Leave and Holidays for U.S. Personal Services Contractors, Including Family and Medical Leave, 65734-65740 [2020-19117]

Agencies

• Agency for International Development

[Federal Register Volume 85, Number 201 (Friday, October 16, 2020)]
[Rules and Regulations]
[Pages 65734-65740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19117]


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AGENCY FOR INTERNATIONAL DEVELOPMENT

48 CFR Chapter 7

RIN 0412-AA86


Leave and Holidays for U.S. Personal Services Contractors, 
Including Family and Medical Leave

AGENCY: U.S. Agency for International Development.

ACTION: Final rule.

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SUMMARY: The rule amends the AIDAR's provisions that pertain to the 
General Provision contract clause 5 (hereafter ``clause''), entitled 
``Leave and Holidays (APR 1997).

DATES:  Effective Date: November 16, 2020.

FOR FURTHER INFORMATION CONTACT: Richard E. Spencer, Procurement 
Analyst, by phone at 202-916-2629, or email at [email protected], for 
clarification of content or information pertaining to status or 
publication schedules. All communications regarding this rule must cite 
AIDAR RIN No. 0412-AA86.

SUPPLEMENTARY INFORMATION:

A. Background

    The U.S. Agency for International Development (USAID) published a 
proposed rule on June 21, 2019 (84 FR 29140), with a supplemental 
notice on August 16, 2019 (84 FR 41954), to amend Section 12 of 
Appendix D of the AIDAR by revising General Provision contract clause 5 
and its related provisions. The public comment period closed on August 
20, 2019, and USAID received 142 comments. The revisions to Appendix D 
of the AIDAR made by this final rule are as follows.
    USAID is revising Section 4 of Appendix D of the AIDAR to make the 
prescription for Annual and Sick Leave in Paragraph (c)(2)(ix) 
consistent with the General Provision contract clause 5 in Section 12 
of Appendix D, entitled ``Leave and Holidays.'' The revisions to 
General Provision contract clause 5 in Section 12 are as follows:

(1) Annual Leave.

     The title of the clause changes from ``Vacation Leave'' to 
``Annual Leave,'' to be consistent with Paragraph (c)(2)(ix) of Section 
4 of this Appendix, as well as USAID's time-keeping system, and the 
Family and Medical Leave Act of 1993, as amended (FMLA), which allows 
for the use of ``Annual'' leave.
     The rule clarifies the provision regarding the minimum 90-
day period of continuous performance required for a USAID U.S. Personal 
Services Contractor (USPSC) to accrue Annual Leave.
     The terms ``tour,'' ``tour of duty,'' and ``employee'' 
change to ``period of performance'' and ``contractor,'' to be 
consistent with USAID's current contractual terminology.
     The rule clarifies the accrual of Annual Leave to indicate 
USAID will prorate it for less-than-full-time work.
     Annual-leave accrual rates broaden to include former 
service as a USAID USPSC under any statutory authority, and former 
service as a U.S. Government civilian and/or honorable service as an 
active-duty member of the U.S. Uniformed Services, by using the 
definition from Section 2101 of Title 5 of the U.S. Code (U.S.C.). The 
clause also specifies the documents a USAID Contracting Officer (CO) 
may review as evidence of a USPSC's prior service. This change is 
intended to expand the Agency's market base for USPSCs and attract 
former U.S. Government employees with relevant skills to participate in 
the competitive process for hiring them.
     USAID caps the maximum amount of annual leave a USPSC may 
carry over from one calendar year to the next during the period of a 
contract at 240 hours, consistent with the same restriction the Agency 
imposes on its U.S. direct-hire (USDH) employees. This change will also 
eliminate the need for making manual entries in the Agency's time-
keeping system to reinstate forfeited leave automatically cancelled in 
the time-keeping system at the end of each calendar year.
     The rule clarifies the conditions that allow a USPSC to 
avoid forfeiting Annual Leave; endorsement by a Mission Director is no 
longer required for a CO to approve these conditions, and a 
Determinations and Findings (D&F) is now required before the 
authorization of a lump-sum payment.
     USPSCs who are performing at USAID's headquarters in 
Washington, DC, require approval by the cognizant Assistant 
Administrator (AA) for advanced Annual Leave. Also, the maximum amount 
of advanced leave an AA may approve is limited to what a USPSC could 
earn in a 12-month period, or over the life of his or her contract, 
whichever is less.
    (2) Sick Leave.
     The rule amends the paragraph to clarify that the USPSC 
may take Sick Leave based on the same standards that apply to USAID's 
USDH employees.
     The rule clarifies the paragraph to indicate that USAID 
will prorate the accrual of Sick Leave for less-than-full-time work.
     The rule clarifies the paragraph regarding the carryover 
of Sick Leave to specify that it only applies to a subsequent ``follow-
on'' contract for the same services.
    (3) Home Leave.
    Home leave is a benefit a USPSC can earn after performing services 
for USAID abroad, usually after two years. It provides time off that 
the USPSC must use in the U.S., subject to his or her commitment to 
continued service. Home leave is meant to ensure that persons who are 
living and working abroad undergo reorientation and re-exposure in the 
U.S., and USAID provides it to USPSCs as a benefit comparable to that 
the Agency offers to its USDH employees. Detailed changes to the text 
regarding home leave are as follows:
     USAID only provides Home Leave currently to USPSCs who 
agree to return to the same Mission abroad after completing the Home 
Leave. In July 1998, USAID issued a policy deviation from Appendix D of 
the AIDAR to authorize a maximum of 20 workdays of Home Leave based on 
a USPSC's commitment to relocate to a different USAID Mission as a 
USPSC immediately following the Home Leave for a specific period of 
time, subject to prior approval by the Mission Director (i.e., the 
Mission from which the USPSC is departing.)
     The revised clause includes the required verification 
documents a USPSC must provide to support Home Leave based on a 
commitment to continue work under a new contract with a different USAID 
Mission.
     The rule makes a clarification to the travel requirements 
to specify that the days counted toward Home Leave do not include the 
travel time for Home Leave, with a cross-reference to the related 
contract clause titled, ``Travel and Transportation Expenses.''

