Disabled Veteran Leave and Other Miscellaneous Changes, 36186-36193 [2016-13285]

Agencies

• Office of Personnel Management

[Federal Register Volume 81, Number 108 (Monday, June 6, 2016)]
[Proposed Rules]
[Pages 36186-36193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13285]


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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.

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Federal Register / Vol. 81, No. 108 / Monday, June 6, 2016 / Proposed 
Rules

[[Page 36186]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR PART 630

RIN 3206-AN31


Disabled Veteran Leave and Other Miscellaneous Changes

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management is issuing proposed 
regulations to implement the Wounded Warriors Federal Leave Act of 
2015, which establishes a new leave category, to be known as ``disabled 
veteran leave,'' available during a 12-month period beginning on the 
first day of employment to be used by an employee who is a veteran with 
a service-connected disability rated at 30 percent or more for purposes 
of undergoing medical treatment for such disability. In addition, we 
are proposing to rescind two obsolete regulations.

DATES: Comments must be received on or before July 6, 2016.

ADDRESSES: You may submit comments, identified by RIN number ``3206-
AN31,'' using either of the following methods:
    Federal eRulemaking Portal: www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: pay-leave-policy@opm.gov.

FOR FURTHER INFORMATION CONTACT: Doris Rippey by telephone at (202) 
606-2858 or by email at pay-leave-policy@opm.gov.

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is 
issuing proposed regulations to implement the Wounded Warriors Federal 
Leave Act of 2015 (Public Law 114-75, November 5, 2015) (hereafter 
referred to as ``the Act''). The Act adds section 6329 to title 5, 
United States Code, which establishes a new leave category, to be known 
as ``disabled veteran leave.'' This new leave category is an 
entitlement for any employee who is a veteran with a service-connected 
disability rated at 30 percent or more to use disabled veteran leave 
during a 12-month period beginning on the first day of employment for 
the purposes of undergoing medical treatment for such disability. 
Disabled veteran leave available to an eligible employee may not exceed 
104 hours for a regular full-time employee. Disabled veteran leave not 
used during this 12-month period may not be carried over to subsequent 
years and will be forfeited. By law, disabled veteran leave is 
available only to covered employees who are hired on or after November 
5, 2016.
    Section 2(d) of the Act gives OPM authority to regulate the 
disabled veteran leave provision. The regulations on disabled veteran 
leave will be located in subpart M of part 630 (Absence and Leave) of 
title 5, Code of Federal Regulations. They will replace the regulations 
currently found in subpart M, Reservist Leave Bank Program. The 
Reservist Leave Bank Program was authorized by Public Law 102-25, April 
6, 1991. Under that program, OPM established a leave bank that 
distributed annual leave to returning Federal employees who were called 
to active duty in the U.S. Armed Forces during the Persian Gulf War. 
Employees were allowed to contribute unused accrued annual leave to the 
leave bank during an open season, which ran from July 13, 1991, until 
August 10, 1991. The authority is no longer needed, since Federal 
agencies were required to distribute the donated annual leave by the 
end of November 1991.
    OPM is also proposing to rescind 5 CFR 630.310, Scheduling of 
annual leave by employees determined necessary for Year 2000 computer 
conversion efforts. The regulations at 5 CFR 630.310 provided that year 
2000 computer conversion efforts were deemed an exigency of the public 
business for the purpose of restoring annual leave to any employee who 
forfeited 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. The forfeited annual 
leave was deemed to have been scheduled in advance for the purpose of 5 
U.S.C. 6304(d)(1)(B) and Sec.  630.308. This authority is no longer 
needed because the regulations at 5 CFR 630.310(a) provided that the 
exigency of the public business for Year 2000 computer conversion 
efforts terminated on January 31, 2000.

Background

    There are several pieces of legislative history that provide 
additional information on the intent of Congress when enacting the 
Wounded Warriors Federal Leave Act of 2015, including--
     The Congressional Record for the House, H6268-H6269, 
September 28, 2015;
     The Congressional Record for the Senate, S6085-S6088, July 
28, 2015;
     House Report 114-180, Wounded Warriors Federal Leave Act 
of 2015 (a report issued by the House Committee on Oversight and 
Governmental Reform to accompany H.R. 313, ordered to be printed June 
25, 2015); and
     Senate Report 114-89, Wounded Warriors Federal Leave Act 
of 2015 (a report issued by the Senate Committee on Homeland Security 
and Governmental Affairs to accompany S. 242, ordered to be printed 
July 23, 2015).
These reports and records provide insight into Congressional intent 
when drafting and ultimately enacting the Wounded Warrior Act of 2015. 
When preparing these proposed regulations, OPM referred to these 
reports and records to assist in understanding Congressional intent.

Effective Date

    Section 2(c) of the Act provides that its amendments will apply to 
employees hired on or after the date that is 1 year after the date of 
enactment of the Act. Since the Act was enacted on November 5, 2015, 
the effective date is November 5, 2016. Therefore, if an employee is 
hired on or after November 5, 2016, and is otherwise eligible, the 
employee may be granted disabled veteran leave during the 12-month 
eligibility period that begins on the employee's first day of 
employment, which can occur no earlier than November 5, 2016.

New Subpart M in 5 CFR Part 630

    In order to implement the Act, OPM is proposing to replace Subpart 
M, Reservist Leave Bank, in part 630 (Absences and Leave) of title 5, 
Code of Federal Regulations, with a new Subpart M, Disabled Veteran 
Leave. A section-

[[Page 36187]]

by-section explanation of the proposed regulations follows.

Sec.  630.1301--Purpose and Authority

    Section 630.1301 addresses the purpose of the proposed 
regulations--i.e., to implement the new section 6329 in title 5, United 
States Code. It also notes that OPM is relying on its regulatory 
authority in section 2(d) of the Act.

