83 FR 15291 - Weather and Safety Leave

OFFICE OF PERSONNEL MANAGEMENT

Federal Register Volume 83, Issue 69 (April 10, 2018)

The Office of Personnel Management is issuing new regulations on the granting and recording of weather and safety leave for Federal employees. The Administrative Leave Act of 2016 created four new categories of statutorily authorized paid leave--administrative leave, investigative leave, notice leave, and weather and safety leave--and established parameters for their use by Federal agencies. These regulations will provide a framework for agency compliance with the new statutory requirements regarding weather and safety leave. OPM will issue separate final regulations to address administrative leave, investigative leave, and notice leave at a later date.

[Federal Register Volume 83, Number 69 (Tuesday, April 10, 2018)]
[Rules and Regulations]
[Pages 15291-15298]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-07348]



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Rules and Regulations
                                                Federal Register
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having general applicability and legal effect, most of which are keyed 
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Federal Register / Vol. 83, No. 69 / Tuesday, April 10, 2018 / Rules 
and Regulations

[[Page 15291]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AN49


Weather and Safety Leave

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management is issuing new regulations 
on the granting and recording of weather and safety leave for Federal 
employees. The Administrative Leave Act of 2016 created four new 
categories of statutorily authorized paid leave--administrative leave, 
investigative leave, notice leave, and weather and safety leave--and 
established parameters for their use by Federal agencies. These 
regulations will provide a framework for agency compliance with the new 
statutory requirements regarding weather and safety leave. OPM will 
issue separate final regulations to address administrative leave, 
investigative leave, and notice leave at a later date.

DATES: Effective date: This final rule is effective on May 10, 2018.

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

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is 
issuing final regulations to implement the weather and safety leave 
provisions of the Administrative Leave Act of 2016, enacted under 
section 1138 of the National Defense Authorization Act for Fiscal Year 
2017 (Pub. L. 114-328, 130 Stat. 2000, December 23, 2016). The 
Administrative Leave Act of 2016, hereafter referred to as ``the Act,'' 
added three new sections in title 5 of the U.S. Code that provide for 
specific categories of paid leave and requirements that apply to each: 
Section 6329a regarding administrative leave; section 6329b regarding 
investigative leave and notice leave; and section 6329c regarding 
weather and safety leave.
    OPM published proposed regulations (82 FR 32263) on these new 
categories of leave on July 13, 2017. The 30-day comment period for the 
proposed regulations ended on August 14, 2017. After careful 
consideration of the comments received, and in recognition of the 
different implementation dates for the new leave categories under the 
Act, OPM has determined that it would better serve agencies if the 
final regulations on new subpart P, Weather and Safety Leave, were 
issued separately from the final regulations on the other leave 
categories. Accordingly, this Federal Register document provides 
general information, addresses the comments received, and issues final 
regulations that reflect changes to the proposed regulations expressly 
regarding subpart P, Weather and Safety Leave. OPM will issue separate 
final regulations on the other leave categories in the Federal Register 
at a later date.

Effective Date

    While the Act directed OPM to prescribe (i.e., publish) regulations 
no later than 270 calendar days after the Act's enactment on December 
23, 2016--i.e., September 19, 2017--OPM was unable to meet that 
requirement. The Act further directed that agencies ``revise and 
implement the internal policies of the agency'' to meet the statutory 
requirements pertaining to administrative leave, investigative leave, 
and notice leave no later than 270 calendar days after the date on 
which OPM issues its regulations. (See 5 U.S.C. 6329a(c)(2) and 
6329b(h)(2).) However, there is no similar agency implementation 
provision in the law governing weather and safety leave. Therefore, the 
weather and safety leave regulations in subpart P must be implemented 
when the final rule is effective--i.e., 30 days after publication. (See 
the DATES section of this preamble.) OPM will delay enforcing the 
requirement in subpart P that agencies separately report weather and 
safety leave to OPM until the 270th day following publication of the 
final regulations on subparts N (administrative leave) and O 
(investigative leave and notice leave).
    To the extent that existing agency collective bargaining agreements 
contain provisions that are inconsistent with the statutory provisions 
of the Administrative Leave Act (including sections 6329a, 6329b, or 
6329c), then the Act supersedes--as of the applicable implementation 
date--conflicting provisions in agency collective bargaining agreements 
as a matter of law. For an agency collective bargaining agreement in 
effect before publication of these regulations, any provisions in the 
regulations (other than those restating statutory requirements) that 
are in conflict with the agreement may not be enforced until the 
expiration of the current term of the agreement. For an agency 
collective bargaining agreement that takes effect on or after the date 
these regulations are published, regulatory provisions will supersede 
conflicting provisions in the agreement during any period of time 
following the applicable regulatory implementation date. To the extent 
that the Act and accompanying regulations are not inconsistent with the 
provisions in agency collective bargaining agreements, those provisions 
remain in effect until the provisions expire or are renegotiated.
    Agencies are responsible for compliance with time limits provided 
for in the Act and OPM regulations and guidance.

