Scheduling of Annual Leave by Employees Determined Necessary To Respond to Certain National Emergencies, 48096-48102 [2020-16823]

Agencies

• Office of Personnel Management

[Federal Register Volume 85, Number 154 (Monday, August 10, 2020)]
[Rules and Regulations]
[Pages 48096-48102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16823]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AO04


Scheduling of Annual Leave by Employees Determined Necessary To 
Respond to Certain National Emergencies

AGENCY: Office of Personnel Management.

ACTION: Interim rule.

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SUMMARY: The Office of Personnel Management is issuing interim 
regulations to assist agencies and employees responding to the National 
Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak 
and for future national emergencies. The regulations provide that 
employees who would forfeit annual leave in excess of the maximum 
annual leave allowable carryover because of their work to support the 
nation during a national emergency will have their excess annual leave 
deemed to have been scheduled in advance and subject to leave 
restoration.

DATES: The interim regulations are effective on August 10, 2020. 
Comments must be received on or before October 9, 2020.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by the following method:
    Federal Rulemaking Portal: https://www.regulations.gov. Follow the 
instructions for submitting comments.
    All submissions received must include the agency name and docket 
number or RIN for this document. The general policy for comments and 
other submissions from members of the public is to make these 
submissions available for public viewing at https://www.regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Doris Rippey by telephone at (202) 
606-2858 or by email at [email protected].

SUPPLEMENTARY INFORMATION: On March 13, 2020, President Trump declared 
a ``National Emergency Concerning the Novel Coronavirus Disease (COVID-
19) Outbreak'' (85 FR 15337 at https://www.federalregister.gov/documents/2020/03/18/2020-05794/declaring-a-national-emergency-concerning-the-novel-coronavirus-disease-covid-19-outbreak). Because of 
the unprecedented outbreak and spread of this virus and the efforts 
toward response and recovery, many Federal agencies and employees have 
been, and for the foreseeable future will continue to be, engaged in 
work vital to our nation and to the pandemic response. Under current 
rules, some of these employees will be unable to use sufficient annual 
leave to avoid exceeding the limit on annual leave that may be carried 
over into the next year. The Office of Personnel Management (OPM) is 
issuing interim regulations to assist such agencies and employees and 
to address any similar situations during future emergencies.
    OPM issued CPM 2020-09 on June 18, 2020, to remind agencies and 
employees of the normally applicable rules for annual leave and various 
paid time off categories. We reminded agencies to work with their 
employees to ensure that they continue to take any annual leave or 
other paid time off before it expires. For further guidance on the 
normal applicable rules, agencies and employees may review the guidance 
at https://www.chcoc.gov/content/annual-leave-and-other-paid-time-guidance.
    For most employees, the maximum annual leave that may be carried 
into the next leave year is 30 days (240 hours). Currently, an agency 
may restore annual leave that was forfeited due to an exigency of the 
public business or sickness of the employee only if the annual leave 
was scheduled in writing before the start of the third biweekly pay 
period prior to the end of the leave year (typically late November or 
early December). Any annual leave scheduled after that date will be 
forfeited if not used by the final day of the leave year.
    The regulations provide that, once the agency head or designee has 
made appropriate determinations, employees who would forfeit annual 
leave in excess of the maximum annual leave allowable carryover because 
of their work to support the nation during a national emergency will 
have their excess annual leave deemed to have been scheduled in advance 
and subject to leave restoration.
    The procedures established by these interim regulations are similar 
to those established in previously rescinded 5 CFR 630.310 for 
employees whose services were deemed essential to the Year 2000 (Y2K) 
computer conversion and in current 5 CFR 630.311, for employees whose 
services were deemed essential to the emergency response in the 
aftermath of the September 11, 2001, terrorist attacks, which are being 
rescinded by this interim rule. These interim regulations differ from 
the previous regulations in that they allow this authority to be used 
not only for the current national emergency related to the COVID-19 
outbreak, but also for certain future national emergencies for which 
OPM issues notification permitting use of this authority. These 
regulations allow agencies to respond quickly to the annual leave 
restoration needs of their employees who are responding to a national 
emergency.

Rescinding Regulations

    OPM is rescinding 5 CFR 630.311, Scheduling of annual leave by 
employees determined necessary to respond to the ``National Emergency 
by Reason of Certain Terrorist Attacks.'' The regulations at 5 CFR 
630.311 provided that the national emergency following the September 
11, 2001 terrorist attacks was deemed to be 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 because the agency 
determined the employee's services were required in response to that 
national emergency. The practical purpose of the regulations was to 
address the statutory and regulatory requirements for advanced 
scheduling of annual leave for leave restoration purposes.
    The statute requires that, in order for annual leave to be eligible 
for restoration because of an exigency of the public business, it must 
have been scheduled in advance. (See 5 U.S.C. 6304(d)(1)(B).) The 
implementing regulations at 5 CFR 630.308(a) require annual leave to be 
scheduled in writing before the start of the third biweekly pay period 
prior to the end of the leave year in order to meet the statutory 
requirement for being ``scheduled in advance'' unless 5 CFR 630.308(b) 
applies.

