory time off. Several commenters expressed concern that
allowing agencies to require documentation of the need for religious
compensatory time off would lead to agencies making inappropriate
judgments about the legitimacy of these requests for religious
compensatory time off. Other commenters believed the proposed
regulations were not clear enough about the nature of the documentation
that could be required. Meanwhile, some commenters thought the
requirement to perform overtime work for purposes of earning religious
compensatory time off within 3 pay periods after using advanced
compensatory time off was too restrictive. It was noted, for example,
that there is a cluster of Jewish religious holidays in the fall during
which an employee may need to abstain from work for at least 7 days
during a 1-month period. We have reexamined our 2005 proposal and have
substantially altered the provisions relating to documentation and
timeframes; therefore, we are now reissuing proposed regulations with a
request for comments.
Based on the comments we received in 2005, we are striving to
balance the
[[Page 53696]]
protection of an employee's right to practice his or her religious
freedoms with management's responsibility to carry out the agency's
mission. We believe our proposal balances these needs, and incorporates
the comments we received from our 2005 proposal to improve the proposed
regulations by (1) increasing the number of pay periods within which an
employee can repay advanced religious compensatory time off after using
it, and (2) requiring the employee to provide the agency with specific
information regarding his or her request to use religious compensatory
time off.
Section-by-Section Analysis of Proposed Regulations
OPM continues to believe there is a need for a clearer regulatory
structure for the earning and use of religious compensatory time off.
However, we found some of the objections to our 2005 proposal were
persuasive. Consequently, we are proposing to restructure subpart J of
5 CFR part 550 with eight sections as follows:
Section 550.1001 Purpose. This section sets forth the purpose of
the subpart, which is to implement the statutory authority for
religious compensatory time off under 5 U.S.C. 5550a.
Section 550.1002 Coverage. The proposed regulations provide that
coverage applies to each employee in or under an Executive agency (as
defined in 5 U.S.C. 105) who has a scheduled tour of duty.
Employees of the Federal Aviation Administration (FAA) are excluded
from coverage under most title 5 provisions, including section 5550a.
(See 49 U.S.C. 40122(g).) Employees of the Transportation Security
Administration (TSA) are excluded from the same title 5 provisions as
FAA employees; thus, they are also not covered by section 5550a. (See
49 U.S.C. 114(n).) Both FAA and TSA may adopt a religious compensatory
time off program under their own personnel authorities.
The proposed new coverage section, section 550.1002, also provides
that section 5550a and OPM's implementing regulations apply only to
employees who have a ``scheduled tour of duty.'' In 5 U.S.C. 5550a(a),
the law prescribes that an employee is granted compensatory time off
``from his scheduled tour of duty'' when the employee's personal
religious beliefs require ``the abstention from work during certain
periods of time.'' A further discussion of the term ``scheduled tour of
duty'' is included in the definition section of this supplementary
information.
Section 550.1003 Definitions. This section contains definitions of
key terms used in subpart J. These terms are ``overtime work,'' ``rate
of basic pay,'' ``religious compensatory time off,'' and ``scheduled
tour of duty.'' All of these proposed definitions are new and are being
added to this section.
We are providing further explanation of certain terms that are
defined in this section. For the purposes of subpart J, ``overtime
work'' is performed to earn religious compensatory time off and
provides no entitlement to overtime pay or other premium pay.
``Overtime work'' earned as religious compensatory time off is a
limited exception that is not considered in applying the premium pay
limitations in 5 U.S.C. 5547 and 5 CFR 550.105-550.107. (See 62 Comp.
Gen. 589, July 26, 1983.) In contrast, the dollar value of overtime
work resulting in compensatory time off in lieu of overtime pay under 5
U.S.C. 5543 is considered to be premium pay in applying those
limitations. We are clarifying in the regulations that overtime work is
deemed to include (1) work performed by a part-time employee outside of
his or her scheduled tour of duty, even if that work is below
applicable overtime thresholds (e.g., below 40 hours in a week), and
(2) work performed by an employee on a legal holiday.
