[Federal Register Volume 84, Number 120 (Friday, June 21, 2019)]
[Proposed Rules]
[Pages 29140-29145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12810]
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AGENCY FOR INTERNATIONAL DEVELOPMENT
48 CFR Chapter 7
RIN 0412-AA86
Agency for International Development Acquisition Regulation
(AIDAR): Leave and Holidays for U.S. Personal Services Contractors,
Including Family and Medical Leave
AGENCY: U.S. Agency for International Development.
ACTION: Proposed rule.
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SUMMARY: The U.S. Agency for International Development (USAID) proposes
to amend the Agency for International Development Acquisition
Regulation (AIDAR) to revise the General Provision contract clause
(hereafter ``clause'') 5 entitled ``Leave and Holidays (APR 1997).''
This proposed rule also makes other editorial and clarifying changes to
this clause and the prescription.
DATES: Submit comments on or before August 20, 2019.
ADDRESSES: Submit comments by any of the following methods:
1. Through the Federal eRulemaking Portal at http://www.regulations.gov by following the instructions for submitting
comments.
2. By Mail addressed to: U.S. Agency for International Development
(USAID), Bureau for Management, Office of Acquisition & Assistance,
Policy Division, Attn: Marcelle Wijesinghe, Room 867-J, SA-44, 1300
Pennsylvania Ave. NW, Washington, DC 20523-2052.
FOR FURTHER INFORMATION CONTACT: Richard Spencer, Telephone: 202-567-
4781 or Email: [email protected].
SUPPLEMENTARY INFORMATION:
A. Instructions
All comments must be in writing and submitted through one of the
methods specified in the Addresses section above. USAID encourages all
commenters to include the title of the action and RIN for this
rulemaking. Please include your name, title, organization, postal
address, telephone number, and email address in the text of your
comment.
Please note that USAID recommends sending all comments to the
Federal eRulemaking Portal.
All comments will be made available at http://www.regulations.gov
for public review without change, including any personal information
provided. We recommend that you do not submit information that you
consider confidential business information or any
[[Page 29141]]
information that is otherwise protected from disclosure by statute.
USAID will only address comments that are relevant and within the
scope of this proposed rule.
B. Background
USAID is seeking comments on this proposed rule to revise AIDAR
appendix D as described below:
Section 4 is revised to make the prescription for annual and sick
leave in paragraph (c)(2)(ix) consistent with section 12, General
Provision clause 5 entitled ``Leave and Holidays.'' All the revisions
to section 12, General Provision clause 5, including annual and sick
leave, are as follows:
(1) Annual Leave.
The title of the clause is changed from ``Vacation Leave'' to
``Annual Leave,'' to be consistent with section 4, paragraph (c)(2)(ix)
of this appendix, as well as USAID's time-keeping system, and the FMLA,
which allows for use of ``annual'' leave.
The minimum contract period required to accrue leave is
clarified to indicate 90 days ``in total duration.''
The terms ``tour,'' ``tour of duty,'' and ``employee'' are
changed to ``period of performance'' and ``contractor'' to be
consistent with contractual terminology.
Annual leave accrual rates are broadened to include former
service as a USAID PSC under any statutory authority, and U.S.
Government civilian and/or honorable active duty uniformed service,
using the definition from 5 U.S.C. 2101. The clause also specifies the
documents the contracting officer may review as evidence of prior
service. This change is intended to expand the market base and attract
former U.S. government employees with relevant skills to participate in
the competitive process.
The maximum amount of annual leave that can be carried
over from one calendar year to the next during the period of the
contract is capped at 240 hours, consistent with the same restriction
on U.S. direct hire employees. This change will also eliminate the need
for manual entries to be made in the Agency's time-keeping system to
reinstate forfeited leave that is automatically cancelled in the time-
keeping system at the end of each calendar year.
The conditions that allow the USPSC to avoid forfeiting
annual leave are clarified; Mission Director endorsement is no longer
required for the contracting officer to approve those conditions, and a
Determinations and Findings (D&F) is now required before a lump-sum
payment is authorized.
Advanced annual leave is revised to require approval by
the cognizant Assistant Administrator for USPSCs performing at USAID's
headquarters. Also, the maximum amount of advanced leave that may be
approved is limited to what the USPSC could earn in a twelve month
period or over the life of the contract, whichever is less.
