98-12632. Reduction in Force and Mandatory Exceptions

[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Rules and Regulations]
[Pages 26421-26422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12632]



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Federal Register / Vol. 63, No. 92 / Wednesday, May 13, 1998 / Rules 
and Regulations

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 351 and 630

RIN 3206-AH64


Reduction in Force and Mandatory Exceptions

AGENCY: Office of Personnel Management.

ACTION: Final rulemaking.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations that implement legislation giving employees the right to 
use annual leave to establish initial retirement eligibility for 
employees in reduction in force and other restructuring situations. 
These regulations also implement related provisions concerning the 
availability of annual leave to qualify for continuance of health 
benefits in the same situation.

DATES: These regulations are effective June 12, 1998.

FOR FURTHER INFORMATION CONTACT: (part 351) Thomas A. Glennon or 
Jacqueline R. Yeatman, [phone], FAX [phone]; (part 630) 
Jo Ann Perrini, [phone], FAX [phone].

SUPPLEMENTARY INFORMATION:

Background

    On March 10, 1997, OPM published interim regulations at 62 FR 10681 
to implement section 634 of the Treasury, Postal Service, and General 
Government Appropriations Act, 1997, as contained in section 101(f) of 
the Omnibus Consolidated Appropriations Act, 1997 (P.L. 104-208, 
approved September 30, 1996). Section 634 of the Act is codified in 5 
U.S.C. 6302(g).
    The regulations were effective upon publication in the Federal 
Register. Interested parties could submit written comments to OPM 
concerning the regulations in the 60 day period following publication 
of the regulations.
    As authorized by section 634 of the Act, the interim regulations 
provide that an employee who has received a specific notice of 
involuntary separation by reduction in force, or by adverse action 
after declining relocation (including transfer of function), has the 
right to use annual leave past the effective date the employee would 
otherwise have been separated in order to establish initial eligibility 
for immediate retirement, including discontinued service or voluntary 
early retirement. The same option is also available for the employee to 
acquire initial eligibility for continuation of health benefits into 
retirement.

Comments

    OPM received four comments, all from Federal agencies, on the 
interim regulations.
    One agency concurred with the regulations as published.
    The second agency asks that sections 351.606(b) (1) and (2), and 
section 351.608(e)(1), be revised to specify that an agency must elect 
to provide voluntary early retirement authority in order for an 
employee retained under Section 634 to separate under that early 
retirement option.
    After reviewing the regulations, no further revision was made 
because even without the voluntary early retirement option, the 
employee would still have the right to separate under the discontinued 
service retirement option.
    The third agency asked that 5 CFR part 630 be revised to provide 
that an employee retained under section 634 of the Act would not be 
required to return to duty for the last day of employment in order to 
receive a lump sum payment for terminal leave. Specifically, the agency 
commented that under 5 U.S.C. 5551, the employee would be entitled to a 
lump-sum payment for the annual leave earned during this period of 
terminal leave.
    The agency stated that a previous Comptroller General opinion 
required that an employee on terminal leave report for duty on his or 
her last workday to receive leave credit (B-223876, June 12, 1987). The 
agency recommended that OPM waive the requirement that an employee on 
terminal leave must return to duty on his or her last workday in order 
to accrue annual leave for that period so as to allow such annual leave 
to be included in a lump-sum payment.
    Under 5 U.S.C. 6302(g), Congress specifically provided employees an 
entitlement to elect to use their annual leave to remain on the 
agency's rolls for the time needed to establish initial eligibility for 
immediate retirement and/or to acquire eligibility to continue health 
benefits into retirement. There is no statutory requirement that 
employees must return to work on their last workday in order to accrue 
annual leave for the period of absence. For purposes of Sec. 630.212, 
an employee continues to accrue annual leave while in a paid leave 
status. We do not believe a waiver or a new regulatory provision is 
necessary, since the entitlement in 5 U.S.C. 6302(b) supersedes any 
previous Comptroller General opinion to the contrary.
    The fourth agency asks for clarification of 5 CFR part 630 
concerning whether a leave recipient would be permitted to continue to 
use donated annual leave if the medical emergency that served as the 
basis for the donated leave ends before the employee attains first 
eligibility for benefits under section 634 of the Act.
    In section 630.212(b)(3), an agency may permit an approved leave 
recipient to use any or all donated annual leave made available to the 
employee under the agency's voluntary leave transfer and/or leave bank 
programs for the purpose of establishing initial retirement eligibility 
and/or qualifying for continuance of health benefits.
    Under Sec. 630.910(d), an agency may deem a medical emergency to 
continue for the purpose of providing a leave recipient an adequate 
period of time within which to receive donations of annual leave (e.g., 
to permit retroactive substitution of donated annual leave for any 
advance leave or leave without pay taken during the medical emergency 
or to arrange for or attend the funeral of the family member affected 
by the medical emergency). However, Sec. 630.910(c) states that when a 
medical emergency terminates, no further requests for donated annual 
leave may be granted and any unused donated annual leave must be 
returned to the leave donor(s). Therefore, if a medical emergency 
terminates prior to establishing initial retirement eligibility and/or 
qualifying for continuance of health benefits, the employee may not 
continue to use donated annual leave. Agencies are responsible for 
continuously monitoring

[[Page 26422]]

the status of a medical emergency affecting a leave recipient to ensure 
that the leave recipient continues to be affected by the medical 
emergency. We encourage agencies to verify the status of a medical 
emergency before granting approval to a leave recipient to use any and 
all donated annual leave for the purpose of establishing initial 
retirement eligibility and/or qualifying for continuance of health 
benefits.

Final Regulations

    After consideration of all comments, the interim regulations 
published at 62 FR 10681 are published as final regulations without 
further revision.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it only 
affects Federal employees.

List of Subjects in Parts 351 and 630

    Administrative practice and procedure, Government employees.

U.S. Office of Personnel Management.
Janice R. Lachance,
Director.

    Accordingly, the interim rule published March 10, 1997 (62 FR 
10681) is adopted as final without change.

[FR Doc. 98-12632 Filed 5-12-98; 8:45 am]
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