The term ``rate of basic pay'' is the rate of pay fixed by law or
administrative action for the position held by an employee, including
any applicable locality payment under 5 CFR part 531, subpart F;
special rate supplement under 5 CFR part 530, subpart C; retained rate
under 5 CFR part 536; or similar payment or supplement under other
legal authority, before any deductions and exclusive of additional pay
of any other kind. It is used in determining the amount paid to an
employee upon separation or transfer for any unused hours of religious
compensatory time off earned based on the rate of basic pay in effect
when the extra hours of work were performed.
``Religious compensatory time off'' is compensatory time off for an
employee whose personal religious beliefs require that he or she
abstain from work at certain times of the workday or workweek. To the
extent that modifications in work schedules do not interfere with the
efficient accomplishment of an agency's mission, an employee must be
permitted to work overtime hours to meet the religious obligation, and
such hours do not create any entitlement to premium pay.
A ``scheduled tour of duty'' means the regular work hours in an
established full-time or part-time work schedule during which the
employee is charged leave or time off when absent. The law (5 U.S.C.
5550a) specifically refers to employees using religious compensatory
time off by taking time off out of their ``scheduled tour of duty.''
Only employees with an established full-time or part-time schedule have
a scheduled tour of duty. Employees who do not have a scheduled tour of
duty, such as intermittent employees or leave-exempt Presidential
appointees (see 5 CFR 630.211), cannot use leave or other time off,
including religious compensatory time off. However, in the spirit of
the religious compensatory time off law, supervisors should strive to
accommodate such employees in their observance of religious activities
required by their personal religious beliefs.
Section 550.1004 Employee responsibilities. This section enumerates
an employee's responsibilities when he or she requests to earn and use
religious compensatory time off. An employee is required to provide his
or her supervisor with a request for religious compensatory time off in
advance of the religious observance. Under paragraph (b) of this
section, at the time the religious compensatory time off is requested,
the employee must provide the agency with (1) the name and/or
description of the particular religious observance for which the
employee's absence is required; (2) the date(s) and time(s) the
employee plans to be absent for religious observances; and (3) the
date(s) and time(s) the employee plans to perform overtime work to earn
religious compensatory time off to make up for the absence. This
information provides appropriate documentation to enable the agency to
consider the request. An employee must comply with the agency's
procedures for requesting, earning, and using religious compensatory
time off, including time limitations, as prescribed in sections
550.1004 and 550.1005.
Section 550.1005 Agency responsibilities. This section enumerates
agency responsibilities when considering an employee's request to earn
and use religious compensatory time off. Paragraph (a) of this section
permits an agency to require an employee to submit his or her religious
compensatory time off request either orally or in writing, including
the information listed in section 550.1004(b), in a manner that is
administratively acceptable to the agency. Although this paragraph
provides authority for an agency to
[[Page 53697]]
require an employee to submit his or her request in writing under
section 550.1004(b), the agency may allow supervisors to approve
requests on a more informal basis as long as the supervisor documents
the required information regarding the employee's request.
Paragraph (b) of this section states that an agency is required to
approve religious compensatory time off to the extent that
modifications in work schedules do not interfere with the efficient
accomplishment of its mission, consistent with 5 U.S.C. 5550(c).
Paragraph (c) of this section states that the agency must provide
the employee with an opportunity to earn religious compensatory time
off before the end of the 26th pay period following the use of the time
off. However, the specific timing of when an employee is allowed to
earn religious compensatory time off is at the agency's discretion.
This is consistent with guidance in former Federal Personnel Manual
Letter 550-71, September 29, 1978, which stated that ``[A]n agency is
expected to accommodate to an employee's request to work compensatory
overtime. If no productive overtime is available to be worked by the
employee at such time as he or she may initially request, alternative
times should be arranged for the performance of the compensatory
overtime work.'' A key difference between using and earning religious
compensatory time off is that using religious compensatory time off is
tied to a specific religious observance on a fixed date, whereas
greater flexibility exists regarding when religious compensatory time
off may be earned. However, the agency must provide an opportunity for
the employee to earn religious compensatory time off before the end of
26th pay period after it was used. Agencies have latitude in scheduling
exactly when overtime hours will be worked to earn religious
compensatory time off.
