[Federal Register Volume 84, Number 82 (Monday, April 29, 2019)]
[Rules and Regulations]
[Pages 17931-17941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08533]
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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. 84, No. 82 / Monday, April 29, 2019 / Rules
and Regulations
[[Page 17931]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 550
RIN 3206-AL55
Compensatory Time Off for Religious Observances and Other
Miscellaneous Changes
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations to amend its current regulations on compensatory time off
for religious observances. The final rule addresses comments and
clarifies provisions on employee coverage, employee and agency
responsibilities, scheduling time to earn and use religious
compensatory time off, accumulation and documentation, and employee
separation or transfer. We are also implementing other miscellaneous
changes in the pay and leave area.
DATES: Effective May 29, 2019.
FOR FURTHER INFORMATION CONTACT: Jennifer Melvin by telephone at (202)
606-2858 or by email at [email protected].
SUPPLEMENTARY INFORMATION: On August 30, 2013, the Office of Personnel
Management (OPM) published proposed regulations (78 FR 53695) regarding
compensatory time off for religious observances under 5 U.S.C. 5550a
and other miscellaneous changes.
The 60-day comment period for the proposed regulations ended on
October 29, 2013. We received comments from 8 Federal agencies, 2
religious organizations (including one submission on behalf of 19 other
religious and policy groups), and 4 individuals. This Federal Register
document provides general information, addresses the comments received,
and issues final regulations that reflect changes to the proposed
regulations. OPM is amending the regulations found in subpart J
(Compensatory Time Off for Religious Observances) in part 550 (Pay
Administration (General)) of title 5, Code of Federal Regulations. It
is also revising two definitions used in other regulations in part 550.
Comments on Proposed Regulations
Modifying From a 26 Pay Period Limitation to a 13 Pay Period Limitation
Four agencies provided comments disagreeing with the establishment
of a 26 pay period limitation, generally stating it was an excessively
long period that could lead to potential abuse, could impact the
mission of the agency, and would be administratively burdensome on
managers, supervisors, and timekeepers. Three agencies recommended
establishing a 13 pay period limitation before and a 13 pay period
limitation after for religious compensatory time off, thus providing a
26 pay period total for earning religious compensatory time off.
One agency objected to the proposed 26 pay period limit for earning
religious compensatory time following the use of advanced religious
compensatory time off, and is seeking a two pay period limit following
the use of religious compensatory time off for employees to repay the
hours used. The agency was concerned that a 26 pay period limit is
unreasonably long, and does not balance an agency's responsibility to
carry out its mission with an employee's right to make up the time in
26 pay periods. The agency points to other available flexibilities,
including earning religious compensatory time in advance of when it is
needed, using annual leave or advanced annual leave, leave without pay,
compensatory time off in lieu of overtime pay, compensatory time off
for travel, and adjusting work schedules.
We have evaluated these comments and are revising the proposed 26
pay periods before and 26 pay periods after the religious observance in
which to earn religious compensatory time off to be 13 pay periods
before and 13 pay periods after a religious observance in which to earn
religious compensatory time off. That would allow a total period of 26
pay periods (about 1 year) during which the religious compensatory time
off could be earned in connection with a religious observance. An
agency may not prescribe a lesser or narrower timeframe in which an
employee may earn religious compensatory time off before or after using
it. This change will allow employees about a year to schedule and earn
religious compensatory time off while making it more administratively
feasible for agencies to administer.
An individual commenter was opposed to the 26 pay period
limitation, citing that the limitation was too restrictive, and
recommended the limitation be doubled. The commenter cites that some
religious observances can be lengthy and questioned if adequate
compensatory time off could be earned feasibly within the preceding 26
pay periods.
We are not adopting this recommendation in the final regulations.
Below we summarize and respond to other comments on the proposed
regulations, organized by the affected regulatory section number.
Sec. 550.1001--Purpose
A religious organization requested clarification that religious
compensatory time off is not the only method by which agencies may
accommodate employees who need to abstain from work due to a personal
religious observance. The commenter requested we clarify this point by
adding language to the final regulation.
OPM previously addressed this concern in the Supplementary
Information of the proposed rule (78 FR 53697), in which (as part of a
discussion of Sec. 550.1006) we remind agencies and employees of the
availability of additional workforce flexibilities, including annual
leave, advanced annual leave, regular compensatory time off,
alternative work schedules, and leave without pay, all of which may
play a part in accommodating an employee's need to abstain from work
for religious purposes.
We encourage employees to work with their agencies to make use of
all appropriate workforce flexibilities to meet their needs. However,
this final rule addresses only religious compensatory time off
procedures, not the various options that an employee may choose when
taking time off for a religious observance. We are not adopting this
recommendation in the final rule.
Two agencies raised issues related to how earning religious
compensatory time off hours (via work) is in lieu of
[[Page 17932]]
receiving overtime pay. They pointed out that, contrary to the language
in the proposed definition of overtime work in Sec. 550.1003 stating
that overtime pay would normally otherwise be payable for hours worked
to earn religious compensatory time off, some employees do not normally
receive overtime pay for work beyond their scheduled hours.
We agree that certain employees--e.g., members of the Senior
Executive Service (SES), employees who reach the premium pay cap,
employees who work during holiday hours, and part-time employees who
perform nonovertime work beyond their scheduled tour--would not
otherwise receive overtime pay for hours worked to earn religious
compensatory time off. As further discussed later in this Supplementary
Information, we are agreeing to delete language in the definition of
overtime work in Sec. 550.1003 stating that overtime pay would
normally be received for the hours of work (but for crediting the hours
as earned religious compensatory time off). However, as a matter of
providing general clarification, we are adding language under Sec.
550.1001 to make clear that hours worked to earn religious compensatory
time off provide a time off credit in lieu of any pay that would
otherwise be payable for that work.
We are also adding the word ``personal'' before ``religious
requirements'' in two places in Sec. 550.1001 in response to comments
regarding the definition of religious compensatory time off in Sec.
550.1003, as discussed below.
Sec. 550.1002--Coverage
Two agencies asked for clarification regarding employees covered by
the religious compensatory time off regulations. One agency requested
the final regulations clarify that members of the Senior Executive
Service (SES), employees in senior-level (SL) and scientific or
professional (ST) positions, and wage grade employees are eligible to
earn religious compensatory time off. Another agency raised SES
coverage issues in the context of recommending that we delete ``for
which overtime pay would normally be payable'' from the overtime work
definition within Sec. 550.1003 in the final rule, since SES members
may earn religious compensatory time off but are not eligible to be
compensated for overtime hours worked. We agree with the comments
received from the agencies and are modifying the final regulations to
clarify which employees are eligible to earn and use religious
compensatory time off.
These final regulations clarify that coverage applies to each
employee (as defined in 5 U.S.C. 2105) in or under an Executive agency
(as defined in 5 U.S.C. 105) who has a scheduled tour of duty, which
would include members of the SES, SL/ST employees, and prevailing rate
(blue collar wage) employees who have a scheduled tour of duty.
