[Federal Register Volume 83, Number 69 (Tuesday, April 10, 2018)]
[Rules and Regulations]
[Pages 15291-15298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07348]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 83, No. 69 / Tuesday, April 10, 2018 / Rules
and Regulations
[[Page 15291]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630
RIN 3206-AN49
Weather and Safety Leave
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management is issuing new regulations
on the granting and recording of weather and safety leave for Federal
employees. The Administrative Leave Act of 2016 created four new
categories of statutorily authorized paid leave--administrative leave,
investigative leave, notice leave, and weather and safety leave--and
established parameters for their use by Federal agencies. These
regulations will provide a framework for agency compliance with the new
statutory requirements regarding weather and safety leave. OPM will
issue separate final regulations to address administrative leave,
investigative leave, and notice leave at a later date.
DATES: Effective date: This final rule is effective on May 10, 2018.
FOR FURTHER INFORMATION CONTACT: Kurt Springmann by email at [email protected] or by telephone at (202) 606-2858.
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
issuing final regulations to implement the weather and safety leave
provisions of the Administrative Leave Act of 2016, enacted under
section 1138 of the National Defense Authorization Act for Fiscal Year
2017 (Pub. L. 114-328, 130 Stat. 2000, December 23, 2016). The
Administrative Leave Act of 2016, hereafter referred to as ``the Act,''
added three new sections in title 5 of the U.S. Code that provide for
specific categories of paid leave and requirements that apply to each:
Section 6329a regarding administrative leave; section 6329b regarding
investigative leave and notice leave; and section 6329c regarding
weather and safety leave.
OPM published proposed regulations (82 FR 32263) on these new
categories of leave on July 13, 2017. The 30-day comment period for the
proposed regulations ended on August 14, 2017. After careful
consideration of the comments received, and in recognition of the
different implementation dates for the new leave categories under the
Act, OPM has determined that it would better serve agencies if the
final regulations on new subpart P, Weather and Safety Leave, were
issued separately from the final regulations on the other leave
categories. Accordingly, this Federal Register document provides
general information, addresses the comments received, and issues final
regulations that reflect changes to the proposed regulations expressly
regarding subpart P, Weather and Safety Leave. OPM will issue separate
final regulations on the other leave categories in the Federal Register
at a later date.
Effective Date
While the Act directed OPM to prescribe (i.e., publish) regulations
no later than 270 calendar days after the Act's enactment on December
23, 2016--i.e., September 19, 2017--OPM was unable to meet that
requirement. The Act further directed that agencies ``revise and
implement the internal policies of the agency'' to meet the statutory
requirements pertaining to administrative leave, investigative leave,
and notice leave no later than 270 calendar days after the date on
which OPM issues its regulations. (See 5 U.S.C. 6329a(c)(2) and
6329b(h)(2).) However, there is no similar agency implementation
provision in the law governing weather and safety leave. Therefore, the
weather and safety leave regulations in subpart P must be implemented
when the final rule is effective--i.e., 30 days after publication. (See
the DATES section of this preamble.) OPM will delay enforcing the
requirement in subpart P that agencies separately report weather and
safety leave to OPM until the 270th day following publication of the
final regulations on subparts N (administrative leave) and O
(investigative leave and notice leave).
To the extent that existing agency collective bargaining agreements
contain provisions that are inconsistent with the statutory provisions
of the Administrative Leave Act (including sections 6329a, 6329b, or
6329c), then the Act supersedes--as of the applicable implementation
date--conflicting provisions in agency collective bargaining agreements
as a matter of law. For an agency collective bargaining agreement in
effect before publication of these regulations, any provisions in the
regulations (other than those restating statutory requirements) that
are in conflict with the agreement may not be enforced until the
expiration of the current term of the agreement. For an agency
collective bargaining agreement that takes effect on or after the date
these regulations are published, regulatory provisions will supersede
conflicting provisions in the agreement during any period of time
following the applicable regulatory implementation date. To the extent
that the Act and accompanying regulations are not inconsistent with the
provisions in agency collective bargaining agreements, those provisions
remain in effect until the provisions expire or are renegotiated.
Agencies are responsible for compliance with time limits provided
for in the Act and OPM regulations and guidance.
New Subpart in 5 CFR Part 630
In this final rule, OPM is adding subpart P, Weather and Safety
Leave (implementing 5 U.S.C. 6329c) to 5 CFR part 630. Hereafter in
this SUPPLEMENTARY INFORMATION section, references to statutory
provisions in title 5 of the United States Code will generally be
referred to by section number without restating the title 5 reference
(e.g., section 6329c instead of 5 U.S.C. 6329c). Also, references to
regulatory provisions in title 5 of the Code of Federal Regulations
will generally be referred to by section number without restating the
title 5 reference (e.g., Sec. 630.1601 instead of 5 CFR 630.1601).
Weather and safety leave is permitted--at an agency's discretion
but subject to statutory and regulatory requirements, agency policies,
and lawful collective bargaining provisions--only when an agency
determines that employees cannot safely
[[Page 15292]]
travel to and from, or perform work at, their normal worksite, a
telework site, or other approved location because of severe weather or
other emergency situations. Though granting of weather and safety leave
must follow the guidelines and eligibility requirements contained in
section 6329c and these implementing regulations, and it is anticipated
that such leave would be granted sparingly in the case of employees
participating in telework, there is no cap on the number of hours that
may be granted for such leave.