[[Page 65735]]

    (4) Home Leave for Qualifying Missions.
    USAID adds this category of leave based on a 2006 amendment to the 
Foreign Service Act of 1980 (Pub. L. [P.L.] 96-465), as amended, which 
authorized this additional Home Leave for USPSCs following their 
completion of a 12-month period of performance at Qualifying Missions, 
currently those in the Republics of Iraq and South Sudan and the 
Islamic Republics of Afghanistan and Pakistan. USAID provides Home 
Leave for USPSCs at the Qualifying Missions comparable to what it 
offers USDH employees, so as to attract USPSCs for these hard-to-fill 
positions.
    (5) Holidays.
    The rule revises the title and text of this paragraph to add 
``Administrative Leave'' to apply all Agency closures to USPSCs on the 
same basis as to USDHs.
    (6) Military Leave.
     The paragraph adds ``U.S.'' to ``Armed Forces'' to clarify 
that the clause only applies to the U.S. military services.
     The rule has clarified the contract-filing requirement to 
inform each USPSC that USAID will maintain such approval on file.
    (7) Leave Without Pay (LWOP).
     The paragraph includes the abbreviation ``LWOP'' to 
conform to USAID's time-keeping system.
     The paragraph includes a reference to the use of LWOP for 
Family and Medical Leave to conform to entitlements for this leave 
under the Family and Medical Leave Act (FMLA, Pub. L. 103-3).
    (8) Compensatory Time.
    The rule removes the term ``leave'' to characterize this benefit 
more accurately in line with USAID's internal policies. Also, the 
paragraph contains a new sentence to clarify that both the earning and 
use of compensatory time off by USPSCs follow the same policies as 
apply to USAID's USDH employees.
    (9) Family and Medical Leave.
    This clause adds a new section to cover Family and Medical Leave 
for all USAID's USPSCs. As a matter of policy, USAID is extending the 
eligibility of Family and Medical Leave to USPSCs who are performing in 
the U.S. as well as outside the U.S. Congress passed the FMLA to allow 
employees to balance work and family life by protecting their 
employment and benefits status when taking reasonable leave for medical 
reasons, including the birth, adoption or care of a child; or care for 
a spouse, parent, or oneself in the event of a serious health 
condition.
    Following inquiries from USPSCs, USAID examined the applicability 
of the FMLA to USPSCs who are working in the U.S. and abroad. USAID 
found that Title II of the FMLA limits eligibility to USDH employees, 
and does not apply to contracts with individuals. However, USAID has 
determined that USPSCs who are working in the U.S. are entitled to 
Family and Medical Leave under Title I of the FMLA, as administered by 
the U.S. Department of Labor (DOL) through Part 825 of Title 29 of the 
Code of Federal Regulations (CFR). The DOL applies the broad definition 
of ``employee'' from the Fair Labor Standards Act of 1938 (Section 201 
of Title 29 of the U.S. Code [U.S.C.]).
    USAID determined that FMLA does not apply to USPSCs who are working 
outside the U.S. However, in November 2015, as a matter of Agency 
policy, the then-Acting Administrator authorized Family and Medical 
Leave for USPSCs who are working abroad to allow for a consistent leave 
policy for all of USAID's USPSCs, irrespective of their place of 
performance. Based on this approval, in December 2015, USAID processed 
a two-year class deviation (under Title 48 of the CFR) from clause 5 of 
Section 12 of Appendix D of the AIDAR, ``Leave and Holidays,'' to 
authorize Family and Medical Leave for all of the Agency's USPSCs. 
USAID implemented the deviation on an interim basis pending the 
finalization of this rule.
    USAID has determined that Cooperating-Country National Personal 
Services Contractors (CCNPSCs) or Third-Country National PSCs (TCNPSCs) 
are not entitled to the Family and Medical Leave provided under this 
rule, even if a Mission Director approves other specific benefits based 
on an exception under Appendix J of the AIDAR (Title 48 of the CFR) . 
Key provisions of the rule regarding Family and Medical Leave are as 
follows:
     The clause includes eligibility criteria in accordance 
with Part 825.110 of Title 29 of the CFR, with detailed requirements 
regarding establishing eligibility in USAID's internal policy.
     The rule specifies the reasons for which a USPSC may take 
Family and Medical Leave in accordance with Part 825.112 of Title 29 of 
the CFR.
     The rule makes the provisions for the substitution of LWOP 
with paid leave, as allowed under Part 825.207 of Title 29 of the CFR, 
consistent with what USAID provides to USDH.
     The rule clarifies that COs may not authorize Family and 
Medical Leave for a USPSC beyond the completion date of the contract.
     The rule provides procedures a USPSC must follow to 
establish eligibility for Family and Medical Leave.
     The clause refers to a publication of the Wage and Hour 
Division of the U.S. Department of Labor for more information about 
Family and Medical Leave and procedures to report violations of the 
underlying law.
    (10) Leave Records. The rule changes the use of ``shall'' to 
``must.''

B. Discussion and Analysis

    USAID received 142 public comments regarding the proposed rule, 
which the Agency considered in the development of the final rule.