Religious compensatory time off is provided under section 5550a,
subchapter V of chapter 55 (Premium Pay) of title 5, United States
Code. Section 5541(2) of the premium pay statute provides a definition
for the term ``employee'' to be used generally for the purpose of
subchapter V. This definition excludes certain categories of employees,
including SES members (who are excluded under section 5541(2)(xvi) and
(xvii)) and prevailing rate employees (who are excluded under section
5541(2)(xi), except for the purpose of applying sections 5544 and
5550b). However, based on the intent of Congress and the language in
section 5550a stating that ``any employee'' may use religious
compensatory time off ``notwithstanding any other provision of law,''
it has been OPM's longstanding position that the employee coverage
exclusions provided within section 5541(2) do not apply in determining
coverage under section 5550a. This means that members of the SES and
prevailing rate employees are covered by section 5550a. OPM's position
on employee coverage dates back to the early implementation of section
5550a shortly after its enactment on September 29, 1978 (Public Law 95-
390). Further, Comptroller General Decision B-209327 (July 26, 1983)
stated that ``the language and the legislative history of section 5550a
show an intent on the part of Congress to provide all Federal
employees'' with religious compensatory time off. It also found that
the religious compensatory time off law applies to members of the
Senior Executive Service, who are generally not covered by the premium
pay subchapter.
An OPM regulation in 5 CFR 534.408(b) that was promulgated in 1995
further clarifies that SES members are eligible to earn religious
compensatory time off, even though they are not eligible for overtime
pay or eligible to earn compensatory time off in lieu of overtime
premium pay.
Employees in senior-level (SL) and scientific or professional (ST)
positions who are paid under 5 U.S.C. 5376 are not excluded from the
definition of ``employee'' in 5 U.S.C. 5541(2). Therefore, there has
never been any question about their coverage under the religious
compensatory time off provision in section 5550a. SL/ST employees are
also covered by the broad definition of ``employee'' OPM has always
used (in lieu of the section 5541(2) definition) in determining
coverage under section 5550a.
In these final regulations, we are modifying the regulations to
clarify that the definition of ``employee'' in section 5541(2) does not
apply in determining coverage under the religious compensatory time off
provision.
Sec. 550.1003--Definitions
Overtime Work
Four commenters recommended the definition of overtime work be
modified or deleted. Two agencies recommended modifying the definition
by deleting ``for which overtime pay would normally be payable''. One
of the agencies recommended this language be deleted from the overtime
work definition due to concerns that the language may be construed to
prevent members of the Senior Executive Service (SES) from earning
religious compensatory time off, since they are not eligible to earn
overtime pay. The other agency noted that not all hours beyond an
employee's scheduled tour of duty may normally be paid as overtime
work.
We agree that this language could be misconstrued and are removing
the language from the definition of overtime work, as suggested, in
these final regulations.
One religious organization and one agency commented that the term
overtime work can cause confusion as it relates to religious
compensatory time off. The religious organization also stated that
applying the term overtime work to work performed by part-time
employees that is below applicable overtime thresholds is confusing.
Both commenters suggested replacing the term with language that is more
descriptive.
The term overtime work is used in the section of law, 5 U.S.C.
5550a, that authorizes the use of religious compensatory time off. The
regulations necessarily use the same term. However, a special
definition of the term is used for purposes of subpart J in order to
include certain hours that would not be considered overtime work under
the normally used definition. For example, the regulatory definition of
overtime work in Sec. 550.1003 in both the proposed and final
regulations states that it is deemed to include any work performed by a
part-time employee outside of his or her established part-time tour of
duty--even though the additional work by a part-time employee may not
be in
[[Page 17933]]
excess of the daily/weekly overtime thresholds that are normally used
to define ``overtime work.'' For these reasons, we are not adopting
this recommendation, and the term overtime work continues to be used in
the final rule.
An agency proposed adding language to the definition of overtime
work to clarify that religious compensatory time off may be earned by
working on a legal holiday ``whether within or outside the employee's
holiday clock hours.''
Consistent with OPM's longstanding guidance, the term overtime work
is deemed to include work performed by an employee on a legal holiday
when he or she is relieved from working on the holiday. In other words,
the holiday hours in question are the hours within the scheduled tour
of duty (i.e., ``holiday hours'') for which an employee normally
receives either (1) holiday pay for hours during which the employee is
excused from work or (2) holiday premium pay for working assigned
hours. If an employee elects to work on a holiday in order to earn
religious compensatory time off, the agency may authorize the employee
to do so. This election can be made when an employee is not otherwise
assigned to work the holiday hours. The employee is working even though
he or she would ordinarily (but for the election to earn religious
compensatory time off) be excused from duty. The employee will receive
the regular holiday pay as if excused from duty. The work during
holiday hours will be credited as religious compensatory time off and
will not generate entitlement to holiday premium pay. The proposed
regulations stated that overtime work includes ``work performed by an
employee on a legal holiday.'' Based on the agency comment, we are
modifying the definition of overtime work to clarify that we are
referring to holiday hours within the employee's scheduled tour of
duty--hours during which the employee would be excused from duty but
for the employee's election (with agency approval) to perform work to
earn religious compensatory time off. Any work on a holiday outside the
designated holiday hours would be overtime work hours under the
normally used definition; such work hours would generate overtime pay,
not holiday premium pay. Thus, there is no need to ``deem'' such work
to be overtime work for the purpose of converting overtime work to
religious compensatory time off under subpart J.
Religious Compensatory Time off
Two commenters expressed concerns about the definition of religious
compensatory time off--specifically, the language stating that ``an
employee whose personal religious beliefs require the abstention from
work during certain periods of time may elect to perform overtime work
in order to make up for the time the employee takes off to meet those
religious requirements.''
An agency stated that the reference to religious ``requirements''
in the proposed definition of religious compensatory time off is an
overstatement of why an employee chooses to observe certain religious
activities or ceremonies. A commenter representing the Department of
Justice requested clarification of the term ``require'' used in the
same definition, noting that the term ``require'' should be understood
to include both religiously mandated and religiously motivated conduct.
The commenter stated that the Department of Justice has taken the
position in past litigation that the Free Exercise Clause of the First
Amendment and Religious Freedom Restoration Act (42 U.S.C. 2000bb)
protect not only actions that are religiously mandated but also actions
that are religiously motivated. The commenter cited a court case,
DeHart v. Horn, 227 F.3d 47 (3d Cir. 2000)(en banc) to support its
position that attempting to distinguish between religiously mandated
and religiously motivated actions would improperly entangle agencies in
deciding inherently religious questions, and limit the use of religious
compensatory time off in a way that would be more narrow than intended.
The commenter suggested language that could be added to the regulation
to clarify that religiously motivated actions are a basis for using
religious compensatory time off.
Section 5550a provides religious compensatory time off when an
employee's ``personal religious beliefs require the abstention from
work during certain periods of time'' (emphasis added). Section 5550a
also refers to ``time lost for meeting those religious requirements''
(emphasis added). OPM's regulatory language uses the same terminology.
By law, religious beliefs must require (or compel or impose an
obligation on) the employee to be absent from work. However, it is
significant that the referenced beliefs are not the official beliefs of
an organized religion to which the employee may belong, but are the
employee's ``personal'' religious beliefs. In other words, it is
sufficient that the employee's personal religious beliefs cause the
employee to feel an obligation that he or she should be absent from
work for a religious purpose.
The DeHart decision dealt with the issue of whether Constitutional
religious freedom protections applied only to the orthodox beliefs of
an organized religion that imposed requirements (or commandments) on
members of that religion or also to the non-orthodox beliefs of
individual members of that religion. The court ruled that a claim for
religious protection could not be dismissed solely because of the non-
orthodox or non-mainstream character of the religious belief in
question. It pointed to Supreme Court decisions stating that courts
should not question the centrality of a particular religious belief or
attempt to determine whether a belief is the correct interpretation of
a religion's creed. Rather, courts should look at only two threshold
requirements that must be met before beliefs are accorded First
Amendment protection by a court: (1) The belief is sincerely held, and
(2) the belief is religious in nature. Id. at 51.
