81 FR 51775 - Disabled Veteran Leave and Other Miscellaneous Changes

OFFICE OF PERSONNEL MANAGEMENT

Federal Register Volume 81, Issue 151 (August 5, 2016)

Page Range		51775-51781
FR Document		2016-18516
The Office of Personnel Management is issuing final regulations to implement the Wounded Warriors Federal Leave Act of 2015, which establishes a separate new leave category, to be known as ``disabled veteran leave,'' available during a 12-month period beginning on the first day of employment to be used by an employee who is a veteran with a service-connected disability rated at 30 percent or more for purposes of undergoing medical treatment for such disability. We are also rescinding two obsolete leave-related regulations.
Federal Register, Volume 81 Issue 151 (Friday, August 5, 2016)
[Federal Register Volume 81, Number 151 (Friday, August 5, 2016)]
[Rules and Regulations]
[Pages 51775-51781]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-18516]



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Federal Register / Vol. 81, No. 151 / Friday, August 5, 2016 / Rules 
and Regulations

[[Page 51775]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AN31


Disabled Veteran Leave and Other Miscellaneous Changes

AGENCY: Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management is issuing final 
regulations to implement the Wounded Warriors Federal Leave Act of 
2015, which establishes a separate new leave category, to be known as 
``disabled veteran leave,'' available during a 12-month period 
beginning on the first day of employment to be used by an employee who 
is a veteran with a service-connected disability rated at 30 percent or 
more for purposes of undergoing medical treatment for such disability. 
We are also rescinding two obsolete leave-related regulations.

DATES: This final rule is effective on November 5, 2016.

FOR FURTHER INFORMATION CONTACT: Doris Rippey by telephone at (202) 
606-2858 or by email at [email protected].

SUPPLEMENTARY INFORMATION: On June 6, 2016, the Office of Personnel 
Management (OPM) published proposed regulations (81 FR 36186) to add a 
new subpart M, Disabled Veteran Leave, in part 630 (Absence and Leave) 
of title 5, Code of Federal Regulations, and rescind two obsolete 
regulations. These final regulations implement the Wounded Warriors 
Federal Leave Act of 2015 (Pub. L. 114-75, November 5, 2015) (hereafter 
referred to as ``the Act''). The Act adds section 6329 to title 5, 
United States Code, which establishes a separate new leave category, to 
be known as ``disabled veteran leave.'' This new leave category 
entitles any employee who is a veteran with a qualifying service-
connected disability to use disabled veteran leave during a 12-month 
period beginning on the first day of employment for the purposes of 
undergoing medical treatment for such disability.
    Disabled veteran leave available to an eligible employee may not 
exceed 104 hours for a regular full-time employee. Disabled veteran 
leave not used during the established 12-month period may not be 
carried over to subsequent years and will be forfeited. By law, 
disabled veteran leave is available only to covered employees who are 
hired (as defined at Sec.  630.1303) on or after November 5, 2016.
    The 30-day comment period for the proposed regulations ended on 
July 6, 2016. We received comments from 12 individuals, 1 agency, and 1 
Federal labor organization. This Federal Register notice provides 
general information regarding the regulation, addresses the comments 
received, and issues final regulations that reflect three changes to 
the proposed regulations in Sec. Sec.  630.1301, 630.1303, and 
630.1307(b).

Comments on Proposed Regulations

    We organized our responses to comments by the affected regulatory 
section number. We did not receive comments on all regulatory sections. 
Therefore, not all sections are discussed within this Supplementary 
Information.
    We received comments expressing general support for the new type of 
leave for disabled veterans. A Federal labor organization expressed 
that ``disabled veteran leave is an excellent way to help mitigate the 
adverse effects of military service and prevent veterans from 
experiencing unnecessary personal hardships as they transition into the 
civilian workforce.'' The labor organization stated that having the new 
104-hour leave entitlement available during the initial 12-month period 
of employment ``will greatly contribute to assisting veterans in making 
a more seamless transition to civilian duty by affording them the 
flexibility they need to undergo medical treatment.''
    Comments from individuals reflected that veterans often have 
multiple appointments necessary to treat their service-connected 
disabilities and may not have sufficient accrued sick or annual leave 
to attend those appointments. The comments expressed that the new leave 
category will make it possible for veterans to obtain necessary medical 
treatment for their service-connected disabilities (during the 12-month 
eligibility period) without having to take leave without pay, use 
accrued sick or annual leave, or become indebted for advanced sick or 
annual leave.

Contrary to Law

    We received several comments from individuals suggesting changes 
that would be contrary to the statutory requirements in law. These 
comments fell into three general categories: (1) The requirement that 
the disabled veteran leave benefit is applicable only to those hired on 
or after November 5, 2016, (2) the amount of disabled veteran leave 
provided (up to 104 hours), and (3) the 12-month period in which to use 
disabled veteran leave (i.e., that disabled veteran leave is a one-time 
entitlement rather than a recurring annual entitlement). Changes in 
these three categories would require a change in law; therefore, no 
changes were made to the regulations based on these comments.