Section 550.1006 Scheduling time to earn and use religious
compensatory time off. This section provides rules for scheduling time
to earn and use religious compensatory time off to establish a
consistent and effective Governmentwide approach. An employee must
inform his or her agency of the date(s) and time(s) he or she plans to
be absent for religious observances and the date(s) and time(s) he or
she plans to work to earn religious compensatory time off to make up
for the absence. The agency must consider its mission requirements when
determining whether to approve changes in work schedules for scheduling
religious compensatory time off, as explained in section 550.1005.
This section also empowers agencies to require employees who are
submitting requests for this time off to make the requests sufficiently
in advance to allow for workforce adjustments that may be required to
accommodate the religious compensatory time off.
For an employee who earns religious compensatory time off prior to
using it, religious compensatory time off may be earned up to 26 pay
periods in advance of the pay period in which it is intended to be
used, as long as the scheduling of religious compensatory time off is
linked to specific dates and times and its scheduling is compatible
with agency mission requirements. While most agencies may have always
required employees to identify specific, future religious observances
as a condition for allowing them to earn religious compensatory time
off, this proposal now provides a common approach, with specific
information regarding the details the employee must supply under
section 550.1004.
Where an employee uses religious compensatory time off prior to
earning it (i.e., spending an equal amount of time in overtime work),
that employee must schedule and fulfill his or her obligation to
perform overtime work in exchange for religious compensatory time off
within 26 pay periods (52 weeks) after the pay period in which he or
she used religious compensatory time off. The 26 pay periods are
calculated beginning with the first pay period after the pay period in
which the religious compensatory time off was used.
OPM believes that providing 26 pay periods before and after a
religious observance is a sufficient timeframe for an employee to earn
religious compensatory time, and is consistent with the 26 pay period
rule for using compensatory time off in lieu of overtime pay after it
is earned.
If the employee fails to perform overtime work in exchange for
advanced religious compensatory time off within 26 pay periods after
the pay period in which it was used, section 550.1006(c) provides that
the agency may take corrective action to eliminate or reduce the
negative balance by making a corresponding reduction in the employee's
annual leave balance. Any remaining negative balance must be resolved
by charging the employee leave without pay, which will result in an
indebtedness that is subject to the agency's internal debt collection
procedures. This approach is consistent with OPM's longstanding
position that if an employee has taken advanced religious compensatory
time off and has a negative balance, the employee must be charged
annual leave or leave without pay to account for that negative balance.
(See also the more detailed discussion regarding section 550.1008(b).)
OPM reminds agencies and employees of the availability of
additional workforce flexibilities, including annual leave, advanced
annual leave, regular compensatory time off, alternative work
schedules, and leave without pay, all of which may play a part in
accommodating an employee's need to abstain from work for religious
observances. We believe providing 26 pay periods for employees to repay
such advanced religious compensatory time off, permitting employees to
perform work in advance of a religious observance, and using other
existing workforce flexibilities will provide employees with several
viable alternatives for meeting religious requirements, while ensuring
agencies are able to carry out their missions in a timely manner.
Section 550.1007 Accumulation and documentation. This section
requires agencies to keep appropriate records on the amount of
religious compensatory time off each employee earns and uses. The
agency must credit religious compensatory time off for work performed
on a time-for-time basis, under an agency's time and attendance
procedures. Except as provided in paragraph (c) of section 550.1007, an
employee may accumulate only the amount of religious compensatory time
off needed to cover an approved absence for a religious observance or
an anticipated absence for a future religious observance for specific
dates and times that the employee has identified.