As noted above, the law establishing religious compensatory time
off for Federal employees makes clear that ``personal'' religious
beliefs are a legitimate basis for claiming the right to use
compensatory time off. The OPM regulations include the statutory
language describing the condition that ``personal religious beliefs
require the abstention from work.'' Given the concerns of commenters,
however, we are adding language in the definition of religious
compensatory time off to further clarify that the beliefs do not have
to be in line with the official mandates of a religious organization to
which the employee belongs and can spring from a sense of personal
obligation. We are also inserting the word ``personal'' before
``religious requirements'' and before ``religious obligations'' in the
definition of religious compensatory time off. Also, as noted earlier,
we are inserting the word ``personal'' before ``religious
requirements'' in two places in Sec. 550.1001 (Purpose).
Sec. 550.1004--Employee Responsibilities
An agency recommended that the term ``in advance'' in Sec.
550.1004(a) (dealing with employee requests to use religious
compensatory time off) should be clarified in the final regulations to
mean ``with enough time to allow the agency to consider the request.''
Each agency is responsible for establishing procedures under Sec. Sec.
550.1005 and 550.1006. Under both the proposed and final Sec.
550.1005(a), those procedures may include a requirement that an
employee submit a request to use religious compensatory time off
``sufficiently in advance to
[[Page 17934]]
accommodate necessary scheduling changes without interfering with the
agency's ability to efficiently carry out its mission.'' We believe
this gives agencies sufficient flexibility to handle employee requests;
therefore, we are not making changes based on this recommendation.
We received one comment from an individual supporting the proposed
requirement that an employee provide the agency with the name and/or
description of the religious observance in his or her request, but an
agency expressed concerns that an employee must submit this
information. The agency noted that many Native American tribes
participate in religious ceremonies that cannot be named or described.
An agency decision to allow an employee to earn and use religious
compensatory time off is made on a case-by-case basis. Agencies need
appropriate information in the employee's request in order to verify
that the request meets all applicable requirements and to make
determinations that will balance the religious needs of the employee
with the agency's ability to accomplish its mission. The exact nature
of the observance does not need to be described if there are religious
prohibitions on doing so, as long as the request provides enough
information for the agency to verify that it meets the requisite
requirements.
Similarly, an individual commented that employees may practice a
wide variety of religious practices, some of which may not be widely
recognized. The commenter asked OPM to issue guidelines for defining
religion.
OPM will not attempt to issue such guidelines. The law authorizing
religious compensatory time off is based on an individual's ``personal
religious beliefs,'' and OPM believes that case law sufficiently
defines religious belief. (See also our earlier discussion in this
Supplementary Information regarding the definition of religious
compensatory time off.)
A commenter representing the Department of Justice also sought
clarification on the meaning of ``required'' as used in Sec.
550.1004(b)(1). As discussed in connection with the Department of
Justice comments on the definition of religious compensatory time off
in Sec. 550.1003, the word ``require'' is used in the law authorizing
religious compensatory time off (5 U.S.C. 5550a). The language in Sec.
550.1004(b)(1) parallels the language in the law. Our changes to the
definition of ``religious compensatory time off'' in Sec. 550.1003
make clear that it is the employee's ``personal'' religious beliefs
that create the requirement or obligation to be absent from work. We
are making no additional changes in Sec. 550.1004(b)(1).
A religious organization proposed adjustments be made for the make-
up dates and times in an employee's original request due to unforeseen
circumstances. They suggested that, in the event an adjustment to the
dates and times of overtime work is required, an employee will submit
to the supervisor for approval a revised schedule that reflects those
changes.
We concur with this comment and are adding a new paragraph (d) in
Sec. 550.1004 to address submission of a revised schedule.
Sec. 550.1005--Agency Responsibilities
A religious organization expressed concern that many employees and
managers may lack knowledge regarding religious compensatory time off
and recommended adding regulations that address an employing agency's
responsibility to inform employees regarding their right to use
religious compensatory time off. The religious organization recommended
establishing procedures patterned after those found in regulations
implementing the Family and Medical Leave Act (FMLA) in 29 CFR part
825. Specifically, it recommended adding regulatory provisions that
would require an agency (1) to notify an employee of the right to use
religious compensatory time off ``when the agency acquires knowledge
that an employee's expected absence may be for a religious reason;''
(2) to ``responsively answer questions'' about religious compensatory
time off; and (3) to provide a notice to the employee when his or her
request for religious compensatory time off is denied that states the
reasons for the denial.
We are not making changes in the regulations based on the first two
recommendations identified above. While we agree there is a need to
ensure that agency managers and employees are informed regarding
religious compensatory time off, we do not believe it is necessary to
incorporate a formal notice requirement in regulations. Rather,
consistent with its administration of other programs related to leave
and other time off, OPM will take steps to educate agency managers and
employees regarding the religious compensatory time off program--in
particular, the changes made in these final regulations. We expect
managers to responsively answer employee questions about all personnel
matters and do not believe it is necessary to impose a regulatory
requirement under each personnel program. With respect to the personnel
programs it administers, OPM is in a position to adjust its guidance
and educational efforts as necessary.
Ultimately, it is the responsibility of the employee to notify the
supervisor of his or her intent to use religious compensatory time off
as provided under Sec. 550.1004. We cannot expect supervisors to be
generally aware that a requested absence is due to an employee's
personal religious obligation. The employee must choose whether to
request religious compensatory time off and disclose information about
his or her personal religious obligation. We note that OPM's FMLA
regulations (5 CFR part 630, subpart L), which apply to most Federal
employees, also do not place a regulatory requirement on agency
managers to discern when FMLA leave may be implicated. (The FMLA
regulations cited by the commenter are the Department of Labor's title
29 FMLA regulations, which are generally not applicable to Federal
employees covered by title 5.)
We agree with the religious organization's third recommendation--
that, if the employee is not granted religious compensatory time off,
the agency should provide an explanation for denying the request. We
are incorporating language within Sec. 550.1005(b) of the final
regulations to address this recommendation.
Two agencies commented on the ability of an employee to provide an
oral request to use religious compensatory time off. The first agency
recommended that the first sentence in Sec. 550.1005(a) be changed to
require all employees to submit a request in writing. The second agency
also recommended modifying paragraph (a) of this section by replacing
``the supervisor'' with ``the agency'' to allow an agency that accepts
an oral request to determine how best to document an oral request
instead of the supervisor. The second agency stated that the agency,
not the supervisor, is in the best position to determine how to
document an oral request.
We do not concur with the first agency's recommendation to mandate
that a request to use religious compensatory time off must be in
writing. In extenuating circumstances, an employee may not be able to
make a request in writing. However, we do agree that a written request
should be the standard procedure. Accordingly, we are revising the
proposed regulations to provide that a written request is required to
the maximum extent practicable. Also, we are requiring the employee to
provide required
[[Page 17935]]
information as soon as practicable after an oral request is approved,
instead of relying solely on the supervisor's documentation of the
request. We do agree with the second agency's recommendation to change
``the supervisor'' to ``the agency'' in Sec. 550.1005(a) to enable an
agency to make a determination through its internal policy.
An agency also recommended changing the third sentence of Sec.