[[Page 48097]]

    These requirements were difficult to meet in the aftermath of the 
September 11, 2001, terrorist attacks on the World Trade Center and the 
Pentagon. The terrorist attacks occurred on September 11, 2001, which 
was very late in the 2001 leave year and only a couple of months before 
December 1, 2001, the date by which employees were required to schedule 
their annual leave subject to forfeiture in order for it to be 
considered for restoration. Many employees were involved in the 
response to that national emergency, and it was clear that their 
involvement would preclude their use of annual leave before January 12, 
2002, which was the end of the 2001 leave year. Because it was known in 
advance that it was not going to be possible for such employees to be 
absent on leave, OPM published those interim regulations, which 
directly addressed this scheduling requirement and deemed that any 
annual leave forfeited as a result of an employee's work on the 
national emergency would be deemed to have been scheduled in advance 
for the purpose of satisfying the scheduling requirements at 5 U.S.C. 
6304(d)(1)(B) and 5 CFR 630.308.
    Although the national emergency by reason of the terrorist attacks 
is still in effect (see 84 FR 48545, Sept. 13, 2019), employees 
performing work towards that national emergency are now better able to 
schedule and take annual leave. Because the regulation was issued to 
address the difficulty of employees needing to be in a constant work 
status and their agencies not being able to approve any of their 
requests to schedule and take annual leave, and these employees have 
since been able to schedule and take annual leave, Sec.  630.311 is no 
longer needed. Therefore, going forward, the normal requirements for 
restoration of annual leave for an exigency of the public business will 
apply to any employee still performing work on activities related to 
the ``National Emergency by Reason of Certain Terrorist Attacks.'' In 
order for an agency to consider restoring annual leave to an employee 
performing such work, the employee must have followed the leave 
scheduling requirements of 5 U.S.C. 6304(d)(1)(B) and 5 CFR 630.308 
(i.e., the annual leave must have been scheduled in writing before the 
start of the third biweekly pay period prior to the end of the leave 
year) and the agency must have determined that there was an urgent need 
for the employee to perform work related to the national emergency such 
that the employee's annual leave was cancelled.

Scheduling of Annual Leave by Employees Determined Necessary To Respond 
to Certain National Emergencies

    Section 6304 of title 5, United States Code, establishes 
limitations on the amount of annual leave an employee may carry over 
from one leave year to the next. Most employees may carry over no more 
than 240 hours of annual leave to the next leave year. However, 5 
U.S.C. 6304(d)(1) provides that excess annual leave lost because of 
``exigencies of the public business when the annual leave was scheduled 
in advance . . . shall be restored to the employee.'' For the purpose 
of Federal leave administration, an exigency of the public business 
occurs when the employing agency determines there is a pressing need 
for an employee's service, and the employee cannot use his or her 
excess annual leave because there are no other practical alternatives 
available to accomplish the work by a given deadline.
    At certain times when the President declares a national emergency, 
the services of many employees in Federal agencies will be essential to 
respond to that national emergency. As a result, many of these 
employees will be faced with the possible forfeiture of ``use or lose'' 
annual leave because they must remain on the job to work towards the 
fulfillment of the agencies' missions during the critical response 
period. In the normal course, and in the absence of this new 
regulation, in order for annual leave to be considered for restoration, 
it must have been scheduled before the start of the third biweekly pay 
period prior to the end of the leave year. This requirement means that 
agencies and their employees would be faced with the administrative 
burden of scheduling, canceling, and restoring such leave for each of 
these employees at a time when all available attention and energy 
should be focused on the national emergency.
    As referenced above, OPM has previously issued regulations such as 
5 CFR 630.311, Scheduling of annual leave by employees determined 
necessary to respond to the ``National Emergency by Reason of Certain 
Terrorist Attacks,'' and the previously rescinded 5 CFR 630.310, 
Scheduling of annual leave by employees determined necessary for Year 
2000 computer conversion efforts. Both of these prior regulations 
deemed the national emergency and the Y2K circumstances exigencies of 
the public business for purposes of restoration of annual leave. The 
regulations also deemed annual leave that was forfeited for these 
reasons to have been scheduled in advance. Those regulations were 
issued in response to specific emergencies. However, going forward, OPM 
has determined that it would be prudent to issue a generally applicable 
regulation to provide OPM with the flexibility to respond quickly to a 
future national emergency, rather than promulgate new rules for each 
emergency, resulting in potential delays in implementation.
    To accomplish this goal, OPM is replacing the reserved 5 CFR 
630.310 with a new 5 CFR 630.310 entitled ``Scheduling of annual leave 
by employees determined necessary to respond to certain national 
emergencies.'' Below we provide an explanation of the provisions in 
interim 5 CFR 630.310. Hereafter in this SUPPLEMENTARY INFORMATION, 
references to statutory provisions in title 5, United States Code, and 
to regulatory provisions in title 5, Code of Federal Regulations, will 
generally be referred to by section number without restating the full 
title 5 reference.