Required Documentation for Eligibility

    A labor organization provided a comment on a section of the 
Supplementary Information of the proposed regulations related to Sec.  
630.1304 (Eligibility) (81 FR 36189). In that section, we stated it is 
important that agencies be able to identify as soon as possible whether 
an employee is entitled to the benefit since the disabled veteran leave 
is only available during the first 12 months after the first day of 
employment. However, we also noted that employees have a responsibility 
to provide proper documentation/certification from the Veterans 
Benefits Administration (VBA), a subcomponent of the Department of 
Veterans Affairs (VA) to enable agencies to make determinations about 
eligibility for disabled veteran leave. The labor organization stated 
that the proposed regulations place the burden on veteran employees to 
provide the necessary documentation upon being employed to gain access 
to this benefit. The labor organization stated that our proposed 
regulations are silent on how employees will be notified of the 
existence of this benefit when they become employed and recommended 
that agencies provide

[[Page 51776]]

notice to veterans upon employment by including literature on disabled 
veteran leave in their new hire packets. Additionally, the labor 
organization urged that VBA notify employees of this benefit upon 
certifying their status as a veteran with a qualifying service-
connected disability. The labor organization acknowledged that the 
regulations contain a retroactivity provision at Sec.  630.1304(c), 
which addresses delayed employee submissions of VBA ratings; however, 
it asserted that having VBA provide notice of this new leave category 
would maximize the possibility of veterans taking advantage of the 
statutory entitlement to disabled veteran leave within the fixed 12-
month eligibility period.
    We agree that agencies should strive to make employees aware of the 
disabled veteran leave benefit. While we do not believe it is necessary 
to incorporate a formal notice requirement in regulations, we will 
encourage agencies through other means to educate and notify employees 
regarding the disabled veteran leave benefit. We have also informed VBA 
of the labor organization's recommendation that it notify veterans of 
this Federal employee leave benefit when it certifies that they have a 
30 percent service-connected disability rating.
Sec.  630.1302--Applicability and Sec.  630.1303--Definitions
    Commenters expressed that it was ``unfair'' to provide this leave 
benefit only to veterans hired on or after November 5, 2016, and 
expressed the need for the new leave category to apply to all veterans 
with a 30 percent or more service-connected disability rating.
    Section 2(c) of the Act specifically provides that disabled veteran 
leave is available to veterans with a 30 percent or more service-
connected disability rating who are hired on or after November 5, 2016. 
Thus, comments received regarding the application of the disabled 
veteran leave benefit only to those hired on or after November 5, 2016, 
are outside the scope of OPM's authority and regulations. OPM cannot 
prescribe regulations that are contrary to statutory requirements.
    While current Federal employees who were hired before November 5, 
2016, are not eligible for disabled veteran leave, the Federal 
Government offers a wide range of leave options and workplace 
flexibilities available to assist employees who need to be away from 
the workplace, including veterans who must take time off from work to 
receive medical treatment for their service-connected disabilities. 
These options include advanced annual leave or advanced sick leave, 
alternative work schedules, earned credit hours under a flexible work 
schedule, and earned compensatory time off. Depending on an employee's 
particular circumstances, leave without pay under the Family and 
Medical Leave Act (FMLA) or donated leave under the voluntary leave 
transfer program or voluntary leave bank program may also be options 
for employees needing time away from work for the treatment of their 
service-connected disabilities. (See also the discussion of leave 
rights under Executive Order 5396 at the end of this Supplementary 
Information.)
    Since the term ``hired'' is not defined in the statute, we define 
the term ``hired'' within these regulations to be broader than merely 
an employee's first appointment with the Federal Government. As 
discussed in the Supplementary Information of the proposed regulations, 
although the legislative history of the Act indicates that Congress was 
focused on the most common scenario--addressing veterans with 30 
percent or more service-connected disabilities who are ``new'' 
employees and begin their Federal careers with zero hours of sick leave 
(see House Report 114-180 and Senate Report 114-89)--the law itself 
does not exclude those with previous Federal civilian service.
    Therefore, we provide in these regulations that employees also will 
be considered to have a hiring event that may qualify them for disabled 
veteran leave (assuming they meet all other eligibility requirements) 
if, on or after November 5, 2016, they are (1) reappointed with at 
least a 90-day break in service or (2) return to civilian duty 
following a break in civilian duty (with continuous civilian leave 
status) to perform military service. (See definition of the term hired 
in Sec.  630.1303.)
    One commenter expressed concern that some employees may wait until 
after they are hired to file a claim for VA disability benefits, which 
would ``leave little or no time to make this process work,'' given the 
delays in the VA process for making disability determinations.
    This comment appeared to reflect a misunderstanding of when the 12-
month eligibility period begins. The 12-month eligibility period begins 
on the first day of employment, which is defined to mean the later of 
(1) the date the employee is first hired (in qualifying employment) or 
(2) the effective date of the employee's qualifying service-connected 
disability. The hiring date is the later date when an employee is hired 
after the effective date of the employee's qualifying service-connected 
disability. The effective date of the disability determination is the 
later date if the employee has already been hired. Thus, it is possible 
for the 12-month eligibility period to begin after an employee's hiring 
date. Because of comments indicating confusion about this matter, we 
are revising the definition of first day of employment to more clearly 
state the rule. We are also making a corresponding clarification in 
Sec.  630.1301 (Purpose and authority), which relies on the clarified 
definition of first day of employment.
    As discussed in the Supplementary Information for the proposed 
regulations, the effective date of a service-connected disability is 
generally either the day after the date of military discharge (if the 
person filed a disability claim within 1 year of discharge date) or the 
date the claim was filed. Thus, a delay in a determination by VBA can 
prevent an employee from using disabled veteran leave during the 
earlier portion of the 12-month eligibility period that may be 
retroactively established for certain employees. However, the 
regulations in Sec.  630.1306(c) address this situation by allowing 
such employees to retroactively substitute disabled veteran leave for 
other leave they may have taken for covered medical treatment.
Sec.  630.1304--Eligibility
    We received one comment regarding the requirement in proposed Sec.  
630.1304(b) that, ``[i]n order to be eligible for disabled veteran 
leave, an employee must provide to the agency documentation from the 
Veterans Benefits Administration certifying that the employee has a 
qualifying service-connected disability.'' The commenter expressed 
concerns about the VBA's ability ``to provide timely decisions'' and 
suggested that, in addition to the VBA rating, we also consider using 
the following documentation as a proof of a service-connected 
disability rated at 30 percent or more: A Report of Separation showing 
medically retired (30 percent) or Temporary Disability Retired List 
(TDRL) and/or a Medical Evaluation Board (MEB)/Physical Evaluation 
Board (PEB) evaluation from the service department concerned.
    The commenter also expressed concerns that ``while many veterans 
will seamlessly transition from active duty to VA care, there will be 
those who do not immediately file a claim with VBA.'' The commenter 
stated that ``for those who wait to file until after they are hired 
there may be little or no time to make this process work,'' and ``[i]f 
the veteran does not have the decision in