(1) Summary of Significant Changes From the Proposed Rule

    There are no significant changes, and the Agency only made the 
following editorial clarifications to clause 5 under this final rule as 
a result of the public comments:
     In Paragraph (a)(3) on annual leave, the Agency corrected 
the sentence, ``The contractor's unused annual leave balance at the end 
of the last pay period of each calendar year will be forfeited, . . .'' 
to indicate that a USPSC only forfeits annually those hours in excess 
of 240, as follows: ``The contractor's unused annual leave balance in 
excess of the 240 hour maximum at the end of the last pay period of 
each leave year will be forfeited, . . .''.
     In Paragraph (c)(2)(iii), the Agency revised the sentence, 
``The contractor agrees to return immediately after completing home 
leave to the same Mission to serve out the remaining time necessary to 
meet two (2) years of continued performance under this contract, plus 
an additional--. . .'', to clarify that the time required for the 
return service obligation starts after the USPSC has taken Home Leave, 
as follows, ``The contractor agrees to immediately return to the same 
Mission to complete the time remaining to meet the twenty-four (24) 
month period of service required for home leave, which begins after the 
contractor returns from home leave, plus an additional--. . .''

(2) Analysis of Public Comments

    Below are the Agency's responses to comments on the changes 
proposed to clause 5 of Section 12 of Appendix D of the AIDAR. The 
Agency did not address comments unrelated to, or outside the scope of, 
the revisions of the proposed rule from the existing rule:
    a. Comment: Many of the comments generally supported the rule. 
Numerous also included the statement, ``USAID seeks consistency in its 
leave policies

[[Page 65736]]

for direct-hires and USPSCs,'' or similar statements to the effect that 
USAID's goal is to align all USPSC benefits with its USDH staff.
    Response: The Agency is not seeking with this rule to replicate 
USDH benefits for USPSCs completely. For those benefits USAID does 
provide to USPSCs as a matter of policy, USAID may adopt a standard 
generally consistent with USDH employees.
    b. Comment: Regarding the revisions to Paragraph (a)(3) on Annual 
Leave, numerous comments objected to the introduction of the maximum 
240 hours of leave a USPSC can retain by the end of each leave year, 
often by citing the cap of 360 hours currently applicable to US DH 
Foreign Service Officers.
    Response: Because the rule was previously silent about a yearly cap 
on the accrual of Annual Leave, the proposed rule revised Paragraph 
(a)(3) to address this issue. The 240-hour annual cap, regardless of a 
contractor's place of performance, is consistent with the U.S. 
Department of State's policies for its PSCs. Also, the previous 
uncapped amount had a negative financial impact on the Agency, because 
it undermined the imperative in Paragraph (a)(4), ``The contractor must 
use all accrued annual leave during the period of performance.'' 
Setting the cap will encourage USPSCs to take Annual leave as required. 
Additionally, as stated in the preamble to the rule, the cap will avoid 
the administrative burden on the Agency of individual entries to the 
time-keeping system, which automatically cancels Annual Leave that 
exceeds 240 hours at the end of each leave year. USAID therefore 
adopted this standard to resemble the default cap on the accumulation 
of Annual Leave applicable to its USDH employees in the Civil Service.
    c. Comment: Regarding the revisions to Paragraph (a)(3) on Annual 
Leave and the annual cap on accrual, one comment stated, ``The document 
is silent on the issue of carrying over annual leave that currently 
exceeds the new cap. This needs to be addressed. For those of us who 
currently exceed the proposed new cap we should be grandfathered in so 
as we do not lose this leave or be forced to take excessive leave 
before the end of the calendar year.''
    Response: The 240-hour yearly cap on Annual Leave will take effect 
for all new solicitations and contract awards made after the effective 
date of this final rule. The yearly cap on Annual Leave will not apply 
to contracts awarded prior to the rule's effective date that contained 
the prior version of the clause with no cap.
    d. Comment: One comment regarding Paragraph (a)(3) on Annual Leave 
stated, ``The draft states that the contract can carry over a maximum 
of 240 hours from one leave year to the next, but the states that the 
`contractor's unused annual leave balance at the end of the last pay 
period of each calendar year will be forfeited, unless [restored].' Do 
you mean ALL of the unused leave balance, or that PORTION of the unused 
leave balance that exceeds the authorized carry over amount? Do you 
mean the last pay period of each CALENDAR year, or the last pay period 
of the LEAVE year? The proposed rule, in the same provision, states 
that restoration of annual leave may be approved only by the USAID 
Administrator, cognizant AA or Head of an Independent Office reporting 
directly to the USAID Administrator, and cannot be delegated further. 
What is the rationale for having this approval remain at such a high 
level of the organization? Why not allow the Mission Director (or even 
the CO) to approve such restorations? The proposed rule, in the same 
provision, provides that restored annual leave must be used within two 
years. Why provide a longer period than is allowed for USDH?''
    Response: As the Agency did not intend to indicate that USPSCs 
would forfeit all accrued, unused Annual Leave at the end of each leave 
year, we have revised this final rule to clarify that USPSCs will 
forfeit only leave in excess of 240 hours by the end of each leave 
year. Regarding the approval level the Agency chose for the restoration 
of annual leave, ``for exceptional circumstances beyond the control of 
the contractor,'' as stated in the rule, approval authority is with the 
head of the Agency or someone designated to act in that capacity 
consistent with the standard applicable to USDH employees under similar 
circumstances. Lastly the two-year maximum time limit for use of such 
restored leave is consistent with that USAID provides to USDH 
employees.
    e. Comment: Related to Paragraphs (a)(3) on Annual Leave and (b) on 
Sick Leave, numerous comments spoke to the provisions in the rule for 
the carryover of such leave to a new contract. Many related comments 
requested a donation program for Annual and Sick Leave comparable to 
what is available to USDH employees.
    Response: The carryover provisions for Annual and Sick Leave to new 
contracts from the existing regulatory text remained materially 
unchanged in the proposed rule. Both in the existing and proposed rule, 
USPSCs may carry over sick leave to a ``follow on'' contract, but not 
carry over Annual or Sick Leave to a new contract for different 
services at a different place of performance.
    Regarding leave ``donations,'' the Office of Personnel Management 
(OPM) administers the Voluntary Leave Transfer Program (VLTP), and 
statute prohibits PSCs from participating in OPM's programs, in 
accordance with Section 636(a)(3) of the Foreign Assistance Act, as 
reiterated in Appendix D of the AIDAR. Furthermore, the Agency has 
determined that a similar program for contractors is not allowable, as 
there is no legal basis for leave donation among contractors in light 
of the constraints of the statutes, regulations, and general contract 
principles applicable to USAID when hiring and administering PSCs.
    f. Comment: Regarding Paragraph (b) on Sick Leave, numerous 
comments indicated disagreement with the following text indicated by 
quotes as having been included in the rule: ``sick leave can be carried 
over from one contract to another when the follow-on is for the same 
services as the original contract (i.e., the same scope of work in the 
same location).''
    Response: Although the cited text is inaccurate, as it is not a 
verbatim quotation from the proposed rule, the Agency understands the 
point of the comments was to disagree with the regulatory text that 
states, ``The contractor is not authorized to carry over sick leave to 
a new contract for a different position or at a different location.'' 
The proposed rule does not substantively change the existing regulatory 
text regarding the carryover of Sick Leave. The Agency only made an 
editorial clarification for the proposed rule, as stated in the 
preamble, ``A clarification is made to the carryover of sick leave to 
specify that it only applies to a subsequent `follow-on' contract for 
the same services.''
    g. Comment: Regarding Paragraph (c) on Home Leave, one comment 
stated, ``What is the justification for providing Home Leave to 
contractors who voluntarily take work overseas, and whose contracts 
fund their return to the U.S. after only five years at most? Compared 
to Foreign Service Officers who agree to a career of service abroad at 
the direction of the Agency for decades, what is the Agency's 
justification for incurring a cost that should be reserved to career 
officials? The same level of productivity and rest from service abroad 
could be achieved for contractors with regular [travel for rest and 
recuperation] instead of a costly 30 days of added vacation. Providing