OPM's Authority To Initiate Restored Annual Leave Streamlined Process

    In order to initiate a streamlined process to restore forfeited 
annual leave, the Director of OPM has the authority to respond to a 
specific national emergency as declared by the President. OPM's central 
response will allow agencies to restore annual leave expeditiously. 
Under this regulation, OPM will notify agencies that they may utilize 
this authority to restore annual leave to employees whose work is 
considered essential for the particular national emergency.
    Under the National Emergencies Act (50 U.S.C. 1601 et seq.), the 
President may pronounce a national emergency when he or she considers 
it appropriate. Once the President has declared a national emergency, 
the President's declaration is published in the Federal Register.
    Paragraph (a)(1) of the new Sec.  630.310 provides that the 
Director of OPM may deem a specific national emergency as declared by 
the President under the National Emergencies Act to be an exigency of 
the public business for the purpose of restoring annual leave forfeited 
under 5 U.S.C. 6304(d)(1)(B) and will notify agencies of this decision. 
Since the passage of the National Emergencies Act, the President has 
declared various national emergencies. However, few have required a 
sustained response from large portions of the civilian workforce, which 
would preclude many employees from being able to use their annual leave 
to avoid forfeiture. For example, some national

[[Page 48098]]

emergencies may entail a response of the Armed Services rather than the 
civilian workforce. Therefore, only certain national emergencies will 
rise to the level of being a national emergency that will also qualify 
as an exigency of the public business under this regulation.
    As noted above, for those emergencies that qualify under such 
circumstances, this generally applicable regulation will provide 
agencies with flexibility to permit restoration of annual leave 
expeditiously. The OPM Director expects to make a determination 
pursuant to these regulations when a certain national emergency as 
declared by the President will require the service of Federal employees 
on a large scale, such that employees will be unable to use annual 
leave to prevent forfeiture of the leave. Only when the Director of OPM 
makes such a determination and provides notice to agencies of such 
determination may agencies use the authority.

Determinations and Communication by Agency Head or Designee

    Paragraph (a)(2) of the new Sec.  630.310 requires each agency head 
to take proactive steps to establish procedures and policies necessary 
to administer this annual leave restoration authority and to update 
them as necessary so that they are available for immediate use during a 
declared national emergency. The interim regulations require all agency 
heads to create these policies and procedures as part of their 
emergency planning, meaning that agencies must establish such policies 
and procedures to be available for use during any national emergency 
for which OPM issues a notice under paragraph (a)(1). In this way, all 
agencies will be prepared to immediately use this authority for any and 
all future national emergencies for which it may be necessary.
    As provided in paragraph (b), once the Director of OPM informs 
agencies that it has deemed a certain national emergency an exigency of 
the public business for purposes of the restoration of annual leave, 
each agency head (or designee), in his or her sole and exclusive 
discretion, must perform the following actions. The agency head (or 
designee) will be required to identify any employees covered under this 
annual leave restoration authority because they are affected by the 
exigency of the public business described in the OPM notification, due 
to their services being considered essential to the response to the 
national emergency, and they therefore cannot use their annual leave. 
This agency designation is necessary because the employees whose work 
is considered essential in responding to a national emergency will vary 
depending on the nature of the emergency. For example, for the 
``National Emergency by Reason of Certain Terrorist Attacks,'' the 
services of certain intelligence analysts may have been considered 
essential to the emergency response, whereas for the ``National 
Emergency Concerning the Novel Coronavirus Disease (COVID-19) 
Outbreak,'' the services of employees such as physicians, nurses, 
certain clinical laboratory scientists, and public health specialists 
may be more likely to be designated as essential to the emergency 
response. The agency head (or designee) may make such a determination 
for groups of employees or for individual employees. Once the agency 
head (or designee) has made such a determination, the agency head (or 
designee) must inform the designated employees or group of employees in 
writing of this determination and its application to them. It is 
critical that such employees know that their services have been 
designated as essential during the emergency because the employees need 
to know that the normal requirement to schedule annual leave in writing 
before the start of the third biweekly pay period prior to the end of 
the leave year, as required by Sec.  630.308, is not applicable during 
the designated time period. Employees also need to understand how the 
other provisions in Sec.  630.310 apply to them.
    The regulations provide that the agency's determination may not be 
made by any official whose leave would be affected by the decision.

Annual Leave Deemed Scheduled in Advance

    Paragraph (c) of the new Sec.  630.310 simplifies the procedures 
for restoring annual leave forfeited as a result of the national 
emergency. In many instances, as it is known in advance that it is not 
possible for designated employees involved in the national emergency to 
be absent on annual leave, the scheduling and canceling of such leave 
places an unnecessary administrative burden on the employees and the 
agencies involved. Paragraph (c) simplifies the administrative process 
by deeming annual leave forfeited in a leave year as a result of a 
national emergency for which OPM issues a notification under paragraph 
(a) to have been scheduled in advance for the purpose of satisfying the 
requirements in 5 U.S.C. 6304(d)(1)(B) and Sec.  630.308. Therefore, 
annual leave forfeited at the end of a leave year because of the 
national emergency and the need for employees' services during the 
national emergency will be restored under 5 U.S.C. 6304(d)(1)(B) and 
placed in a separate restored leave account.