Both the law and the regulations address recordkeeping and
reporting requirements on weather and safety leave with which agencies
must comply. Agencies must keep separate records on weather and safety
leave.
Comments on Proposed Regulations
We received comments relating to the proposed regulations on
weather and safety leave from 6 agencies, 4 unions, 1 other
organization, and 8 individuals. In the first section below, we address
general or overarching comments. In the sections that follow, we
address comments related to specific portions of the regulations.
General
Comment: Multiple commenters requested guidance about how the new
types of leave should be coded in the payroll system to accurately
account for and track the use of these new leave provisions.
OPM response: The regulations specify that an agency must track the
use of the new categories of leave using five categories: (1)
Administrative leave for investigative purposes, (2) administrative
leave for other purposes, (3) investigative leave, (4) notice leave,
and (5) weather and safety leave. The regulations do not address
details regarding the coding of leave in agency payroll systems or in
OPM's Government payroll databases. OPM will be providing payroll
providers with instructions on how to properly code the various types
of leave.
Comment: An organization expressed concern that having reports
prepared by the Government Accountability Office (GAO) submitted every
5 years is too infrequent. Instead, the organization stated that
agencies should be required to maintain real-time, current tallies of
all types of paid leave available on its website for all to see, rather
than buried in obscure, long, after-the-fact reports.
OPM response: Payroll providers submit payroll data to OPM every
biweekly pay period. Thus, agencies and OPM will have real-time data
that could be used to generate reports as necessary. The requirement
for GAO reports every 5 years is a statutory requirement, which OPM has
no authority to change. (See section 1138(d)(2) of Pub. L. 114-328.)
Comment: An organization stated that the regulations make no
provision for ensuring that agencies establish necessary agency rules
or that agency rules are consistent with OPM regulations. The
organization suggested that OPM exercise oversight over agency
practices.
OPM response: The Administrative Leave Act directed OPM to issue
regulations and guidance dealing with the appropriate uses and proper
recording of the new types of leave, but otherwise imposed no special
obligation to monitor agency practices. Although OPM has more general
authority to exercise an oversight function, OPM does not have the
resources to regularly evaluate every agency personnel program, and no
need for such a program has, as yet, been established in this context.
OPM can and will intervene if it becomes aware that an agency is not
complying with the law and regulations for which OPM is responsible.
Each agency, along with Inspectors General, is responsible for
evaluating agency personnel programs and the actions of its managers.
Comment: One commenter noted the telework-related provisions in the
proposed regulations and expressed concern that Federal employees were
not performing required hours of work while teleworking.
OPM response: The Telework Enhancement Act of 2010 (the Act), now
codified at 5 U.S.C. 6501-6506, specifies roles, responsibilities and
expectations for all Federal executive agencies with regard to telework
policies; employee eligibility and participation; program
implementation; and reporting. Under the Act, each agency is
responsible for ensuring that employees perform required hours of work
while teleworking. These regulations merely recognize the fact that the
option of telework is available by law, as specified, under authority
of 5 U.S.C. chapter 65 and explains how telework relates to the new
types of leave.
Comment: A union requested clarification that, unlike OPM's
Governmentwide regulations, OPM-issued ``guidance'' (e.g., weather/
safety leave guidance) does not interfere with a union's bargaining
rights or legal obligations in existing collective bargaining
agreements.
OPM response: To respond to the comment about the relationship
between OPM guidance and collective bargaining agreements, we must
first address how statutory and regulatory requirements affect
collective bargaining agreements. Statutory requirements established by
the Administrative Leave Act supersede conflicting provisions in any
agency collective bargaining agreement--as of the applicable
implementation date. Thus, the requirements in section 6329c would
prevail over conflicting provisions in any agency collective bargaining
agreement effective on the date that is 30 days after publication of
these final regulations. For example, section 6329c allows agencies to
provide weather/safety leave ``only if'' an employee is ``prevented
from safely traveling to or performing work at an approved location.''
By definition, for an employee participating in a telework program, the
telework site is an approved location. Thus, the law bars granting
weather/safety leave to an employee who can safely work at home under a
telework arrangement.
If OPM regulatory requirements that go beyond statutory
requirements conflict with an existing agency collective bargaining
agreement, those regulatory requirements may not be implemented until
the expiration of the current term of the agreement. (See section
7116(a)(7).) However, for any agency collective bargaining agreement
that takes effect on or after the date these regulations are published,
regulatory provisions will supersede conflicting provisions in the
agreement during any period of time following the regulatory
implementation date (30th day following publication). Once applicable,
OPM regulations will have the force of law and be binding on agencies.
Once OPM regulations are in force, we will also expect agencies to
comply with any related OPM guidance concerning compliance with the Act
or regulations, and such guidance may itself impact an agency's
collective bargaining obligations. For example, if the negotiability of
a proposal or provision is at issue before the FLRA or Courts in the
future, an agency may rely upon OPM's regulations and guidance as
reasons why the proposal or provision would be contrary to law under
the Federal Service Labor-Management Relations Statute and, therefore,
be nonnegotiable.
Comment: One individual commented that agencies should not grant
weather and safety leave, but instead should require employees to use
their annual leave when they are prevented from safely traveling to
work.
