U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

CPM 2008-04

February 1, 2008

MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

This is to inform you of several changes in Federal employee pay and leave laws resulting from the enactment of the National Defense Authorization Act for Fiscal Year 2008 (hereafter referred to as "the Act"), which was signed into law by President George W. Bush on January 28, 2008 (Public Law 110-181).

All of the sections listed below are effective on the date of enactment, except for sections 1101 and 1111.  (Section 1675 is effective on the date of enactment but has a special rule regarding application of a 5-year time limit.  See below.)  The U.S. Office of Personnel Management (OPM) will issue conforming regulations, except in connection with sections 1101 and 1110.  Agencies are expected to follow the new statutory provisions upon the effective date provided in law.  Pending issuance of regulations, OPM will provide additional guidance as necessary. 

Section 585(b) – FMLA leave to care for injured members of the Armed Forces

Section 585(b) amends Family and Medical Leave Act (FMLA) provisions in 5 U.S.C. 6381-6383 (applicable to Federal employees) to provide military family leave entitlements for a Federal employee who (1) is the spouse, son, daughter, parent, or next of kin (defined as the nearest blood relative) of a covered servicemember with a serious injury or illness and (2) provides care for such servicemember. 

• The serious illness or injury must have been incurred by the covered servicemember in the line of duty while on active duty in the Armed Forces.
• Covered family members are entitled to up to 26 weeks of FMLA leave during a single 12-month period to care for the servicemember (hereafter referred to as "military family leave").
• During the single 12-month period, the employee is entitled to a combined total of 26 weeks of regular FMLA leave and military family leave.  For example, if during the single 12-month period an employee wants to take 6 weeks of regular FMLA leave for the birth of a child, as well as military family leave for care of a servicemember, the 6 weeks of regular FMLA leave would be subtracted from the combined entitlement of 26 weeks, leaving the employee with 20 weeks of military family leave for care of the servicemember.
• The use of this military family leave in a single 12-month period does not limit the use of regular FMLA leave during any other 12-month period.  For example, if an employee uses 26 weeks of military family leave during a single 12-month period but has not used any regular FMLA leave during that period, the employee would be entitled to use up to 12 weeks of regular FMLA leave immediately following the single 12-month period.
• Similar to regular FMLA leave, military family leave is unpaid leave for which an employee may substitute any accumulated annual or sick leave.  The normal leave year limitations on the use of sick leave to care for a family member do not apply.
• OPM will issue revised FMLA regulations to implement the new statutory provisions.  In addition, OPM will post guidance on its Website prior to issuing the revised regulations to explain the provisions of the legislative changes in more detail.   

Section 652 – Salary offset for NAFI employees

Section 652 provides that employees of a nonappropriated fund instrumentality (NAFI) of the Department of Defense (DOD) or United States Coast Guard (USCG) (as described in 5 U.S.C. 2105(c)) are covered by the salary offset law in 5 U.S.C. 5514.  Section 5514 provides authority for collection of debts owed the Federal Government by offset of Federal employee salary payments.  This amendment allows DOD and USCG NAFIs to collect debts owed to them by Federal employees via salary offset.  It also allows Federal agencies to collect debts by offsetting salary payments of NAFI employees.  OPM will issue revised salary offset regulations to conform with the new statutory provisions.

Section 1101 – Waiver of premium pay cap for certain overseas employees

Section 1101 extends the authority of agency heads to waive the premium pay limitations in 5 U.S.C. 5547 in calendar year 2008 for certain employees who perform work in an overseas location that is in the area of responsibility of the commander of the United States Central Command.  Section 1101 amends the same law that applied in calendar year 2007 (i.e., section 1105 of Public Law 109-163, which was previously amended by section 1105 of Public Law 109-364).  The annual limitation on basic pay and premium pay allowed under the waiver authority remains at $212,100 in calendar year 2008.  The overseas work in an area of responsibility of the commander of the United States Central Command must meet one of two additional qualifying conditions.  As in 2007, the employee may qualify by performing work in direct support of or directly related to a military operation (including a contingency operation as defined in section 101(13) of title 10, United States Code).  In addition, the amendment for 2008 provides that the employee may qualify by performing work in direct support of or directly related to an operation in response to an emergency declared by the President.