Time Limit for Use of Restored Leave

    Paragraph (d) of the new Sec.  630.310 parallels the current Sec.  
630.306 and provides the rules governing the timeframes in which an 
employee must schedule and use annual leave forfeited under these 
regulations. Employees who already have large restored annual leave 
accounts and employees remaining in positions performing work that is 
essential to respond to the national emergency for an extended period 
of time may accrue large amounts of annual leave in their accounts. 
Under the current regulations, the affected employees would have to 
schedule and use all of the restored annual leave by the end of the 
leave year ending 2 years after the termination date of the exigency of 
the public business. As a result, employing agencies would have to deal 
with the consequence of employees using sizeable amounts of leave 
within 2 to 3 years after the end of the national emergency. At the 
same time, annual leave that accrues during that 2- to 3-year period 
would routinely create a ``use or lose'' situation.
    To help alleviate this situation, Sec.  630.310(d) provides that 
annual leave restored as a result of the exigency of public business 
caused by the national emergency will have the same time limits for 
restoration as are currently used for Department of Defense (DoD) 
employees in installations undergoing closure or realignment. (See 
Sec.  630.306(b).) A full-time employee will be required to schedule 
and use excess annual leave of 416 hours or less by the end of the 
leave year in progress 2 years after the date fixed by the agency head 
(or designee) as the termination date of the exigency of the public 
business. The agency will extend that period by 1 leave year for each 
additional 208 hours of excess annual leave or any portion thereof. A 
part-time employee will be required to schedule and use excess annual 
leave in an amount equal to or less than 20 percent of the number of 
hours in the employee's scheduled annual tour of duty by the end of the 
leave year in progress 2 years after the date the employee is no longer 
subject to the exigency. The agency will extend this period by 1 leave 
year for each additional number of hours of excess annual leave, or any 
portion thereof, equal to 10 percent of the number of hours in the 
employee's scheduled annual tour of duty.

[[Page 48099]]

    We are also making a concurrent change to the regulations related 
to uncommon tours of duty at Sec.  630.210 by adding a new paragraph 
(d) to clarify that in applying sections of the back pay regulations at 
Sec.  550.805(g), the regulations at Sec.  630.306(b) for DoD 
installations undergoing closure, and these interim regulations to 
employees on such tours of duty, the referenced number of hours for 
full-time employees (416 hours and 208 hours) are to be proportionally 
adjusted based on the percentage amount by which the number of hours in 
the uncommon tour of duty exceeds the number of hours in a regular 
full-time tour of duty. For example, if the uncommon tour of duty 
consists of 120 hours in a biweekly pay period instead of the 80 hours 
for a regular full-time employee, the percentage adjustment would be 50 
percent [(120/80) - 1]; accordingly, 416 hours would be converted to 
624 hours and 208 hours would be converted to 312 hours. Section 
630.310(d)(1) references this new regulation regarding employees on 
uncommon tours of duty at Sec.  630.210(d).

Treatment of Current Restored Leave Accounts

    Paragraph (e) of the new Sec.  630.310 recognizes that some 
employees who will be involved in responding to the exigency of the 
public business determined by the Director of OPM will already have an 
``active'' restored leave account--i.e., an account of restored annual 
leave that was established under other conditions permitting 
restoration of annual leave under 5 U.S.C. 6304(d). We are including 
paragraph (e) to prevent such employees from forfeiting leave in their 
restored leave accounts. Because there is no authority to restore 
previously restored annual leave, employees with restored annual leave 
who cannot take annual leave because their services are considered 
essential to the national emergency response would forfeit any 
previously restored annual leave subject to forfeiture at the end of 
the leave year. The interim regulation at Sec.  630.310(e) alleviates 
this problem by canceling the time limitation for using active restored 
annual leave for the entire period during which employees' services are 
determined to be essential to respond to the national emergency. When 
coverage for an employee under this section ends due to the termination 
date of the exigency of the public business fixed by the agency, as 
described in paragraph (f)(2), a new time limit will be established 
under Sec.  630.310(d) for using all restored leave available to the 
employee under 5 U.S.C. 6304(d).

