(a)

(1) The Director of OPM may deem a specific national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601, et seq.) to be an exigency of the public business for the purpose of restoring forfeited annual leave under 5 U.S.C. 6304(d)(1)(B) and will notify agencies in writing when this decision is made.

(2) The head of each agency is responsible for the proper administration of this authority. All heads of agencies are required to establish and periodically update (as necessary) procedures to administer this authority so that these policies are in place and immediately available for use any time the Director of OPM notifies agencies of a determination under paragraph (a)(1) of this section.

(b)

(1) Once the Director of OPM has issued a notification to agencies under paragraph (a)(1), the head of each agency (or designee) must, in his or her sole and exclusive discretion, do the following:

(i) Make determinations identifying the specific employees or groups of employees who are performing services that are essential in responding to the national emergency designated as an exigency of the public business and who are thus qualified for coverage under this section; and

(ii) Inform covered employees in writing of any such determination and its application to them.

(2) A determination under paragraph (b)(1)(i) of this section may not be made by any official whose leave would be affected by the determination.

(c) For any employee determined under paragraph (b) of this section to be covered under this section who forfeits annual leave under 5 U.S.C. 6304(d)(1)(B) at the beginning of a leave year, the forfeited annual leave is deemed to have been scheduled in advance for the purpose of 5 U.S.C. 6304(d)(1)(B) and §630.308.

(d) With respect to annual leave forfeited under paragraph (c) of this section, the annual leave must be restored under 5 U.S.C. 6304(d)(1)(B) subject to the following time limits:

(1) A full-time employee must schedule and use excess annual leave of 416 hours or less by the end of the leave year in progress 2 years after the date fixed by the agency head (or designee) under paragraph (f)(2) of this section as the termination date of the exigency of the public business. The agency must extend this period by 1 leave year for each additional 208 hours of excess annual leave or any portion thereof.

(2) A part-time employee must schedule and use excess annual leave in an amount equal to or less than 20 percent of the number of hours in the employee's scheduled annual tour of duty by the end of the leave year in progress 2 years after the date fixed by the agency head (or designee) under paragraph (f)(2) of this section as the termination date of the exigency of the public business. The agency must extend this period by 1 leave year for each additional number of hours of excess annual leave, or any portion thereof, equal to 10 percent of the number of hours in the employee's scheduled annual tour of duty.

(e) The time limits established under paragraphs (d)(1) and (d)(2) of this section for using restored annual leave accounts shall not apply for the entire period during which an employee's services are determined by the agency to be essential for the response to the national emergency. When coverage under paragraphs (b) and (c) of this section ends due to the termination date of the exigency of the public business fixed by the agency under paragraph (f)(2), a new time limit will be established under paragraph (d) of this section for all annual leave restored to an employee under 5 U.S.C. 6304(d).

(f)

(1) The agency head (or designee) must continually monitor the agency response to the national emergency and determine whether the services of individual employees or groups of employees continue to be essential for the response to the emergency such that annual leave may not be scheduled according to the normal procedures described in §630.308(a).

(2) The agency head (or designee) must fix a date as the termination date of the exigency of the public business for each employee or group of employees as provided in this paragraph. The exigency of the public business as it affects an individual employee or group of employees must be terminated on the date one of the following events occurs, whichever is earliest:

(i) When the President declares an end to the national emergency;

(ii) When the Director of OPM deems the national emergency to no longer be an exigency of the public business for purposes of this authority;

(iii) When the agency head (or designee), in his or her sole and exclusive discretion, determines that the services of an employee or group of employees are no longer essential to the response to the national emergency or that such employees are able to follow the normal leave scheduling procedures in §630.308(a);

(iv) On the day that is 12 months after the national emergency has been declared, an agency head (or designee), in his or her sole and exclusive discretion, may extend this deadline annually by an additional 12 months; under no circumstances may an agency grant more than two 12-month extensions under this paragraph in connection with any national emergency (however, §630.309 may apply in the case of an extended exigency); or

(v) When an employee whose services were determined to be essential during the national emergency moves to a position not involving services determined by the agency to be essential to the response to the national emergency.

(3) The agency head (or designee) must inform both the affected employees and the agency payroll provider in writing of the termination date as determined in paragraph (f)(2) of this section.

(g) When the agency head (or designee) fixes a termination date of the exigency of the public business under paragraph (f) of this section, each affected employee must make a reasonable effort to comply with the scheduling requirement in §630.308(a). The head of the agency (or designee), in his or her sole and exclusive discretion, may exempt such an employee from the advance scheduling requirement in §630.308(a) if coverage under paragraphs (a) and (b) of this section terminated during the leave year and if the head of the agency (or designee) determines that the employee was unable to comply with the advance scheduling requirement because of circumstances beyond the employee's control.

[85 FR 48101, Aug. 10, 2020]