Sec.  630.1302--Applicability

    Section 630.1302 provides that subpart M applies to an employee who 
is a veteran with a service-connected disability rating of 30 percent 
or more, subject to the conditions specified in subpart M. It also 
notes that subpart M does not apply to employees of the United States 
Postal Service or the Postal Regulatory Commission, since they are 
covered by regulations issued by the Postmaster General. Section 
630.1302 also states that subpart M applies only to an employee whose 
is hired on or after November 5, 2016.

Sec.  630.1303--Definitions

    Section 630.1303 provides definitions of terms for purposes of 
subpart M.
    The term ``12-month period'' in 5 U.S.C. 6329(a) is not defined in 
law. In the regulations, we are using the term ``12-month eligibility 
period'' and making clear that it refers to the continuous 12-month 
period that begins on the first day of employment. We are also making 
clear in the definition that, if an employee was eligible (or is later 
determined to have been eligible) for disabled veteran leave while 
previously employed by the United States Postal Service or the Postal 
Regulatory Commission and subsequently commences employment covered by 
subpart M, the 12-month eligibility period is the period that began on 
the first day of employment with the United States Postal Service or 
the Postal Regulatory Commission (as determined under regulations 
issued by the Postmaster General to implement 5 U.S.C. 6329).
    The 12-month eligibility period is fixed based on the ``first day 
of employment,'' which triggers the start of the 12-month clock. (See 
discussion of the definition of ``first day of employment'' below.) 
There is only one 12-month eligibility period for any employee during 
his or her Federal civilian career, since there is only one ``first'' 
day of employment. The date of the first day of employment may be 
established retroactively after the Veterans Benefits Administration 
has made a disability rating determination, which could mean that the 
employee was not able to use disabled veteran leave during part or all 
of the 12-month eligibility period. In that case, the employee will be 
allowed to retroactively substitute disabled veteran leave for other 
leave used for medical treatment of a qualifying service-connected 
disability, as provided in proposed Sec.  630.1306(c).
    We provide that the term agency refers to an agency of the Federal 
Government. When the term is used in the context of an agency making 
determinations or taking actions, it means management officials of an 
employing agency authorized to make a given determination or take a 
given action.
    We define employee to have the same meaning as that term in 5 
U.S.C. 2105, consistent with 5 U.S.C. 6329(d)(1). Since employees of 
the United States Postal Service and the Postal Regulatory Commission 
are not covered by subpart M, we do not mention them in the definition 
of ``employee'' even though they are included under section 6329(d)(1). 
(Under section 2105(e), an employee of the United States Postal Service 
or the Postal Regulatory Commission is generally deemed not to be 
considered an ``employee'' for purposes of title 5, except as otherwise 
provided by law. Section 6329(d)(1) is such a statutory exception.)
    Under 5 U.S.C. 2105(c), an employee of a nonappropriated fund 
instrumentality (NAFI) under the jurisdiction of the armed forces 
(Army, Navy, Air Force, Marines, Coast Guard) that is conducted for the 
comfort, pleasure, contentment, and mental and physical improvement of 
personnel in the armed forces is ``deemed not an employee'' for the 
purpose of laws administered by OPM, except for certain listed 
exceptions. Section 6329 is not covered by any listed exception. Since 
the Act defines the term ``employee'' to be an employee as defined in 5 
U.S.C. 2105 and since OPM administers section 6329, NAFI employees 
identified in section 2105(c) are not covered by section 6329 and are 
not entitled to disabled veteran leave under that section.
    Section 6239(a) provides that disabled veteran leave is available 
to an eligible employee during the 12-month period ``beginning on the 
first day of employment.'' By regulation, we are defining the terms 
employment and first day of employment.
    We are defining employment to mean service as an ``employee'' (as 
defined in 5 U.S.C. 2105) during which the employee is covered by a 
leave system under which leave is charged for periods of absence. Since 
section 6329 is designed to provide a paid ``leave'' benefit to 
employees, it is clear that the benefit applies only to employees 
performing service covered by a leave system. Section 6329(a) states 
that the periods during which disabled veteran leave is used are 
periods ``for which sick leave could regularly be used.'' Also, the 
House and Senate committee reports describe the benefit as needed by 
employees who have insufficient paid leave and must currently use 
unpaid leave or take advanced sick leave that must be repaid at some 
point in the future. Accordingly, we are regulating that the 
``employment'' that triggers entitlement to disabled veteran leave is 
service under a leave system. This would exclude service in which an 
employee has an intermittent work schedule or service by certain leave-
exempt Presidential appointees.
    We also note in the definition of employment that it excludes 
service in a position in which an employee (as defined in 5 U.S.C. 
2105) is not covered by 5 U.S.C. 6329 due to application of another 
statutory authority, such as service as an employee of the Federal 
Aviation Administration (FAA) or the Transportation Security 
Administration (TSA).
    In order to define first day of employment, it is necessary to give 
context to the word ``first''. We interpret section 6329(a) as using 
the term ``first'' relative to the time the employee attains status as 
a veteran with a qualifying service-connected disability. Under current 
law, the effective date is based on various factors, but in most cases 
it is either the date after the date of military discharge (for those 
who file within 1 year of that discharge date) or the date of receipt 
of the application, both of which occur prior to the date of the rating 
determination. That effective date may be before or after the date an 
employee is hired to perform service in a civilian position in the 
Federal Government that is covered employment under this subpart. If 
the effective date is before such hiring date, the first day of 
employment as an eligible veteran with a qualifying service-connected 
disability is the employee's hiring date. If the effective date is 
after the hiring date, the first day employment as an eligible veteran 
with a qualifying service-connected disability is the effective date of 
the disability rating. (As discussed earlier, by law, section 6329 
applies only to employees who are hired on or after November 5, 2016. 
See section 6329(c).)
    Since the first day of employment (incorporating the definition of 
``employment'' in Sec.  630.1303) is based on when the employee first 
has status as