[[Page 51777]]

hand when hired, the veteran has no ability to push the process within 
the first year and only a limited ability for after the fact 
adjustments.'' The same commenter mentioned that there are other 
problematic issues that can delay a rating from VBA.
    The Act requires a formal finding by VA under title 38 that an 
employee is a veteran with a service-connected disability rated at 30 
percent or more. (The Act relies on the title 38 definitions of terms 
``veteran'' and ``service-connected.'' Only VA issues service-connected 
disability ratings to veterans under title 38.) The regulations already 
provide that a temporary disability rating by VA under 38 U.S.C. 1156 
is considered a valid rating as long as it is in effect. (See 
definition of the term qualifying service-connected disability in Sec.  
630.1303.) Accordingly, we are not making any changes to the 
regulations in response to the commenter's suggestions to use other 
forms of documentation as a basis for providing disabled veteran leave. 
As already noted, in the event that VA delays prevent an employee from 
using disabled veteran leave during a portion of the 12-month 
eligibility period, the regulations allow the employee to retroactively 
substitute disabled veteran leave for other leave used for attending 
medical treatment of the qualifying service connected-disability. (See 
Sec.  630.1306(c).)
    For example, assume a veteran is discharged from the military in 
July 2014 and is hired to fill a qualifying Federal civilian position 
on December 1, 2016, but has not filed a claim for veteran disability 
benefits. The agency cannot credit the employee with the disabled 
veteran leave at the time of hire because the employee's eligibility 
for the benefit has not been established by VA. Subsequently, on March 
4, 2017, the employee files a claim and on June 5, 2017, VBA issues a 
decision that the employee has a service-connected disability rating of 
30 percent. In this case, the disability rating is effective on the 
date the employee filed the claim, March 4, 2017. After the employee 
provides the employing agency with documentation, the agency 
establishes March 4, 2017, as the ``first day of employment'' (as a 
veteran with a service-connected disability of 30 percent or more) and 
as the beginning date of the employee's 12-month eligibility period, 
and credits the employee with disabled veteran leave. The employee will 
have a 12-month period starting on March 4, 2017, and ending on March 
3, 2018, in which to use the leave.
    While the disability may have existed as the employee awaited the 
VBA determination, the Act provides that disabled veteran leave may be 
provided only to an employee who actually has a service-connected 
disability rating of 30 percent or more in effect. VBA provides 
disability ratings to veterans in order to determine compensation 
benefits related to the veteran's service-connected disability.
    In the example scenario, the employee was retroactively determined 
to be eligible for disabled veteran leave starting on March 4, 2017; 
however, the determination was not made until June 5, 2017. Thus, the 
employee was not allowed to use disabled veteran leave during the March 
4-June 4 period; however, as provided by Sec.  630.1306(c), the agency 
must allow the employee to substitute disabled veteran leave 
retroactively for a qualifying period of absence during the March 4-
June 4 period (including leave without pay, sick leave, annual leave, 
compensatory time off, or other paid time off, but excluding periods of 
suspension or absence without leave (AWOL)).
Sec.  630.1305--Crediting Disabled Veteran Leave
    We received three comments regarding the crediting of 104 hours of 
disabled veteran leave on a one-time basis. One commenter thought 104 
hours was too much and recommended the regulations be changed to 
provide a maximum of 80 hours. The commenter also suggested that those 
80 hours be provided on an annual basis and recommended changing the 
effective date from November 5, 2016, to January 1, 2017, to avoid 
providing the leave benefit twice to an employee in a short amount of 
time.
    This comment is misdirected, as it appears that the commenter 
believes that disabled veteran leave is provided to qualified employees 
on a recurring annual basis. As the law clearly provides--and as stated 
in the proposed and final regulations--employees who otherwise qualify 
are provided disabled veteran leave only once during their Federal 
careers. The intent of the Act is to allow qualifying veterans access 
to this special category of leave during a single 12-month eligibility 
period that commences on the employee's ``first day of employment.'' 
The focus of Congress was to address the problem of new Federal 
employees who have a zero balance of sick leave when initially 
appointed. In subsequent years, employees can use accrued sick and 
annual leave balances to receive medical treatment for their service-
connected disabilities. Also, contrary to the commenter's assumption, 
disabled veteran leave is granted for an individualized 12-month 
eligibility period, not on a calendar year or leave year basis.
    Another commenter also recommended that the benefit be provided on 
an annual basis if the employee has a need for it and if the employee 
continues to have the service-connected disability.
    A third commenter stated that 104 hours was not enough time to 
cover the various medical appointments veterans with service-connected 
disabilities rated at 30 percent or more have. The commenter also 
stated that the location and operating hours of VA medical centers 
should have been taken into account when determining the amount of 
hours of disabled veteran leave to provide to an employee. The 
commenter suggested that VA medical appointments should be authorized 
as ``company time.'' The commenter did not feel he should have to 
supplement disabled veteran leave by using his own accrued sick leave 
to attend VA medical appointments.
    The comments received regarding the amount of leave to credit under 
the new leave category and how often this leave is made available are 
outside the scope of OPM's authority and regulations; therefore, no 
changes were made to the regulations based on these comments. Under 
section 6329(b)(1), the amount of disabled leave credited to an 
employee may not exceed 104 hours. The Act provides a one-time benefit 
of up to 104 hours of disabled veteran leave to an eligible veteran to 
be used during the12-month period beginning on the first day of 
employment.
Sec.  630.1306--Requesting and Using Disabled Veteran Leave
    One commenter expressed concern that the retroactive substitution 
provisions at Sec.  630.1306(c) are too complex. These provisions allow 
an employee to substitute disabled veteran leave retroactively for 
other leave or paid time off used for the medical treatment of a 
qualifying service-connected disability during the employee's 
established 12-month eligibility.
    We disagree and do not view these provisions as too complex to 
implement. In addition, the provisions allowing for retroactive 
substitution are necessary to assist employees who have not yet 
received their disability determination rating of 30 percent or more 
from the VBA. Therefore, we are not adopting any changes to this 
portion of the rule.