Termination of the Exigency as It Affects Employees

    Paragraph (f) of the new Sec.  630.310 provides parameters for 
monitoring the agency response to the declared national emergency and 
conditions under which the provisions of Sec.  630.310 will no longer 
be applicable to specific employees or groups of employees and the 
normal annual leave forfeiture rules will again apply to them. 
Employees whose services are required in response to the national 
emergency will all, at some point, generally be able to again schedule 
and take annual leave following the normal procedures in Sec.  
630.308(a). Therefore, it is incumbent on the agency to determine, for 
any exigency of the public business, when any employee is no longer 
affected by the exigency to the extent that the employee cannot 
schedule and take annual leave. The regulations therefore lay out when 
the national emergency as an exigency of the public business must be 
terminated.
    Section 630.310(f)(1) requires the agency head (or designee) to 
continually monitor the agency response to the national emergency and 
determine whether the services of individual employees or groups of 
employees continue to be required in response to the emergency such 
that annual leave may not be scheduled according to the normal 
procedures described in Sec.  630.308(a). This is a necessary role that 
the agency head (or designee) must perform in order to use this 
authority for its intended purpose.
    Section 630.310(f)(2) makes the agency head (or designee) 
responsible for fixing a specific date as the termination date of the 
exigency of the public business for each affected employee or group of 
employees based on application of provisions in paragraphs (i) through 
(v). The exigency of the public business as it affects an individual 
employee or group of employees must be terminated at the earliest 
occurrence of one of a series of possible events. The exigency may end 
when the President declares an end to the national emergency. It may 
also end when the Director of OPM deems the national emergency to no 
longer be an exigency of the public business for the purposes of this 
regulation. As time passes, it can be that the services of fewer and 
fewer employees are required in response to the national emergency. 
Therefore the exigency of the public business may also end when the 
agency head (or designee), in his or her sole and exclusive discretion, 
determines that the employee's or group of employees' services are no 
longer essential to the response to the national emergency or that such 
employees can once again adhere to the normal leave requesting 
procedures at Sec.  630.308(a). For example, a hospital struggling to 
treat patients affected by COVID-19 may require the services of all 
hospital employees in response to the need. As operations go back to 
normal, the agency head (or designee) could determine the specific date 
that operations are back to normal, and a group of cardiologists are 
able to request leave under normal conditions as of a date specified by 
the agency head (or designee) and declare the exigency to no longer 
apply to those employees. However, the agency head (or designee) may 
determine that the services of pulmonary specialists may still be 
required and thus the exigency still applies to these employees. 
Because the continual and ongoing need for employees' services such 
that they cannot schedule annual leave according to the normal 
procedures will eventually end, the regulations provide that the 
exigency terminates on the day that is 12 months after the national 
emergency has been declared, except that the agency head (or designee), 
in his or her sole and exclusive discretion, may extend this deadline 
annually by an additional 12 months. Under no circumstances may an 
agency grant more than two 12-month extensions under this paragraph in 
connection with any national emergency, thus this authority may not be 
applied for more than a total of 3 years from the initial date of the 
declared emergency. The reason for this termination at the 3-year 
anniversary is that there is already another authority for an extended 
exigency of the public business at Sec.  630.309 that provides 
authority for an exigency that lasts more than 3 calendar years and 
meets other requirements. Finally, the regulations provide that the 
exigency terminates when an employee whose services were determined to 
be essential for response to the national emergency moves to a position 
in which the employee is not performing services considered essential 
to responding to the national emergency.
    Section 630.310(f)(3) requires the agency head (or designee) to 
inform both the affected employees and the agency payroll provider in 
writing of this termination date. Payroll providers need to know the 
date of the end of the exigency in order to set the date when the 
restored annual leave will expire. The affected employees also need to 
know this date so they can plan to use the restored annual leave before 
it expires.

[[Page 48100]]

Employees No Longer Involved With the National Emergency

    Paragraph (g) of the regulations allows an agency to consider 
restoration of annual leave forfeited at the end of the leave year to 
an employee whose involvement in the national emergency ends during the 
leave year if the agency determines that there is a correlation between 
the lack of advance scheduling and the employee's services in response 
to the national emergency.
    As noted earlier, Sec.  630.308 currently requires that before 
forfeited annual leave may be considered for restoration, the leave 
must have been scheduled in writing before the start of the third 
biweekly pay period prior to the end of the leave year. We are 
concerned about the possible consequences of requiring advance 
scheduling for an employee or group of employees when the national 
emergency to which affected employees have been responding terminates 
(as described in paragraph (f)) during the latter portion of a leave 
year. It is possible that such employees would have annual leave in 
excess of the maximum limitation but would still be unable to schedule 
it in time for it to be restored.
    OPM believes such annual leave may be considered for restoration. 
Section 630.310(g) requires affected employees to make a reasonable 
effort to comply with the advance scheduling requirement in Sec.  
630.308(a). However, the head of an agency (or designee), in his or her 
sole and exclusive discretion, may exempt an employee from the advance 
scheduling requirement if the employee can show that he or she was 
involved in work necessary to respond to the national emergency during 
the leave year and was unable to comply with the scheduling requirement 
under Sec.  630.308(a) because of circumstances beyond his or her 
control. Because the agency may determine that there was sufficient 
time for the employee to schedule and use annual leave before the end 
of the leave year, this provision does not guarantee that excess annual 
leave will be restored.