550.1005(a) to require all employees to submit their requests to use
religious compensatory time off sufficiently in advance to accommodate
necessary scheduling changes, but we are not adopting this
recommendation. Section 550.1004(a) requires employees to submit
requests in advance of the religious observance. The third sentence in
Sec. 550.1005(a) gives agencies some discretion in determining how far
in advance is necessary to avoid interfering with the agency's ability
to efficiently carry out its mission. Whether a request has been made
``sufficiently in advance'' would depend on the exact fact situation,
and thus OPM seeks to preserve agency discretion in this regard.
Two commenters requested clarification on the process for
disapproving a request. One agency requested additional guidance on an
agency's responsibility for denying a request. A second agency asked
for clarification on several factors that may be relevant when
considering an employee's request. It asked if a request could be
denied if the employee has not fulfilled his or her responsibilities
(such as providing the name of observance, dates and times, etc.)
within his or her request; or if the request may be denied if the
description provided is unclear, inadequate, or unreasonable. It also
asked what the order would be for approving multiple time off requests
of different types (from different employees) for a given day. The
agency asked whether religious compensatory time off must be approved
before other requests for time off from other employees for the same
time period if an agency cannot approve all of the requests.
In considering agencies' ability to disapprove an employee's
request related to religious compensatory time, a distinction must be
made between a request to ``use'' religious compensatory time off
(i.e., take time off to engage in a religious observance) and a request
to ``earn'' religious compensatory time off (i.e., perform extra work
that will be credited as religious compensatory time off hours to be
applied against a past or future use of time off). Paragraphs (a) and
(b) of Sec. 550.1005 pertain to a request to ``use'' religious
compensatory time off--in other words, the scheduling of time off to
engage in a religious observance. Paragraph (c) of Sec. 550.1005
pertains to the earning of religious compensatory time off hours. As
further explained below, an agency can deny a request to ``use''
religious compensatory time off (as defined in Sec. 550.1003) only if
it would interfere with the agency's ability to efficiently carry out
its mission. However, an agency has more flexibility in approving or
denying the timing of overtime work to ``earn'' religious compensatory
time off hours. When the regulations refer to a request for ``religious
compensatory time off'' without making a distinction between
``earning'' versus ``using'' religious compensatory time off (e.g.,
Sec. 550.1004(a)), the regulation in question should be understood as
referring to a request to ``use'' religious compensatory time off,
which necessarily includes plans to ``earn'' the necessary hours
through overtime work.
We are not providing additional guidance in the regulations on an
agency's responsibilities for approving a request to use religious
compensatory time off. As explained in Sec. 550.1005(b), an agency
must approve an employee's request based on personal religious
requirements unless the agency determines that approving the request
would interfere with the agency's ability to efficiently carry out its
mission. That is to say, an agency may deny a request to use religious
compensatory time off for a religious observance requiring absence from
work at specific times based on the requester's sincerely held
religious beliefs only if approving the request would interfere with
the agency's ability to efficiently carry out its mission. If the
information provided by the employee regarding the religious observance
is not sufficient to determine whether the request is to use religious
compensatory time off for a religious observance requiring absence from
work at specific times based on the requester's sincerely held
religious beliefs, an agency may request more information before acting
on the request. The requirement that a denial under Sec. 550.1005(b)
must be based on an agency determination that the employee's absence
would interfere with the accomplishment of the agency's mission is a
reflection of the statutory standard for determining whether a request
to use religious compensatory time off must be approved. In making
determinations on approving multiple time off requests from different
employees for the same day, agencies should use appropriate judgment.
For example, an agency may not be able to approve an employee's request
to use religious compensatory time off if the office has several
employees who are ill and are using sick leave, and the employee who is
requesting religious compensatory time off is needed in the interim to
achieve the agency's mission. We note that employees have a statutory
right to use sick leave.
A religious organization recommended an affirmative statement be
included in the final regulations that a supervisor should not make any
judgment about the employee's religious beliefs or his or her
affiliation with a religious organization--a statement that has been
included in OPM guidance, as documented on page 5 of the U.S.
Government Accountability Office's report on religious compensatory
time off (GAO-13-96, October 12, 2012).
OPM declines to make this change. Section 550.1005(b) states that
an agency must approve an employee's request to use religious
compensatory time off unless the agency determines that approving the
request would interfere with the agency's ability to efficiently carry
out its mission. OPM defines the term religious compensatory time off
in Sec. 550.1003 based on the statutory language. As we are clarifying
in the final regulations, if an employee feels a personal obligation to
be absent from work based on the employee's personal religious beliefs,
the employee's request to use ``religious compensatory time off'' must
be approved, absent a finding that an employee's absence would
interfere with the agency mission. Since the employee's personal
religious beliefs are at issue, the orthodox views of any religious
organization with which the employee may be affiliated (in any degree)
are not relevant. As Federal courts have ruled, neither courts nor
Government officials should be making judgments about the validity or
correctness of a person's sincerely held beliefs that are religious in
nature. We have concluded that our clarification of the definition of
religious compensatory time off in the final regulations sufficiently
addresses the concerns expressed by the commenter.
An agency commented that Sec. 550.1005(c) should be revised to
clarify that agencies may authorize ``up to'' 26 pay periods prior to
and after a religious observance for an employee to earn religious
compensatory time off. While we are revising the timeframe to be 13 pay
periods before or after a religious observance in these final
regulations, the issue raised by the
[[Page 17936]]
commenter is still relevant. The agency presumed that Sec. 550.1005(c)
allows agencies to set narrower (shorter) timeframes at their
discretion.
The agency's presumption is incorrect, as this provision was
intended to place an obligation on the agency to allow an employee to
earn religious compensatory time off within the regulatory timeframe
established in Sec. 550.1006(c). Proposed Sec. 550.1005(c) was not
intended to permit agencies to establish a narrower timeframe in which
an employee may earn religious compensatory time off. Proposed Sec.
550.1005(c) must be read in conjunction with Sec. 550.1006(b) and
(c)(1), which allow an employee to earn religious compensatory time off
within the regulatory timeframe. Agencies do not have the discretion to
establish a narrower timeframe for earning religious compensatory time
off hours. Within the regulatory timeframe, agencies do have some
discretion in approving the specific occasions when an employee will be
allowed to perform overtime work and earn religious compensatory time
off hours based on mission requirements; however, that discretion does
not extend to establishing a blanket policy that narrows the timeframe
for earning hours set forth in Sec. 550.1006. In response to the
agency's comments, we are revising Sec. 550.1005(c) to refer to the
deadline in Sec. 550.1006(c).
Sec. 550.1006--Scheduling Time To Earn and Use Religious Compensatory
Time Off
An agency asked whether, for a targeted religious observance,
employees could earn religious compensatory time off in advance of the
observance as well as after the observance to repay the time.
As provided under Sec. 550.1006(a), the scheduling of time to earn
and use religious compensatory time off by an employee is subject to
the agency's approval as provided under Sec. 550.1005. These
regulations provide rules allowing an employee to earn religious
compensatory time off (by working) before the religious observance,
after the religious observance, or through a combination of time worked
both before and after the religious observance. The employee may earn
the hours in advance of using religious compensatory time off or earn
the hours to repay the hours already used as religious compensatory
time off. Agencies must approve an employee's request to earn religious
compensatory time off as provided under Sec. 550.1005(c) and monitor
the employee's accumulation of such hours. The specific timing of when
an employee will be allowed to earn religious compensatory time off by
performing overtime work is a matter of agency discretion based on the
needs of the agency. In other words, agencies can consider the specific
work requirements of the individual employee's organization in deciding
the specific times when the employee will be allowed to perform
overtime work to earn religious compensatory time off hours.