[[Page 36188]]

a veteran with a qualifying service-connected disability during a 
period of employment, that first day is the later of (1) the date the 
employee is hired (i.e., hiring date) or (2) the effective date of the 
qualifying disability rating. Accordingly, this ``later of'' approach 
is reflected in the proposed definition of first day of employment.
    The term hired is being defined to mean one of several actions: (1) 
Initial appointment, (2) a qualifying reappointment, or (3) return to 
civilian duty following a break in civilian duty (with continuous 
civilian leave status) to perform military service. The term ``hired'' 
is used in the definition of ``first day of employment'' and in Sec.  
630.1302 (Applicability). Because there are several possible hiring 
actions and since there can be only one first day of employment, the 
definition of ``first day of employment'' speaks of the ``earliest 
date'' an employee is hired.
    The legislative history of the Act indicates that Congress was 
focused on the most common scenario, addressing ``new'' employees who 
begin their Federal careers with zero hours of sick leave. (See House 
Report 114-180 and Senate Report 114-89.) However, the law itself does 
not exclude those with past Federal civilian service. Thus, OPM is not 
required to interpret ``first day of employment'' to mean a person's 
first ever appointment with the Federal Government. Some individuals 
could have small amounts of past Federal service before military 
service, and we do not believe that Congress would have intended to 
automatically disqualify them from receiving disabled veteran leave 
benefits. Thus, the proposed regulations would cover certain 
reappointments as triggering the first day of employment, which in turn 
triggers the 12-month eligibility period to use disabled veteran leave. 
At the same time, given that Congress intended the 104-hour leave 
benefit for those with an initial balance of zero sick leave hours, any 
sick leave restored to an employee's credit upon reappointment will be 
taken into account in determining the amount of disabled veteran leave 
that should be credited. (See proposed Sec.  630.1305(d).)
    While we are defining first day of employment to include the first 
``reappointment'' following military service during which an individual 
incurred a qualifying disability, we are limiting the coverage of 
reappointments to those that occur after a 90-day break in employment 
(where ``employment'' is a defined term, as explained above). See the 
proposed definition of qualifying reappointment. This 90-day break-in-
employment rule is consistent with similar 90-day rules OPM has adopted 
for determining when a ``newly appointed'' employee can be treated in 
the same way as a true first-time appointee. (See provisions in 5 
U.S.C. 5333 and 5 CFR 531.211-531.212 regarding setting pay above step 
1 for a newly appointed General Schedule employee. See also the 
provision in 5 U.S.C. 5753 and 5 CFR 575.102 regarding recruitment 
bonuses for a newly appointed employee.) The 90-day rule prevents 
employees from seeking a separation from Federal service merely to 
obtain a desired benefit. Civilian service with the Federal Government 
that is not ``employment'' covered by subpart M--such as FAA and TSA 
service--would be treated as a break in employment. Thus, for example, 
an individual who moves without a break in service between FAA and a 
position covered by subpart M could have a qualifying first day of 
employment under subpart M. However, as provided under Sec.  
630.1305(d), any sick leave transferred with the employee would offset 
the disabled veteran leave benefit. Further, if the employee already 
received an equivalent disabled veteran leave benefit under the FAA 
personnel authority, that could eliminate or reduce any entitlement to 
disabled veteran leave under subpart M, as provided under Sec.  
630.1305(e).
    We are also proposing that the term first day of employment 
includes the date an employee returns to a civilian duty status after a 
break in civilian duty (with the employee in continuous civilian leave 
status) to perform military service. We believe that, for purposes of 
this leave benefit, such a return to civilian duty status following a 
leave of absence for military service can properly be considered an 
``employment'' or ``hiring'' event, even though in one sense the 
individual retained continuous status as a civilian employee. Many 
Federal civilian employees go on leave to perform military service as 
reservists or members of the National Guard and, should they incur a 
qualifying service-connected disability, could have an insufficient 
balance of sick leave to meet their needs as a disabled veteran when 
they return to civilian duty. Given that the purpose of the Act is to 
assist disabled veterans, we believe it would be appropriate to ensure 
that such employees have sufficient paid leave by covering them under 
section 6329. However, the disabled veteran leave benefit would be 
offset by the amount of sick leave to the employee's credit at the time 
of the hiring event, as provided in Sec.  630.1305(d).
    As stated in our description of proposed Sec.  630.1302 
(Applicability), the provisions of section 6329 apply only to a 
qualifying employee hired on or after November 5, 2016. (See section 
6329(c).) If a veteran with a qualifying service-connected disability 
is already a Federal employee as of November 4, 2016, that veteran 
would not qualify for disabled veteran leave unless he or she has a 
qualifying hiring event in the future.
    Although many veterans may receive treatment for their service-
connected disabilities by the Veterans Health Administration (VHA), 
others may seek treatment from other healthcare providers. Therefore, 
we define health care provider broadly, using the same broad definition 
used in OPM's regulations implementing the Family and Medical Leave 
Act. (See Sec.  630.1202.)
    Section 6329(a) requires that disabled veteran leave be used solely 
for the purpose of undergoing medical treatment of a qualifying 
service-connected disability. As a means of verification, section 
6329(c) provides that an employee using disabled veteran leave must 
submit to the employing agency certification that the employee will (or 
has) used the leave for purposes of being furnished treatment for the 
disability. It further provides that OPM is authorized to prescribe the 
``form and manner'' that this certification takes. While an employee's 
self-certification will always be required, we are proposing in Sec.  
630.1307 that the agency, at its discretion, may additionally require a 
medical certificate to support an employee's use of disabled veteran 
leave. We are defining medical certificate as a written statement 
signed by a health care provider certifying to the medical treatment of 
an employee for a qualifying service-connected disability. We are 
defining medical treatment as any activity carried out by, or 
prescribed by, a health care provider to treat an employee's qualifying 
service-connected disability.
    Disabled veteran leave is only available to employees with a 
service-connected disability that meets the requirements of the 
statute, which provides that the disability is rated at 30 percent or 
more. We define qualifying service-connected disability for purposes of 
this subpart to mean a service-connected disability rated at 30 percent 
or more. The definition also makes clear that (1) a combined degree of 
disability of 30 percent or more that reflects the combined effect of 
multiple individual disabilities is a qualifying disability and (2) a 
temporary disability rating under 38 U.S.C. 1156 is considered a valid 
rating in applying