Under section 550.1007(c), if the employee does not use his or her
earned religious compensatory time off as planned, the employee may not
earn any additional religious compensatory time off until the retained
amount of religious compensatory time off has been used or the need to
earn additional religious compensatory time off has been established
and documented. In other words, earned religious compensatory time off
that has not been used as planned may be applied toward a future
religious observance that has been properly requested and approved--
even if that event is more than 26 pay periods after when the religious
compensatory time off was originally earned. If the number of hours of
unused religious compensatory time off is not sufficient to cover the
future religious observance, the employee may
[[Page 53698]]
earn additional religious compensatory time off to cover extra hours--
either 26 pay periods before or after the pay period in which the
employee takes time off for the approved future religious observance,
as provided in section 550.1006.
For example, an employee earns 16 hours of religious compensatory
time off toward religious observance ``A.'' The employee is unable to
use the 16 hours as planned due to unforeseen circumstances. The
employee then requests and receives approval for religious observance
``B.'' The employee needs an additional 8 hours to attend the new
religious observance. The 16 hours of earned religious compensatory
time off from religious observance ``A'' may be applied toward 24 hours
needed for religious observance ``B.'' The employee may earn the
additional 8 hours of religious compensatory time off within 26 pay
periods before or after religious observance ``B'' to cover the
religious observance.
Agencies must monitor any accumulation to ensure that the employee
is using the religious compensatory time off for the intended religious
observance and is not stockpiling the compensatory time off for
purposes that do not meet the intent of the law and regulations.
Section 550.1008 Employee separation or transfer. This section
addresses how positive and negative balances of religious compensatory
time off are to be treated when employees leave Federal service or
transfer to another Federal agency. In the case of an employee with a
positive balance who is separating from Federal service or transferring
to another Federal agency, the losing agency pays the employee at the
hourly rate of basic pay in effect when the religious compensatory time
off was earned. Though OPM has published this disposition procedure as
guidance on its Web site, it is now including it in the regulations to
ensure compliance throughout the Federal Government.
Any earned religious compensatory time off may be paid only when an
employee separates or transfers to another Federal agency. Religious
compensatory time off cannot be forfeited, nor can it be paid out as
compensatory time off in lieu of overtime or any other forms of time
off. Since religious compensatory time off is earned and approved for
specific dates and times, the amount of religious compensatory time off
paid out in a lump sum should be minimal.
Regarding the case of an employee with a negative balance of
religious compensatory time off who is separating from Federal service
or transferring to another Federal agency under 5 CFR 550.1008(b), an
agency may take corrective action to eliminate or reduce the negative
balance by making a corresponding charge of annual leave. In other
words, since the religious compensatory time off was never earned by
working overtime hours, the prior use of religious compensatory time
off was invalid. Accordingly, the hours improperly used as religious
compensatory time off would be converted to annual leave hours by
reducing the employee's annual leave balance. Any negative balance
remaining after charging annual leave would be resolved by charging
leave without pay. The resulting indebtedness is subject to the
agency's internal debt collection procedures. The losing agency is
required to determine the monetary value of the employee's remaining
negative balance and use applicable debt collection procedures (e.g.,
those authorized under 5 U.S.C. 5514 and applicable agency regulations
prepared consistent with subpart K of 5 CFR part 550). The same
approach applies to employees covered by section 550.1006(c) who fail
to earn advanced religious compensatory time off within 26 pay periods
after using religious compensatory time off.
It should be noted that, unlike annual and sick leave, there is no
statutory authority to provide for a transfer of unused earned
religious compensatory time off when an employee transfers to another
agency. Therefore, the proposed regulations do not authorize employees
to transfer a balance of earned religious compensatory time off when
they move to another agency.
Section 550.1009 Relationship to premium pay and overtime work.
This section makes explicit that an employee who earned religious
compensatory time off under subpart J will have no entitlement to
overtime pay or other premium pay based on the overtime work performed.