(2) Sick Leave.
This paragraph is amended to clarify that the USPSC may
take sick leave based on the same standards that apply to U.S. direct
hire employees.
A clarification is made to the carryover of sick leave to
specify that it only applies to a subsequent ``follow-on'' contract for
the same services.
(3) Home Leave.
Home leave is a benefit a USPSC can earn after performing services
abroad, usually after two years. It provides time off that must be used
in the U.S., subject to a commitment to continued service by the USPSC.
Home leave is intended to ensure that persons living and working abroad
undergo reorientation and re-exposure in the U.S., and is provided to
USPSCs as a benefit comparable to U.S. direct hire employees. Detailed
proposed changes to the text regarding home leave are as follows:
Home Leave is currently only provided to USPSCs who agree
to return to the same Mission abroad after completing home leave. In
July 1998, USAID issued a policy deviation from the rule to authorize a
maximum of 20 workdays home leave based on the USPSC's commitment to
relocate to a different USAID Mission as a USPSC immediately following
home leave for a specific period of time, subject to prior approval by
the Mission Director (i.e., the Mission from which the USPSC is
departing.)
The revised clause includes the required verification
documents the USPSC must provide to support home leave based on their
commitment to continue work under a new contract with a different USAID
Mission.
A clarification is made to the travel requirements to
specify that travel time for home leave is not included in the days
counted towards home leave, with a cross-reference to the related
contract clause titled ``Travel and Transportation Expenses.''
(4) Home Leave for Qualifying Missions.
The addition of this category of leave is based on a 2006 amendment
to the Foreign Service Act of 1980 (Pub. L. 96-465), as amended, which
authorized this additional home leave for USPSCs following completion
of a 12-month period of performance at qualifying Missions, currently
Iraq, Afghanistan and Pakistan. Home leave for qualifying Missions is
provided to USPSCs comparable to what is provided to direct-hire
employees in order to attract USPSCs for these hard to fill positions.
(5) Holidays. The title and text of this paragraph is revised to
add ``administrative leave'' to apply Agency emergency closures to
USPSCs on the same basis as to U.S. direct hires.
(6) Military Leave.
The ``U.S.'' is added to ``Armed Forces'' to clarify that
the clause only applies to U.S. military service.
The contract filing requirement has been clarified to
inform the contractor that such approval will be maintained on file.
(7) Leave Without Pay.
The ``LWOP'' abbreviation is included to conform to
USAID's timekeeping system.
Reference to use of LWOP for family and medical leave is
included to conform to entitlements for this leave under the FMLA (Pub.
L. 103-3).
(8) Compensatory Time. The term ``leave'' is removed to
characterize this more accurately in line with USAID internal policies.
(9) Family and Medical Leave.
This clause adds a new section covering family and medical leave
for all USAID USPSCs. USAID is extending the eligibility of family and
medical leave to USPSCs performing in the U.S. as well as outside the
U.S. as a matter of policy. The FMLA (Pub. L. 103-3) was enacted to
allow employees to balance work and family life by protecting their
employment and benefits status when taking reasonable leave for medical
reasons, including child birth, adoption or care, or care for a spouse,
parent or oneself in the event of a serious health condition.
Following inquiries from USPSCs, USAID examined the applicability
of FMLA to USPSCs working in the U.S. and abroad. USAID found that
eligibility under FMLA Title II is limited to U.S. Government direct-
hire employees, and does not apply to contracts with individuals.
However, USAID determined that USPSCs working in the U.S. are entitled
to family and medical leave under Title I of the FMLA, as administered
by the U.S. Department of Labor (DOL) through 29 CFR part 825. The DOL
applies the broad definition of ``employee'' from the Fair Labor
Standards Act of 1938, 29 U.S.C. 201.
USAID determined that FMLA does not apply to USPSCs working outside
the U.S.; however, in November 2015 the Acting Administrator authorized
family and medical leave for USPSCs working abroad as a matter of
Agency
[[Page 29142]]
policy. This decision was made to allow for a consistent leave policy
for all USPSCs, irrespective of their place of performance. Based on
this approval, in December 2015, USAID processed a two-year class
deviation from (48 CFR) AIDAR appendix D, section 12, clause 5, ``Leave
and Holidays'', to authorize family and medical leave for all USPSCs.