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this definition for as long as such rating is in effect.
    The definitions of the terms service-connected and veteran are 
provided in the statute at 5 U.S.C. 6329(d) and refer to the 
definitions of those terms at 38 U.S.C. 101. Since the statutory text 
may change in the future, we provide the reference to the definition in 
38 U.S.C. 101, but do not provide the text of the definitions 
themselves. We are providing the current statutory text in this 
supplementary information to ensure that the reader fully understands 
who qualifies as a veteran with a service-connected disability under 
current law.
    We are defining service-connected as having the meaning given the 
term at 38 U.S.C. 101(16). The text of the statute currently reads, 
``The term `service-connected' means, with respect to disability or 
death, that such disability was incurred or aggravated, or that the 
death resulted from a disability incurred or aggravated, in line of 
duty in the active military, naval, or air service.''
    The term veteran has the meaning given such term at 38 U.S.C. 
101(2). The text of the statute currently reads, ``The term `veteran' 
means a person who served in the active military, naval, or air 
service, and who was discharged or released therefrom under conditions 
other than dishonorable.''
    Finally, we are proposing a definition of the term military 
service, which is based on the definition of active military, naval, or 
air service at 38 U.S.C. 101(24). This is the service that is a basis 
for a finding by the Veterans Benefits Administration that a veteran 
has a service-connected disability qualifying for benefits under title 
38, United States Code. The term ``active military, naval, or air 
service'' is currently defined in 38 U.S.C. 101(24) as follows:
    The term ``active military, naval, or air service'' includes--
     active duty;
     any period of active duty for training during which the 
individual concerned was disabled or died from a disease or injury 
incurred or aggravated in line of duty; and
     any period of inactive duty training during which the 
individual concerned was disabled or died--
    [cir] from an injury incurred or aggravated in line of duty; or
    [cir] from an acute myocardial infarction, a cardiac arrest, or a 
cerebrovascular accident occurring during such training.''

We note that the terms ``active duty for training'' and ``inactive duty 
training'' are defined in 38 U.S.C. 101(22) and (23), respectively, and 
that those definitions must be used in applying the definition of 
``military service'' in subpart M. In administering disabled veteran 
leave, agencies do not need to know all the title 38 requirements. They 
can simply rely on a determination of the Veterans Benefits 
Administration that an individual is a veteran with a qualifying 
service-connected disability.

Sec.  630.1304--Eligibility

    Section 630.1304(a) provides that an employee with a qualifying 
service-connected disability is eligible for disabled veteran leave 
under subpart M, which is available for use during the employee's 12-
month eligibility period. For any employee, there will be only one such 
period under section 6329 during his or her career.
    Section 630.1304(b) addresses the employee's responsibility to 
provide documentation from the Veterans Benefits Administration 
certifying the qualifying service-connected disability to the agency. 
This certification is used by the agency to determine an employee's 
eligibility for disabled veteran leave. Since disabled veteran leave is 
only available during an eligible employee's first 12 months after 
employment, it is important that agencies be able to identify as soon 
as possible whether an employee is entitled to the benefit. An agency 
can only do so if it has received the proper documentation/
certification. Employees should, when possible, provide the necessary 
documentation upon employment. For those who have not yet received such 
certifying documentation from the Veterans Benefits Administration, the 
employee should provide it to the agency as soon as practicable after 
he or she receives it.
    Section 630.1304(c) allows for the possibility that an employee may 
submit certifying documentation at a later time, including after a 
period of absence for medical treatment. In that case, disabled leave 
may be provided retroactively, as described in Sec.  630.1306(c). A 
delay in the employee providing certifying documentation to the 
employing agency does not affect the dates of the 12-month eligibility 
period, since that period is fixed by statute based on the first day of 
employment.
    Section 630.1304(d) addresses situations in which a veteran's 
condition(s) improves such that the employee's disability rating is 
reduced or discontinued resulting in the employee no longer having a 
qualifying service-connected disability. In such cases, it is the 
responsibility of the employee to notify the agency of the change in 
rating. Since the requirements of the statutory entitlement will no 
longer be met, the employee will no longer be entitled to disabled 
veteran leave as of the effective date of the change in rating. Any 
unused disabled veteran leave to such an employee's credit as of the 
effective date of the change in rating is forfeited. The rating change 
has only prospective effect. It does not invalidate the use of disabled 
veteran leave prior to the effective date of the rating change. (See 
also Sec.  630.1308(b).)

Sec.  630.1305--Crediting Disabled Veteran Leave

    Section 630.1305 addresses an agency's responsibilities regarding 
the crediting of disabled veteran leave.
    For regular full-time employees, agencies must credit 104 hours of 
disabled veteran leave to the employee's disabled veteran leave 
account, except as otherwise provided in Sec.  630.1305. We are 
proposing special crediting rules for employees with part-time, 
seasonal, or uncommon tours of duty, which are found in paragraphs (a)-
(c) of 630.1305.
    Section 6329(b)(1) states that disabled veteran leave ``may not 
exceed 104 hours.'' Based on the Act's legislative history, which 
stated that the intent of the statute was to provide disabled veterans 
``with immediate access to up to 13 days for sick leave,'' it is clear 
that Congress was focused on regular full-time employees. (See page 
H6268 of the House Congressional Record, September 28, 2015.) The 104 
hours was based on the amount of sick leave hours a regular full-time 
employee would normally accrue in a 12-month period (4 hours x 26 
biweekly pay periods = 104 hours or 13 days). (See page 2 of House 
Committee Report 114-180 and page 2 of Senate Committee Report 114-89.) 
While full-time employees with a standard 40-hour weekly tour generally 
accrue 104 hours of sick leave in a leave year, that is not true for 
employees with part-time, seasonal, or uncommon tours of duty. (See 5 
CFR 630.201 and 630.210 for a description of uncommon tours of duty 
that are more than 80 hours in a biweekly pay period.) These proposed 
regulations therefore provide that disabled veteran leave be 
proportionally adjusted for employees with part-time, seasonal, or 
uncommon tours of duty. For each type of schedule, a disabled veteran 
leave benefit would be derived to achieve a number of hours that is 
proportionally equivalent to 104 hours for a regular full-time 
employee. Under this approach, the value of the disabled veteran leave 
benefit as a percentage of projected total annual hours in the work 
schedule would be consistent across various types of schedules. This