[[Page 65737]]

Home Leave as proposed in this rule, which is in ways more generous 
than what a Foreign Service Officer gets, undermines the incentives our 
Government needed to grow a dedicated Foreign Service workforce so 
important to best representing U.S. interests overseas.''
    Response: The existing rule already provided eligibility for Home 
Leave for USPSCs, with a return service agreement of two years, or only 
one year subject to a Mission Director's approval when a USPSC cannot 
meet the two-year return service requirement after the fourth year of a 
five-year contract. This rule does not affect the provision of Home 
Leave generally to USPSCs, nor does it involve travel between rest and 
recuperation. Regarding whether provisions for USPSCs to receive Home 
Leave are more generous than what USAID provides to USDH employees, the 
Agency is not required to replicate USDH benefits completely, as 
explained above.
    h. Comment: Regarding Paragraph (c)(2) on Home Leave, one comment 
stated, ``The draft states that `the contractor agrees to return 
immediately after completing home leave to the same Mission to serve 
out the remaining time necessary to meet two (2) years of continued 
performance under this contract, plus . . .' How do you define 
`remaining time'? If the contractor takes advance home leave after 18 
months, then returns to post after one month of home leave, how much 
longer must he serve under the contract after his return? Six months 
(24 months minus 18) or five months (24 months minus 18 months minus 
one month of home leave)? Phrased a different way, does the home leave 
period count as PART of the 24 month-contract, or as an ADDITION to the 
24-month contract? This same section provides for up to five days in 
work status for consultation at USAID/Washington. Why is this different 
than for USDH employees (who normally get three days)?''
    Response: The Agency has revised Paragraph (c)(2)(iii) on advanced 
Home Leave to clarify that the time spent on Home Leave, irrespective 
of when taken, is additional to the required 24-months of performance 
necessary for a USPSC to be eligible for home leave. Regarding 
Paragraph (4) that addresses ``five (5) days in work status for 
consultation at USAID/Washington,'' the text in the proposed rule 
remains unchanged from the existing regulatory text, and is therefore 
not germane to the revisions of the rule.
    i. Comment: Regarding Paragraph (f) on military leave, one comment 
stated, ``This draft provision authorizes military leave of not more 
than 15 calendar days in any calendar year for military leave. USDH are 
authorized 15 WORK days in any FISCAL year. What is the reason for the 
inconsistency?''
    Response: The Agency has not changed the provision for military 
leave materially from the existing regulatory text, and is therefore 
not part of the substantive revisions proposed for the rule. As stated 
in the preamble, USAID has made only the following clarifying editorial 
changes, ``The paragraph adds ``U.S.'' to ``Armed Forces'' to clarify 
that the clause only applies to the U.S. military services. The rule 
has clarified the contract-filing requirement to inform each USPSC that 
USAID will maintain such approval on file.''
    j. Comment: Regarding Paragraph (g) on compensatory time off, one 
comment stated, ``This draft provision states that USAID may grant 
compensatory time off `under the same guidelines which apply to USAID 
direct-hire employees for its use.' Which kind of USAID direct-hire do 
you mean? The guidelines are different for Civil Service and Foreign 
Service direct-hire employees. And they are different for commissioned 
Foreign Service and non-commissioned Foreign Service direct-hire 
employees. Commissioned Foreign Service employees are not authorized 
compensatory time at all (other than travel compensatory time, which 
falls under a different set of rules anyway), so this is an important 
distinction to make.''
    Response: Compensatory time off applies equally to eligible USDH 
employees. The only employees who are not eligible are commissioned 
Foreign Service Officers, members of the Senior Foreign Service, and 
members of the Senior Executive Service.