USAID implemented the deviation on an interim basis pending the
finalization of this rule.
USAID has determined that Cooperating Country National Personal
Services Contractors (CCNPSCs) or Third-Country National PSCs (TCNPSCs)
will not be entitled to the family and medical leave provided under
this rule, even if other specific benefits are approved by the Mission
Director based on an exception under (48 CFR) AIDAR appendix J. Key
provisions of the rule regarding family and medical leave are as
follows:
The eligibility criteria are included in the clause in
accordance with 29 CFR 825.110, with detailed requirements regarding
establishing eligibility in USAID internal policy.
The reasons when family and medical leave may be taken are
specified in accordance with 29 CFR 825.112.
The provisions for the substitution of LWOP with paid
leave, as allowed under 29 CFR part 825.207, is consistent with what
USAID provides to U.S. direct hires.
Family and medical leave may not be authorized beyond the
completion date of the contract.
This section provides procedures the contractor must
follow to establish eligibility for family and medical leave.
The clause references the U.S. Department of Labor Wage
and Hour division publication for more information about family and
medical leave and procedures to report violations of the underlying
law.
(10) Leave Records. Use of ``shall'' is changed to ``must.''
C. Impact Assessment
(1) Regulatory Planning and Review. Under E.O. 12866, OIRA has
designated the proposed rule ``significant'' and therefore subject to
the requirements of the E.O. and subject to review by the Office of
Management and Budget (OMB). OIRA has determined that this Rule is not
an ``economically significant regulatory action'' under Section 3(f)(1)
of E.O. 12866. This proposed rule is not a major rule under 5 U.S.C.
804.
The costs and benefit of the revisions described above are as
follows, by each type of leave affected:
Annual Leave--Under the existing rule, USPSCs can only
accrue annual leave per pay period at increasingly higher hourly rates
based on prior PSC service under the authority of ``Sec. 636(a)(3) of
the FAA [Foreign Affairs Act of 1961, as amended]''. The default
contractor accrual rate is four hours per pay period; however the
contractor may accrue at a rate of six hours per pay period as a prior
PSC under the FAA exceeding three years, or eight hours per period for
prior PSC services under the FAA exceeding 15 years. The proposed rule
broadens this to allow USPSCs to include prior service as a USAID PSC
under other statutory authorities, as well as prior civilian or
uniformed service. USAID estimated the cost of progressively adding
four hours for three years and two hours for two years for 26 pay
periods each year of a five year contract to reach the maximum eight
hour accrual rate per pay period. USAID's historical data indicates
only approximately 50% of a given USPSC population will have prior
experience to make them eligible for the maximum accrual rate. Based on
an average annual salary for a GS-13, 14, and 15 step 10 of $146,000
(base with DC locality) equal to $70/hour, USAID estimates 270 U.S.-
based USPSCs (i.e. 50% of 540 total) would cost of approximately $1.575
million per year in higher accrual rates. The equivalent calculation
for 275 USPSCs serving abroad (i.e., 50% of 550 total) with an average
salary of $117,000 (base with no locality) equal to $56/hour comes to
$1.283 million per year. Therefore the total estimated cost of
additional annual leave compensation based on the expanded prior
service eligibility is estimated at $2.859 million per year.
The benefit of this provision is to provide this leave for USPSCs
on a similar basis as is provided to U.S. direct hires in order to
attract a wider pool of offerors with greater opportunities for higher
accrual rates.
Home Leave--The proposed rule will codify USAID's current
policy in place by deviation from the existing AIDAR to add home leave
eligibility for USPSCs who relocate to a different Mission under a new
USPSC contract immediately following home leave every two years.
Assuming about half of USAID's 550, or 275, USPSCs abroad fulfil their
continued service commitments at a different Mission, the maximum
additional cost at an average GS-13, 14, and 15 step 10 annual salary
of $117,000 (base with no locality) equal to $450/day for 20 days is
$2.476 million every two years, or $1.238 million for each year.
Home Leave for Qualifying Missions--The proposed rule
increases home leave by providing 10 days of leave for USPSCs after
every 12 months abroad when performing at certain ``qualifying''
Missions, currently Iraq, Afghanistan, Pakistan and South Sudan.