[[Page 36190]]

approach is consistent with OPM's administration of annual and sick 
leave accrual for employees with different types of work schedules and 
ensures equitable treatment of employees.
    Section 630.1305(d) addresses the offset of the 104-hour leave 
benefit (or proportional equivalent) for employees who have a balance 
of sick leave on the first day of employment that starts the 12-month 
eligibility period. Based on House and Senate committee reports, the 
intent of Congress was to provide 104 hours of disabled veteran leave 
to full-time employees who begin their Federal careers with a zero sick 
leave balance. Section 6329(b)(1) states that disabled veteran leave 
``may not exceed 104 hours.'' It does not require the crediting of 104 
hours.
    As explained earlier, we have proposed regulating that certain 
employees who have past Federal civilian service may be eligible for 
disabled veteran leave. Such employees may have sick leave to their 
credit upon reemployment or return to civilian duty following military 
service. This specific circumstance was not anticipated or addressed in 
the House and Senate committee reports. Thus, OPM is using its 
regulatory authority to carry out section 6329 and its purposes by 
providing that any sick leave to the credit of such employees upon the 
first day of employment must be used to offset (reduce) the 104-hour 
disabled veteran leave benefit (or proportional equivalent). For 
example if a regular full-time employee is reemployed, qualifies for 
the disabled veteran leave benefit, and is recredited with 30 hours of 
sick leave, the employee's disabled veteran leave would be credited at 
74 hours (104 hours minus 30 hours of recredited sick leave).
    Section 630.1305(e) addresses the special circumstance in which a 
Federal agency and its employees are not subject to chapter 63 of title 
5, United States Code, based on another statutory authority (e.g., the 
authorities that apply to employees of the Federal Aviation 
Administration and the Transportation Security Administration). Thus, 
these employees are not subject to section 6329 and have no statutory 
entitlement to disabled veteran leave. Such agencies may decide to 
offer their employees a parallel benefit, which would not, however, be 
disabled veteran leave under section 6329. The proposed regulations 
provide that an employee who was previously employed by a noncovered 
agency with a parallel benefit must self-certify whether he or she 
received an equivalent (or better) leave benefit and the date 
eligibility commenced. If 12 months have elapsed since that eligibility 
commencing date, the employee will be considered to have received the 
full amount of an equivalent benefit and no benefit may be provided 
under subpart M. If the employee is still within the 12-month period 
that began on such commencing date, the employee must certify the 
number of hours of disabled veteran leave used at the former agency. 
Those hours would be used to offset the disabled veteran leave benefit 
provided under section 6329.

Sec.  630.1306--Requesting and Using Disabled Veteran Leave

    Section 630.1306(a) provides, as required by 5 U.S.C. 6329, that 
disabled veteran leave may only be used for the medical treatment of an 
employee's qualifying service-connected disability. Disabled veteran 
leave must be distinguished from sick leave, which can be used if an 
employee is incapacitated for the performance of his or her duties by 
physical or mental illness, injury, pregnancy, or childbirth (see 5 CFR 
630.401(a)(2)). Such use of sick leave does not require that the 
employee undergo any specific medical treatment related to the 
incapacity. However, the disabled veteran leave benefit requires the 
benefit to be used for medical treatment as it relates to the 
employee's qualifying service-connected disability. The proposed 
regulations provide that the medical treatment may include a period of 
rest, but only if the period of rest is specifically ordered by the 
health care provider as part of a prescribed course of treatment for 
the qualifying service-connected disability. This means that an 
employee could not, for example, contact his or her manager to request 
a day of disabled veteran leave to rest because the employee believes 
he or she is incapacitated due to the service-connected disability. In 
such a circumstance, sick leave would be the appropriate choice.
    Section 630.1306(b) specifies the requirements for an employee's 
application to use disabled veteran leave. In compliance with the law, 
the application must include the employee's personal self-certification 
that the requested leave will be (or was) used for purposes of being 
furnished medical treatment for a qualifying service-connected 
disability. Section 630.1306(b) also lays out the requirement to 
request the leave in advance, unless the need for the leave is critical 
and not foreseeable.
    Section 630.1306(c) addresses the ability to substitute the 
disabled veteran leave retroactively for other leave or paid time off 
that was used for treatment of a qualifying service-connected 
disability during the 12-month eligibility period. For various reasons, 
an employee may not have provided the required certification of his or 
her qualifying service-connected disability before a period of absence 
for medical treatment of such disability (e.g., because the Veterans 
Benefits Administration's determination was pending). We believe the 
entitlement to disabled veteran leave should be preserved in such 
circumstances. Therefore, the proposed regulations allow an eligible 
employee to substitute disabled veteran leave retroactively for a 
period of absence (excluding a period of suspension or absence without 
leave (AWOL)) during the 12-month eligibility period that was used for 
medical treatment of the qualifying service-connected disability.

Sec.  630.1307--Medical Certification

    Section 630.1307(a) provides that an agency may require an employee 
to provide to the agency a signed written medical certification issued 
by a health care provider to support each use of disabled veteran 
leave. Section 630.1307(b) describes what information a health care 
provider may be required to include in the medical certification. 
Section 630.1307(c) addresses the deadlines for submitting a medical 
certification and what action an agency may take if the medical 
certification is not submitted within the required timeframes.