An agency recommended the final rule require employees ``to
normally earn religious compensatory time off in advance of the
religious observance.'' Alternatively, if OPM chooses to retain the
provision allowing an employee to earn religious compensatory time off
after the given religious observance, the agency recommended that the
final rule allow an agency to temporarily require an employee to earn
religious compensatory time off in advance for any future religious
observances if the employee did not perform the required overtime work
to make up for the religious compensatory time off used previously
(e.g., where the agency had to retroactively charge the employee annual
leave or leave without pay to recover the debt of hours, as provided in
Sec. 550.1006(c)(3)). The agency proposed that, if this retroactive
charging occurred, the employee would be required to earn religious
compensatory time off in advance for a 1-year period beginning on the
date the action to make a retroactive correction was taken.
We disagree, and are not adopting these recommendations. We see no
compelling reason to revise the longstanding policy that allows an
employee to earn religious compensatory hours after using the hours for
a religious observance. Nor do we, at this time, support limiting an
employee's future options based on a past failure to repay hours within
the regulatory timeframe. Any such failure results in an appropriate
negative consequence--a retroactive application of annual leave (or
other appropriate paid time off) or leave without pay. Any debt
resulting from retroactive application of leave without pay is subject
to debt collection.
An agency recommended changing the term ``may'' to ``must'' in
Sec. 550.1006(c)(3) (and similarly under Sec. 550.1008(b)) with
regard to agencies taking corrective action to eliminate or reduce the
negative balance of religious compensatory time off by making a
corresponding reduction in the employee's annual leave balance.
We believe the agency perceives there to be a discretionary
authority for the elimination or reduction of the debt. The charge to
annual leave is provided in the regulation as a ``may'' authority, but
there still remains a mandatory requirement to recoup any debt owed
with a ``must'' charge to leave without pay, thus creating a debt that
must be repaid. While we agree it would be a reasonable agency policy
to first charge annual leave to liquidate the debt, we use the term
``may'' to recognize that agencies may choose not to establish that
policy or may fail to take this corrective action first before charging
leave without pay. Allowing agencies the discretion to make an annual
leave correction is consistent with longstanding OPM guidance.
Accordingly, we are not adopting this suggestion.
An agency also recommended allowing employees to cover negative
balances through credit hours earned, compensatory time off in lieu of
overtime pay earned, compensatory time off for travel earned, or
substitution of other paid time.
We agree with this recommendation and are making changes in the
final regulations to allow for the substitution of credit hours,
compensatory time off in lieu of overtime pay, compensatory time off
for travel, and time-off awards to liquidate an employee's debt of
hours. We are revising Sec. 550.1006(c)(3) to provide that any
positive balance of annual leave, credit hours, compensatory time off
for overtime, compensatory time off for travel, or time-off awards may
be applied to reduce the debt of hours before it is converted to a
monetary debt. An agency may determine the order in which to apply
these forms of paid time off to offset the negative religious
compensatory time off balance. We are including only types of accrued
paid time off that can be used for any purpose. Thus, we did not
include sick leave or military leave, as these types of leave have
certain parameters and conditions on their use.
Sec. 550.1007--Accumulation and Documentation
Two agencies recommended establishing a limitation on the number of
religious compensatory time off hours that may be accumulated. An
individual commenter recommended placing a limitation on the amount of
religious compensatory time off hours an employee may earn per pay
period out of concerns that an employee could be tempted to work
extreme hours per day or per week in order to earn enough compensatory
time off for a religious observance.
[[Page 17937]]
We disagree, as there is no authority for a limitation on the
number of hours that may be earned or used. In general, an agency must
approve an employee's request to use religious compensatory time off,
unless the agency determines that approving the request would interfere
with the agency's ability to carry out its mission (see Sec.
550.1005(b)). Further, as explained in the Supplementary Information
regarding Sec. 550.1007 in the proposed rule (78 FR 53698), agencies
must monitor any accumulation to ensure that the employee is earning
the religious compensatory time off for a specific religious observance
and is not stockpiling the religious compensatory time off for
unidentified purposes.
One agency recommended deleting the term ``appropriate'' for the
type of records that must be kept under Sec. 550.1007(a), which
includes the name and/or description of the religious observance, the
dates and times, and the amount of religious compensatory time off each
employee earns and uses. The same agency also requested clarification
on whether records may be paper-based or electronic.
We agree that the term ``appropriate'' is ambiguous and
unnecessary, and we are deleting it in the final regulations. Each
agency has the discretion to determine if records should be kept
electronically or paper-based.
An agency recommended revising Sec. 550.1007(b) from ``an employee
may accumulate only the amount needed to cover an approved absence for
a religious observance that has already occurred'' to read, ``an
employee may accumulate only the amount needed to fund a previously
approved absence from work for a religious observance that has already
occurred.''
We disagree in applying the term ``fund'' to these regulations.
Employees accumulate hours to use for religious purposes. An employee
may earn religious compensatory time off in advance or after it is
used. Instead of becoming indebted, the employee is choosing to work
overtime hours to cover periods of absences for religious observances.
An agency asked if earned religious compensatory time off that is
not used as planned would be forfeited or paid out as compensatory time
off in lieu of overtime pay, or any other form of time off.
As provided within Sec. 550.1008, upon the employee's separation
from Federal service or transfer to another Federal agency, the losing
agency must compensate the employee for any positive balance to his or
her credit. The agency must pay the employee for the hours of religious
compensatory time off earned at the hourly rate of basic pay in effect
at the time the religious compensatory time off was earned. Religious
compensatory time off cannot be forfeited, paid as overtime premium
pay, provided as compensatory time off in lieu of overtime pay, or
converted to any other forms of time off.
An agency requested that Sec. 550.1007(c)(1) be removed from the
final regulations. This section provides that if the employee does not
use his or her religious compensatory time off as planned, the positive
balance may be redirected toward a future religious observance that has
been approved, even if that future observance is beyond the normally
applicable regulatory timeframe (notwithstanding Sec. 550.1006(b)).
The agency recommended removing this section because including it could
leave room for error in its administration.
We are not adopting this recommendation to remove Sec.
550.1007(c)(1) from the final regulations. It is appropriate to allow
earned religious compensatory time off that has not been used as
planned to be applied toward a future religious observance that has
been properly requested and approved.
Two agencies provided additional comments on allowing the unused
positive balance of religious compensatory time off to be redirected to
a future religious observance when the employee was unable to use the
hours earned as originally planned and approved. One agency agreed with
allowing employees to redirect earned hours to a different religious
observance, but objected to not having some kind of deadline for using
the hours. It recommended establishing a 13 pay period deadline for
using religious compensatory time off that has been previously earned,
whether used as originally planned or for a different religious
observance in the future. We understand this agency to be proposing
that there be a strict rule that earned hours of religious compensatory
time off must be used within 13 pay periods of when earned. Any
different religious observance to which hours are redirected would have
to occur within that 13 pay period window. The agency did not specify a
proposed consequence for failure to meet that deadline. Another agency
commented that there should be a cutoff period established for purposes
of determining what happens to the religious compensatory time off if
not used by a certain pay period.
We disagree with these comments. We do not support a cutoff date
for eliminating a positive balance of unused religious compensatory
time off via either forfeiture or cash payment. Earned religious
compensatory time off hours are intended to be used for a religious
observance. Under the regulations, the cashing out of unused religious
compensatory time off hours occurs only when an employee leaves the
agency (via separation or transfer), which maximizes the possibility
that the hours will be used for the intended purpose and prevents abuse
that might occur if employees were allowed to repeatedly cancel planned
uses of religious compensatory time off and convert the hours to a cash
payment after a certain amount of time has elapsed.