It further clarifies that religious compensatory time off under subpart
J is fundamentally different from other types of compensatory time off
in that religious compensatory time off is only for the purpose of
adjusting an employee's work schedule so that the employee may perform
overtime work to take time off for religious observances, and such time
off is not considered premium pay, as defined in section 550.103.
We are also taking this opportunity to make the following
miscellaneous regulatory changes that are unrelated to compensatory
time off for religious observances:
Section 550.103 Miscellaneous Change to Definition of Rate of Basic Pay
We propose amending the definition of rate of basic pay in 5 CFR
550.103 to include a retained rate under 5 CFR part 536. This is
consistent with the provision in 5 CFR 536.307(a)(3) that a retained
rate is considered to be an employee's rate of basic pay for the
purpose of computing premium pay under 5 U.S.C. chapter 55, subchapter
V, and 5 CFR part 532 and part 550, subparts A and I.
Section 550.1302 Miscellaneous Change to Citation Referenced in the
Definition of Firefighter
In section 550.1302, we are correcting a citation referencing
section 362.203(e) in paragraph (2)(iii) of the definition of
firefighter. The correct citation is section 362.203(f).
E.O. 13563 and E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Orders 13563 and 12866.
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 apply only to Federal agencies and employees.
List of Subjects in 5 CFR Part 550
Administrative practice and procedure, Claims, Government
employees, Wages.
U.S. Office of Personnel Management.
Elaine Kaplan,
Acting Director.
Accordingly, OPM is proposing to amend 5 CFR part 550 as follows:
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart A--Premium Pay
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1. Revise the authority citation for subpart A to read as follows:
Authority: 5 U.S.C. 5304 note, 5305 note, 5504(d), 5541(2)(iv),
5545a(h)(2)(B) and (i), 5547(b) and (c), 5548, and 6101(c); sections
407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5
U.S.C. 5545a); E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp., p. 316.
0
2. In Sec. 550.103, revise the definition of rate of basic pay to read
as follows:
Sec. 550.103 Definitions.
* * * * *
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an
[[Page 53699]]
employee, including any applicable locality payment under 5 CFR part
531, subpart F; special rate supplement under 5 CFR part 530, subpart
C; retained rate under 5 CFR part 536; or similar payment or supplement
under other legal authority, before any deductions and exclusive of
additional pay of any other kind.
* * * * *
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3. Revise subpart J to read as follows:
Subpart J--Compensatory Time Off for Religious Observances
Sec.
550.1001 Purpose.
550.1002 Coverage.
550.1003 Definitions.
550.1004 Employee responsibilities.
550.1005 Agency responsibilities.
550.1006 Scheduling time to earn and use religious compensatory time
off.
550.1007 Accumulation and documentation.
550.1008 Employee separation or transfer.
550.1009 Relationship to premium pay and overtime work.
Authority: 5 U.S.C. 5550a.
Subpart J--Compensatory Time Off for Religious Observances
Sec. 550.1001 Purpose.
This subpart implements 5 U.S.C. 5550a, which permits an employee
whose personal religious beliefs require the abstention from work
during certain periods of time to elect to engage in overtime work and
earn a special form of compensatory time off to make up for the time
lost in meeting those religious requirements. Religious compensatory
time off differs from other forms of compensatory time off in that the
sole purpose is to adjust an employee's work schedule to accommodate a
religious observance. The employee earns religious compensatory time
off by spending an equal amount of time in overtime work either before
or after taking time from the employee's scheduled tour of duty to meet
religious requirements.
Sec. 550.1002 Coverage.
This subpart applies to each employee in or under an Executive
agency (as defined in 5 U.S.C. 105) who has a scheduled tour of duty.
Sec. 550.1003 Definitions.
In this subpart:
Overtime work means work performed by an employee outside his or
her scheduled tour of duty for the purpose of making up time lost for
meeting religious requirements, for which overtime pay would normally
be payable. It is also deemed to include work performed by a part-time
employee outside of his or her scheduled tour of duty, even if that
work is below applicable overtime thresholds (e.g., below 40 hours in a
week), and work performed by an employee on a legal holiday.