[[Page 51778]]

Sec.  630.1307--Medical Certification
    We received one agency comment regarding this section. The agency 
recommended that, in the final rule, Sec.  630.1307(b)(1) be changed 
from ``A statement by the health care provider that the medical 
treatment is for one or more service-connected disabilities of the 
employee rated at 30 percent or more'' to read as ``A statement by the 
health care provider that the medical treatment is for one or more 
service-connected disabilities of the employee that resulted in 30 
percent or more disability rating'' or other similar statement. The 
agency stated that the proposed section could be interpreted to mean 
that only individual disabilities rated at 30% or higher are eligible 
when in reality the leave may be used for any of the disabilities 
listed in the veteran's disability rating determination that were 
combined to reach a total disability rating of 30 percent or more. The 
agency acknowledges that the intent of this section is covered 
elsewhere in the proposed rule, but expressed concern that this 
particular verbiage could be misunderstood.
    We agree with the comment and are adopting the recommended language 
for Sec.  630.1307(b)(1) in the final rule.
    The same agency also commented on the proposed language regarding 
the time limits within which an employee must provide any required 
written medical certification to the agency after the agency requests 
it. In Sec.  630.1307(c)(1) of the proposed rule, the employee must 
provide the requested medical certification no later than 15 calendar 
days after the date the agency requests it.
    However, Sec.  630.1307(c)(2) provides that if it is not 
practicable under the particular circumstances to provide the requested 
medical certification within 15 calendar days after the date requested 
by the agency despite the employee's diligent, good faith efforts, the 
employee must provide the medical certification within a reasonable 
period of time under the circumstances involved, but no later than 30 
calendar days after the date the agency requests such documentation.
    The agency recommended removing the phrase ``diligent, good faith 
effort'' from the final regulations stating that ``good faith'' is not 
further clarified or defined in the proposed rule and agencies will 
have difficulty defending determinations that an employee did not meet 
``diligent and good faith efforts.''
    While we understand the commenter's concerns, we are not adopting a 
change to the final regulations. We recognize there may be 
circumstances in which the employee cannot provide the requested 
documentation within this prescribed time period; therefore, we provide 
a limited extended time period for the employee. The employee should 
make every effort to meet the initial 15 calendar days. However, if 
more time is needed by the employee, the agency should allow for 
additional days. The employee bears the responsibility for the required 
medical certification, and part of his or her effort should be periodic 
updates to the agency on the status of the required medical 
certification. The employee must provide the required medical 
certification no later than 30 days after the agency's initial request 
for such documentation.
    Analogous language regarding an employee's ``diligent, good faith 
efforts'' is also included in the medical certification provisions of 
both the sick leave regulations at Sec.  630.405(b) and the Family and 
Medical Leave Act (FMLA) regulations at Sec.  630.1208(h). We included 
parallel provisions in these regulations, so that agencies have one 
standard to administer regarding the timeframes for employees to 
provide supporting medical documentation to them. Additionally, we have 
not had any feedback from agencies expressing any difficulty in 
administering the sick leave and FMLA provisions based upon the 
``diligent, good faith efforts'' language included under those 
regulations.
Miscellaneous Comment(s)
    We received one comment regarding Executive Order (E.O.) 5396 
issued on July 17, 1930. E.O. 5396 provides a basic entitlement for any 
veteran to use annual leave, sick leave, or leave without pay when 
absent from work for medical treatment of a service-connected 
disability (regardless of the disability rating). The commenter 
questioned why E.O. 5396 is not mentioned in the proposed rule. The 
commenter stated that ``the will of Congress was to expand the intent 
of the E.O. by actually paying the disabled Vet for some of the leave 
without pay (LWOP) that they were granted in the 1930 E.O. and that 
this E.O. is still in effect.'' The commenter further recommended that 
the final rule provide that E.O. 5396 be the first choice after 
disabled veteran leave has been exhausted.
    While we agree that E.O. 5396 is still in effect and valid, we did 
not mention it in the proposed rule because the rights provided by the 
Executive order and benefits under the disabled veteran leave law are 
two separate entitlements. OPM is authorized to issue regulations on 
disabled veteran leave under section 2(d) of Public Law 114-75. OPM has 
no authority to issue regulations regarding E.O. 5396. These disabled 
veteran leave regulations do not change an employee's entitlement under 
E.O. 5396 to use annual leave, sick leave, or leave without pay for 
medical treatment of the employee's service-connected disability.
    The commenter was also concerned that the term AWOL (absent without 
leave) was mentioned several times within the proposed rule and 
expressed concerns that ``management would be quick to build up reasons 
to fire an individual.''
    The regulations include two references to AWOL. The first reference 
to AWOL in the proposed rule simply states that disabled veteran leave 
cannot be applied retroactively to time charged as AWOL, but may be 
applied retroactively to time initially charged as leave without pay 
(LWOP). The second instance permits an employee to be charged as AWOL 
if he or she fails to produce the medical documentation required by the 
agency. See Sec.  630.1306 and 630.1307. We have no reason to believe 
agencies will abuse this authority. Therefore, no change was made to 
the regulations based on this comment.

Executive Order 13563 and Executive Order 12866

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 13563 and 12866.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it will apply 
only to Federal agencies and employees.