Under paragraph (c), if an employee does not use earned religious
compensatory time off as planned, the employee may redirect the hours
towards a future religious observance without regard to the normal bar
on earning hours outside the regulatory timeframe. This is the
preferred approach, since it ensures that the hours are used to meet
religious obligations, as intended by the law. If an employee does not
redirect the hours to another religious observance, the positive
balance remains to the employee's credit until transfer or separation
from the agency. An employee with a positive balance of hours will be
barred from earning any additional religious compensatory time off
until the hours have been used or the employee establishes the need for
additional hours, as provided in the regulations. This approach
prevents employees from stockpiling religious compensatory time off for
undesignated purposes.
Given the comments received about a possible cutoff date for
eliminating a positive balance of unused religious compensatory time
off via either forfeiture or cash payment, we are adding a new
paragraph (d) in Sec. 550.1007 to make clear that there are no time
limits on using accumulated religious compensatory time off--that
unused religious compensatory time off hours remain to the employee's
credit until used, or until the employee's separation or transfer.
Sec. 550.1008--Employee Separation or Transfer
An agency commented that when an employee separates or transfers,
he or she should only be compensated for unused religious compensatory
time off when, at the time the employee earned it, he or she did not
expect to separate or transfer prior to the deadline for using it. The
agency wanted to ensure that an employee does not stockpile religious
compensatory time off hours
[[Page 17938]]
when the employee does not expect to use those hours before separating
or transferring and thus would receive payment for the unused hours.
Another agency submitted a similar comment concerning the
stockpiling of hours. The agency recommended that agencies be provided
the flexibility to liquidate via a cash payment unused religious
compensatory time off. While the agency appreciates the opportunity
employees have to retain unused time for future observances, it is
concerned about the indefinite carryover of hours. Currently, the
proposed regulations would only allow an agency to pay an employee for
the unused hours upon separation or transfer to another agency. Instead
of tracking the time annually or waiting for the employee to separate
or transfer, the agency recommended the regulations allow agencies to
determine if and when they would pay out the hours in situations other
than separation or transfer. The agency asserted this flexibility would
assist agencies in balancing timekeeping records if an agency has
determined the unused timeframe to be excessive, since the hours cannot
be forfeited.
We disagree. If an employee works the hours but does not use the
hours (i.e., has a positive balance), the employee should be
compensated for the hours worked at the time of separation or transfer,
as provided in Sec. 550.1008(a). As for an employee potentially
stockpiling hours, Sec. 550.1007(c)(2) provides that an employee may
accumulate additional religious compensatory time off hours only if
needed to cover an approved period of absence for a future religious
observance based on the specific dates and times that the employee has
identified. This provision is meant to prevent the stockpiling of
hours.
An agency also recommended revisions to Sec. 550.1008(b) by
replacing the term ``may'' to ``must'' when taking corrective action to
eliminate or reduce a negative balance of religious compensatory time
off by reducing the employee's annual leave balance upon separation or
transfer.
The same agency made a similar recommendation for Sec.
550.1006(c)(3), which we have already addressed. The charge to annual
leave is provided in the regulation as an optional authority (using the
language ``may''), but there remains a mandatory requirement (using the
language ``must'') for an agency to recoup the debt owed with a charge
to leave without pay, thus creating a debt that must be repaid.
It also recommended that the substitution of other forms of paid
time off--such as earned credit hours, regular compensatory time off
earned in lieu of overtime, or compensatory time off earned for
travel--be allowed to repay a negative balance in addition to the use
of annual leave.
We agree that the substitution of other forms of paid time off
should be allowed. Consistent with the change we made in Sec.
550.1006(c)(3), we are revising Sec. 550.1008(b) to allow for the
substitution of credit hours, compensatory time off in lieu of overtime
pay, compensatory time off for travel, or time-off awards to liquidate
the negative debt. However, the use of sick leave or military leave
would not be appropriate, as there are parameters on the appropriate
uses of these specific leave categories.
General Comments
An individual commenter recommended that the final rule include
dispute resolution or appeal procedures if an employee's request is
denied under 5 CFR 550.1005(b). The commenter wanted to ensure a common
knowledge of the appeals processs within agencies. We are not adopting
this recommendation in the final regulations. Each agency has
established appeal procedures that an employee must follow if he or she
seeks to grieve an agency's denial of a request for religious
compensatory time off. We have added language to Sec. 550.1005(b) to
provide that an agency must explain its reasoning for a denial of a
request to use and/or earn religious compensatory time off.
An individual commenter was opposed to the establishment of
religious compensatory time off, observing that some employees may not
identify with a religious group. The commenter recommended a general
compensatory personal time off bank be established instead. The
commenter specifically cited the time off needed by working parents for
various family commitments. The commenter stated that parents often
have to opt out of school events and activities because of a lack of
compensatory time available or having to use other leave, such as
annual leave or sick leave. The commenter also expressed that the
proposal could face appeals from employees who do not identify with a
religious group or practice but routinely participate in humaniatarian
efforts as a moral or ethical belief. The commenter recommended that
those individuals should be allowed to earn compensatory time off
without needing to qualify their efforts as ``religious''.
We cannot adopt this recommendation because there is no statutory
authority to establish a compensatory personal time off bank as
described by the commenter, and Congress has mandated that agencies
permit religious compensatory time off in the circumstances described
by these regulations, unless doing so, in a particular instance, would
interfere with the agency's mission. We note that employees may use
certain leave or time off for general purposes, including the purposes
cited by the commenter. For example, annual leave may used used for any
purpose. While annual leave must normally be earned or accrued before
it is used, it is possible for an agency to approve advanced annual
leave. (See https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/advanced-annual-leave.) Also, while regular
compensatory time off in lieu of overtime under 5 U.S.C. 5543 must be
earned in advance, it may also be used for any purpose.
Transitional Provisions
An agency commented that the proposed regulations did not address
the treatment of employees who owe religious compensatory time at the
time the final regulations become effective. The agency noted that some
employees may have used religious compensatory time off more than 26
pay periods prior to the effective date of the final regulations and
still not have worked the time to make it up. It asked whether such
employees would have an additional 26 pay periods to repay the debt of
hours or if the employing agency would have the authority to establish
an alternative deadline. The agency stated that it favored giving such
employees a reasonable period to repay the hours owed (by performing
work).
We agree that clarification is needed regarding the treatment of
the employees described by the agency who have a negative balance of
religious compensatory time off when the final regulations take
effect--whether the period of time since the religious compensatory
time off was used exceeds the regulatory timeframe (originally proposed
as 26 pay periods, but established as 13 pay periods in these
regulations) or is some lesser period of time. This comment also
brought to light that the proposed regulations did not specifically
address employees who have a positive balance of religious compensatory
time off when the final regulations take effect. Therefore, we are
adding a new Sec. 550.1010 to provide transitional rules for employees
who have either a negative or positive balance of religious
compensatory time off as of the effective date of the final
regulations.