OPM response: The statute confers upon agencies the authority to
grant
[[Page 15293]]
weather and safety leave without loss of ``leave to which the employee
or employees are otherwise entitled'' (section 6329c(b)). Weather and
safety leave is generally appropriate when Government offices are
closed for a full or partial day because of snow or any other weather
or safety conditions and the employee is prevented from working or
otherwise unable to work at an alternative worksite pursuant to the
criteria provided in section 6329c(b). This would cover situations
where working at an alternative worksite is itself unsafe, where the
employee is ineligible for telework, or where the employee is not
participating in a telework program. At the sole and exclusive
discretion of agency management, it could also be used to cover the
unusual situation where a teleworker is unprepared to telework because
the event could not be readily anticipated (e.g., the normal workplace
is rendered unsafe following a fire, flood, or earthquake) and the
employee does not have equipment or materials he or she would need to
perform work.
Comment: A union believed that OPM should impose the same 270-day
delay in implementation for agency internal policies on weather and
safety leave as is done for administrative leave, investigative leave,
and notice leave. The union said that otherwise, the implementation and
use of weather and safety leave could be improperly delayed
indefinitely, creating uncertainty and confusion in the workplace. An
individual similarly commented that the subpart P regulations should
take effect in 270 days consistent with the other requirements in the
Act.
OPM response: The Act provides a 270-day implementation period for
administrative leave under 5 U.S.C. 6329a(c)(2) and for investigative
and notice leave under 5 U.S.C. 6329b(h)(2), but does not provide a
similar period for weather and safety leave under 5 U.S.C. 6329c.
Therefore, the regulations on weather/safety leave under subpart P will
take effect 30 days from this date of publication. As provided in Sec.
630.1604(b) of the regulations, agency policies and procedures on
weather/safety leave must be consistent with OPM's regulations and
guidance.
Section 630.1602--Definitions
Comment: One agency recommended that OPM change the definition of
``act of God'' to ``act of nature.''
OPM response: OPM chose to use ``act of God'' over ``act of
nature'' because ``act of God'' is the terminology used by the weather/
safety leave statute. (See section 6329c(b)(1).)
Section 630.1603--Authorization
Comment: An agency recommended adding a fourth weather/safety leave
category for severe commuting situations such as closure of a mass
transit system or a major highway. An individual suggested that OPM
revise Sec. 630.1603 to authorize agencies to grant employees weather/
safety leave for the purposes of preparing their homes for an imminent
hurricane or other natural disaster.
OPM response: The language of the weather and safety leave statute
at section 6329c(b) authorizes its use only ``if the employee or group
of employees is prevented from safely traveling to or performing work
at an approved location'' (italics added). OPM cannot authorize this
type of leave for mass transit or commuting problems not related to
safety matters. Employees have other workplace flexibilities available
to address these situations, including alternative work schedules,
leave, and telework. However, an agency could choose to close the
Federal facility in preparation for a severe hurricane or other pending
disaster based on safety considerations. Since ``weather and safety''
leave may be granted when Government offices are closed for a full or
partial day because of severe weather and safety conditions, provided
an employee is prevented from performing or otherwise unable to work at
an approved location based on criteria as specified in section
6329c(b), the leave may be appropriate for these purposes--e.g.,
evacuation of an area due to a hurricane.
Comment: An agency recommended that managerial discretion be
allowed in instances where an employee is unavoidably delayed or
necessarily absent for a short period of time because of a weather/
safety issue.
OPM response: Weather/safety leave may be provided when employees
are prevented from safely traveling to or safely performing work at an
approved location. This type of leave is generally granted in
conjunction with an agency or OPM operating status announcement. Such
an operating status announcement may allow for a delayed arrival or
early departure and the use of weather and safety leave to cover the
short period of absence. In other circumstances, an agency may
authorize administrative leave under section 6329a, subject to the 10-
workday calendar year limitation (once section 6329a is implemented),
for employees whose arrival at work is delayed; however, such use is
subject to the sole and exclusive discretion of the head of the agency
or his or her delegees, and should be consistent with agency policy. It
is anticipated that granting of such leave would be rare.
Comment: An individual asked what position should be taken if
officials authorize weather/safety leave when there are no weather/
safety conditions present.
OPM response: The statute at section 6329c(b) prescribes that
weather/safety leave may be provided ``only if the employee or group of
employees is prevented from safely traveling to or performing work at
an approved location'' due to the conditions specified under Sec.
630.1603. This type of leave is generally provided in connection with
an OPM or agency-specific operating announcement. Providing this leave
when none of the weather/safety conditions listed under Sec. 630.1603
are present would be inconsistent with the statute. Each agency is
responsible for ensuring the weather/safety leave is used appropriately
and, when it is not, taking necessary corrective action.
Comment: To reflect the statutory language at section 6329c(b), an
agency recommended that OPM add the word ``only'' to Sec. 630.1603 so
that it reads ``only if they are prevented from safely traveling.''
OPM response: The word ``only'' has been added to Sec. 630.1603.
Section 630.1604--OPM and Agency Responsibilities
Comment: A union asked if it was appropriate for an agency to
require employees to request annual leave when prevented from traveling
to the worksite by a weather/safety event and then later requiring the
employees to request conversion of the annual leave to weather/safety
leave.