New Subpart in 5 CFR Part 630

    In this final rule, OPM is adding subpart P, Weather and Safety 
Leave (implementing 5 U.S.C. 6329c) to 5 CFR part 630. Hereafter in 
this SUPPLEMENTARY INFORMATION section, references to statutory 
provisions in title 5 of the United States Code will generally be 
referred to by section number without restating the title 5 reference 
(e.g., section 6329c instead of 5 U.S.C. 6329c). Also, references to 
regulatory provisions in title 5 of the Code of Federal Regulations 
will generally be referred to by section number without restating the 
title 5 reference (e.g., Sec.  630.1601 instead of 5 CFR 630.1601).
    Weather and safety leave is permitted--at an agency's discretion 
but subject to statutory and regulatory requirements, agency policies, 
and lawful collective bargaining provisions--only when an agency 
determines that employees cannot safely

[[Page 15292]]

travel to and from, or perform work at, their normal worksite, a 
telework site, or other approved location because of severe weather or 
other emergency situations. Though granting of weather and safety leave 
must follow the guidelines and eligibility requirements contained in 
section 6329c and these implementing regulations, and it is anticipated 
that such leave would be granted sparingly in the case of employees 
participating in telework, there is no cap on the number of hours that 
may be granted for such leave.
    Both the law and the regulations address recordkeeping and 
reporting requirements on weather and safety leave with which agencies 
must comply. Agencies must keep separate records on weather and safety 
leave.

Comments on Proposed Regulations

    We received comments relating to the proposed regulations on 
weather and safety leave from 6 agencies, 4 unions, 1 other 
organization, and 8 individuals. In the first section below, we address 
general or overarching comments. In the sections that follow, we 
address comments related to specific portions of the regulations.

General

    Comment: Multiple commenters requested guidance about how the new 
types of leave should be coded in the payroll system to accurately 
account for and track the use of these new leave provisions.
    OPM response: The regulations specify that an agency must track the 
use of the new categories of leave using five categories: (1) 
Administrative leave for investigative purposes, (2) administrative 
leave for other purposes, (3) investigative leave, (4) notice leave, 
and (5) weather and safety leave. The regulations do not address 
details regarding the coding of leave in agency payroll systems or in 
OPM's Government payroll databases. OPM will be providing payroll 
providers with instructions on how to properly code the various types 
of leave.
    Comment: An organization expressed concern that having reports 
prepared by the Government Accountability Office (GAO) submitted every 
5 years is too infrequent. Instead, the organization stated that 
agencies should be required to maintain real-time, current tallies of 
all types of paid leave available on its website for all to see, rather 
than buried in obscure, long, after-the-fact reports.
    OPM response: Payroll providers submit payroll data to OPM every 
biweekly pay period. Thus, agencies and OPM will have real-time data 
that could be used to generate reports as necessary. The requirement 
for GAO reports every 5 years is a statutory requirement, which OPM has 
no authority to change. (See section 1138(d)(2) of Pub. L. 114-328.)
    Comment: An organization stated that the regulations make no 
provision for ensuring that agencies establish necessary agency rules 
or that agency rules are consistent with OPM regulations. The 
organization suggested that OPM exercise oversight over agency 
practices.
    OPM response: The Administrative Leave Act directed OPM to issue 
regulations and guidance dealing with the appropriate uses and proper 
recording of the new types of leave, but otherwise imposed no special 
obligation to monitor agency practices. Although OPM has more general 
authority to exercise an oversight function, OPM does not have the 
resources to regularly evaluate every agency personnel program, and no 
need for such a program has, as yet, been established in this context. 
OPM can and will intervene if it becomes aware that an agency is not 
complying with the law and regulations for which OPM is responsible. 
Each agency, along with Inspectors General, is responsible for 
evaluating agency personnel programs and the actions of its managers.
    Comment: One commenter noted the telework-related provisions in the 
proposed regulations and expressed concern that Federal employees were 
not performing required hours of work while teleworking.
    OPM response: The Telework Enhancement Act of 2010 (the Act), now 
codified at 5 U.S.C. 6501-6506, specifies roles, responsibilities and 
expectations for all Federal executive agencies with regard to telework 
policies; employee eligibility and participation; program 
implementation; and reporting. Under the Act, each agency is 
responsible for ensuring that employees perform required hours of work 
while teleworking. These regulations merely recognize the fact that the 
option of telework is available by law, as specified, under authority 
of 5 U.S.C. chapter 65 and explains how telework relates to the new 
types of leave.
    Comment: A union requested clarification that, unlike OPM's 
Governmentwide regulations, OPM-issued ``guidance'' (e.g., weather/
safety leave guidance) does not interfere with a union's bargaining 
rights or legal obligations in existing collective bargaining 
agreements.
    OPM response: To respond to the comment about the relationship 
between OPM guidance and collective bargaining agreements, we must 
first address how statutory and regulatory requirements affect 
collective bargaining agreements. Statutory requirements established by 
the Administrative Leave Act supersede conflicting provisions in any 
agency collective bargaining agreement--as of the applicable 
implementation date. Thus, the requirements in section 6329c would 
prevail over conflicting provisions in any agency collective bargaining 
agreement effective on the date that is 30 days after publication of 
these final regulations. For example, section 6329c allows agencies to 
provide weather/safety leave ``only if'' an employee is ``prevented 
from safely traveling to or performing work at an approved location.'' 
By definition, for an employee participating in a telework program, the 
telework site is an approved location. Thus, the law bars granting 
weather/safety leave to an employee who can safely work at home under a 
telework arrangement.
    If OPM regulatory requirements that go beyond statutory 
requirements conflict with an existing agency collective bargaining 
agreement, those regulatory requirements may not be implemented until 
the expiration of the current term of the agreement. (See section 
7116(a)(7).) However, for any agency collective bargaining agreement 
that takes effect on or after the date these regulations are published, 
regulatory provisions will supersede conflicting provisions in the 
agreement during any period of time following the regulatory 
implementation date (30th day following publication). Once applicable, 
OPM regulations will have the force of law and be binding on agencies.
    Once OPM regulations are in force, we will also expect agencies to 
comply with any related OPM guidance concerning compliance with the Act 
or regulations, and such guidance may itself impact an agency's 
collective bargaining obligations. For example, if the negotiability of 
a proposal or provision is at issue before the FLRA or Courts in the 
future, an agency may rely upon OPM's regulations and guidance as 
reasons why the proposal or provision would be contrary to law under 
the Federal Service Labor-Management Relations Statute and, therefore, 
be nonnegotiable.
    Comment: One individual commented that agencies should not grant 
weather and safety leave, but instead should require employees to use 
their annual leave when they are prevented from safely traveling to 
work.
    OPM response: The statute confers upon agencies the authority to 
grant

