[Federal Register Volume 72, Number 115 (Friday, June 15, 2007)]
[Rules and Regulations]
[Pages 33147-33148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11584]



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  Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Rules 
and Regulations  

[[Page 33147]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 531 and 550

RIN 3206-AL09


Locality-Based Comparability Payments and Evacuation Payments

AGENCY: Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: These regulations finalize the interim regulations that 
provide the rules for determining an employee's official worksite when 
he or she teleworks from an alternative worksite during an emergency 
situation, such as a pandemic health crisis, and permit an agency to 
provide evacuation payments to an employee who is ordered to evacuate 
from his or her regular worksite and directed to work from home (or an 
alternative location mutually agreeable to the agency and the employee) 
during a pandemic health crisis. The final regulations revise the 
interim regulations to clarify that an employee need not have a 
telework agreement when directed to work from home. These regulations 
are issued as part of OPM's efforts to provide agencies with guidance 
to ensure they are able to fulfill their critical missions while at the 
same time protect their employees should a pandemic health crisis 
occur.

DATES: The regulations are effective July 16, 2007.

FOR FURTHER INFORMATION CONTACT: Gene Holson by telephone at (202) 606-
2858, by fax at (202) 606-0824, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: On August 17, 2006, the Office of Personnel 
Management (OPM) published interim regulations (71 FR 47692) in 5 CFR 
parts 531 and 550 concerning pay actions for employees affected by a 
pandemic health crisis. The interim regulations (1) Clarified the rules 
for determining an employee's official worksite for the purpose of 
identifying his or her location-based pay entitlements when the 
employee teleworks from an alternative worksite during an emergency 
situation such as a pandemic health crisis and (2) authorized agencies 
to provide evacuation payments to an employee who is ordered to 
evacuate from his or her regular worksite and directed to work from the 
employee's home (or an alternative location mutually agreeable to the 
agency and the employee) during a pandemic health crisis. The 60-day 
comment period for the interim regulations ended on October 16, 2006. 
OPM received comments from three Federal agencies.
    One agency commented on the use of the term ``critical missions'' 
in the summary of the interim regulations: ``These regulations are 
issued as part of OPM's efforts to provide agencies with guidance to 
ensure they are able to fulfill their critical missions while at the 
same time protect their employees should a pandemic health crisis 
occur.'' The commenter noted that ``The National Strategy for Pandemic 
Influenza'' and ``Federal Preparedness Circular 65'' use the term 
``essential functions'' instead of ``critical missions.'' The agency 
recommended that OPM replace the term ``critical missions'' with 
``essential functions'' to ensure consistency in the terminology used 
in other Federal guidance. We are not making this change. We used 
``critical missions'' in the summary accompanying the interim 
regulations to be consistent with the terminology used in OPM's 
Pandemic Influenza guidance on OPM's Web site at http://www.opm.gov/pandemic/index.asp. The term itself is not in the interim or final 
regulations.

Official Worksite

    The same agency also requested clarification of the provision in 
Sec.  531.605(d)(3), which states that an authorized agency official 
may make a temporary exception to the requirement that a telework 
employee must report at least once a week on a regular and recurring 
basis to the regular worksite in order for the employee to continue 
receiving the locality rate for the regular worksite. The commenter 
inquired as to whether there is a time limit on how long a temporary 
exception under Sec.  531.605(d)(3), may be in effect. There is no such 
time limit. The intent of Sec.  531.605(d)(3) is to address certain 
situations where the employee is retaining his or her residence in the 
commuting area for the regular worksite but is temporarily unable to 
report to the regular worksite for reasons beyond the employee's 
control. The fact that an employee may receive lesser pay or benefits 
if the official worksite is changed to the telework location is not a 
basis or justification for using this temporary exception. A key 
consideration is the need to preserve equity between the telework 
employee and non-telework employees who are working in the same area as 
the telework location. The temporary exception should generally be used 
only in cases where (1) the employee is expected to stop teleworking 
and return to work at the regular worksite in the near future, or (2) 
the employee is expected to continue teleworking but will be able to 
report to the regular worksite at least once a week on a regular and 
recurring basis in the near future. Examples of appropriate temporary 
situations include: (1) Recovery from an injury or medical condition, 
or to assist with a family member's recovery from an injury or medical 
condition; (2) emergency situations that prevent an employee from 
regularly commuting to the normal worksite, such as a severe weather 
emergency or a pandemic health crisis; or (3) the employee is away from 
the area on extended official travel. (See the revised fact sheet, 
Official Worksite for Location-Based Pay Purposes, on OPM's Web site at 
http://www.opm.gov/oca/pay/html/Official_Duty_Station.asp.) The 
commenter also asked whether the authority to make a temporary 
exception may be delegated. The regulatory provisions at Sec.  
531.605(d)(3) do not restrict an agency's ability to delegate the 
authority to make such temporary exceptions.