C. Impact Assessment

    (1) Regulatory Planning and Review. Under Executive Order (E.O.) 
12866, the Office of Information and Regulatory Affairs (OIRA) has 
designated this final rule as being '' significant'' and therefore 
subject to review by the Office of Management and Budget (OMB). OMB/
OIRA has determined that this final rule is not an ``economically 
significant regulatory action'' under Section 3(f)(1) of E.O. 12866. 
This final rule is not a major rule under title Section 804 of Title 5 
of the U.S.C.
    The costs and benefit of the revisions described above are as 
follows, by each type of leave affected:
     Annual Leave--Under the existing rule, USPSCs can only 
accrue Annual Leave per Pay Period at increasingly higher hourly rates 
based on prior PSC service under the authority of ``Section 636(a)(3) 
of the FAA [Foreign Affairs Act of 1961, as amended].'' The default 
accrual rate for a USPSC is four hours per Pay Period; however a 
contractor may accrue at a rate of six hours per pay period as a prior 
PSC under the FAA for more than three years, or eight hours per period 
for prior PSC services under the FAA for more than 15 years. The final 
rule broadens this to allow USPSCs to include prior service as a USAID 
PSC under other statutory authorities, as well as prior civilian or 
uniformed service. USAID estimated the cost of progressively adding 
four hours for three years and two hours for two years for 26 Pay 
Periods each year of a five-year contract to reach the maximum eight-
hour accrual rate per Pay Period. USAID's historical data indicate only 
approximately 50 percent of a given USPSC population will have prior 
experience to make them eligible for the maximum accrual rate. Based on 
an average annual salary for a General Schedule (GS) employees at the 
levels of GS-13, GS-14, and GS-15, step 10, of $146,000 (base with 
locality pay for Washington, DC) equal to $70 per hour, USAID estimates 
270 U.S.-based USPSCs (i.e., 50 percent of 540 total) would cost 
approximately $1.575 million per year in higher accrual rates. The 
equivalent calculation for 275 USPSCs who are serving abroad (i.e., 50 
percent of 550 total) with an average salary of $117,000 (base with no 
locality) equal to $56/hour comes to $1.283 million per year. Therefore 
the total estimated cost of additional compensation in Annual Leave 
based on the expanded prior service eligibility is $2.859 million per 
year. The benefit of this provision is to provide this leave for USPSCs 
on a similar basis as USAID provides to USDH to attract a wider pool of 
offerors with greater opportunities for higher accrual rates.
     Home Leave--The final rule codifies USAID's current policy 
in place by deviation from the existing AIDAR to add eligibility for 
Home Leave for USPSCs who relocate to a different Mission under a new 
USPSC contract immediately following Home Leave every two years. 
Assuming about half of USAID's 550, or 275, USPSCs abroad fulfil their 
continued service commitments at a different Mission, the maximum 
additional cost at an average GS-13, GS-14, and GS-15, step 10, annual 
salary of $117,000 (base with no locality) equal to $450/day for 20 
days is $2.476 million every two years, or $1.238 million for each 
year.
     Home Leave for Qualifying Missions--The final rule 
increases Home Leave by providing 10 days of leave for USPSCs after 
every 12 months

[[Page 65738]]

abroad when performing at certain ``Qualifying'' Missions, currently in 
Iraq, Afghanistan, Pakistan, and South Sudan. Together these Missions 
have approximately 70 USPSCs abroad, so using the average GS-13, GS-14, 
GS-15, step 10, annual salary of $117,000 per year (base with no 
locality) equal to $450/day for 10 days, the total additional annual 
cost of this leave is approximately $315,000 each year. The cost of 
this additional leave is justified to increase USAID's ability to hire 
USPSCs for hard-to-fill positions at dangerous and high-attrition 
Missions.
     Holidays and Administrative Leave--The final rule adds 
emergency dismissals and closures to acknowledge when USAID/Washington 
headquarters or Missions abroad are closed for inclement weather, civil 
unrest, or other logistical complications. This will not have a cost 
impact, because previously USPSCs were not able to work when USAID 
facilities were closed, and so received the same Administrative Leave 
as USDH as a practical matter. Additionally, telework-ready USPSCs will 
continue to perform as USDH do.
     Family and Medical Leave--The addition of Family and 
Medical Leave will only have a marginal cost impact, if any, because 
this entitlement does not provide additional leave. USPSCs must use 
Leave without Pay, Annual, or Sick Leave while under the status of 
Family and Medical Leave. The benefit that Family and Medical Leave 
provides is that it entitles an individual to use leave once he or she 
is determined eligible and not subject to the ordinary leave-approval 
process. Statute requires the provision of this benefit to USPSCs who 
are performing in the U.S.; therefore, the only expansion beyond what 
the law requires is the Agency's discretion to apply it equally to 
USPSCs based abroad. USAID made this decision to provide this 
entitlement equally to all USPSCs and not disadvantage those who are 
performing abroad.
    As a regulatory matter, the cost of the rule-making process to 
incorporate these revisions into the regulation is also justified. The 
AIDAR's Appendices include all the compensation and benefits available 
under PSCs. Therefore, the Agency needs these revisions to keep the 
regulation consistent, complete, and transparent to industry, other 
U.S. Government agencies, and the general public.
    (2) Regulatory Flexibility Act. The Director of the Office of 
Acquisition and Assistance in USAID's Bureau for Management, acting as 
the Head of the Agency for purposes of the Federal Acquisition 
Regulation, certifies that this rule will not affect a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act, Section 601 of Title 5 of the U.S.C. 601, et seq. 
Therefore, USAID has not performed an Initial Regulatory Flexibility 
Analysis.
    (3) Paperwork Reduction Act. The rule does not establish or modify 
a collection of information that requires the approval of the Office of 
Management and Budget under the Paperwork Reduction Act (Chapter 35 of 
Title 44 of the U.S.C.).