OPM response: Weather and safety leave generally should be
authorized based on operating status announcements. In most cases, if
an employee requests annual leave in order to depart before an
announcement is made, the employee will remain on annual leave. More
information will be provided in OPM guidance.
Comment: An agency asked if weather/safety leave or administrative
leave applies when OPM or a local Federal Executive Board closes
installations due to snow.
OPM response: Weather/safety leave generally will be provided in
conjunction with an operating status announcement and may be used when
Government offices are closed because of snow or any other weather or
safety conditions, provided conditions for granting leave pursuant to
section 6329c(b) are met.
[[Page 15294]]
Section 630.1605--Telework and Emergency Employees
Comment: An individual commenter objected to Sec. 630.1605(a)(1)
because the commenter viewed the regulation as forcing an employee to
telework when an agency closes during a weather or safety event. The
commenter stated that this rule had the effect of treating all telework
employees as emergency employees. The commenter further stated that the
safety of the employee should be given priority. The commenter noted
that some existing collective bargaining agreements do not allow
employees to telework when an agency is closed due to a weather/safety
event.
OPM response: The weather/safety leave regulation does not force
employees to telework. Rather it recognizes that weather/safety leave
is normally unnecessary if an employee is eligible for and
participating in a telework program and is able to work at his or her
alternative work location, notwithstanding the conditions at the
default workplace. The regulation simply provides a framework and
criteria for decisions about whether to grant weather and safety leave
to Federal employees, including those employees who are approved to
telework. If a telework-participating employee does not meet the
criteria for the granting of weather/safety leave and seeks not to
telework, the employee has other options--the same options the employee
would have on any other day he/she seeks not to work (e.g., requesting
annual leave, requesting leave without pay etc.). Since the employee
has the option to telework, the employee is able to work without
compromising his/her safety. Weather/safety leave is granted solely
because of safety risks. As stated in the law at section 6329c(b),
weather/safety leave is to be granted ``only if'' an employee is
``prevented from safely traveling to or performing work at an approved
location,'' and for an authorized teleworker the telework site (usually
the employee's home) is an approved work location. Emergency employees
are governed by a different set of guidelines than telework-
participating employees. Unlike many emergency employees, the
teleworker is not expected to report to the regular worksite when an
emergency has caused the regular office to be closed to the public. To
the extent that an existing collective bargaining agreement contains
provisions that conflict with the nonstatutory requirements in
telework-related regulations in Sec. 630.1605(a), however, this
regulation may not be enforced during the current term of the agreement
(5 U.S.C. 7116(a)(7)).
Comment: Another individual commented that the denial of weather/
safety leave to teleworkers penalizes those who only occasionally
telework and discourages employees from agreeing to situational
telework. The commenter recommended that the regulations include an
annual threshold for situational teleworking days under which an
employee, with supervisor concurrence, would not be required to
telework or take leave when the government is closed for weather and
safety purposes.
OPM response: As noted above, the statute at section 6329c(b)
permits weather/safety leave only if the employee is prevented from
safely traveling to or performing work at an approved location.
Occasional teleworkers have the same ability as regular teleworkers to
perform work at an approved location (the telework site) during
weather/safety events. Occasional teleworkers also realize the benefits
of teleworking, although not as frequently as regular teleworkers. OPM
does not believe that the inability to receive weather/safety leave on
the rare occasions when weather/safety events close offices will
discourage a significant number of employees from seeking the benefit
of occasional teleworking. Even if it does cause some employees to not
engage in occasional teleworking, however, the regulation is consistent
with the underlying purpose of this later statute, which is to limit
weather/safety leave to situations where an employee is unable to
perform work at an approved location.
Comment: A union asked what criteria are necessary to determine if
an employee can reasonably work from home and what happens if the
employee does not have a home and equipment that are suitable for
teleworking. The union also commented that it was not equitable for
those with telework agreements to work on days when those without
agreements are not required to work. The union further said that it is
not reasonable to force teleworkers to be forecasters of weather and
safety events such that they must be telework ready on all workdays.
The union additionally stated that telework policies are trending
toward expecting employees to maintain their residence in a continuous
telework-ready state by requiring mandatory telework during emergency
closure of the regular worksite, which in effect requires employees to
provide ``free rent'' of their residential office to the government on
days when they were not planning to telework.
OPM response: The regulations on weather/safety leave related to
teleworkers apply only to employees who are already ``participating in
a telework program'' (as defined in Sec. 630.1602). For such telework
program participants who already telework at home, they must have a
home and equipment suitable for teleworking. Agency telework policies
and employee telework agreements establish the criteria for determining
whether an employee can reasonably work from home. At a minimum, and
subject to other requirements of the agency, teleworkers must have
sufficient work and a workplace conducive to performing the work. If
the employee does not have a suitable home or cannot transport needed
equipment to his or her home, then the employee should not have a
telework agreement. Employees without telework agreements cannot work
from home; therefore, they may be granted weather/safety leave under
these regulations.