[[Page 17939]]
Paragraph (b) of Sec. 550.1010 states that, for an employee who
has a negative balance (i.e., debt) of used but not-yet-earned
religious compensatory time off hours as of the effective date of the
final regulations, the 13 pay period limitation in Sec. 550.1006(c) is
applied as if the effective date were the date on which all the hours
of religious compensatory time off (represented in the negative
balance) were used. Thus, employees will have a full 13 pay periods to
earn the needed number of religious compensatory time off hours. Since
these regulations are changing the rules midstream for these employees,
we believe it is appropriate to start the clock when the new
regulations take effect.
Paragraph (c) of Sec. 550.1010 addresses employees who have a
positive balance of earned but unused religious compensatory time off
hours as of the effective date of the final regulations. It provides
that the employing agency must confirm and document that the hours are
connected to one or more specific religious observances requiring the
employee's absence from work in order to meet the employee's personal
religious requirements. The agency must give the employee an
opportunity to direct all unused hours to such a future religious
observance. If the employee does not direct all of those unused hours,
the employee may not earn any additional religious compensatory time
off hours until the employee establishes a need to earn such time off
hours, consistent with Sec. 550.1007(c)(2).
Miscellaneous Changes
In addition to the proposed revision of subpart J of part 550 of
title 5 of the Code of Federal Regulations, we also proposed to modify
the definitions of rate of basic pay in Sec. 550.103 and firefighter
in Sec. 550.1302. We did not receive any comments on those proposed
revisions. Therefore, these final regulations are making final the
additional miscellaneous proposed changes.
Executive Order Requirements
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action,'' under Executive Order 12866 and has been reviewed by the
Office of Management and Budget.
Executive Order 13771
This final 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.
Paperwork Reduction Act Requirements
This rule does not impose any new reporting or record-keeping
requirements subject to the Paperwork Reduction Act.
List of Subjects in 5 CFR Part 550
Government employees.
Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.
For reasons stated in the preamble, OPM is amending part 550 of
title 5 of the Code of Federal Regulations as follows:
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart A--Premium Pay
0
1. The authority citation for subpart A of part 550 continues to read
as follows:
Authority: 5 U.S.C. 5304 note, 5305 note, 5504(d), 5541(2)(iv),
5545a(h)(2)(B) and (i), 5547(b) and (c), 5548, and 6101(c); sections
407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5
U.S.C. 5545a); section 2(h), Pub. L. 113-277, 128 Stat. 3005; E.O.
12748, 3 CFR, 1992 Comp., p. 316.
0
2. In Sec. 550.103, the definition of ``rate of basic pay'' is revised
to read as follows:
Sec. 550.103 Definitions.
* * * * *
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an employee, including
any applicable locality payment under 5 CFR part 531, subpart F;
special rate supplement under 5 CFR part 530, subpart C; retained rate
under 5 CFR part 536; or similar payment or supplement under other
legal authority, before any deductions and exclusive of additional pay
of any other kind.
* * * * *
0
3. Revise subpart J to read as follows:
Subpart J--Compensatory Time Off for Religious Observances
Sec.
550.1001 Purpose.
550.1002 Coverage.
550.1003 Definitions.
550.1004 Employee responsibilities.
550.1005 Agency responsibilities.
550.1006 Scheduling time to earn and use religious compensatory time
off.
550.1007 Accumulation and documentation.
550.1008 Employee separation or transfer.
550.1009 Relationship to premium pay and overtime work.
550.1010 Transitional provisions.
Authority: 5 U.S.C. 5550a.
Subpart J--Compensatory Time Off for Religious Observances
Sec. 550.1001 Purpose.
This subpart implements 5 U.S.C. 5550a, which permits an employee
whose personal religious beliefs require the abstention from work
during certain periods of time to elect to engage in overtime work and
earn a special form of compensatory time off to make up for the time
lost in meeting those personal religious requirements. Religious
compensatory time off differs from other forms of compensatory time off
in that the sole purpose is to adjust an employee's work schedule to
accommodate a religious observance. The employee earns religious
compensatory time off by spending an equal amount of time in overtime
work before and/or after taking time from the employee's scheduled tour
of duty to meet personal religious requirements. Hours worked to earn
religious compensatory time off provide a time off credit in lieu of
any pay that would otherwise be payable for that work.
Sec. 550.1002 Coverage.
This subpart applies to each employee (as defined in 5 U.S.C. 2105)
in or under an Executive agency (as defined in 5 U.S.C. 105) who has a
scheduled tour of duty. The definition of ``employee'' in section
5541(2) does not apply to this subpart.
Sec. 550.1003 Definitions.
In this subpart:
Overtime work means work performed by an employee outside his or
her scheduled tour of duty for the purpose of making up time lost for
meeting personal religious requirements, as such term is explained in
the definition of ``religious compensatory time off'' in this section.
It is also deemed to include work performed by a part-time employee
outside of his or her
[[Page 17940]]
scheduled tour of duty, even if that work is below applicable overtime
thresholds (e.g., below 40 hours in a week), and work an employee
performs during holiday hours (within the employee's scheduled tour of
duty) during which the employee would otherwise be excused from duty.
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an employee, including
any special rate under 5 CFR part 530, subpart C; locality rate under 5
CFR part 531, subpart F; retained rate under 5 CFR part 536; or similar
rate under other legal authority, before any deductions and excluding
additional pay of any other kind. For example, a rate of basic pay does
not include additional pay such as night shift differentials under 5
U.S.C. 5343(f) or environmental differentials under 5 U.S.C.
5343(c)(4).
Religious compensatory time off means compensatory time off, as
authorized by 5 U.S.C. 5550a, under which an employee whose personal
religious beliefs require the abstention from work during certain
periods of time may elect to perform overtime work in order to make up
for time the employee takes off to meet those personal religious
requirements. Those requirements need not be officially mandated by a
religious organization to which the employee belongs. It is sufficient
that the employee's personal religious beliefs cause the employee to
feel an obligation that he or she should be absent from work for a
religious purpose. An employee approved to perform overtime work under
this subpart will be granted an equal amount of compensatory time off
from his or her scheduled tour of duty (in lieu of overtime pay or
other pay otherwise payable) to meet his or her personal religious
obligations.
Scheduled tour of duty means the regular work hours in an
established full-time or part-time work schedule during which the
employee is charged leave or time off when absent.
Sec. 550.1004 Employee responsibilities.
(a) An employee is required to provide his or her supervisor with a
request for religious compensatory time off in advance of the religious
observance by following the agency's procedures established in
accordance with Sec. Sec. 550.1005 and 550.1006.
(b) At the time the religious compensatory time off is requested,
the employee must provide the agency with the following information:
(1) The name and/or description of the religious observance that is
the basis of the employee's request to be absent from work in order to
meet the employee's personal religious requirements;
(2) The date(s) and time(s) the employee plans to be absent to
participate in the religious observances identified in paragraph (b)(1)
of this section; and
(3) The date(s) and time(s) the employee plans to perform overtime
work to earn religious compensatory time off to make up for the
absence.
(c) An employee must comply with the agency's procedures for
requesting religious compensatory time off, including any time
limitations prescribed under Sec. 550.1006.
(d) In the event that an adjustment to the dates and times of
planned overtime work is required due to unforeseen circumstances, the
employee must submit for approval a revised schedule to reflect those
changes.
Sec. 550.1005 Agency responsibilities.
(a) An agency may require an employee to submit his or her request
to use religious compensatory time off with all the information
specified in Sec. 550.1004(b) in a manner that is administratively
acceptable to the agency. To the maximum extent practicable, the agency
must require that the request be in writing (including electronic
communications). If the agency accepts an oral request, the agency must
document all the information specified in Sec. 550.1004(b) and must
require the employee to submit a written document containing all the
information as soon as practicable. An agency may require an employee
to submit a request to use religious compensatory time off sufficiently
in advance to accommodate necessary scheduling changes without
interfering with the agency's ability to efficiently carry out its
mission.