Sec.  630.1308--Disabled Veteran Leave Forfeiture, Transfer, 
Reinstatement

    Section 630.1308(a) provides that an employee forfeits any disabled 
veteran leave to his or her credit if it is not used during the 12-
month eligibility period.
    Section 630.1308(b) provides that, if, during the 12-month 
eligibility period, a change in an employee's disability rating causes 
the employee to no longer have a qualifying service-connected 
disability, any disabled veteran leave to the employee's credit must be 
forfeited.
    Section 630.1308(c) addresses the transfer of disabled veteran 
leave when an employee transfers between agencies without a break in 
employment during the 12-month eligibility period.
    Section 630.1308(d) addresses the recrediting of disabled veteran 
leave when an employee has an unused balance of disabled veteran leave 
at the time of a break in employment but returns to employment during 
the 12-month eligibility period. It also addresses the responsibilities 
of the losing agency to provide information to the gaining agency.
    Section 630.1308(e) provides that an employee may not receive a 
lump-sum

[[Page 36191]]

payment for any unused disabled veteran leave under any circumstance.

Executive Order 13563 and Executive Order 12866

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 13563 and 12866.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it will apply 
only to Federal agencies and employees.

List of Subjects in 5 CFR Part 630

    Government employees.

U.S. Office of Personnel Management.
Beth F. Cobert,
Acting Director.

    Accordingly, OPM is proposing to amend part 630 of title 5 of the 
Code of Federal Regulations as follows:

PART 630--ABSENCE AND LEAVE

0
1. Revise the authority citation for part 630 to read as follows:

    Authority: 5 U.S.C. 6311; Sec.  630.205 also issued under Pub. 
L. 108-411, 118 Stat 2312; Sec.  630.301 also issued under Pub. L. 
103-356, 108 Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; Sec.  
630.303 also issued under 5 U.S.C. 6133(a); Sec. Sec.  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. 
105-18, 111 Stat. 158; subpart L also issued under 5 U.S.C. 6387 and 
Pub. L. 103-3, 107 Stat. 23; and subpart M also issued under section 
2(d) of Pub. L. 114-75, 129 Stat. 640.


Sec.  630.310  [Removed and Reserved]

0
2. Remove and reserve Sec.  630.310.
0
3. Revise subpart M to read as follows:
Subpart M--Disabled Veteran Leave
Sec.
630.1301 Purpose and authority.
630.1302 Applicability.
630.1303 Definitions.
630.1304 Eligibility.
630.1305 Crediting disabled veteran leave.
630.1306 Requesting and using disabled veteran leave.
630.1307 Medical certification.
630.1308 Disabled veteran leave forfeiture, transfer, reinstatement.

Subpart M--Disabled Veteran Leave


Sec.  630.1301  Purpose and authority.

    This subpart implements 5 U.S.C. 6329, which establishes a leave 
category, to be known as ``disabled veteran leave,'' for an eligible 
employee who is a veteran with a service-connected disability rated at 
30 percent or more. Such an employee is entitled to this leave for 
purposes of undergoing medical treatment for such disability. Disabled 
veteran leave must be used during the 12-month period beginning on the 
first day of employment following the military service during which the 
employee incurred such disability. OPM's authority to regulate section 
6329 is found in section 2(d) of Public Law 114-75.


Sec.  630.1302  Applicability.

    This subpart applies to an employee who is a veteran with a 
service-connected disability rated at 30 percent or more, subject to 
the conditions specified in this subpart. This subpart does not apply 
to employees of the United States Postal Service or the Postal 
Regulatory Commission who are subject to regulations issued by the 
Postmaster General under section 2(d)(2) of Public Law 114-75. This 
subpart applies only to an employee who is hired on or after November 
5, 2016.


Sec.  630.1303  Definitions.

    In this subpart:
    12-month eligibility period means the continuous 12-month period 
that begins on the first day of employment. For an employee who was 
eligible (or later determined to have been eligible) for disabled 
veteran leave as an employee of the United States Postal Service or the 
Postal Regulatory Commission and who subsequently commences employment 
covered by this subpart, the 12-month eligibility period is the period 
that began on the first day of employment with the United States Postal 
Service or the Postal Regulatory Commission (as determined under 
regulations issued by the Postmaster General to implement 5 U.S.C. 
6329).
    Agency means an agency of the Federal Government. In the case of an 
agency in the Executive branch, it means an Executive agency as defined 
in 5 U.S.C. 105. When the term ``agency'' is used in the context of an 
agency making determinations or taking actions, it means management 
officials of the agency who are authorized by the agency head to make 
the given determination or take the given action.
    Employee has the meaning given that term in 5 U.S.C. 2105.
    Employment means service as an employee during which the employee 
is covered by a leave system under which leave is charged for periods 
of absence. This excludes service in a position in which the employee 
is not covered by 5 U.S.C. 6329 due to application of another statutory 
authority.
    First day of employment means the first day of service that 
qualifies as employment that occurs on or after the later of--
    (1) The earliest date an employee is hired after a period of 
military service during which the employee incurred a qualifying 
service-connected disability; or
    (2) The effective date of the employee's qualifying service-
connected disability, as determined by the Veterans Benefits 
Administration.
    Health care provider has the meaning given that term in Sec.  
630.1202.
    Hired means the action of--
    (1) Receiving an initial appointment to a civilian position in the 
Federal Government in which the service qualifies as employment under 
this subpart;
    (2) Receiving a qualifying reappointment to a civilian position in 
the Federal Government in which the service qualifies as employment 
under this subpart; or
    (3) Returning to duty status in a civilian position in the Federal 
Government in which the service qualifies as employment under this 
subpart, when such return immediately followed a break in civilian duty 
(with the employee in continuous civilian leave status) to perform 
military service.
    Medical certificate means a written statement signed by a health 
care provider certifying to the treatment of a veteran's qualifying 
service-connected disability.
    Medical treatment means any activity carried out or prescribed by a 
health care provider to treat a veteran's qualifying service-connected 
disability.
    Military service means ``active military, naval, or air service'' 
as that term is defined in 38 U.S.C. 101(24).
    Qualifying reappointment means an appointment of a former employee 
of the Federal Government following a break in employment of at least 
90 calendar days.
    Qualifying service-connected disability means a veteran's service-
connected disability rated at 30 percent or more by the Veteran 
Benefits Administration, including a combined degree of disability of 
30 percent or more that reflects the combined effect of multiple 
individual disabilities, which resulted in the award of disability 
compensation under title 38, United

[[Page 36192]]

States Code. A temporary disability rating under 38 U.S.C. 1156 is 
considered a valid rating in applying this definition for as long as it 
is in effect.
    Service-connected has the meaning given such term in 38 U.S.C. 
101(16).
    Veterans Benefits Administration means the Veterans Benefits 
Administration of the Department of Veterans Affairs.
    Veteran has the meaning given such term in 38 U.S.C. 101(2).