As provided by subsection (b) of section 1101 of the Act, the extension of the section 1105 waiver authority to calendar year 2008 is effective as of December 31, 2007.  Therefore, an agency may apply the section retroactively to January 1, 2008, based on a determination that employees in a given category were performing qualifying work in connection with a military operation or other qualifying emergency.  (For example, the State Department and DOD have approved the application of section 1105 retroactively to January 1, 2008, for all their employees who were serving in Iraq and Afghanistan and who meet the coverage eligibility conditions.)

OPM does not have regulatory responsibility for this waiver authority; however, as in past years, OPM has worked with DOD and the Department of State to develop a summary of the key common elements in DOD and State Department policies implementing the waiver authority.  (See Attachment.)  We strongly encourage all other agencies to adopt policies that are consistent with the attachment in their implementation of this waiver authority.

Section 1110 – Travel hours for Federal Wage System (FWS) employees

Section 1110 amends 5 U.S.C. 5544(a) to provide that FWS employees may be credited with compensable hours of work for return travel from an administratively uncontrollable event.  This same treatment is already afforded white collar employees under existing law.  Without this amendment, an FWS employee’s return travel would be considered to be administratively controllable and thus would not be creditable as compensable hours of work unless otherwise qualifying.

Section 1111 – Compensatory time off for travel for FWS employees

Section 1111 covers FWS employees under the compensatory time off for travel provision in 5 U.S.C. 5550b.  This amendment is effective on the earlier of (1) the effective date of any implementing regulations or (2) the 90th day after enactment.  OPM will issue a regulatory revision to implement this statutory change.  (See OPM’s current regulations at 5 CFR part 550, subpart N.)     

Section 1112 – 90-day annual leave ceiling for SL/ST and certain other employees

Section 1112 amends 5 U.S.C. 6304(f)(1) to provide that the annual leave carryover ceiling for employees in senior-level (SL) and scientific or professional (ST) positions compensated under 5 U.S.C. 5376, and for employees serving in positions designated under 10 U.S.C. 1607(a) as Intelligence Senior Level positions, is 90 days (720 hours)—the same 90-day ceiling that applies to members of the Senior Executive Service.  OPM will issue revised regulations to conform with this statutory change.

Section 1114 – Pay-setting for NAFI employees who move to General Schedule (GS) positions

Section 1114 amends 5 U.S.C. 5334(f) to provide that a NAFI employee of DOD or USCG who moves voluntarily to a GS position in the same agency without a break in service of more than 3 days may (at the employing agency’s discretion) have the GS rate set at the lowest step rate that equals or exceeds the former NAFI rate.  Under previous law, the GS rate could not exceed the formerly applicable NAFI rate in such voluntary movements; thus, setting the rate at a GS step for these former NAFI employees generally resulted in a reduction in pay.  The amendment permits an agency to set pay at the next higher step rate, avoiding a pay reduction.  OPM will issue revised regulations to conform with this statutory change.

Section 1675 – Voluntary leave transfer to Federal employees who are wounded veterans

Section 1675 amends 5 U.S.C. 6333(b) to allow certain wounded veterans to participate in the Voluntary Leave Transfer Program without first having to exhaust their own available paid leave.  This provision will apply to an employee who sustains a combat-related disability while serving as a member of the Armed Forces (including a reserve component) and is undergoing medical treatment for that disability.  A qualified leave recipient is eligible to receive donated annual leave for up to 5 years from the start of the employee’s treatment, as long as the employee continues to undergo such medical treatment.  The amendments made by section 1675 take effect on the date of enactment.  For an employee who is already undergoing medical treatment on the date of enactment, the 5-year period begins on the date of enactment.  OPM will revise the Voluntary Leave Transfer Program regulations to conform with this statutory change. 

Additional Information

For additional information, agency Chief Human Capital Officers and/or Human Resources Directors should contact their assigned OPM Human Capital Officer.  Employees should contact their agency human resources office for assistance.

cc: Chief Human Capital Officers
Human Resources Directors

Attachment