(b) An agency must approve an employee's request to use religious
compensatory time off unless the agency determines that approving the
request would interfere with the agency's ability to efficiently carry
out its mission. If the employee's request to use religious
compensatory time off is denied, the agency must provide a written
explanation as to the reason the request has been denied, regardless of
whether the employee's request was written or oral.
(c) The agency must provide the employee with an opportunity to
earn religious compensatory time off before the deadline established in
Sec. 550.1006(c), although the specific timing of when an employee
will be allowed to earn religious compensatory time off by performing
overtime work is a matter of agency discretion based on the needs of
the agency.
Sec. 550.1006 Scheduling time to earn and use religious compensatory
time off.
(a) The scheduling of time to earn and use religious compensatory
time off by an employee is subject to the agency's approval as provided
in Sec. 550.1005.
(b) For an employee who earns religious compensatory time off prior
to using it, religious compensatory time off may be earned up to 13 pay
periods in advance of the pay period in which the targeted religious
observance commences and must be linked to specific dates and times for
future use, as compatible with agency mission requirements.
(c)(1) An employee who uses religious compensatory time off prior
to earning it must fulfill his or her obligation to perform overtime
work in exchange for the advanced religious compensatory time off
within 13 pay periods after the pay period in which he or she used
religious compensatory time off, or the agency must take action as
provided in paragraph (c)(3) of this section.
(2) The 13 pay periods described in paragraph (c)(1) of this
section are calculated beginning with the first pay period beginning
after the date on which the religious compensatory time off was used.
(3) If the employee fails to earn religious compensatory time off
within 13 pay periods after taking religious compensatory time off, the
agency may take corrective action to eliminate or reduce the negative
balance by making a corresponding reduction in the employee's balance
of annual leave, credit hours, compensatory time off in lieu of regular
overtime pay, compensatory time off for travel, or time-off awards. An
agency may determine the order of precedence for applying the various
types of paid time off to offset the negative balance. Any negative
balance of religious compensatory time off remaining after any charging
of these types of paid time off must be resolved by charging the
employee leave without pay, which would result in an indebtedness that
is subject to the agency's internal debt collection procedures.
Sec. 550.1007 Accumulation and documentation.
(a) Agencies must keep records of the name and/or description of
the religious observance, and the dates, times, and amount of religious
compensatory time off each employee earns and uses. An agency must
credit religious compensatory time off for work performed on a time-
for-time basis,
[[Page 17941]]
under its time and attendance procedures.
(b) Except as provided in paragraph (c) of this section, an
employee may accumulate only the amount of religious compensatory time
off needed to cover an approved absence for a religious observance that
has already occurred or to cover an approved absence for a future
religious observance. An employee may only accumulate the amount of
religious compensatory time off needed to cover the specific dates and
times for which the employee has submitted a request for religious
compensatory time off under Sec. 550.1004.
(c) If the employee does not use his or her earned religious
compensatory time off as planned--
(1) The positive balance of unused compensatory time off may be
redirected toward a future religious observance that has been approved,
even if that future observance is more than 13 pay periods after the
compensatory time off was originally earned (notwithstanding Sec.
550.1006(b)); and
(2) The employee may not earn any additional religious compensatory
time off until the retained amount of religious compensatory time off
has been used or the need to earn additional religious compensatory
time off has been properly established and documented.
(d) Accumulated religious compensatory time off that is not used as
planned is not subject to time limits for usage. Unused religious
compensatory time off hours remain to the employee's credit until used
(subject to the agency's approval under Sec. 550.1005), or the
employee's separation or transfer (subject to Sec. 550.1008), as
applicable.
Sec. 550.1008 Employee separation or transfer.
(a) Upon an employee's separation from Federal service or transfer
to another Federal agency, the losing agency must compensate the
employee for any positive balance of earned religious compensatory time
off to his or her credit. The agency must pay the employee for hours of
earned religious compensatory time off at the hourly rate of basic pay
in effect at the time religious compensatory time off was earned.
(b) For an employee who has a negative balance of religious
compensatory time off upon an employee's separation from Federal
service or transfer to another Federal agency, the losing agency may
take corrective action to eliminate or reduce the negative balance by
making a corresponding reduction in the employee's balance of annual
leave, earned credit hours, compensatory time off in lieu of regular
overtime pay, compensatory time off for travel, or time-off awards. An
agency may determine the order of precedence for applying the various
types of paid time off to offset the negative balance. Any negative
balance of religious compensatory time off remaining after any charging
of these types of paid time off must be resolved by charging the
employee leave without pay, which would result in an indebtedness that
is subject to the agency's internal debt collection procedures.
(c) For purposes of applying paragraphs (a) and (b) of this
section, an hourly rate of basic pay is computed by dividing the annual
rate of basic pay by 2,087 hours (or 2,756 hours for firefighter hours
subject to that divisor under subpart F of this part).
Sec. 550.1009 Relationship to premium pay and overtime work.
The premium pay provisions for overtime work in subpart A of this
part and section 7 of the Fair Labor Standards Act of 1938, as amended
(FLSA), do not apply to overtime work performed by an employee that is
used to earn religious compensatory time off under this subpart. The
overtime hours worked to earn religious compensatory time off under
this subpart do not create an entitlement to premium pay (including
overtime pay) under subpart A of this part or FLSA overtime pay under 5
CFR part 551. Religious compensatory time off is not considered in
applying the premium pay limitations described in Sec. Sec. 550.105,
550.106, and 550.107.
Sec. 550.1010 Transitional provisions.
(a) This section applies only with respect to employees who as of
May 29, 2019 had a positive balance of earned but unused religious
compensatory time off hours or a negative balance (i.e., a debt) of
used religious compensatory time off hours not yet repaid by earned
hours.
(b) If an employee described in paragraph (a) of this section has a
negative balance (i.e., a debt) of used but not-yet-earned religious
compensatory time off hours as of the date specified in paragraph (a)
of this section, the 13 pay period limitation in Sec. 550.1006(c) is
applied as if such date were the date on which the hours of religious
compensatory time off were used.
(c) If an employee described in paragraph (a) of this section has a
positive balance of earned but unused religious compensatory time off
hours as of the date specified in paragraph (a) of this section, the
agency must confirm and document that the hours are connected to one or
more specific religious observances requiring the employee's absence
from work in order to meet the employee's personal religious
requirements. The agency must give the employee an opportunity to
direct all unused hours to such a future religious observance. If the
employee does not so direct all of those unused hours, the employee may
not earn any additional religious compensatory time off hours until the
employee establishes a need to earn such time off hours.
Subpart M--Firefighter Pay
0
4. The authority citation for subpart M of part 550 continues to read
as follows:
Authority: 5 U.S.C. 5545b, 5548, and 5553.
0
5. In Sec. 550.1302, paragraph (2)(iii) of the definition of
``firefighter'' is revised to read as follows:
Sec. 550.1302 Definitions.
* * * * *
Firefighter * * *
(2) * * *
(iii) Covered by the General Schedule and classified in the GS-
0099, General Student Trainee Series (as required by Sec. 362.203(f)
of this chapter), if the position otherwise would be classified in the
GS-0081 series.
* * * * *
[FR Doc. 2019-08533 Filed 4-26-19; 8:45 am]
BILLING CODE 6325-39-P