Miscellaneous Technical Amendments

    OPM is amending Sec.  630.306(a) to add a reference to this 
regulation. OPM is also amending Sec.  630.308(a) to remove the 
reference to the rescinded Sec.  630.311.

Waiver of Notice of Proposed Rule Making

    OPM is issuing this rulemaking as an interim final rule and has 
determined that, under the Administrative Procedure Act (APA), 5 U.S.C. 
553(b)(B), it would be impracticable and contrary to the public 
interest to delay a final regulation until a public notice and comment 
process has been completed. OPM also is waiving general notice of 
proposed rulemaking under the Civil Service Reform Act's parallel 
rulemaking provision, 5 U.S.C. 1103(b)(3), because the interim rule is 
temporary in nature and necessary to be implemented expeditiously as a 
result of an existing emergency, as well possible unanticipated future 
emergencies.
    The conclusion of a public notice and comment period before the 
rule is finalized would be impracticable because it would impede due 
and timely execution of the functions of OPM, employing agencies, and 
payroll providers.
    In order for the streamlined restoration process to occur, the 
regulations require agencies to establish internal policies and 
procedures before using this new authority. For larger agencies, 
policies must be established at the headquarters level and then 
communicated to component levels. Significant changes to personnel 
processing also may be required. After implementing policies are 
established, the agency head (or designee) needs to identify all 
affected employees and communicate to those employees that they are 
subject to this new authority and the scheduling requirement does not 
apply to them. All this must be done prior to the November 21, 2020, 
scheduling requirement.
    There was insufficient time from the President's declaration of a 
national emergency in response to the COVID-19 public health crisis on 
March 13, 2020, for OPM to complete a notice and comment rulemaking 
process in time for agencies, payroll providers, and employees to 
prepare for the rule in advance of the November 21, 2020, scheduling 
requirement. In addition, OPM's pay and leave policy resources have 
been engaged during the same period in implementing the pay and leave 
requirements of the Families First Coronavirus Response Act (Pub. L. 
116-127) and the Coronavirus Aid, Relief, and Economic Security Act 
(Pub. L. 116-136).
    The conclusion of a public notice and comment period before the 
rule is finalized would also be contrary to the public interest because 
it would result in serious damage to important interests. Implementing 
the regulation will be resource-intensive for agencies. Requiring 
agencies to wait until the conclusion of public notice and comment 
procedures to implement the regulation under a shorter deadline would 
be disruptive to agencies' missions during a national emergency, which 
will have a corresponding effect on the public.
    Many employees are unable to take annual leave because they are 
required to support their agency's mission-related response to COVID-
19. Because employees may not take annual leave, they are also not 
contemplating scheduling such leave because the agency needs employees 
to continue to support vital work-related functions related to the 
national emergency. In order to alleviate this burden on agencies and 
employees, this interim regulation provides that, upon the agency's 
determination, an employee would not need to meet the normal scheduling 
requirements under 5 CFR 630.308 in order to qualify for the 
restoration of any forfeited annual leave.
    For the 2020 leave year, the date by which use or lose annual leave 
must be scheduled is November 21, 2020. Any employee to which these 
regulations would apply will need to know well in advance of this 
scheduling date that they are not required to schedule their annual 
leave before that date and may instead focus on their mission and 
required work directly related to COVID-19.
    In addition, OPM has determined that extending the regulation to 
address potential future emergencies, and not only COVID-19, meets the 
above criteria for a waiver. The processes that the regulation outlines 
for potential future emergencies are the same as those that OPM 
followed in the two prior cited emergencies and that OPM intends to 
follow during COVID-19. The regulations engage agencies in contingency 
planning for future such instances and describe the process that OPM 
intends to follow in such instances. Only at the time of any future 
national emergency do the regulations require a determination by the 
OPM Director that a particular emergency is an exigency of the public 
business. The comment period noted above will enable OPM to consider 
any necessary changes for future emergencies in the final rule.
    Accordingly, in order to give practical effect to these 
regulations, I find that good cause exists to waive the general notice 
of proposed rulemaking pursuant to 5 U.S.C. 553(b)(B). The interim 
final rule is temporary in nature, and expeditious timing is required 
because of the circumstances facing agencies during the COVID-19 
emergency. OPM will promulgate a final rule as soon as practical after 
receiving public comments on the interim final rule.

[[Page 48101]]

Waiver of Delay in Effective Date

    OPM is waiving the 30-day delayed effective date, and making this 
rule effective on the date of publication, because under 5 U.S.C. 
553(d)(1), this is ``a substantive rule which grants or recognizes an 
exemption or relieves a restriction'' to permit the streamlined 
restoration of forfeited annual leave. In addition, I find, under 5 
U.S.C. 553(d)(3), that good cause exists for making this rule effective 
in fewer than 30 days--i.e., effective on the date of publication--
because as described above, an immediate effective date is necessary to 
minimize harm and disruption to employees, agencies, and payroll 
providers, and because a delayed effective date is not necessary to 
give affected parties a reasonable time to adjust their behavior before 
the final rule takes effect. An immediate effective date will give 
affected employees the benefit of these new provisions as quickly as 
possible.