List of Subjects in Appendix D of Chapter 7 of Title 48 of the CFR 
Government procurement.

    For the reasons discussed in the preamble, USAID amends Chapter 7 
of Title 48 of the CFR under the authority of Section 621 of Public Law 
87-195, 75 Stat. 445, (Section 2381 of Title 22 of the U.S.C.), as 
amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and Title 3 of the 
CFR, 1979 Comp., p. 435, as follows:

CHAPTER 7--AGENCY FOR INTERNATIONAL DEVELOPMENT

0
1. Amend Appendix D to Chapter 7 by:
0
a. In section 4, revising the second sentence of paragraph (c)(2)(ix);
0
b. In section 12:
0
i. Revising the section heading;
0
ii. Revising clause 5;
0
iii. In clauses 6 and 16, removing the word ``vacation'' each time it 
appears and adding in its place the word ``annual''.
0
c. By adding a parenthetical authority citation at the end of the 
appendix.
    The revisions and addition read as follows:

Appendix D to Chapter 7--Direct USAID Contracts With a U.S. Citizen or 
a U.S. Resident Alien for Personal Services Abroad

* * * * *

4. Policy

* * * * *
    (c) * * *
    (2) * * *
    (ix) * * * However, PSCs with previous service are eligible to 
earn annual leave in accordance with the ``Leave and Holidays'' 
General Provision contract clause in section 12 of this appendix.
* * * * *

12. General Provisions for a Contract With a U.S. Citizen or a U.S. 
Resident Alien for Personal Services Abroad

* * * * *

5. Leave and Holidays

    [Insert the following clause in all USPSC contracts.]

Leave and Holidays (DATE)

    (a) Annual Leave. (1) The contractor may accrue annual leave at 
the rate specified in paragraph (a)(2) of this clause as follows:
    (i) If the contract period of performance is ninety (90) 
calendar days or more, and the contractor's performance is 
continuous for the contract period of performance, the contractor is 
entitled to accrue annual leave as of the start date of the 
contract.
    (ii) If the contract period of performance is ninety (90) 
calendar days or more, and the contractor's performance is not 
continuous during the contract period of performance, the contractor 
is entitled to accrue annual leave only for each instance of 
continuous performance of ninety (90) calendar days or more.
    (iii) If the contract period of performance is less than ninety 
(90) calendar days, the contractor is not entitled to accrue annual 
leave.
    (2) The rate at which the contractor will accrue annual leave is 
based on the contractor's time in service according to the table of 
this paragraph (a)(2). The accrual rates are based on a full-time, 
40-hour workweek, which will be prorated if the contract provides 
for a shorter workweek:

------------------------------------------------------------------------
       Time in service               Annual leave (AL) accrual rate
------------------------------------------------------------------------
0 to 3 years.................  4 hours of leave for each 2-week period.
over 3, and up to 15 years...  6 hours of AL for each 2-week period
                                (including 10 hours AL for the final pay
                                period of a calendar year).
over 15 years................  8 hours of AL for each 2-week period.
------------------------------------------------------------------------

    (i) USAID will calculate the time in service based on all the 
previous service performed by the contractor as--:
    (A) An individual personal services contractor with USAID for 
any duration covered by Sec. 636(a)(3) of the FAA or other statutory 
authority applicable to USAID; and/or
    (B) A former U.S. Government (USG) direct-hire civilian 
employee; and/or
    (C) An honorable active duty member of the uniformed services 
based on the definition in 5 U.S.C. 2101(3).
    (ii) In addition to the information certified by the contractor 
in their Offeror Information

[[Page 65739]]

