[Federal Register: May 13, 1998 (Volume 63, Number 92)] [Rules and Regulations] [Page 26421-26422] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr13my98-1] ======================================================================== 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. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. ======================================================================== [[Page 26421]] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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, (202) 606-0960, FAX (202) 606-2329; (part 630) Jo Ann Perrini, (202) 606-2858, FAX (202) 606-0824. 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] BILLING CODE 6325-01-P