Executive Order 13563 and Executive Order 12866

    This rule has been designated a ``significant regulatory action'' 
and has been reviewed by the Office of Management and Budget in 
accordance with E.O. 13563 and 12866.

Executive Order 13771

    This rule is not subject to the requirements of E.O. 13771 because 
this rule results in no more than de minimis costs.

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.

Paperwork Reduction Act Requirements

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act.

List of Subjects in 5 CFR Part 630

    Government employees.

Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.

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

PART 630--ABSENCE AND LEAVE

0
1. The authority citation for part 630 continues to read as follows:

    Authority:  5 U.S.C. chapter 63 as follows: Subparts A through E 
issued under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129), 6303(e) and 
(f), 6304(d)(2), 6306(b), 6308(a) and 6311; subpart F issued under 5 
U.S.C. 6305(a) and 6311 and E.O. 11228, 30 FR 7739, 3 CFR, 1974 
Comp., p. 163; subpart G issued under 5 U.S.C. 6305(c) and 6311; 
subpart H issued under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129) 
and 6326(b); subpart I issued under 5 U.S.C. 6332, 6334(c), 
6336(a)(1) and (d), and 6340; subpart J issued under 5 U.S.C. 6340, 
6363, 6365(d), 6367(e), 6373(a); subpart K issued under 5 U.S.C. 
6391(g); subpart L issued under 5 U.S.C. 6383(f); subpart M issued 
under sec. 2(d), Pub. L. 114-75, 129 Stat. 641 (5 U.S.C. 6329 note); 
and subpart P issued under 5 U.S.C. 6329c(d); and subpart Q issued 
under 5 U.S.C. 6387.

Subpart B--Definitions and General Provisions for Annual and Sick 
Leave


Sec.  630.210   [Amended]

0
2. Amend Sec.  630.210 by adding paragraph (d) to read as follows:


Sec.  630.210   Uncommon tours of duty.

* * * * *
    (d) In applying Sec.  550.805(g) of this chapter, and Sec. Sec.  
630.306(b), and 630.310(d), the referenced number of hours for full-
time employees (416 hours and 208 hours) shall be proportionally 
adjusted based on the percentage amount by which the number of hours in 
the uncommon tour of duty exceeds the number of hours in a regular 
full-time tour of duty. For example, if the uncommon tour of duty 
consists of 120 hours in a biweekly pay period instead of the 80 hours 
for a regular full-time employee, the percentage adjustment would be 50 
percent [(120/80) - 1]; accordingly, 416 hours would be converted to 
624 hours and 208 hours would be converted to 312 hours.

Subpart C--Annual Leave

0
3. Amend Sec.  630.306 by revising paragraph (a) to read as follows:


Sec.  630.306   Time limit for use of restored annual leave.

    (a) Except as otherwise authorized under paragraphs (b) and (c) of 
this section, Sec.  630.310(d), or other regulation, annual leave 
restored under 5 U.S.C. 6304(d) must be scheduled and used not later 
than the end of the leave year ending 2 years after:
    (1) The date of restoration of the annual leave forfeited because 
of administrative error; or
    (2) The date fixed by the agency head, or his or her designee, as 
the termination date of the exigency of the public business that 
resulted in forfeiture of the annual leave; or
    (3) The date the employee is determined to be recovered and able to 
return to duty if the leave was forfeited because of sickness.
* * * * *

0
4. Amend Sec.  630.308 by revising paragraph (a) to read as follows:


Sec.  630.308   Scheduling of annual leave.

    (a) Except as provided in paragraph (b) of this section and Sec.  
630.310, before annual leave forfeited under 5 U.S.C. 6304 may be 
considered for restoration under that section, use of the annual leave 
must have been scheduled in writing before the start of the third 
biweekly pay period prior to the end of the leave year.
* * * * *

0
5. Add Sec.  630.310 to read as follows:


Sec.  630.310   Scheduling of annual leave by employees whose work is 
essential to respond to certain national emergencies.

    (a)(1) The Director of OPM may deem a specific national emergency 
declared by the President under the National Emergencies Act (50 U.S.C. 
1601, et seq.) to be an exigency of the public business for the purpose 
of restoring forfeited annual leave under 5 U.S.C. 6304(d)(1)(B) and 
will notify agencies in writing when this decision is made.
    (2) The head of each agency is responsible for the proper 
administration of this authority. All heads of agencies are required to 
establish and periodically update (as necessary) procedures to 
administer this authority so that these policies are in place and 
immediately available for use any time the Director of OPM notifies 
agencies of a determination under paragraph (a)(1) of this section.
    (b)(1) Once the Director of OPM has issued a notification to 
agencies under paragraph (a)(1), the head of each agency (or designee) 
must, in his or her sole and exclusive discretion, do the following:
    (i) Make determinations identifying the specific employees or 
groups of employees who are performing services that are essential in 
responding to the national emergency designated as an exigency of the 
public business and who are thus qualified for coverage under this 
section; and
    (ii) Inform covered employees in writing of any such determination 
and its application to them.
    (2) A determination under paragraph (b)(1)(i) of this section may 
not be made by any official whose leave would be affected by the 
determination.
    (c) For any employee determined under paragraph (b) of this section 
to be covered under this section who forfeits