Employees with telework agreements gain the benefits of
teleworking, but generally will not be granted weather/safety leave
when a weather/safety event can be reasonably anticipated. Warnings for
these anticipated events are usually broadcast in the media well in
advance and, for that reason, teleworkers are generally expected to
know that they need to be prepared to work from home when the event
occurs. Because agencies may provide weather/safety leave to
teleworkers when, in the agency's judgment, the event could not be
reasonably anticipated and an employee is otherwise prevented from
performing work, there is no need for teleworkers to be prepared to
telework on days when a major event is not anticipated unless it
coincides with an already scheduled telework day. There is no
requirement for employees to maintain their residence in a continuous
telework-ready state or dedicate any part of their residence for
telework purposes beyond any requirements in connection with their
normally scheduled telework. For employees who have a regular telework
schedule, there is essentially no difference between activities
required to maintain a residence in a telework-ready state when
expecting a weather event and maintaining it in a telework ready state
when preparing for any other telework day, nor is there any meaningful
difference in how an employee would dedicate space in their residence
under these respective scenarios. OPM also notes that these regulations
do not require mandatory telework during emergency closures, but
instead bar
[[Page 15295]]
weather/safety leave from being granted when employees can telework.
Comment: A union said that it is the responsibility of the agency
to timely notify employees of an impending weather/safety condition if
the agency wants the employees to telework on a day when the employees
would have otherwise worked in the office. The union believed it unfair
and burdensome to make employees take annual leave when they do not
bring work home.
OPM response: Under Sec. 630.1605(a)(3), agencies have discretion
in determining whether a weather/safety condition could be reasonably
anticipated and whether the employee took reasonable steps to prepare
for teleworking. OPM defers to an agency's judgment as to whether to
provide notice in some manner of impending weather/safety conditions
for which teleworking employees will not receive weather/safety leave.
An agency notice, whether provided or not provided, may be a
consideration in the determination as to whether an employee took
reasonable steps to prepare for teleworking.
Comment: Three commenters expressed concern about employee
dependent care responsibilities when an employee participates in a
telework program and a weather or safety condition occurs that prevents
safe travel. Two of the commenters pointed out that agencies often have
telework policies that do not permit telework when employees have small
children or other dependents at the telework site. Because Sec.
630.1605(a)(1) prohibits agencies from granting weather and safety
leave when an employee can telework at an approved telework site, the
commenters believe that this section precludes agencies from granting
weather and safety leave to employees with dependent care
responsibilities.
OPM response: An agency may determine that, under certain
conditions, employees are capable of teleworking even if they have
school-age children or elderly parents in the home and establish a
policy of allowing telework in such situations. However, if these
circumstances diminish an employees' ability to perform agency work,
they will not be eligible to telework under these conditions (5 U.S.C.
6502(b)(1)). If an agency policy bars telework at home in the given
child/elder care situation, then the home is not an approved location.
Thus, if the employee is not permitted to telework under agency
policies, and cannot safely travel to or perform work at the regular
office location, an agency may grant weather/safety leave to the
employee. If agency policies allow an employee to telework with a
school-age child or an elderly parent in the home in a weather/safety
situation, any time spent in giving care to such individuals would not
be considered hours of work. Under this scenario, an employee would be
expected to account for work and non-work hours during his or her tour
of duty and take the appropriate leave (paid or unpaid) to account for
the time spent away from normal work-related duties.
Comment: An agency recommended that agencies be permitted to grant
employees administrative leave when needed to address the effects of
weather/safety events to ensure their safety, the safety of others, the
integrity of their property, and/or their ability to report to work.
The agency provided as examples the need to clear snow or remove excess
water from their property.
OPM response: To the extent that activities such as clearing snow
are truly necessary to ensure that the employee can safely travel to or
safely perform work at an approved location, within the meaning of
section 6329c(b)(3), the agency can provide weather/safety leave at its
discretion for the period needed. Employees would need to use their
annual leave or other time off for activities such as clearing snow on
sidewalks or basement water removal that are not necessary to ensure
that the employee can safely travel to or perform work at an approved
location. OPM's guidance on dismissal and closure policy and procedures
will further address agency discretion in regard to granting weather/
safety leave.
Comment: The same agency asked why Sec. 630.1605(a)(2)(iii) is
necessary since agencies may not approve weather/safety leave if an
employee could reasonably anticipate the need to telework.
OPM response: Paragraphs (i) and (ii) of Sec. 630.1605(a)(2)
provide for the granting of weather/safety leave in two instances where
the employee might otherwise be expected to telework. Paragraph (iii)
provides that agencies can determine not to provide weather/safety
leave in circumstances such as those provided under (i) and (ii) when
the employee can safely travel to or perform work at the regular
worksite. In these instances, the telework site might not be viable,
but the employee might be able to work at the regular worksite. An
employee is generally expected to report to the regular worksite--even
on a day when he or she is scheduled to telework--if conditions at the
telework site do not permit the performance of work (e.g., lack of
internet access, loss of power).
Comment: The same agency asked when weather/safety leave is ever
applicable to the telework site. The agency asked if it would be
provided when the employee loses power while teleworking.
OPM response: Weather/safety leave may be granted to an employee at
a telework site as provided under Sec. 630.1605(a)(2)(ii). Examples of
when weather/safety leave might be provided include weather-related
damage to a home that makes occupying the home unsafe, loss of power at
home (which makes the home not an approved location under agency
telework policies), and employees not being prepared for teleworking
when the conditions could not be anticipated (tornado or earthquake).
The agency has discretion to grant weather/safety leave whenever an
employee is prevented from safely working because of one of the
conditions in Sec. 630.1603.
Comment: A union requested that OPM clarify that under Sec.