List of Subjects in 5 CFR Part 630

    Government employees.

    Office of Personnel Management.
Beth F. Cobert,
Acting Director.

    Accordingly, OPM is amending part 630 of title 5 of the Code of 
Federal Regulations as follows:

PART 630--ABSENCE AND LEAVE

0
1. Revise the authority citation for part 630 to read as follows:

    Authority: 5 U.S.C. 6311; Sec.  630.205 also issued under Pub. 
L. 108-411, 118 Stat 2312; Sec.  630.301 also issued under Pub. L. 
103-356, 108 Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; Sec.  
630.303 also issued under 5 U.S.C. 6133(a); Sec. Sec.  630.306 and 
630.308 also issued under 5 U.S.C. 6304(d)(3), Pub. L. 102-484,

[[Page 51779]]

106 Stat. 2722, and Pub. L. 103-337, 108 Stat. 2663; subpart D also 
issued under Pub. L. 103-329, 108 Stat. 2423; Sec.  630.501 and 
subpart F also issued under E.O. 11228, 30 FR 7739, 3 CFR, 1974 
Comp., p. 163; subpart G also issued under 5 U.S.C. 6305; subpart H 
also issued under 5 U.S.C. 6326; subpart I also issued under 5 
U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834, and Pub. L. 103-103, 
107 Stat. 1022; subpart J also issued under 5 U.S.C. 6362, Pub. L 
100-566, and Pub. L. 103-103; subpart K also issued under Pub. L. 
105-18, 111 Stat. 158; subpart L also issued under 5 U.S.C. 6387 and 
Pub. L. 103-3, 107 Stat. 23; and subpart M also issued under section 
2(d) of Pub. L. 114-75, 129 Stat. 640.


Sec.  630.310  [Removed and Reserved]

0
2. Remove and reserve Sec.  630.310.

0
3. Revise subpart M to read as follows:
Subpart M--Disabled Veteran Leave
Sec.
630.1301 Purpose and authority.
630.1302 Applicability.
630.1303 Definitions.
630.1304 Eligibility.
630.1305 Crediting disabled veteran leave.
630.1306 Requesting and using disabled veteran leave.
630.1307 Medical certification.
630.1308 Disabled veteran leave forfeiture, transfer, reinstatement.

Subpart M--Disabled Veteran Leave


Sec.  630.1301  Purpose and authority.

    This subpart implements 5 U.S.C. 6329, which establishes a leave 
category, to be known as ``disabled veteran leave,'' for an eligible 
employee who is a veteran with a service-connected disability rated at 
30 percent or more. Such an employee is entitled to this leave for 
purposes of undergoing medical treatment for such disability. Disabled 
veteran leave must be used during the 12-month period beginning on the 
first day of employment. OPM's authority to regulate section 6329 is 
found in section 2(d) of Public Law 114-75.


Sec.  630.1302  Applicability.

    This subpart applies to an employee who is a veteran with a 
service-connected disability rated at 30 percent or more, subject to 
the conditions specified in this subpart. This subpart does not apply 
to employees of the United States Postal Service or the Postal 
Regulatory Commission who are subject to regulations issued by the 
Postmaster General under section 2(d)(2) of Public Law 114-75. This 
subpart applies only to an employee who is hired on or after November 
5, 2016.


Sec.  630.1303  Definitions.

    In this subpart:
    12-month eligibility period means the continuous 12-month period 
that begins on the first day of employment. For an employee who was 
eligible (or later determined to have been eligible) for disabled 
veteran leave as an employee of the United States Postal Service or the 
Postal Regulatory Commission and who subsequently commences employment 
covered by this subpart, the 12-month eligibility period is the period 
that began on the first day of employment with the United States Postal 
Service or the Postal Regulatory Commission (as determined under 
regulations issued by the Postmaster General to implement 5 U.S.C. 
6329).
    Agency means an agency of the Federal Government. In the case of an 
agency in the Executive branch, it means an Executive agency as defined 
in 5 U.S.C. 105. When the term ``agency'' is used in the context of an 
agency making determinations or taking actions, it means management 
officials of the agency who are authorized by the agency head to make 
the given determination or take the given action.
    Employee has the meaning given that term in 5 U.S.C. 2105.
    Employment means service as an employee during which the employee 
is covered by a leave system under which leave is charged for periods 
of absence. This excludes service in a position in which the employee 
is not covered by 5 U.S.C. 6329 due to application of another statutory 
authority.
    First day of employment means the first day of service that 
qualifies as employment that occurs on the later of--
    (1) The earliest date an employee is hired after the effective date 
of the employee's qualifying service-connected disability, as 
determined by the Veterans Benefits Administration; or
    (2) The effective date of the employee's qualifying service-
connected disability, as determined by the Veterans Benefits 
Administration.
    Health care provider has the meaning given that term in Sec.  
630.1202.
    Hired means the action of--
    (1) Receiving an initial appointment to a civilian position in the 
Federal Government in which the service qualifies as employment under 
this subpart;
    (2) Receiving a qualifying reappointment to a civilian position in 
the Federal Government in which the service qualifies as employment 
under this subpart; or
    (3) Returning to duty status in a civilian position in the Federal 
Government in which the service qualifies as employment under this 
subpart, when such return immediately followed a break in civilian duty 
(with the employee in continuous civilian leave status) to perform 
military service.
    Medical certificate means a written statement signed by a health 
care provider certifying to the treatment of a veteran's qualifying 
service-connected disability.
    Medical treatment means any activity carried out or prescribed by a 
health care provider to treat a veteran's qualifying service-connected 
disability.
    Military service means ``active military, naval, or air service'' 
as that term is defined in 38 U.S.C. 101(24).
    Qualifying reappointment means an appointment of a former employee 
of the Federal Government following a break in employment of at least 
90 calendar days.
    Qualifying service-connected disability means a veteran's service-
connected disability rated at 30 percent or more by the Veteran 
Benefits Administration, including a combined degree of disability of 
30 percent or more that reflects the combined effect of multiple 
individual disabilities, which resulted in the award of disability 
compensation under title 38, United States Code. A temporary disability 
rating under 38 U.S.C. 1156 is considered a valid rating in applying 
this definition for as long as it is in effect.
    Service-connected has the meaning given such term in 38 U.S.C. 
101(16).
    Veteran has the meaning given such term in 38 U.S.C. 101(2).
    Veterans Benefits Administration means the Veterans Benefits 
Administration of the Department of Veterans Affairs.