[[Page 48102]]

annual leave under 5 U.S.C. 6304(d)(1)(B) at the beginning of a leave 
year, the forfeited annual leave is deemed to have been scheduled in 
advance for the purpose of 5 U.S.C. 6304(d)(1)(B) and Sec.  630.308.
    (d) With respect to annual leave forfeited under paragraph (c) of 
this section, the annual leave must be restored under 5 U.S.C. 
6304(d)(1)(B) subject to the following time limits:
    (1) A full-time employee must schedule and use excess annual leave 
of 416 hours or less by the end of the leave year in progress 2 years 
after the date fixed by the agency head (or designee) under paragraph 
(f)(2) of this section as the termination date of the exigency of the 
public business. The agency must extend this period by 1 leave year for 
each additional 208 hours of excess annual leave or any portion 
thereof.

    Note 1 to paragraph (d)(1):  For an employee on an uncommon tour 
of duty, the conversion rules in Sec.  630.210(d) regarding the 
referenced number of hours for full-time employees (416 hours and 
208 hours) must be applied.

    (2) A part-time employee must schedule and use excess annual leave 
in an amount equal to or less than 20 percent of the number of hours in 
the employee's scheduled annual tour of duty by the end of the leave 
year in progress 2 years after the date fixed by the agency head (or 
designee) under paragraph (f)(2) of this section as the termination 
date of the exigency of the public business. The agency must extend 
this period by 1 leave year for each additional number of hours of 
excess annual leave, or any portion thereof, equal to 10 percent of the 
number of hours in the employee's scheduled annual tour of duty.
    (e) The time limits established under paragraphs (d)(1) and (d)(2) 
of this section for using restored annual leave accounts shall not 
apply for the entire period during which an employee's services are 
determined by the agency to be essential for the response to the 
national emergency. When coverage under paragraphs (b) and (c) of this 
section ends due to the termination date of the exigency of the public 
business fixed by the agency under paragraph (f)(2), a new time limit 
will be established under paragraph (d) of this section for all annual 
leave restored to an employee under 5 U.S.C. 6304(d).
    (f)(1) The agency head (or designee) must continually monitor the 
agency response to the national emergency and determine whether the 
services of individual employees or groups of employees continue to be 
essential for the response to the emergency such that annual leave may 
not be scheduled according to the normal procedures described in Sec.  
630.308(a).
    (2) The agency head (or designee) must fix a date as the 
termination date of the exigency of the public business for each 
employee or group of employees as provided in this paragraph. The 
exigency of the public business as it affects an individual employee or 
group of employees must be terminated on the date one of the following 
events occurs, whichever is earliest:
    (i) When the President declares an end to the national emergency;
    (ii) When the Director of OPM deems the national emergency to no 
longer be an exigency of the public business for purposes of this 
authority;
    (iii) When the agency head (or designee), in his or her sole and 
exclusive discretion, determines that the services of an employee or 
group of employees are no longer essential to the response to the 
national emergency or that such employees are able to follow the normal 
leave scheduling procedures in Sec.  630.308(a);
    (iv) On the day that is 12 months after the national emergency has 
been declared, an agency head (or designee), in his or her sole and 
exclusive discretion, may extend this deadline annually by an 
additional 12 months; under no circumstances may an agency grant more 
than two 12-month extensions under this paragraph in connection with 
any national emergency (however, Sec.  630.309 may apply in the case of 
an extended exigency); or
    (v) When an employee whose services were determined to be essential 
during the national emergency moves to a position not involving 
services determined by the agency to be essential to the response to 
the national emergency.
    (3) The agency head (or designee) must inform both the affected 
employees and the agency payroll provider in writing of the termination 
date as determined in paragraph (f)(2) of this section.
    (g) When the agency head (or designee) fixes a termination date of 
the exigency of the public business under paragraph (f) of this 
section, each affected employee must make a reasonable effort to comply 
with the scheduling requirement in Sec.  630.308(a). The head of the 
agency (or designee), in his or her sole and exclusive discretion, may 
exempt such an employee from the advance scheduling requirement in 
Sec.  630.308(a) if coverage under paragraphs (a) and (b) of this 
section terminated during the leave year and if the head of the agency 
(or designee) determines that the employee was unable to comply with 
the advance scheduling requirement because of circumstances beyond the 
employee's control.


Sec.  630.311   [Removed]

0
6. Remove Sec.  630.311.

[FR Doc. 2020-16823 Filed 8-7-20; 8:45 am]
BILLING CODE P