Together these Missions have approximately 70 USPSCs abroad, so again
using the average GS-13, 14, 15 step 10 annual salary of $117,000 per
year (base with no locality) equal to $450/day for 10 days, the total
additional annual cost of this leave is approximately $315,000 each
year. The cost of this additional leave is justified to increase the
USAID's ability to field USPSCs for hard-to-fill positions at dangerous
and high attrition Missions.
Holidays and Administrative Leave--The proposed rule adds
emergency dismissals and closures to acknowledge when USAID/Washington
headquarters or Missions abroad are closed for inclement weather, civil
unrest or other logistical complications. This will not have a cost
impact since previously USPSCs were not able to work during USAID
facilities closures, and so were given the same administrative leave as
direct hires as a practical matter. Additionally, telework ready USPSCs
will continue to perform as do direct-hires.
Family and Medical Leave--The addition of family and
medical leave will only have a marginal cost impact, if any, since this
entitlement does not provide additional leave. USPSCs must use leave
without pay, annual, or sick leave during family and medical leave
status. The benefit that family and medical leave provides is that it
entitles the individual to use their leave once they are determined
eligible and are not subject to the ordinary leave approval process.
Provision of this benefit to USPSCs performing in the U.S. is required
by statute; therefore, the only expansion beyond what the law requires
is the Agency's discretion to apply it equally to USPSCs based abroad.
This decision was made to provide this entitlement equally to all
USPSCs and not disadvantage those performing abroad.
As a regulatory matter, the cost of the rule making process to
incorporate these revisions into the regulation is also justified. The
AIDAR appendices include all the compensation and benefits available
under personal services contracts. Therefore, the Agency needs these
revisions in order to keep the regulation consistent, complete and
transparent to industry, other government agencies and the general
public.
[[Page 29143]]
(2) Regulatory Flexibility Act. The Director, Bureau for
Management, Office of Acquisition and Assistance, acting as the Head of
the Agency for purposes of the Federal Acquisition Regulation,
certifies that this rule will not impact a substantial number of small
entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C.
601, et seq. Therefore, an Initial Regulatory Flexibility Analysis has
not been performed.
(3) Paperwork Reduction Act. The proposed rule does not establish
or modify a collection of information that requires the approval of the
Office of Management and Budget under the Paperwork Reduction Act (44
U.S.C. Chapter 35).
List of Subjects in 48 CFR Chapter 7, Appendix D
Government procurement.
For the reasons discussed in the preamble, USAID proposes to amend
48 CFR chapter 7 as follows:
CHAPTER 7--AGENCY FOR INTERNATIONAL DEVELOPMENT
0
1. Amend Appendix D to Chapter 7 by:
0
a. In section 4, revising the second sentence of paragraph (c)(2)(ix);
0
b. In section 12:
0
i. Revising the section heading;
0
ii. Revising clause 5;
0
iii. In clauses 6 and 16, removing the word ``vacation'' each time it
appears and adding in its place the word ``annual''.
0
c. By adding a parenthetical authority citation at the end of the
appendix.
The revisions and addition read as follows:
Appendix D to Chapter 7--Direct USAID Contracts With a U.S. Citizen or
a U.S. Resident Alien for Personal Services Abroad
* * * * *
4. Policy
* * * * *
(c) * * *
(2) * * *
(ix) * * * However, PSCs with previous service are eligible to
earn annual leave in accordance with the ``Leave and Holidays''
General Provision contract clause in section 12 of this appendix.
* * * * *
12. General Provisions for a Contract With a U.S. Citizen or a U.S.
Resident Alien for Personal Services Abroad
* * * * *
5. Leave and Holidays
[For use in all U.S. personal services contracts.]
Leave and Holidays (Date)
(a) Annual Leave. (1) The contractor is not entitled to annual
leave if the period of this contract is ninety (90) days or less in
continuous duration. If the contract period is more than ninety (90)
days, the contractor will accrue annual leave as of the start date
of the contract period of performance as specified in paragraph
(a)(2) of this clause.