Sec.  630.1304  Eligibility.

    (a) An employee who is a veteran with a qualifying service-
connected disability is entitled to disabled veteran leave under this 
subpart, which will be available for use during the 12-month 
eligibility period beginning on the first day of employment. For each 
employee, there is a single first day of employment.
    (b) In order to be eligible for disabled veteran leave, an employee 
must provide to the agency documentation from the Veterans Benefits 
Administration certifying that the employee has a qualifying service-
connected disability. The documentation should be provided to the 
agency--
    (1) Upon the first day of employment, if the employee has already 
received such certifying documentation; or
    (2) For an employee who has not yet received such certifying 
documentation from the Veterans Benefit

[[Page 51780]]

Administration, as soon as practicable after the employee receives the 
certifying documentation.
    (c) Notwithstanding paragraph (b) of this section, an employee may 
submit certifying documentation at a later time, including after a 
period of absence for medical treatment, as described in Sec.  
630.1306(c). The 12-month eligibility period is fixed based on the 
first day of employment and is not affected by the timing of when 
certifying documentation is provided.
    (d) If an employee's service-connected disability rating is 
decreased or discontinued during the 12-month eligibility period such 
that the employee no longer has a qualifying service-connected 
disability--
    (1) The employee must notify the agency of the effective date of 
the change in the disability rating; and
    (2) The employee is no longer eligible for disabled veteran leave 
as of the effective date of the rating change.


Sec.  630.1305  Crediting disabled veteran leave.

    (a) Upon receipt of the certifying documentation under Sec.  
630.1304, an agency must credit 104 hours of disabled veteran leave to 
a full-time, nonseasonal employee or a proportionally equivalent amount 
for employees with part-time, seasonal, or uncommon tours of duty, 
except as otherwise provided in this section.
    (b) The proportional equivalent of 104 hours for a full-time 
employee is determined for employees with other schedules as follows:
    (1) For an employee with a part-time work schedule, the 104 hours 
is prorated based on the number of hours in the part-time schedule (as 
established for leave charging purposes) relative to a full-time 
schedule (e.g., 52 hours for a half-time schedule);
    (2) For an employee with a seasonal work schedule, the 104 hours is 
prorated based on the total projected hours to be worked in an annual 
period of 52 weeks (based on the seasonal employee's seasonal work 
periods and full-time or part-time schedule during those periods) 
relative to a full-time work year of 2,080 hours (e.g., 52 hours for a 
seasonal employee who works full-time for half a year); and
    (3) For an employee with an uncommon tour of duty (as defined in 
Sec.  630.201 and described in Sec.  630.210), 104 hours is 
proportionally increased based on the number of hours in the uncommon 
tour relative to the hours in a regular full-time tour (e.g., 187 hours 
for an employee with a 72-hour weekly uncommon tour of duty.)
    (c) When an employee is converted to a different tour of duty for 
leave purposes, the employee's balance of unused disabled veteran leave 
must be converted to the proper number of hours based on the proportion 
of hours in the new tour of duty compared to the former tour of duty. 
For seasonal employees, hours must be annualized in determining the 
proportion.
    (d) The amount of disabled veteran leave initially credited to an 
employee under paragraphs (a) and (b) of this section must be offset by 
the number of hours of sick leave an employee has credited to his or 
her account as of the first day of employment. For example, if an 
employee is being reappointed and having sick leave recredited upon 
such reappointment, the amount of disabled veteran leave must be 
reduced by the amount of such recredited sick leave. Similarly, if an 
employee is returning to civilian duty status after a period of leave 
for military service, that employee may have a balance of sick leave, 
which must be used to offset the disabled veteran leave.
    (e)(1) An employee who was previously employed by an agency whose 
employees were not subject to 5 U.S.C. 6329 must certify, at the time 
the employee is hired in a position subject to 5 U.S.C. 6329, whether 
or not that former agency provided entitlement to an equivalent 
disabled veteran leave benefit to be used in connection with the 
medical treatment of a service-connected disability rated at 30 percent 
or more. The employee must certify the date he or she commenced the 
period of eligibility to use disabled veteran leave in the former 
agency.
    (2) If 12 months have elapsed since the commencing date referenced 
in paragraph (e)(1) of this section, the employee will be considered to 
have received the full amount of an equivalent benefit and no benefit 
may be provided under this subpart.
    (3) If the employee is still within the 12-month period that began 
on the commencing date referenced in paragraph (e)(1) of this section, 
the employee must certify the number of hours of disabled veteran leave 
used at the former agency. The gaining agency must offset the number of 
hours of disabled veteran leave to be credited to the employee by the 
number of such hours used by the employee at such agency, while making 
no offset under paragraph (d) of this section. If the employee had a 
different type of work schedule at the former agency, the hours used at 
the former agency must be converted before applying the offset, 
consistent with Sec.  630.1305(c).


Sec.  630.1306  Requesting and using disabled veteran leave.