630.1605(a)(2)(iii) it is presumed that, if Government offices are
closed, the weather/safety conditions prevent the employee from safely
traveling to their traditional worksite.
OPM response: No such presumption applies. The agency must
determine the actual facts. Section 630.1605(a)(2)(iii) addresses
situations when an employee who participates in telework is unable to
work from home or another alternative location, due to a weather/safety
event, but the employee's regular worksite is open (or has reopened)
for business. Even if the employee (who is a telework program
participant) is not able to telework at home under the conditions
described in paragraph (i) or (ii), the agency may choose not to
provide an employee with weather/safety leave if the employee can
safely travel to and work at the regular worksite--regardless of
whether the given day was a scheduled telework day. Section
630.1605(a)(2)(iii) does not apply if the regular worksite is closed
for weather/safety reasons.
Comment: An agency recommended that OPM correct the section
reference in Sec. 630.1605(a)(2)(iii) from ``630.1603(a)'' to
``630.1603.'' Another agency recommended that the same change be made
in Sec. 630.1605(a)(3). Two unions recommended that OPM provide in
Sec. 630.1605(b) that agencies inform employees of their designation
as emergency employees at the time the designation is made.
OPM response: These changes have been made. OPM removed the
paragraph designation from the
[[Page 15296]]
Sec. 630.1603 references and modified Sec. 630.1605(b) to state ``an
agency should inform employees of their designation as emergency
employees well in advance.''
Comment: A union objected to the provision at Sec. 630.1605(b)
giving agencies discretion to designate emergency employees who are
critical to agency operations. The union said that the provision would
not prohibit or deter an agency from broadly construing ``necessary for
critical agency operations'' and excluding an overly large group of
employees from weather/safety leave. The union recommended that Sec.
630.1605(b) be stricken in its entirety or, at a minimum, modified to
narrow the types of employees who could be categorized as emergency
employees. The union said that these employees should not be required
to physically report to work when their colleagues are granted weather
and safety leave.
OPM response: Agencies have extensive experience with designating
emergency employees under prior dismissal and closure procedures used
for weather and other emergencies. Since the Telework Enhancement Act
of 2010, OPM has incorporated telework into our emergency operating
announcements not only for the safety of our employees, but also to
support continuity of operations, both for mission-critical functions
and more general work to the extent possible. The Federal Government
has a vital role in our economy and it is extremely important that we
continue operations to the greatest degree possible. OPM believes
agencies are in the best position to make determinations as to which
employees should be designated as emergency employees and which
employees are eligible to telework. Agencies are also in the best
position to decide if emergency employees are needed at the worksite or
whether their duties can be performed while teleworking.
Section 630.1606--Administration of Weather and Safety Leave
Comment: Two unions expressed concern about the regulation in Sec.
630.1606(c), which provides that an employee may not receive weather/
safety leave for hours during which the employee is on other
preapproved leave (paid or unpaid) or paid time off. The unions
objected to the rule that agencies should not approve weather/safety
leave for an employee who, ``in the agency's judgment, is cancelling
preapproved leave or paid time off, or changing a regular day off in a
flexible or compressed work schedule, for the primary purpose of
obtaining weather and safety leave.'' One union stated that, if
employees have a right to modify scheduled time off, the primary
purpose of a modification should not be left to the determination of
management. The union warned that this rule could result in mass
grievances, which could result in large costs to both the agency and
the union. The other union voiced similar concerns, stating that an
agency should be required to prove that an employee is cancelling
preapproved leave for the primary purpose of obtaining weather/safety
leave.
OPM response: The reason behind the rule on cancelling scheduled
time off is to prevent employees from receiving paid leave when the
employee was not actually going to be available to perform work. This
is not a new policy and is currently reflected in OPM's operating
status guidance for the Washington, DC, area. One good example is a
situation in which an employee is on vacation in a distant location.
Based on the unions' position, such an employee should be allowed to
cancel preapproved leave and receive weather/safety leave even though
the employee was not available to work at the regular worksite and is
not affected by the weather/safety emergency. Another example is an
employee who is in the middle of a 6-week period of scheduled unpaid
leave under the Family and Medical Leave Act in order to recover from a
serious illness and who clearly has no intention to report to work on
the day of a weather/safety emergency. If such an employee tried to
cancel the unpaid leave on the day of the weather/safety emergency, it
would clearly be for the primary purpose of obtaining weather/safety
leave. Given the variety of possible circumstances, OPM cannot
prescribe a simple ``bright line'' rule (or even a set of rules) that
does not require some judgment on the part of agency officials.
Supervisors and managers are regularly called upon to exercise judgment
in other contexts, and OPM believes they are capable of exercising
appropriate judgment in this particular context and coming to a fair
decision. OPM plans on providing additional guidance in this area
regarding when a cancellation of preapproved leave would not prevent
the granting of weather/safety leave because the employee's leave plans
are also changed due to the weather/safety emergency--for example, when
a doctor's appointment that was the reason for a request for sick leave
is cancelled because of the same weather/safety event (e.g., a major
snowstorm), or when an employee is unable to leave for vacation because
the employee's flight is cancelled due to such an event. (We note that
any sick leave would mandatorily be cancelled if the doctor's
appointment is cancelled and the employee is not sick.)
Comment: One individual described the two sentences in Sec.