Evacuation Payments

    One agency suggested there is too much emphasis on ``pandemic 
health crisis'' in the regulations and recommended replacing that term 
with ``emergency situations, such as a pandemic health crisis'' because 
the agency believes that most emergency situations will be weather-
related and

[[Page 33148]]

not health-related. In addition, the agency suggested there is no need 
for the new regulations at Sec.  550.409. The agency recommended 
deleting Sec.  550.409 and suggested adding the term ``such as a 
pandemic health crisis'' after ``other reasons'' to the regulations at 
Sec.  550.401(a). We are not adopting these recommendations. Unlike 
emergency situations where employees may be ordered to evacuate a 
designated geographic area (including evacuating their worksites and 
homes), during a pandemic health crisis employees may likely be ordered 
to evacuate their worksites to promote ``social distancing'' but not 
ordered to evacuate their homes. Because of these unique conditions, we 
believe it is imperative to limit the use of the evacuation payment 
authority in Sec.  550.409 to a pandemic health crisis.
    One agency recommended revising Sec.  550.409(a) to make clear that 
an agency's authority during a pandemic health crisis to order an 
employee to evacuate from his or her worksite and perform work from the 
employee's home includes the situation where the agency and the 
employee do not have a telework agreement in place at the time the 
order to evacuate is issued. We agree and have revised Sec.  
550.409(a). The agency also recommended that OPM delete the provision 
in Sec.  550.409(a) which limits an agency's authority to order an 
employee to perform work from a location other than the employee's home 
to a location that is ``mutually agreeable to the agency and the 
employee.'' The agency believes it is impractical to require an agency 
and an employee to engage in discussions with the intent of reaching an 
agreement as to where the employee is going to work, especially in the 
context of an emergency health crisis. We are not adopting this 
recommendation. During a pandemic health crisis, if an employee does 
not comply with his or her agency's order to work from home, or the 
agency and the employee cannot agree on an alternative work location, 
the agency may disapprove the employee's evacuation payments. Under 
these circumstances, the employee may be required to use his or her 
accrued annual leave (i.e., ``enforced leave''), may be furloughed, or 
disciplined, as appropriate.
    One agency noted that the issue of temporary promotion pay is not 
clearly addressed in the regulations. Under Sec.  550.409(a), evacuated 
employees may be assigned to perform any work necessary or required to 
be performed without regard to his or her grade, level, or title. The 
regulations also require agencies to compute evacuation payments under 
Sec.  550.404, which states that evacuation payments must be based on 
the rate of pay to which the employee was entitled immediately before 
the issuance of the order to evacuate. The commenter recommended 
revising the regulations to clarify that evacuation payments must be 
based on the rate of pay to which the employee was entitled immediately 
before the issuance of the order to evacuate, notwithstanding an 
agency's policy or collective bargaining agreement regarding an 
employee's entitlement to a noncompetitive temporary promotion when the 
employee is required to perform higher-level duties during the period 
of evacuation. We are not adopting this recommendation. While there may 
be circumstances in which it will be necessary to temporarily suspend 
certain provisions of an agency policy or a collective bargaining 
agreement in an emergency, it would be inappropriate to provide such a 
broad authorization to do so. The decision to take such action must be 
made on a case-by-case basis taking into consideration the facts and 
circumstances that exist at that time.

E.O. 12866, Regulatory Review

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

Regulatory Flexibility Act

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

List of Subjects in 5 CFR Parts 531 and 550

    Administrative practice and procedure, Claims, Government 
employees, Law enforcement officers, Wages.

    Office of Personnel Management.
Linda M. Springer,
Director.

0
Accordingly, the interim rule amending 5 CFR parts 531 and 550, which 
was published at 71 FR 47692 on August 17, 2006, is adopted as final 
with the following change:

PART 550--PAY ADMINISTRATION (GENERAL)

0
1. The authority citation for subpart D of part 550 continues to read 
as follows:

    Authority: 5 U.S.C. 5527; E.O. 10982, 3 CFR parts 1959-1963, p. 
502.

0
2. Amend Sec.  550.409 by revising the first sentence of paragraph (a) 
to read as follows:


Sec.  550.409  Evacuation payments during a pandemic health crisis.

    (a) An agency may order one or more employees to evacuate from 
their worksite and perform work from their home (or an alternative 
location mutually agreeable to the agency and the employee) during a 
pandemic health crisis without regard to whether the agency and the 
employee have a telework agreement in place at the time the order to 
evacuate is issued.* * *
* * * * *

 [FR Doc. E7-11584 Filed 6-14-07; 8:45 am]
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