(2) The contractor will accrue annual leave based on the
contractor's time in service according to the table of this
paragraph (a)(2). The accrual rates are based on a full-time, 40-
hour workweek, which may be prorated for a shorter work-week:
------------------------------------------------------------------------
Time in service Annual leave (AL) accrual rate
------------------------------------------------------------------------
0 to 3 years................. 4 hours of leave for each 2-week period.
over 3, and up to 15 years... 6 hours of AL for each 2-week period
(including 10 hours AL for the final pay
period of a calendar year).
over 15 years................ 8 hours of AL for each 2-week period.
------------------------------------------------------------------------
(i) USAID will calculate the time in service based on all the
previous service performed by the contractor as:
(A) An individual personal services contractor with USAID for
any duration covered by Sec. 636(a)(3) of the FAA or other statutory
authority applicable to USAID; and/or
(B) A former U.S. Government (USG) direct-hire civilian
employee; and/or 3) an honorable active duty member of the uniformed
services based on the definition in 5 U.S.C. 2101(3).
(ii) In addition to the information certified by the contractor
in their Offeror Information form, the contracting officer may
require the contractor to furnish copies of previously executed
contracts, and/or other evidence of previous service (e.g. SF 50, DD
Form 214 or 215) to conduct the due diligence necessary to verify
creditable previous service.
(3) Annual Leave is provided under this contract primarily for
the purposes of providing the contractor necessary rest and
recreation during the period of performance. The contractor, in
consultation with the Supervisor, must develop an annual leave
schedule early in the period of performance, taking into
consideration the requirements of the position, the contractor's
preference, and other factors. The maximum amount of annual leave
that the contractor can carry over from one leave year to the next
is limited to 240 hours. The contractor's unused annual leave
balance at the end of the last pay period of each calendar year will
be forfeited, unless the requirements of the position precluded the
employee from taking such leave. The contractor may be authorized to
restore annual leave for exceptional circumstances beyond the
control of the contractor. The restoration of annual leave may be
approved only by the USAID Administrator, cognizant Assistant
Administrator or Head of an Independent Office reporting directly to
the USAID Administrator, and cannot be delegated further. Annual
leave restored must be scheduled and used no later than either the
end of the leave year two years after either
(i) The date fixed by the approving official as the termination
date of the exigency of the public business or other reason beyond
the contractor's control, which resulted in the forfeiture; or
(ii) The end of the contract, whichever is earlier.
(4) The contractor must use all accrued annual leave during the
period of performance. At the end of the contract, the contractor
will forfeit any unused annual leave except where the requirements
of the position precluded the contractor from taking annual leave.
In this case, the contracting officer may authorize the following:
(i) The contractor to take annual leave during the concluding
weeks of the contract, not to exceed the period of performance; or
(ii) Payment of a lump-sum for annual leave not taken based on a
signed, written determination and findings (D&F) from the
contractor's supervisor. The D&F must set out the facts and
circumstances that prevented the contractor from taking annual
leave, and the contracting officer must find that the contractor did
not cause, or have the ability to control, such facts and
circumstances. This lump-sum payment must not exceed the number of
days the contractor could have accrued during a twelve (12)-month
period based on the contractor's accrual rate.
(5) The contractor may be granted advanced annual leave by the
contracting officer when circumstances warrant. Advanced leave must
be approved by the Mission Director, cognizant Assistant
Administrator, or Head of an Independent Office reporting directly
to the Administrator, as appropriate. In no case may the contracting
officer grant advanced annual leave in excess of the amount the
contractor can accrue in a twelve (12) month period or over the life
of the contract, whichever is less. At the end of the period of
performance or at termination, the contractor must reimburse USAID
for any outstanding balance of advanced annual leave provided to the
contractor under the contract.
(b) Sick Leave. The contractor may use sick leave on the same
basis and for the same purposes as USAID employees. The contractor
will accrue sick leave at a rate not to exceed four (4) hours every
two (2) weeks for a maximum of thirteen (13) work-days per year. The
contractor may carry over unused sick leave from year to year under
the same contract, and to a new follow-on contract for the same work
at the same place of
[[Page 29144]]
performance. The contractor is not authorized to carry over sick
leave to a new contract for a different position or at a different
location. The contractor will not be compensated for unused sick
leave at the completion of this contract.
