OPM Outlines Process for Restoring Leave After COVID

The Office of Personnel Management last week issued an interim rule that would allow some federal employees to carry more than 30 days of annual leave into 2021, provided they were unable to schedule that leave due to their work responding to the coronavirus pandemic.

Ordinarily, federal employees can only carry 30 days of annual leave from one year to another—the rest is deemed “use it or lose it.” But in an interim final rule filed to the Federal Register last week, OPM confirmed that the coronavirus pandemic would be considered an “exigency of the public business,” an exception that allows for employees whose leave is cancelled to carry over more than the 30-day maximum at the end of the year.

In an interim final rule published in the Federal Register Monday and effective immediately, OPM confirmed that the coronavirus pandemic would qualify as an exigency of the public business, and it set up a streamlined process for “essential” employees to carry over leave next year so that they do not need to schedule leave in advance for it to be considered cancelled.

Agency heads are responsible for identifying which of their employees are considered essential to emergency response to make them eligible to carry leave over to the next year, and they must inform those employees of their eligibility. Acting OPM Director Michael Rigas had previously stated that leave restoration would only be available to employees whose work prevented taking annual leave, not to workers who had to cancel travel plans due to the coronavirus outbreak.

“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 . . . is not applicable during the designated time period,” OPM wrote.

The rule repeals similar regulations that were put in place when OPM deemed the September 11, 2001, terror attacks and preparations for Y2K to be exigencies of the public business. Instead of creating regulations that apply only to the federal government’s COVID-19 response, the agency crafted the new rule to be forward-looking, and applicable in future national emergencies, provided that the OPM director deems the emergency serious enough to warrant suspension of the normal annual leave policies.

“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,” the regulations state. “Only when the director of OPM makes such a determination and provides notice to agencies of such determination may agencies use the authority.”

The rule also makes adjustments to how long essential workers have to use their restored leave. Ordinarily, feds whose leave is restored due to an exigency of the public business have until the end of the leave year two years after the termination of the exigency. Instead, when leave is restored because of national emergency essential work, full time employees with 416 or fewer hours of excess annual leave will have until the end of the leave year two years after the emergency ends, and employees with more will have an additional year for each additional 208 hours of excess leave.

Agency heads will be expected to monitor their workforce’s contribution to national emergency response on an ongoing basis, and terminate the exigency of the public business when employees are no longer deemed essential.

“The exigency may end when the president declares an end to the national emergency,” OPM wrote. “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 . . . 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.”