Sec.  630.1304  Eligibility.

    (a) An employee who is a veteran with a qualifying service-
connected disability is entitled to disabled veteran leave under this 
subpart, which will be available for use during the 12-month 
eligibility period beginning on the first day of employment. For each 
employee, there is a single first day of employment.
    (b) In order to be eligible for disabled veteran leave, an employee 
must provide to the agency documentation from the Veterans Benefits 
Administration certifying that the employee has a qualifying service-
connected disability. The documentation should be provided to the 
agency--
    (1) Upon the first day of employment, if the employee has already 
received such certifying documentation; or
    (2) For an employee who has not yet received such certifying 
documentation from the Veterans Benefit Administration, as soon as 
practicable after the employee receives the certifying documentation.
    (c) Notwithstanding paragraph (b) of this section, an employee may 
submit certifying documentation at a later time, including after a 
period of absence for medical treatment, as described in Sec.  
630.1306(c). The 12-month eligibility period is fixed based on the 
first day of employment and is not affected by the timing of when 
certifying documentation is provided.
    (d) If an employee's service-connected disability rating is 
decreased or discontinued during the 12-month eligibility period such 
that the employee no longer has a qualifying service-connected 
disability--
    (1) The employee must notify the agency of the effective date of 
the change in the disability rating; and
    (2) The employee is no longer eligible for disabled veteran leave 
as of the effective date of the rating change.


Sec.  630.1305  Crediting disabled veteran leave.

    (a) Upon receipt of the certifying documentation under Sec.  
630.1304, an agency must credit 104 hours of disabled veteran leave to 
a full-time, nonseasonal employee or a proportionally equivalent amount 
for employees with part-time, seasonal, or uncommon tours of duty, 
except as otherwise provided in this section.
    (b) The proportional equivalent of 104 hours for a full-time 
employee is determined for employees with other schedules as follows:
    (1) For an employee with a part-time work schedule, the 104 hours 
is prorated based on the number of hours in the part-time schedule (as 
established for leave charging purposes) relative to a full-time 
schedule (e.g., 52 hours for a half-time schedule);
    (2) For an employee with a seasonal work schedule, the 104 hours is 
prorated based on the total projected hours to be worked in an annual 
period of 52 weeks (based on the seasonal employee's seasonal work 
periods and full-time or part-time schedule during those periods) 
relative to a full-time work year of 2,080 hours (e.g., 52 hours for a 
seasonal employee who works full-time for half a year); and
    (3) For an employee with an uncommon tour of duty (as defined in 
Sec.  630.201 and described in Sec.  630.210), 104 hours is 
proportionally increased based on the number of hours in the uncommon 
tour relative to the hours in a regular full-time tour (e.g., 187 hours 
for an employee with a 72-hour weekly uncommon tour of duty.)
    (c) When an employee is converted to a different tour of duty for 
leave purposes, the employee's balance of unused disabled veteran leave 
must be converted to the proper number of hours based on the proportion 
of hours in the new tour of duty compared to the former tour of duty. 
For seasonal employees, hours must be annualized in determining the 
proportion.
    (d) The amount of disabled veteran leave initially credited to an 
employee under paragraphs (a) and (b) of this section must be offset by 
the number of hours of sick leave an employee has credited to his or 
her account as of the first day of employment. For example, if an 
employee is being reappointed and having sick leave recredited upon 
such reappointment, the amount of disabled veteran leave must be 
reduced by the amount of such recredited sick leave. Similarly, if an 
employee is returning to civilian duty status after a period of leave 
for military service, that employee may have a balance of sick leave, 
which must be used to offset the disabled veteran leave.
    (e)(1) An employee who was previously employed by an agency whose 
employees were not subject to 5 U.S.C. 6329 must certify, at the time 
the employee is hired in a position subject to 5 U.S.C. 6329, whether 
or not that former agency provided entitlement to an equivalent 
disabled veteran leave benefit to be used in connection with the 
medical treatment of a service-connected disability rated at 30 percent 
or more. The employee must certify the date he or she commenced the 
period of eligibility to use disabled veteran leave in the former 
agency.
    (2) If 12 months have elapsed since the commencing date referenced 
in paragraph (e)(1) of this section, the employee will be considered to 
have received the full amount of an equivalent benefit and no benefit 
may be provided under this subpart.
    (3) If the employee is still within the 12-month period that began 
on the commencing date referenced in paragraph (e)(1) of this section, 
the employee must certify the number of hours of disabled veteran leave 
used at the former agency. The gaining agency must offset the number of 
hours of disabled veteran leave to be credited to the employee by the 
number of such hours used by the employee at such agency, while making 
no offset under paragraph (d) of this section. If the employee had a 
different type of work schedule at the former agency, the hours used at 
the former agency must be converted before applying the offset, 
consistent with Sec.  630.1305(c).


Sec.  630.1306  Requesting and using disabled veteran leave.