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an employee, including
any special rate under 5 CFR part 530, subpart C; locality rate under 5
CFR part 531, subpart F; retained rate under 5 CFR part 536; or similar
rate under other legal authority, before any deductions and excluding
additional pay of any other kind. For example, a rate of basic pay does
not include additional pay such as night shift differentials under 5
U.S.C. 5343(f) or environmental differentials under 5 U.S.C.
5343(c)(4).
Religious compensatory time off means compensatory time off, as
authorized by 5 U.S.C. 5550a, under which an employee whose personal
religious beliefs require the abstention from work during certain
periods of time may elect to perform overtime work in order to make up
for time the employee takes off to meet those religious requirements.
An employee approved to perform overtime work under this subpart will
be granted an equal amount of compensatory time off from his or her
scheduled tour of duty (in lieu of overtime pay or other pay otherwise
payable) to meet his or her religious obligations.
Scheduled tour of duty means the regular work hours in an
established full-time or part-time work schedule during which the
employee is charged leave or time off when absent.
Sec. 550.1004 Employee responsibilities.
(a) An employee is required to provide his or her supervisor with a
request for religious compensatory time off in advance of the religious
observance by following the agency's procedures established in
accordance with Sec. Sec. 550.1005 and 550.1006.
(b) At the time the religious compensatory time off is requested,
the employee must provide the agency with the following information:
(1) The name and/or description of the religious observance for
which the employee's absence from work is required based on the
employee's personal religious beliefs;
(2) The date(s) and time(s) the employee plans to be absent to
participate in the religious observances identified in paragraph (b)(1)
of this section; and
(3) The date(s) and time(s) the employee plans to perform overtime
work to earn religious compensatory time off to make up for the
absence.
(c) An employee must comply with the agency's procedures for
requesting religious compensatory time off, including any time
limitations prescribed under Sec. 550.1006.
Sec. 550.1005 Agency responsibilities.
(a) An agency may require an employee to submit his or her request
to use religious compensatory time off in writing (including electronic
communications) with all the information specified in Sec. 550.1004(b)
in a manner that is administratively acceptable to the agency. If the
agency accepts an oral request, the supervisor must document all the
information specified in Sec. 550.1004(b). An agency may require an
employee to submit a request to use religious compensatory time off
sufficiently in advance to accommodate necessary scheduling changes
without interfering with the agency's ability to efficiently carry out
its mission.
(b) An agency must approve an employee's request to use religious
compensatory time off unless the agency determines that approving the
request would interfere with the agency's ability to efficiently carry
out its mission.
(c) The agency must provide the employee with an opportunity to
earn religious compensatory time off before the end of the 26th pay
period following the use of the time off, although the specific timing
of when an employee will be allowed to earn religious compensatory time
off by performing overtime work is a matter of agency discretion based
on the needs of the agency.
Sec. 550.1006 Scheduling time to earn and use religious compensatory
time off.
(a) The scheduling of time to earn and use religious compensatory
time off by an employee is subject to the agency's approval as provided
in Sec. 550.1005.
(b) For an employee who earns religious compensatory time off prior
to using it, religious compensatory time off may be earned up to 26 pay
periods in advance of the pay period in which the targeted religious
observance commences and must be linked to specific dates and times for
future use, as compatible with agency mission requirements.
(c)(1) An employee who uses religious compensatory time off prior
to earning it must fulfill his or her obligation to perform overtime
work in exchange for the advanced religious compensatory time off
within 26 pay periods after the pay period in which he or she used
religious compensatory time off, or the
[[Page 53700]]
agency must take action as provided in paragraph (c)(3) of this
section.
(2) The 26 pay periods described in paragraph (c)(1) of this
section are calculated beginning with the first pay period beginning
after the date on which the religious compensatory time off was used.
