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OPM Issues Guidance on Law Allowing Feds to Temporarily Carry Over More Annual Leave

The 2021 National Defense Authorization Act allows all federal employees to carry over an additional 25% of unused leave due to the COVID-19 pandemic.

The Office of Personnel Management on Tuesday began its effort to implement a provision of the annual defense policy bill, enacted by Congress last week, that provides federal employees with a temporary waiver of the annual leave cap as a result of the COVID-19 pandemic.

The 2021 National Defense Authorization Act states that all federal workers may carry over an additional 25% of annual leave over the traditional cap. For most federal workers, the annual cap is usually 240 hours, meaning that in most cases, feds may carry over 300 hours into 2021. None of the additional leave may be carried over into 2022, and employees who leave the federal service this year may not receive last year’s excess leave as part of lump sum payments.

The bill was enacted via a rare bipartisan congressional override of President Trump, who vetoed the legislation because of a provision requiring military bases named for Confederate military leaders to be renamed, as well as an unrelated content liability shield for internet companies.

Acting OPM Director Michael Rigas on Tuesday sent guidance to agency heads on how they should implement the waiver to the annual leave cap. The document clarifies that the vast majority of federal workers are eligible to carry an extra 25% of leave over into 2021, including postal employees, Title 38 medical professionals at the Veterans Affairs Department, Federal Aviation Administration workers and Transportation Security Administration employees.

Members of the Senior Executive Service and employees who work via nonappropriated funds are not eligible for additional leave. Agencies that operate annual leave programs outside of Title 5 are responsible for determining which of their workers are equivalent to senior executives and exempting them from the leave cap waiver.

“An executive branch agency that administers an annual leave program under an authority other than [Title 5] Chapter 63 is authorized to determine what senior positions are equivalent in terms of classification level to a Senior Executive Service position,” Rigas wrote.

Employees who ordinarily have a higher leave cap than the 240 hours most feds may carry over also will see their maximum leave brought into 2021 increased by 25%. For workers stationed outside of the United States, they will carry over a maximum of 450 hours, rather than the traditional 360 hours. Senior executives’ annual leave cap will remain at 720 hours.

Although the 2021 Defense Authorization Act grants most employees with a 25% increase to their annual leave cap automatically, Rigas wrote that employees who have been physically unable to take leave due to their work directly on COVID-19 response efforts may see even more of their unused leave carry over to 2021, as part of OPM’s separate efforts on the issue.

OPM’s initiative will restore all unused leave of those employees, deeming COVID-19 response as an “exigency of the public business.” Most falling into this category would have at least two years to use their unused leave. If those workers leave the government, their lump sum payment for unused leave would include the additional unused leave from 2020.

“Because of the above differences, application of [the NDAA provision] can result in less favorable treatment than results under the regular leave restorations rules,” Rigas wrote.

Rigas said, as a result, agencies should ensure that employees who qualify for OPM’s exigency of the public business exception to annual leave requirements receive all of their unused leave, rather than only 25% over the annual cap.