    (a) An employee may use disabled veteran leave only for the medical 
treatment of a qualifying service-connected disability. The medical 
treatment may include a period of rest, but only if such period of rest 
is specifically ordered by the health care provider as part of a 
prescribed course of treatment for the qualifying service-connected 
disability.
    (b)(1) An employee must file an application--written, oral, or 
electronic, as required by the agency--to use disabled veteran leave. 
The application must include a personal self-certification by the 
employee that the requested leave will be (or was) used for purposes of 
being furnished medical treatment for a qualifying service-connected 
disability. The application must also include the specific days and 
hours of absence required for the treatment. The application must be 
submitted within such time limits as the agency may require.
    (2) An employee must request approval to use disabled veteran leave 
in advance unless the need for leave is critical and not foreseeable--
e.g., due to a medical emergency or the unexpected availability of an 
appointment for surgery or other critical treatment. The employee must 
provide notice within a reasonable period of time appropriate to the 
circumstances involved. If the agency determines that the need for 
leave is critical and not foreseeable and that the employee is unable 
to provide advance notice of his or her need for leave, the leave may 
not be delayed or denied.
    (c)(1) When an employee did not provide the agency with 
certification of a qualifying service-connected disability before 
having a period of absence for treatment of such disability, the 
employee is entitled to substitute approved disabled veteran leave 
retroactively for such period of absence (excluding periods of 
suspension or absence without leave (AWOL), but including leave without 
pay, sick leave, annual leave, compensatory time off, or other paid 
time off) in the 12-month eligibility period. Such retroactive 
substitution cancels the use of the original leave or paid time off and 
requires appropriate adjustments. In the case of retroactive 
substitution for a period when an employee used advanced annual leave 
or advanced sick leave, the adjustment is a liquidation of the leave 
indebtedness covered by the substitution.
    (2) An agency may require an employee to submit the medical 
certification described in Sec.  630.1307(a)

[[Page 51781]]

before approving such retroactive substitution.


Sec.  630.1307  Medical certification.

    (a) In addition to the employee's self-certification required under 
Sec.  630.1306(b)(1), an agency may additionally require that the use 
of disabled veteran leave be supported by a signed written medical 
certification issued by a health care provider.
    (b) When an agency requires a signed written medical certification 
by a health care provider, the agency may specify that the 
certification include--
    (1) A statement by the health care provider that the medical 
treatment is for one or more service-connected disabilities of the 
employee that resulted in 30 percent or more disability rating;
    (2) The date or dates of treatment or, if the treatment extends 
over several days, the beginning and ending dates of the treatment;
    (3) If the leave was not requested in advance, a statement that the 
treatment required was of an urgent nature or there were other 
circumstances that made advanced scheduling not possible; and
    (4) Any additional information that is essential to verify the 
employee's eligibility.
    (c)(1) An employee must provide any required written medical 
certification no later than 15 calendar days after the date the agency 
requests such medical certification, except as otherwise allowed under 
paragraph (c)(2) of this section.
    (2) If the agency determines it is not practicable under the 
particular circumstances for the employee to provide the requested 
medical certification within 15 calendar days after the date requested 
by the agency despite the employee's diligent, good faith efforts, the 
employee must provide the medical certification within a reasonable 
period of time under the circumstances involved, but no later than 30 
calendar days after the date the agency requests such documentation.
    (3) An employee who does not provide the required evidence or 
medical certification within the specified time period is not entitled 
to use disabled veteran leave, and the agency may, as appropriate and 
consistent with applicable laws and regulations--
    (i) Charge the employee as absent without leave (AWOL); or
    (ii) Allow the employee to request that the absence be charged to 
leave without pay, sick leave, annual leave, or other forms of paid 
time off.


Sec.  630.1308  Disabled veteran leave forfeiture, transfer, 
reinstatement.

    (a) Disabled veteran leave not used during the 12-month eligibility 
period may not be carried over to subsequent years and must be 
forfeited.
    (b) If a change in the employee's disability rating during the 12-
month eligibility period causes the employee to no longer have a 
qualifying service-connected disability (as described in Sec.  
630.1304(d)), any unused disabled veteran leave to the employee's 
credit as of the effective date of the rating change must be forfeited.
    (c) When an employee with a positive disabled veteran leave balance 
transfers between positions in different agencies, or transfers from 
the United States Postal Service or Postal Regulatory Commission to a 
position in another agency, during the 12-month eligibility period, the 
agency from which the employee transfers must certify the number of 
unused disabled veteran leave hours available for credit by the gaining 
agency. The losing agency must also certify the expiration date of the 
employee's 12-month eligibility period to the gaining agency. Any 
unused disabled veteran leave will be forfeited at the end of that 
eligibility period. For the purpose of this paragraph, the term 
``transfers'' means movement from a position in one agency (or the 
United States Postal Service or Postal Regulatory Commission) to a 
position in another agency without a break in employment of 1 workday 
or more in circumstances where service in both positions qualifies as 
employment under this subpart.
    (d)(1) An employee covered by this subpart, or an employee of the 
United States Postal Service or Postal Regulatory Commission, with a 
balance of unused disabled veteran leave who has a break in employment 
of at least 1 workday during the employee's 12-month eligibility 
period, and later recommences employment covered by 5 U.S.C. 6329 
within that same eligibility period, is entitled to a recredit of the 
unused balance.
    (2) When an employee has a break in employment as described in 
paragraph (d)(1) of this section, the losing agency must certify the 
number of unused disabled veteran leave hours available for recredit by 
the gaining agency. The losing agency must also certify the expiration 
date of the employee's 12-month eligibility period. Any unused disabled 
veteran leave must be forfeited at the end of that eligibility period.
    (3) In the absence of the certification described in paragraph 
(d)(2) of this section, the recredit of disabled veteran leave may also 
be supported by written documentation available to the employing agency 
in its official personnel records concerning the employee, the official 
records of the employee's former employing agency, copies of 
contemporaneous earnings and leave statement(s) provided by the 
employee, or copies of other contemporaneous written documentation 
acceptable to the agency.
    (e) An employee may not receive a lump-sum payment for any unused 
disabled veteran leave under any circumstance.