(3) If the employee fails to earn religious compensatory time off
within 26 pay periods after taking religious compensatory time off, the
agency may take corrective action to eliminate or reduce the negative
balance by making a corresponding reduction in the employee's annual
leave balance. Any negative balance of religious compensatory time off
remaining after charging annual leave must be resolved by charging the
employee leave without pay, which would result in an indebtedness that
is subject to the agency's internal debt collection procedures.
Sec. 550.1007 Accumulation and documentation.
(a) Agencies must keep appropriate records of the name and/or
description of the religious observance, and the dates, times, and
amount of religious compensatory time off each employee earns and uses.
An agency must credit religious compensatory time off for work
performed on a time-for-time basis, under its time and attendance
procedures.
(b) Except as provided in paragraph (c) of this section, an
employee may accumulate only the amount of religious compensatory time
off needed to cover an approved absence for a religious observance that
has already occurred or to cover an approved absence for a future
religious observance. An employee may only accumulate the amount of
religious compensatory time off needed to cover the specific dates and
times for which the employee has submitted a request for religious
compensatory time off under Sec. 550.1004.
(c) If the employee does not use his or her earned religious
compensatory time off as planned--
(1) The positive balance of unused compensatory time off may be
redirected toward a future religious observance that has been approved,
even if that future observance is more than 26 pay periods after the
compensatory time off was originally earned (notwithstanding Sec.
550.1006(b));
(2) The employee may not earn any additional religious compensatory
time off until the retained amount of religious compensatory time off
has been used or the need to earn additional religious compensatory
time off has been properly established and documented.
Sec. 550.1008 Employee separation or transfer.
(a) Upon an employee's separation from Federal service or transfer
to another Federal agency, the losing agency must compensate the
employee for any positive balance of earned religious compensatory time
off to his or her credit. The agency must pay the employee for hours of
earned religious compensatory time off at the hourly rate of basic pay
in effect at the time religious compensatory time off was earned.
(b) For an employee who has a negative balance of religious
compensatory time off upon an employee's separation from Federal
service or transfer to another Federal agency, the losing agency may
take corrective action to eliminate or reduce the negative balance by
making a corresponding reduction in the employee's annual leave
balance. Any negative balance of religious compensatory time off
remaining after charging annual leave must be resolved by charging the
employee leave without pay, which would result in an indebtedness that
is subject to the agency's internal debt collection procedures.
(c) For purposes of applying paragraphs (a) and (b) of this
section, an hourly rate of basic pay is computed by dividing the annual
rate of basic pay by 2,087 hours (or 2,756 hours for firefighter hours
subject to that divisor under subpart F of this part).
Sec. 550.1009 Relationship to premium pay and overtime work.
The premium pay provisions for overtime work in subpart A of this
part and section 7 of the Fair Labor Standards Act of 1938, as amended
(FLSA), do not apply to overtime work performed by an employee that is
used to earn religious compensatory time off under this subpart. The
overtime hours worked to earn religious compensatory time off under
this subpart do not create an entitlement to premium pay (including
overtime pay) under subpart A of this part or FLSA overtime pay under 5
CFR part 551. Religious compensatory time off is not considered in
applying the premium pay limitations described in Sec. Sec. 550.105,
550.106, and 550.107 of this part.
Subpart M--Firefighter Pay
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4. The authority citation for subpart M of part 550 continues to read
as follows:
Authority: 5 U.S.C. 5545b, 5548, and 5553.
0
5. In Sec. 550.1302, revise paragraph (2)(iii) of the definition of
``firefighter'' to read as follows:
Sec. 550.1302 Definitions.
* * * * *
Firefighter * * *
(2) * * *
(iii) Covered by the General Schedule and classified in the GS-
0099, General Student Trainee Series (as required by Sec. 362.203(f)
of this chapter), if the position otherwise would be classified in the
GS-0081 series.
* * * * *
[FR Doc. 2013-21221 Filed 8-29-13; 8:45 am]
BILLING CODE 6325-39-P