(c) Home Leave. (1) The contractor may be granted home leave to
be taken only in the U.S., its commonwealth, possessions or
territories, in one continuous period, under the following
conditions:
(i) The contractor must complete twenty-four (24) continuous
months of service abroad under this contract, and must not have
taken more than thirty (30) workdays leave (annual, sick or LWOP) in
the U.S., its commonwealths, possessions or territories. The
required service abroad will include the actual days in orientation
in the U.S. (excluding any language training), travel time by the
most direct route, and actual days abroad beginning on the date of
arrival in the cooperating country. Any annual and sick leave taken
abroad, excluding leave without pay (LWOP), will count toward the
period of service abroad. Any days of annual and sick leave taken in
the U.S., its commonwealths, possessions or territories will not be
counted toward the required twenty-four (24) months of service
abroad.
(ii) The contractor must agree to return immediately after
completing home leave to continue performance for an additional--
(A) Two (2) years, or
(B) Not less than one (1) year, if approved in writing by the
Mission Director before the contractor departs on home leave.
(iii) If the contractor agrees to meet the conditions in
paragraph (c)(1)(ii) of this clause above by returning to the same
USAID Mission under this contract or a new contract, the contractor
may be granted thirty (30) workdays of home leave.
(iv) If the contractor agrees to meet the continued performance
conditions of paragraph (c)(1)(ii) of this clause and will be
relocating to a different USAID Mission under a new USAID personal
services contract immediately following the completion of home
leave, the contractor may be granted twenty (20) workdays of home
leave. USAID will reimburse the contractor for these twenty days of
home leave under this contract, not under the new contract.
(v) If home leave eligibility is based on paragraph (c)(1)(iv)
of this clause, prior to departure on home leave, the contractor
must submit to the contracting officer at the current Mission, a
copy of the new contract with a special award condition in the
contract Schedule indicating the contractor's obligation to fulfill
the commitment for continued performance in accordance with
paragraph (c)(1)(ii) of this clause.
(2) Advanced Home Leave. Notwithstanding the requirements in
paragraph (c)(1)of this clause, the contractor may be granted
advanced home leave subject to all of the following conditions:
(i) Granting of advanced home leave would serve in each case to
advance the attainment of the objectives of this contract; and
(ii) The contractor has served at least eighteen (18) months
abroad, as defined in paragraph (c)(4) of this clause, at the same
USAID Mission under this contract, and has not taken more than 30
work days leave (annual, sick or LWOP) in the U.S.; and
(iii) The contractor agrees to return immediately after
completing home leave to the same Mission to serve out the remaining
time necessary to meet two (2) years of continued performance under
this contract, plus an additional--
(A) Two (2) years, or
(B) Not less than one (1) year, if approved by the Mission
Director, under the current contract, or under a new contract for
the same or similar services at the same Mission, before the
contractor departs on home leave.
(3)(i) Home leave must be taken only in the U.S., its
commonwealths, possessions or territories. Any days spent in any
other location will be charged to annual leave, or if the contractor
does not have accrued annual leave to cover these days, the
contractor will be placed on LWOP.
(ii) Travel time by the most direct route is authorized in
addition to the home leave authorized under this ``Leave and
Holidays'' clause. Salary during travel to and from the U.S. for
home leave will be limited to the time required for travel by the
most direct and expeditious route. Additional home leave travel
requirements are included in the ``Travel and Transportation
Expenses'' clause of this contract.
(iii) Except for reasons beyond the contractor's control as
determined by the contracting officer, the contractor must return
abroad immediately after home leave to fulfill the additional
required continued performance of services for any home leave
provided under this contract, or else the contractor must reimburse
USAID for the salary and benefits costs of home leave, travel and
transportation and any other payments related to home leave.
(iv) Unused home leave is not reimbursable under this contract.
(4) The contracting officer may authorize the contractor to
spend no more than five (5) days in work status for consultation at
USAID/Washington while on home leave in the U.S., before returning
abroad. Consultation in excess of five (5) days or at locations
other than USAID/Washington must be approved in advance by the
Mission Director or the contracting officer.
(d) Home Leave for Qualifying Missions. (1) If the contractor
ordinarily qualifies for home leave and has completed a 12-month
period at one of the USAID qualifying Missions, as announced by the
Department of State or USAID, the contractor is entitled to ten (10)
workdays of home leave in addition to the home leave the contractor
is normally entitled to in accordance with paragraph (c) of this
``Leave and Holidays'' clause.