form, the contracting officer may require the contractor to furnish 
copies of previously executed contracts, and/or other evidence of 
previous service (e.g., SF 50, DD Form 214 or 215) to conduct the 
due diligence necessary to verify creditable previous service.
    (3) Annual Leave is provided under this contract primarily for 
the purposes of providing the contractor necessary rest and 
recreation during the period of performance. The contractor, in 
consultation with the Supervisor, must develop an annual leave 
schedule early in the period of performance, taking into 
consideration the requirements of the position, the contractor's 
preference, and other factors. The maximum amount of annual leave 
that the contractor can carry over from one leave year to the next 
is limited to 240 hours. The contractor's unused annual leave 
balance in excess of the 240 hour maximum at the end of the last pay 
period of each leave year will be forfeited, unless the requirements 
of the position precluded the contractor from taking such leave. The 
contractor may be authorized to restore annual leave for exceptional 
circumstances beyond the control of the contractor. The restoration 
of annual leave may be approved only by the USAID Administrator, 
cognizant Assistant Administrator or Head of an Independent Office 
reporting directly to the USAID Administrator, and cannot be 
delegated further. Annual leave restored must be scheduled and used 
no later than either the end of the leave year two years after 
either--
    (i) The date fixed by the approving official as the termination 
date of the exigency of the public business or other reason beyond 
the contractor's control, which resulted in the forfeiture; or
    (ii) The end of the contract, whichever is earlier.
    (4) The contractor must use all accrued annual leave during the 
period of performance. At the end of the contract, the contractor 
will forfeit any unused annual leave except where the requirements 
of the position precluded the contractor from taking annual leave. 
In this case, the contracting officer may authorize the following:
    (i) The contractor to take annual leave during the concluding 
weeks of the contract, not to exceed the period of performance; or
    (ii) Payment of a lump-sum for annual leave not taken based on a 
signed, written determination and findings (D&F) from the 
contractor's supervisor. The D&F must set out the facts and 
circumstances that prevented the contractor from taking annual 
leave, and the contracting officer must find that the contractor did 
not cause, or have the ability to control, such facts and 
circumstances. This lump-sum payment must not exceed the number of 
days the contractor could have accrued during a twelve (12)-month 
period based on the contractor's accrual rate.
    (5) The contractor may be granted advanced annual leave by the 
contracting officer when circumstances warrant. Advanced leave must 
be approved by the Mission Director, cognizant Assistant 
Administrator, or Head of an Independent Office reporting directly 
to the Administrator, as appropriate. In no case may the contracting 
officer grant advanced annual leave in excess of the amount the 
contractor can accrue in a twelve (12)-month period or over the life 
of the contract, whichever is less. At the end of the period of 
performance or at termination, the contractor must reimburse USAID 
for any outstanding balance of advanced annual leave provided to the 
contractor under the contract.
    (b) Sick Leave. The contractor may use sick leave on the same 
basis and for the same purposes as USAID direct-hire employees. The 
contractor will accrue sick leave at a rate not to exceed four (4) 
hours every two (2) weeks for a maximum of thirteen (13) work-days 
per year based on a full-time, 40-hour workweek, and the rate of 
accrual will be prorated if the contract provides for a shorter 
workweek. The contractor may carry over unused sick leave from year 
to year under the same contract, and to a new follow-on contract for 
the same work at the same place of performance. The contractor is 
not authorized to carry over sick leave to a new contract for a 
different position or at a different location. The contractor will 
not be compensated for unused sick leave at the completion of this 
contract.
    (c) Home Leave. (1) The contractor may be granted home leave to 
be taken only in the U.S., its commonwealth, possessions, or 
territories, in one continuous period, under the following 
conditions:
    (i) The contractor must complete twenty-four (24) continuous 
months of service abroad under this contract, and must not have 
taken more than thirty (30) workdays leave (annual, sick, or LWOP) 
in the U.S., its commonwealths, possessions, or territories. The 
required service abroad will include the actual days in orientation 
in the U.S. (excluding any language training), travel time by the 
most direct route, and actual days abroad beginning on the date of 
arrival in the cooperating country. Any annual and sick leave taken 
abroad, excluding leave without pay (LWOP), will count toward the 
period of service abroad. Any days of annual and sick leave taken in 
the U.S., its commonwealths, possessions, or territories will not be 
counted toward the required twenty-four (24) months of service 
abroad.
    (ii) The contractor must agree to return immediately after 
completing home leave to continue performance for an additional--
    (A) Two (2) years, or
    (B) Not less than one (1) year, if approved in writing by the 
Mission Director before the contractor departs on home leave.
    (iii) If the contractor agrees to meet the conditions in 
paragraph (c)(1)(ii) of this clause above by returning to the same 
USAID Mission under this contract or a new contract, the contractor 
may be granted thirty (30) workdays of home leave.
    (iv) If the contractor agrees to meet the continued performance 
conditions of paragraph (c)(1)(ii) of this clause and will be 
relocating to a different USAID Mission under a new USAID personal 
services contract immediately following the completion of home 
leave, the contractor may be granted twenty (20) workdays of home 
leave. USAID will provide the contractor these twenty days of home 
leave under this contract, not under the new contract.
    (v) If home leave eligibility is based on paragraph (c)(1)(iv) 
of this clause, prior to departure on home leave, the contractor 
must submit to the contracting officer at the current Mission, a 
copy of the new contract with a special award condition in the 
contract Schedule indicating the contractor's obligation to fulfill 
the commitment for continued performance in accordance with 
paragraph (c)(1)(ii) of this clause.
    (2) Notwithstanding the requirements in paragraph (c)(1) of this 
clause, the contractor may be granted advanced home leave subject to 
all of the following conditions:
    (i) Granting of advanced home leave would serve in each case to 
advance the attainment of the objectives of this contract; and
    (ii) The contractor has served at least eighteen (18) months 
abroad, as defined in paragraph (c)(4) of this clause, at the same 
USAID Mission under this contract, and has not taken more than 30 
work days leave (annual, sick or LWOP) in the U.S.; and
    (iii) The contractor agrees to return immediately to the same 
Mission to complete the time remaining to meet the twenty-four (24) 
month period of service required for home leave, which begins after 
the contractor returns from home leave, plus an additional--
    (A) Two (2) years, or
    (B) Not less than one (1) year, if approved by the Mission 
Director, under the current contract, or under a new contract for 
the same or similar services at the same Mission, before the 
contractor departs on home leave.
    (3)(i) Home leave must be taken only in the U.S., its 
commonwealths, possessions, or territories. Any days spent in any 
other location will be charged to annual leave, or if the contractor 
does not have accrued annual leave to cover these days, the 
contractor will be placed on LWOP.
    (ii) Travel time by the most direct route is authorized in 
addition to the home leave authorized under this ``Leave and 
Holidays'' clause. Salary during travel to and from the U.S. for 
home leave will be limited to the time required for travel by the 
most direct and expeditious route. Additional home leave travel 
requirements are included in the ``Travel and Transportation 
Expenses'' clause of this contract.
    (iii) Except for reasons beyond the contractor's control as 
determined by the contracting officer, the contractor must return 
abroad immediately after home leave to fulfill the additional 
required continued performance of services for any home leave 
provided under this contract, or else the contractor must reimburse 
USAID for the salary and benefits costs of home leave, travel and 
transportation, and any other payments related to home leave.
    (iv) Unused home leave is not reimbursable under this contract.
    (4) The contracting officer may authorize the contractor to 
spend no more than five (5) days in work status for consultation at 
USAID/Washington while on home leave in the U.S., before returning 
abroad. Consultation in excess of five (5) days or at locations 
other than USAID/Washington must be approved in advance by the 
Mission Director or the contracting officer.

