Q1  Should Federal employees be charged annual leave for September 11, 2001?

A1  Employees who were on duty on September 11 and who were allowed to leave early or officially released by their agency should not be charged leave for the remainder of their scheduled workday.  Employees on pre-approved annual or sick leave for September 11 should be charged annual or sick leave for the entire day.  Because of the unusual circumstances of Tuesdays events, employees who were prevented from reporting for work may be granted excused absence for the entire workday. 

 Q2  If an employee left work before being allowed to leave early or officially released by his or her agency, how much annual leave should be charged?

 A2  Unless an agency determines that excused absence was appropriate because of unusual circumstances or hardships specific to the employee, employees who left work before being allowed to leave early or officially released by their agencies should be charged leave for the remainder of their scheduled workday.  Exceptions to these policies should be made only in unusual cases.  OPM will not second-guess decisions made by individual agencies or supervisors.

 Q3  If an agency or installation is CLOSED, can employees be required to report for, or remain at work?

 A3  Yes.  Even if an agency or installation is closed, a supervisor may require any employee to report for, or remain at work.  In some cases, employees who were previously designated as emergency employees likely were required to report for, or remain at work on September 11.  In addition, because of the unique circumstances of September 11, additional employees may have been designated as emergency employees by their supervisors during this emergency situation.   

 Q4  Are employees who were required to report for or remain at work on September 11, 2001, entitled to additional pay for regular hours worked?

 A4  No.  Employees who were required to work or chose to stay at work during their regular tour of duty on September 11 are not entitled to receive additional pay.

 Q5  Who designates an employee as an emergency employee?

 A5  The head of an agency or his or her designee generally should identify emergency personnel at least annually and notify them in writing that they are designated as emergency employees.  The term emergency employee is used to designate those employees who must report for work in emergency situations.  The notice should include the requirement that emergency employees report for, or remain at work in emergency situations and an explanation that dismissal or closure announcements do not apply to them unless they are instructed otherwise.  Because of the unique circumstances of this emergency situation, an agency may have designated additional employees as emergency employees who were also required to report for or remain at work.   

Q6  Some employees whose scheduled tours of duty began after Government offices were closed on September 11 were prevented from entering their agencies or installations due to heightened security measures or were significantly delayed in reporting for work. Many employees in the New York City and Washington, DC, areas have experienced continuing delays in reporting for work since September 11. Should these employees be excused for their absences from work?

 A6  During the immediate aftermath of the terrorist attacks, agencies may have used their discretionary authority to excuse affected employees from work without charge to leave or loss of pay in the situations described above. Since that time, officials in the New York City and Washington, DC, areas have advised commuters that they may continue to experience significant delays in reaching and entering their worksites and that long commutes should be anticipated for the foreseeable future because of heightened security measures. Therefore, commuters should take appropriate action to ensure that they are able to report for work on time. Of course, agencies also may determine that excused absence is appropriate in extraordinary situations that could not have been anticipated by an affected employee.

 Q7  May agencies grant excused absence to employees who were on travel (personal or official Government travel) on September 11 and who were prevented from returning to work during that week due to travel restrictions?

A7  Yes.  Agencies have discretionary authority to grant excused absence to employees who were prevented from returning to work due to the unique travel circumstances surrounding the events of September 11.  However, employees on preapproved leave should continue to be charged leave until the date they were scheduled to return to duty.  For example, consider the case of an employee who was returning from vacation on September 12 and was scheduled to report for duty on September 13.  Due to the airport closures, the employee was prevented from returning.  The employee should continue to be charged leave through September 12.  Beginning September 13, the agency may grant excused absence until the employee is able to return to work.

 Q8  May agencies grant excused absence to employees who volunteer for relief efforts, such as those organized by the Red Cross? 

 A8  Each department or agency has discretion to excuse employees from their duties without loss of pay or charge to leave. OPM advises that the granting of excused absence for volunteer activities, such as Red Cross relief efforts, should be limited to those situations in which the employees absence, in the departments or agencys determination, is not specifically prohibited by law and satisfies one or more of the following criteria: (1) the absence is directly related to the department or agencys mission; (2) the absence is officially sponsored or sanctioned by the head of the department or agency; (3) the absence will clearly enhance the professional development or skills of the employee in his or her current position; or (4) the absence is brief and is determined to be in the interest of the agency.  Ultimately, it is the responsibility of each department or agency head to balance support for employees volunteer activities with the need to ensure that employees work requirements are fulfilled and that agency operations are conducted efficiently and effectively. Agencies should review their internal guidance on excused absence.

Q9  May an employee be granted excused absence to donate blood? 

 A9  Heads of executive departments and agencies have authority to excuse employees from work without charge to leave or loss of pay to donate blood.  Typically, agencies grant up to 4 hours of excused absence to employees who wish to donate blood. 

 The American Red Cross is encouraging people to call 1-800-GIVE-LIFE to schedule an appointment in the coming days and weeks to replenish the blood that may have been used immediately in the wake of the attacks on America.  This telephone number will route the donor to the nearest blood collection site.  Due to the extraordinary outpouring of support by the American public, the Red Cross is experiencing higher call volumes than usual, and individual appointments will be scheduled as quickly as possible.  We anticipate that there will be a continuing critical need for blood.  If employees experience a long wait to donate blood, agencies may wish to grant employees additional hours of excused absence for this worthy cause. 