630.1606(c) as being contradictory. Another individual found the
paragraph confusing and requested language changes to clarify that
weather/safety leave was not allowed unless the employee demonstrated
that the weather/safety event prevented the employee from using
preapproved leave for the originally planned purpose.
OPM response: After considering these comments, OPM does not
believe the sentences are contradictory and will leave the paragraph
unchanged. The first sentence prohibits the granting of weather/safety
leave to employees on preapproved leave. The second sentence bars an
employee from receiving weather/safety leave if the agency determines
that the employee cancelled preapproved leave for the primary purpose
of receiving weather/safety leave. This bar does not apply to employees
who cancel their preapproved leave because their leave plans are
disrupted by the weather/safety event or some other reason (e.g., a
cancelled medical appointment or scheduled flight to a vacation
destination). These employees may be approved for weather and safety
leave if not otherwise required to telework or report to work under
Sec. 630.1605. OPM will be issuing guidance that will address this
provision in more detail.
Comment: One agency noted prior policy regarding early departures
and asked if the regulations are intended to bar weather/safety leave
whenever an employee has pre-approved leave, no matter what the
circumstances of the employee's leave.
OPM response: As addressed above, employees who cancel their
preapproved leave because their leave plans are disrupted by the
weather/safety event may be granted weather/safety leave, and OPM will
be issuing more detailed guidance on that matter. OPM will also be
issuing guidance that will provide more information on the relationship
of preapproved leave to early dismissal from work at a Federal office
or alternate work location.
In addition to the changes noted above, OPM made minor technical
changes to Sec. 630.1604 to improve clarity. We also changed
``approve'' to ``provide'' in several places in Sec. Sec. 630.1605(a)
and 630.1606(c) where the context was the providing of leave, since the
term ``approve'' might suggest
[[Page 15297]]
the employee is requesting that a leave entitlement be invoked. There
is no entitlement to weather and safety leave; it is always provided at
the agency's discretion.
Executive Order 13563 and Executive Order 12866
The Office of Management and Budget has reviewed this rule in
accordance with E.O. 13563 and 12866.
Executive Order 13771
This rule is not subject to the requirements of E.O. 13771 (82 FR
9339, February 3, 2017) because the rule is related to agency
organization, management, or personnel.
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.
List of Subjects in 5 CFR Part 630
Government employees.
Office of Personnel Management.
Jeff T.H. Pon,
Director.
For the reasons stated in the preamble, 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 is revised 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) and 6387; subpart M
issued under Sec. 2(d), Public Law 114-75, 129 Stat. 641 (5 U.S.C.
6329 note); and subpart P issued under 5 U.S.C. 6329c(d).
Subparts N and O--[Added and Reserved]
0
2. Subparts N and O are added and reserved.
0
3. Subpart P is added to read as follows:
Subpart P--Weather and Safety Leave
Sec.
630.1601 Purpose and applicability.
630.1602 Definitions.
630.1603 Authorization.
630.1604 OPM and agency responsibilities.
630.1605 Telework and emergency employees.
630.1606 Administration of weather and safety leave.
630.1607 Records and reporting.
Subpart P--Weather and Safety Leave
Sec. 630.1601 Purpose and applicability.
(a) This subpart implements 5 U.S.C. 6329c, which allows an agency
to provide a separate type of paid leave when weather or other safety-
related conditions prevent employees from safely traveling to or safely
performing work at an approved location due to an act of God, terrorist
attack, or other applicable condition. Section 6329c(d) directs OPM to
prescribe regulations to carry out the statutory provisions on weather
and safety leave, including regulations on the appropriate uses and the
proper recording of this leave.
(b) This subpart applies to an employee as defined in 5 U.S.C. 2105
who is employed in an agency, but does not apply to an intermittent
employee who, by definition, does not have an established regular tour
of duty during the administrative workweek.
(c) As provided in 5 U.S.C. 6329c(e), this subpart applies to
employees described in subsection (b) of 38 U.S.C. 7421,
notwithstanding subsection (a) of that section.
Sec. 630.1602 Definitions.
In this subpart:
Act of God means an act of nature, including hurricanes, tornadoes,
floods, wildfires, earthquakes, landslides, snowstorms, and avalanches.
Agency means an Executive agency as defined in 5 U.S.C. 105,
excluding the Government Accountability Office. When the term
``agency'' is used in the context of an agency making determinations or
taking actions, it means the agency heads or management officials who
are authorized (including by delegation) to make the given
determination or take the given action.
Employee means an individual who is covered by this subpart, as
described in Sec. 630.1601(b) and (c).
OPM means the Office of Personnel Management.
Participating in a telework program means an employee is eligible
to telework and has an established arrangement with his or her agency
under which the employee is approved to participate in the agency
telework program, including on a routine or situational basis. Such an
employee who teleworks on a situational basis is considered to be
continuously participating in a telework program even if there are
extended periods during which the employee does not perform telework.
Telework site means a location where an employee is authorized to
perform telework, as described in 5 U.S.C. chapter 65, such as an
employee's home.
Weather and safety leave means paid leave provided under the
authority of 5 U.S.C. 6329c.
Sec. 630.1603 Authorization.
