Federal Workers Deemed Essential Allowed to Restore Annual Leave

A new interim final rule by the Office of Personnel Management (OPM) explains how agencies can restore annual leave for employees who are deemed essential during the COVID-19 pandemic. Currently, most federal employees can carry over 30 days of leave to the following year even if they accrue more. However, agencies can restore “use or lose” privileges in extenuating circumstances.

As OPM explained in the rule, “an exigency of the public business occurs when the employing agency determines there is a pressing need for an employee’s service, and the employee cannot use his or her excess annual leave because there are no other practical alternatives available to accomplish the work by a given deadline.” 

OPM deems the COVID-19 pandemic an “exigency of the public business,” and thus, federal employees who are deemed essential can carry their excess leave over to the next year even if it is over the maximum statutory limit of 30 days. Essential workers can have their excess leave deemed to have been scheduled in advance to satisfy the statutory requirement that, in order for annual leave to be eligible for restoration because of an exigency of the public business, it must have been scheduled in advance.

OPM said in the rule, “Because of the unprecedented outbreak and spread of this virus and the efforts toward response and recovery, many federal agencies and employees have been, and for the foreseeable future will continue to be, engaged in work vital to our nation and to the pandemic response.”

Under these new regulations, agencies would be responsible for creating a plan that would implement the new annual leave restoration policy. It is also at the agencies’ discretion to determine when the exigency period ends and which employees are deemed “essential.”

These regulations will be in effect for future national emergencies as well and draw on previous practices adopted during other national emergencies, such as the September 11th terrorist attacks and Y2K in 2000.

The interim regulation was effective on August 10, 2020, and comments are due on or before October 9, 2020.