 Q10  Are employees entitled to pay, compensatory time off, or credit hours for time spent traveling outside their normal working hours? 

 Example:  A group of employees who could not obtain air flights home from an overnight business trip from Denver to Washington, DC, had to drive a rental van.  The trip required them to drive during and outside of their normal working hours on Thursday, Friday, and Saturday (a nonworkday). 

A10   Generally, exempt employees may not be paid (or granted compensatory time off or credit hours) for hours in a travel status outside normal working hours, since most travel time is not considered hours of work.  See 5 CFR 550.112(g) and our fact sheet on Travel and Hours of Work at the following web page:

http://www.opm.gov/oca/worksch/html/travel.htm

Non-exempt employees who are covered by the Fair Labor Standards Act (FLSA) may receive credit for additional hours of work if the travel time meets one of the conditions in 5 CFR 551.422 or 550.112(g).  For example, non-exempt employees who travel as passengers on Saturday (a nonworkday) during hours that correspond to their normal work hours or who are required to drive during hours outside their normal work hours may receive credit for that time as hours of work.  (See 5 CFR 551.422(a)(2) and (a)(4).)  

Q11  Employees are finding that they must report to the airport 3 or 4 hours early for flights for overnight Government business trips instead of an hour in advance.  Should my agency compensate me for these extra hours as hours of work?

A11  Waiting time at the airport prior to departure time during an employees regular working hours is considered hours of work for FLSA-exempt and nonexempt employees. Waiting time that occurs outside an employees regular working hours generally is not considered hours of work unless it meets the conditions in 5 CFR 550.112(g) or 5 CFR 551.422, as applicable.  For example, for an FLSA-nonexempt employee who travels on a nonworkday (e.g., Saturday), normal waiting time during hours that correspond to the employees regular work hours would be considered hours of work.  Normal waiting time should be determined based on the standards established by the applicable airline.  If an airline recommends that employees arrive at the airport 3 hours prior to the flight, then 3 hours would be considered the normal waiting time.

Q12  May employees be paid for the extra time they have to spend in layover status between flights?

A12  Time spent in layover status at the airport during an employees regular working hours is considered hours of work for FLSA-exempt and nonexempt employees.  For travel outside an employees regular working hours, the agency may determine that a limited amount of waiting time (e.g., up to 3 hours) at the airport may be considered hours of work if the associated travel time meets the conditions in 5 CFR 550.112(g) or 5 CFR 551.422, as applicable.  Based on Comptroller General opinions, the amount of waiting time that may be credited depends on the usual or normal waiting time between flights.

Q13  What can agencies do in response to these longer periods of travel time that employees are experiencing?

A13  These changes are affecting the way all employers, including the Government, are doing business.  Agencies should take into account the heightened security measures that are affecting travelers and wherever possible adjust the travel and work schedules of their employees.  While it is too early to tell what the long-term impact on travel scheduling may be, agencies need to be flexible to ensure that their mission is accomplished while minimizing the adverse impact on its employees to the maximum extent possible.

Q14  An employee covered by the Fair Labor Standards Act (FLSA-nonexempt) is required to travel, but is afraid to fly, or no flights are available.  If the agency authorizes travel by rental car or personal vehicle, is the driving time hours of work for the purpose of earning FLSA overtime pay?

A14  Time spent traveling is hours of work under the FLSA if the travel time meets one of the conditions in 5 CFR 551.422(a) or 5 CFR 550.112(g).  Under 5 CFR 551.422(a)(2), travel time is considered hours of work if an employee is required by the agency to drive a vehicle or perform other work while traveling.  Agencies are responsible for determining whether they are requiring employees to drive in such situations.  If the agency determines that an employee is required to drive, the time spent driving is considered hours of work under the FLSA. 

If the agency determines that an employee is not required to drive because other alternative modes of transportation are available, 5 CFR 551.422(c) requires the agency to credit as hours of work the lesser of

1)      the actual travel time that qualifies as hours of work under 5 CFR 551.422(a) or
5 CFR 550.112(g), or

2)      the estimated travel time that would have been considered hours of work under
5 CFR 551.422(a) had the employee used the mode of transportation offered by the agency.

Q15  May an agency waive the annual GS-15, step 10, premium pay limitation for work in connection with an emergency under 5 U.S.C. 5547(b) and 5 CFR 550.106?

A15 No.  The law does not provide agencies or the Office of Personnel Management with the authority to waive the annual premium pay limitation for work in connection with an emergency.

Q16  May an agency waive the biweekly premium pay limitation that applies to law enforcement officers (LEOs) under 5 U.S.C. 5547(c) and 5 CFR 550.107 and apply an annual premium pay limitation for work in connection with an emergency?

A16  No.  The authority to apply an annual premium pay limitation under 5 U.S.C. 5547(b) and 5 CFR 550.106 does not apply to LEOs.  The law does not provide agencies or the Office of Personnel Management with the authority to waive the biweekly premium pay limitation applicable to LEOs.