Subject to other provisions of this subpart, an agency may grant
weather and safety leave to employees only if they are prevented from
safely traveling to or safely performing work at a location approved by
the agency due to--
(a) An act of God;
(b) A terrorist attack; or
(c) Another condition that prevents an employee or group of
employees from safely traveling to or safely performing work at an
approved location.
Sec. 630.1604 OPM and agency responsibilities.
(a) OPM is responsible for prescribing regulations and guidance
related to the appropriate use of leave under this subpart and the
proper recording of such leave, including OPM guidance on
Governmentwide dismissal and closure policies and procedures that
provides for use of consistent terminology in describing various
operating status scenarios. In issuing any operating status
announcements for the Washington, DC, area, OPM must make the specific
policies and procedures related to those announcements consistent with
the regulations in this subpart and with OPM's Governmentwide guidance.
(b) Employing agencies are responsible for--
(1) Establishing and applying policies and procedures related to
use of leave under this subpart that are consistent with OPM
regulations and guidance described in paragraph (a) of this section;
and
(2) Using terminology required by OPM-issued Governmentwide
guidance in any agency-specific operating status announcements they
issue (for a specific geographic location or area).
Sec. 630.1605 Telework and emergency employees.
(a) Telework employees. (1) Except as provided under paragraph
(a)(2) of this section, employees who are participating in a telework
program and are able to safely travel to and work at an approved
telework site may not be
[[Page 15298]]
granted leave under Sec. 630.1603. Employees who are eligible to
telework and participating in a telework program under applicable
agency policies are typically able to safely perform work at their
approved telework site (e.g., home), since they are not required to
work at their regular worksite.
(2)(i) If, in the agency's judgment, the conditions in Sec.
630.1603 could not reasonably be anticipated, an agency may provide
leave under this subpart to the extent an employee was not able to
prepare for telework as described in paragraph (a)(3) of this section
and is otherwise unable to perform productive work at the telework
site.
(ii) If an employee is prevented from safely working at the
approved telework site due to circumstances, arising from one or more
of the conditions in Sec. 630.1603, applicable to the telework site,
an agency may, at its discretion, provide leave under this subpart to
the employee.
(iii) Notwithstanding paragraphs (a)(2)(i) and (ii) of this
section, an agency may decide not to provide leave under this subpart
when the conditions in Sec. 630.1603 do not prevent the employee from
safely traveling to or safely performing work at a regular worksite,
even if the affected day is a scheduled telework day.
(3) In making a determination under paragraph (a)(2) of this
section, an agency must evaluate whether any of the conditions in Sec.
630.1603 could be reasonably anticipated and whether the employee took
reasonable steps (within the employee's control) to prepare to perform
telework at the approved telework site. For example, if a significant
snowstorm is predicted, the employee may need to prepare by taking home
any equipment (e.g., laptop computer) and work needed for teleworking.
To the extent that an employee is unable to perform work at a telework
site because of failure to make necessary preparations for reasonably
anticipated conditions, an agency may not provide weather and safety
leave, and the employee would need to use other appropriate paid leave,
paid time off, or leave without pay.
(b) Emergency employees. An agency may designate emergency
employees who are critical to agency operations and for whom weather
and safety leave may not be applicable. To the extent practicable, an
agency should inform employees of their designation as emergency
employees well in advance in anticipation of the possible occurrence of
the conditions set forth in Sec. 630.1603. If the agency wishes to
provide for the possibility that an emergency employee could work from
an approved telework site in lieu of traveling to the regular worksite
in appropriate circumstances, an agency should encourage the employee
to enter into a telework agreement providing for that contingency. An
agency may designate different emergency employees for the different
circumstances expected to arise from these conditions. Emergency
employees must report to work at their regular worksite or another
approved location as directed by the agency, unless--
(1) The agency determines that travel to or performing work at the
worksite is unsafe for emergency employees, in which case the agency
may require the employees to work at another location, including a
telework site as provided in paragraph (a) of this section, as
appropriate; or
(2) The agency determines that circumstances justify granting leave
under this subpart to emergency employees.
Sec. 630.1606 Administration of weather and safety leave.
(a) An agency must use the same minimum charge increments for
weather and safety leave as it does for annual and sick leave under
Sec. 630.206.
(b) Employees may be granted weather and safety leave only for
hours within the tour of duty established for purposes of charging
annual and sick leave when absent. For full-time employees, that tour
is the 40-hour basic workweek as defined in 5 CFR 610.102, the basic
work requirement established for employees on a flexible or compressed
work schedule as defined in 5 U.S.C. 6121(3), or an uncommon tour of
duty under Sec. 630.210.
(c) Employees may not receive weather and safety leave for hours
during which they are on other preapproved leave (paid or unpaid) or
paid time off. Agencies should not provide weather and safety leave to
an employee who, in the agency's judgment, is cancelling preapproved
leave or paid time off, or changing a regular day off in a flexible or
compressed work schedule, for the primary purpose of obtaining weather
and safety leave.
Sec. 630.1607 Records and reporting.
(a) Record of placement on leave. An agency must maintain an
accurate record of the placement of an employee on weather and safety
leave.
(b) Reporting. In agency data systems (including timekeeping
systems) and in data reports submitted to OPM, an agency must record
weather and safety leave under section 6329c and this subpart as a
category of leave separate from other types of leave.
[FR Doc. 2018-07348 Filed 4-9-18; 8:45 am]
BILLING CODE 6325-39-P