[[Page 65740]]

    (d) Home Leave for Qualifying Posts. (1) If the contractor 
ordinarily qualifies for home leave and has completed a 12-month 
period at one of the USAID qualifying Missions, as announced by the 
Department of State or USAID, the contractor is entitled to ten (10) 
workdays of home leave in addition to the home leave the contractor 
is normally entitled to in accordance with paragraph (c) of this 
``Leave and Holidays'' clause.
    (2) There is no requirement that an eligible contractor take 
this additional home leave for qualifying Missions; it is for use at 
the contractor's option. If the contractor is eligible and elects to 
take such home leave, the contractor must take all ten (10) workdays 
at one time in the U.S. under the conditions described in paragraphs 
(c)(3) and (c)(4) of this clause. If the contractor is returning to 
the U.S. and not returning abroad to the same or different USAID 
Mission, the contractor is not eligible for home leave for 
qualifying Missions, and this paragraph (d) will not apply.
    (e) Holidays and Administrative Leave. The contractor is 
entitled to all holidays and administrative leave granted by USAID 
to U.S. direct-hire employees as announced by the Agency or Mission.
    (f) Military Leave. Military leave of not more than fifteen (15) 
calendar days in any calendar year may be granted to the contractor 
who is a reservist of the U.S. Armed Forces, provided that the 
military leave has been approved, in advance, by the contracting 
officer or the Mission Director. A copy of the contractor's official 
orders and the contracting officer or Mission Director approval will 
be part of the contract file.
    (g) Leave Without Pay (LWOP). The contractor may be granted LWOP 
only with the written approval of the contracting officer or Mission 
Director, unless a such leave is requested for family and medical 
leave purposes under paragraph (i) of this clause.
    (h) Compensatory Time. USAID may grant compensatory time off 
only with the written approval of the contracting officer or Mission 
Director in rare instances when it has been determined absolutely 
essential and under the policies that apply to USAID U.S. direct-
hire employees. The contractor may use earned compensatory time off 
in accordance with policies that apply to USAID direct-hire 
employees
    (i) Family and Medical Leave. (1) USAID provides family and 
medical leave for eligible USPSCs working within the U.S., or any 
territories or possession of the U.S., in accordance with Title I of 
the Family and Medical Leave Act of 1993, as amended (FMLA), and as 
administered by the Department of Labor under 29 CFR 825. USAID also 
provides family and medical leave to eligible USPSCs working outside 
the U.S., or any territories or possession of the U.S., in 
accordance with this paragraph (i) outside the provisions of Title I 
of the FMLA as a matter of policy discretion.
    (2) Family and medical leave only applies to USPSCs, not any 
other type of PSC.
    (3) In accordance with 29 CFR 825.110, to be eligible for family 
and medical leave, the contractor must have performed services for 
--
    (i) At least twelve (12) months with USAID; and
    (ii) At least 1,250 hours with USAID during the previous 12-
month period.
    (4) In accordance with 29 CFR 825.200(a), and USAID's internal 
policies available in Automated Directive System Chapter 309 (ADS 
309), an eligible contractor may take up to twelve (12) workweeks of 
leave under FMLA, Title I, in any 12-month period for the reasons 
specified in 29 CFR 825.112.
    (5) In accordance with 29 CFR part 825.207, the contractor may 
take LWOP for family and medical leave purposes. However, the 
contractor may choose to substitute LWOP with accrued annual or sick 
leave earned under the terms of this contract. If the contractor 
does not choose to substitute accrued paid leave, the contracting 
officer, in consultation with the contractor's supervisor, may 
require the contractor to substitute accrued paid leave for LWOP. 
The CO must obtain the required certifications for approval of 
family medical leave in accordance with USAID policy. The contractor 
must notify the contractor's Supervisor of the intent to substitute 
paid leave for LWOP prior to the date such paid leave commences. 
After having invoked the entitlement to family and medical leave and 
taking LWOP for that purpose, the contractor cannot retroactively 
substitute paid leave for the LWOP already taken under family and 
medical leave.
    (6) Family medical leave is not authorized for any period beyond 
the completion date of this contract.
    (7) When requesting family medical leave, the contractor must 
submit the relevant leave request in writing, including 
certifications and other supporting documents required by 29 CFR 825 
and USAID policy in ADS 309.
    (8) The U.S. Department of Labor's (DOL's) Wage and Hour 
Division (WHD) Publication 1420 explains the FMLA's provisions and 
provides information concerning procedures for filing complaints for 
violations of the Act.
    (j) Leave Records. The contractor must maintain their current 
leave records and make them available as requested by the Mission 
Director or the contracting officer.
* * * * *
(Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (Section 2381 of 
Title 22 of the U.S.C.), as amended; E.O. 12163, Sept. 29, 1979, 44 
FR 56673; and Title 3 of the CFR, 1979 Comp., p. 435.)

Mark A. Walther,
Chief Acquisition Officer.
[FR Doc. 2020-19117 Filed 10-15-20; 8:45 am]
BILLING CODE 6116-01-P