(2) There is no requirement that an eligible contractor take
this additional home leave for qualifying Missions; it is for use at
the contractor's option. If the contractor is eligible and elects to
take such home leave, the contractor must take all ten (10) workdays
at one time in the U.S. under the conditions described in paragraphs
(c)(5) and (c)(6) of this clause. If the contractor is returning to
the U.S. and not returning abroad to the same or different USAID
Mission, the contractor is not eligible for home leave for
qualifying Missions, and this paragraph (d) will not apply.
(e) Holidays and Administrative Leave. The contractor is
entitled to all holidays and administrative leave, including weather
and safety leave, granted by USAID to U.S. employees as announced by
the Agency or Mission.
(f) Military Leave. Military leave of not more than fifteen (15)
calendar days in any calendar year may be granted to the contractor
who is a reservist of the U.S. Armed Forces, provided that the
military leave has been approved, in advance, by the contracting
officer or the Mission Director. A copy of contractor's official
orders and the contracting officer or Mission Director approval will
be part of the contract file.
(g) Leave Without Pay (LWOP). The contractor may be granted LWOP
only with the written approval of the contracting officer or Mission
Director, unless a such leave is requested for family and medical
leave purposes under paragraph (i) of this clause.
(h) Compensatory Time. USAID may grant compensatory time off
only with the written approval of the contracting officer or Mission
Director in rare instances when it has been determined absolutely
essential and under the guidelines which apply to USAID direct-hire
employees for its use.
(i) Family and Medical Leave. (1) USAID provides family and
medical leave for eligible USPSCs working within the U.S., or any
territories or possession of the U.S., in accordance with Title I of
the Family and Medical Leave Act of 1993, as amended (FMLA), and as
administered by the Department of Labor under 29 CFR 825. USAID also
provides family and medical leave to eligible USPSCs working outside
the U.S., or any territories or possession of the U.S., in
accordance with this paragraph (i) outside the provisions of Title I
of the FMLA as a matter of policy discretion.
(2) Family and medical leave only applies to USPSCs, not any
other type of PSC.
(3) In accordance with 29 CFR 825.110, to be eligible for family
and medical leave, the contractor must have performed services for--
(i) At least twelve (12) months with USAID; and
(ii) At least 1,250 hours with USAID during the previous 12-
month period.
(4) In accordance with 29 CFR 825.200(a) and USAID policy in ADS
309, an eligible contractor may take up to twelve (12) workweeks of
leave under FMLA, Title I, in any 12-month period for the reasons
specified in 29 CFR 825.112.
(5) In accordance with 29 CFR part 825.207, the contractor may
take LWOP for family and medical leave purposes. However, the
contractor may choose to substitute LWOP with accrued annual or sick
leave earned under the terms of this contract. If the contractor
does not choose to substitute accrued paid leave, the contracting
officer, in consultation with the contractor's supervisor, may
require the contractor to substitute accrued paid leave for LWOP.
The CO must obtain the required certifications for approval of
family medical leave in accordance with USAID policy. The contractor
must notify the contractor's Supervisor of the intent to
[[Page 29145]]
substitute paid leave for LWOP prior to the date such paid leave
commences. After having invoked the entitlement to family and
medical leave and taking LWOP for that purpose, the contractor
cannot retroactively substitute paid leave for the LWOP already
taken under family and medical leave.
(6) Family medical leave is not authorized for any period beyond
the completion date of this contract.
(7) When requesting family medical leave, the contractor must
submit the relevant leave request in writing, including
certifications and other supporting documents required by 29 CFR 825
and USAID policy in ADS 309.
(8) The U.S. Department of Labor's (DOL's) Wage and Hour
Division (WHD) Publication 1420 explains the FMLA's provisions and
provides information concerning procedures for filing complaints for
violations of the Act.
(j) Leave Records. The contractor must maintain their current
leave records and make them available as requested by the Mission
Director or the contracting officer.
* * * * *
(Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381),
as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR, 1979
Comp., p. 435.)
Mark A. Walther,
Acting Chief Acquisition Officer.
[FR Doc. 2019-12810 Filed 6-20-19; 8:45 am]
BILLING CODE 6116-01-P