    (a) An employee may use disabled veteran leave only for the medical 
treatment of a qualifying service-connected disability. The medical 
treatment may include a period of rest, but only if such period of rest 
is specifically ordered by the health care provider as part of a 
prescribed course of treatment for the qualifying service-connected 
disability.
    (b)(1) An employee must file an application--written, oral, or 
electronic, as required by the agency--to use disabled veteran leave. 
The application must include a personal self-certification by the 
employee that the requested leave will be (or was) used for purposes of 
being furnished medical treatment for a qualifying service-connected 
disability. The application must also include the specific days and 
hours of absence required for the treatment. The application must be 
submitted within such time limits as the agency may require.
    (2) An employee must request approval to use disabled veteran leave 
in advance unless the need for leave is critical and not foreseeable--
e.g., due to

[[Page 36193]]

a medical emergency or the unexpected availability of an appointment 
for surgery or other critical treatment. The employee must provide 
notice within a reasonable period of time appropriate to the 
circumstances involved. If the agency determines that the need for 
leave is critical and not foreseeable and that the employee is unable 
to provide advance notice of his or her need for leave, the leave may 
not be delayed or denied.
    (c)(1) When an employee did not provide the agency with 
certification of a qualifying service-connected disability before 
having a period of absence for treatment of such disability, the 
employee is entitled to substitute approved disabled veteran leave 
retroactively for such period of absence (excluding periods of 
suspension or absence without leave (AWOL), but including leave without 
pay, sick leave, annual leave, compensatory time off, or other paid 
time off) in the 12-month eligibility period. Such retroactive 
substitution cancels the use of the original leave or paid time off and 
requires appropriate adjustments. In the case of retroactive 
substitution for a period when an employee used advanced annual leave 
or advanced sick leave, the adjustment is a liquidation of the leave 
indebtedness covered by the substitution.
    (2) An agency may require an employee to submit the medical 
certification described in Sec.  630.1307(a) before approving such 
retroactive substitution.


Sec.  630.1307  Medical certification.

    (a) In addition to the employee's self-certification required under 
Sec.  630.1306(b)(1), an agency may additionally require that the use 
of disabled veteran leave be supported by a signed written medical 
certification issued by a health care provider.
    (b) When an agency requires a signed written medical certification 
by a health care provider, the agency may specify that the 
certification include--
    (1) A statement by the health care provider that the medical 
treatment is for one or more service-connected disabilities of the 
employee rated at 30 percent or more;
    (2) The date or dates of treatment or, if the treatment extends 
over several days, the beginning and ending dates of the treatment;
    (3) If the leave was not requested in advance, a statement that the 
treatment required was of an urgent nature or there were other 
circumstances that made advanced scheduling not possible; and
    (4) any additional information that is essential to verify the 
employee's eligibility.
    (c)(1) An employee must provide any required written medical 
certification no later than 15 calendar days after the date the agency 
requests such medical certification, except as otherwise allowed under 
paragraph (c)(2) of this section.
    (2) If the agency determines it is not practicable under the 
particular circumstances for the employee to provide the requested 
medical certification within 15 calendar days after the date requested 
by the agency despite the employee's diligent, good faith efforts, the 
employee must provide the medical certification within a reasonable 
period of time under the circumstances involved, but no later than 30 
calendar days after the date the agency requests such documentation.
    (3) An employee who does not provide the required evidence or 
medical certification within the specified time period is not entitled 
to use disabled veteran leave, and the agency may, as appropriate and 
consistent with applicable laws and regulations--
    (i) Charge the employee as absent without leave (AWOL); or
    (ii) Allow the employee to request that the absence be charged to 
leave without pay, sick leave, annual leave, or other forms of paid 
time off.


Sec.  630.1308  Disabled veteran leave forfeiture, transfer, 
reinstatement.

    (a) Disabled veteran leave not used during the 12-month eligibility 
period may not be carried over to subsequent years and must be 
forfeited.
    (b) If a change in the employee's disability rating during the 12-
month eligibility period causes the employee to no longer have a 
qualifying service-connected disability (as described in Sec.  
630.1304(d)), any unused disabled veteran leave to the employee's 
credit as of the effective date of the rating change must be forfeited.
    (c) When an employee with a positive disabled veteran leave balance 
transfers between positions in different agencies, or transfers from 
the United States Postal Service or Postal Regulatory Commission to a 
position in another agency, during the 12-month eligibility period, the 
agency from which the employee transfers must certify the number of 
unused disabled veteran leave hours available for credit by the gaining 
agency. The losing agency must also certify the expiration date of the 
employee's 12-month eligibility period to the gaining agency. Any 
unused disabled veteran leave will be forfeited at the end of that 
eligibility period. For the purpose of this paragraph, the term 
``transfers'' means movement from a position in one agency (or the 
United States Postal Service or Postal Regulatory Commission) to a 
position in another agency without a break in employment of 1 workday 
or more in circumstances where service in both positions qualifies as 
employment under this subpart.
    (d)(1) An employee covered by this subpart, or an employee of the 
United States Postal Service or Postal Regulatory Commission, with a 
balance of unused disabled veteran leave who has a break in employment 
of at least 1 workday during the employee's 12-month eligibility 
period, and later recommences employment covered by 5 U.S.C. 6329 
within that same eligibility period, is entitled to a recredit of the 
unused balance.
    (2) When an employee has a break in employment as described in 
paragraph (d)(1) of this section, the losing agency must certify the 
number of unused disabled veteran leave hours available for recredit by 
the gaining agency. The losing agency must also certify the expiration 
date of the employee's 12-month eligibility period. Any unused disabled 
veteran leave must be forfeited at the end of that eligibility period.
    (3) In the absence of the certification described in paragraph 
(d)(2) of this section, the recredit of disabled veteran leave may also 
be supported by written documentation available to the employing agency 
in its official personnel records concerning the employee, the official 
records of the employee's former employing agency, copies of 
contemporaneous earnings and leave statement(s) provided by the 
employee, or copies of other contemporaneous written documentation 
acceptable to the agency.
    (e) An employee may not receive a lump-sum payment for any unused 
disabled veteran leave under any circumstance.

[FR Doc. 2016-13285 Filed 6-3-16; 8:45 am]
 BILLING CODE 6325-39-P