[FR Doc. 2016-18516 Filed 8-4-16; 8:45 am]
BILLING CODE 6325-39-P
51775

Rules and Regulations Federal Register
Vol. 81, No. 151

Friday, August 5, 2016

This section of the FEDERAL REGISTER new leave category entitles any that the new leave category will make it
contains regulatory documents having general employee who is a veteran with a possible for veterans to obtain necessary
applicability and legal effect, most of which qualifying service-connected disability medical treatment for their service-
are keyed to and codified in the Code of to use disabled veteran leave during a connected disabilities (during the 12-
Federal Regulations, which is published under 12-month period beginning on the first month eligibility period) without having
50 titles pursuant to 44 U.S.C. 1510.
day of employment for the purposes of to take leave without pay, use accrued
The Code of Federal Regulations is sold by undergoing medical treatment for such sick or annual leave, or become
the Superintendent of Documents. Prices of disability. indebted for advanced sick or annual
new books are listed in the first FEDERAL Disabled veteran leave available to an leave.
REGISTER issue of each week. eligible employee may not exceed 104
hours for a regular full-time employee. Contrary to Law
Disabled veteran leave not used during We received several comments from
OFFICE OF PERSONNEL the established 12-month period may individuals suggesting changes that
MANAGEMENT not be carried over to subsequent years would be contrary to the statutory
and will be forfeited. By law, disabled requirements in law. These comments
5 CFR Part 630 veteran leave is available only to fell into three general categories: (1) The
RIN 3206–AN31 covered employees who are hired (as requirement that the disabled veteran
defined at § 630.1303) on or after leave benefit is applicable only to those
Disabled Veteran Leave and Other November 5, 2016. hired on or after November 5, 2016, (2)
Miscellaneous Changes The 30-day comment period for the the amount of disabled veteran leave
proposed regulations ended on July 6, provided (up to 104 hours), and (3) the
AGENCY: Office of Personnel 2016. We received comments from 12
Management. 12-month period in which to use
individuals, 1 agency, and 1 Federal disabled veteran leave (i.e., that
ACTION: Final rule. labor organization. This Federal disabled veteran leave is a one-time
Register notice provides general entitlement rather than a recurring
SUMMARY: The Office of Personnel information regarding the regulation,
Management is issuing final regulations annual entitlement). Changes in these
addresses the comments received, and three categories would require a change
to implement the Wounded Warriors issues final regulations that reflect three
Federal Leave Act of 2015, which in law; therefore, no changes were made
changes to the proposed regulations in to the regulations based on these
establishes a separate new leave §§ 630.1301, 630.1303, and 630.1307(b).
category, to be known as ‘‘disabled comments.
veteran leave,’’ available during a 12- Comments on Proposed Regulations Required Documentation for Eligibility
month period beginning on the first day We organized our responses to
of employment to be used by an comments by the affected regulatory A labor organization provided a
employee who is a veteran with a section number. We did not receive comment on a section of the
service-connected disability rated at 30 comments on all regulatory sections. Supplementary Information of the
percent or more for purposes of Therefore, not all sections are discussed proposed regulations related to
undergoing medical treatment for such within this Supplementary Information. § 630.1304 (Eligibility) (81 FR 36189). In
disability. We are also rescinding two We received comments expressing that section, we stated it is important
obsolete leave-related regulations. general support for the new type of that agencies be able to identify as soon
leave for disabled veterans. A Federal as possible whether an employee is
DATES: This final rule is effective on
labor organization expressed that entitled to the benefit since the disabled
November 5, 2016.
‘‘disabled veteran leave is an excellent veteran leave is only available during
FOR FURTHER INFORMATION CONTACT:
way to help mitigate the adverse effects the first 12 months after the first day of
Doris Rippey by telephone at (202) 606– employment. However, we also noted
2858 or by email at pay-leave-policy@ of military service and prevent veterans
from experiencing unnecessary personal that employees have a responsibility to
opm.gov. provide proper documentation/
hardships as they transition into the
SUPPLEMENTARY INFORMATION: On June 6, civilian workforce.’’ The labor certification from the Veterans Benefits
2016, the Office of Personnel organization stated that having the new Administration (VBA), a subcomponent
Management (OPM) published proposed 104-hour leave entitlement available of the Department of Veterans Affairs
regulations (81 FR 36186) to add a new during the initial 12-month period of (VA) to enable agencies to make
subpart M, Disabled Veteran Leave, in employment ‘‘will greatly contribute to determinations about eligibility for
part 630 (Absence and Leave) of title 5, assisting veterans in making a more disabled veteran leave. The labor
Code of Federal Regulations, and seamless transition to civilian duty by organization stated that the proposed
rescind two obsolete regulations. These affording them the flexibility they need regulations place the burden on veteran
final regulations implement the to undergo medical treatment.’’ employees to provide the necessary
mstockstill on DSK3G9T082PROD with RULES

Wounded Warriors Federal Leave Act of Comments from individuals reflected documentation upon being employed to
2015 (Pub. L. 114–75, November 5, that veterans often have multiple gain access to this benefit. The labor
2015) (hereafter referred to as ‘‘the appointments necessary to treat their organization stated that our proposed
Act’’). The Act adds section 6329 to title service-connected disabilities and may regulations are silent on how employees
5, United States Code, which establishes not have sufficient accrued sick or will be notified of the existence of this
a separate new leave category, to be annual leave to attend those benefit when they become employed
known as ‘‘disabled veteran leave.’’ This appointments. The comments expressed and recommended that agencies provide

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Document Created: 2016-08-05 06:43:22
Document Modified: 2016-08-05 06:43:22
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		This final rule is effective on November 5, 2016.
Contact		Doris Rippey by telephone at (202) 606-2858 or by email at [email protected]
FR Citation		81 FR 51775
RIN Number		3206-AN31