[[Page 15293]]

weather and safety leave without loss of ``leave to which the employee 
or employees are otherwise entitled'' (section 6329c(b)). Weather and 
safety leave is generally appropriate when Government offices are 
closed for a full or partial day because of snow or any other weather 
or safety conditions and the employee is prevented from working or 
otherwise unable to work at an alternative worksite pursuant to the 
criteria provided in section 6329c(b). This would cover situations 
where working at an alternative worksite is itself unsafe, where the 
employee is ineligible for telework, or where the employee is not 
participating in a telework program. At the sole and exclusive 
discretion of agency management, it could also be used to cover the 
unusual situation where a teleworker is unprepared to telework because 
the event could not be readily anticipated (e.g., the normal workplace 
is rendered unsafe following a fire, flood, or earthquake) and the 
employee does not have equipment or materials he or she would need to 
perform work.
    Comment: A union believed that OPM should impose the same 270-day 
delay in implementation for agency internal policies on weather and 
safety leave as is done for administrative leave, investigative leave, 
and notice leave. The union said that otherwise, the implementation and 
use of weather and safety leave could be improperly delayed 
indefinitely, creating uncertainty and confusion in the workplace. An 
individual similarly commented that the subpart P regulations should 
take effect in 270 days consistent with the other requirements in the 
Act.
    OPM response: The Act provides a 270-day implementation period for 
administrative leave under 5 U.S.C. 6329a(c)(2) and for investigative 
and notice leave under 5 U.S.C. 6329b(h)(2), but does not provide a 
similar period for weather and safety leave under 5 U.S.C. 6329c. 
Therefore, the regulations on weather/safety leave under subpart P will 
take effect 30 days from this date of publication. As provided in Sec.  
630.1604(b) of the regulations, agency policies and procedures on 
weather/safety leave must be consistent with OPM's regulations and 
guidance.

Section 630.1602--Definitions

    Comment: One agency recommended that OPM change the definition of 
``act of God'' to ``act of nature.''
    OPM response: OPM chose to use ``act of God'' over ``act of 
nature'' because ``act of God'' is the terminology used by the weather/
safety leave statute. (See section 6329c(b)(1).)

Section 630.1603--Authorization

    Comment: An agency recommended adding a fourth weather/safety leave 
category for severe commuting situations such as closure of a mass 
transit system or a major highway. An individual suggested that OPM 
revise Sec.  630.1603 to authorize agencies to grant employees weather/
safety leave for the purposes of preparing their homes for an imminent 
hurricane or other natural disaster.
    OPM response: The language of the weather and safety leave statute 
at section 6329c(b) authorizes its use only ``if the employee or group 
of employees is prevented from safely traveling to or performing work 
at an approved location'' (italics added). OPM cannot authorize this 
type of leave for mass transit or commuting problems not related to 
safety matters. Employees have other workplace flexibilities available 
to address these situations, including alternative work schedules, 
leave, and telework. However, an agency could choose to close the 
Federal facility in preparation for a severe hurricane or other pending 
disaster based on safety considerations. Since ``weather and safety'' 
leave may be granted when Government offices are closed for a full or 
partial day because of severe weather and safety conditions, provided 
an employee is prevented from performing or otherwise unable to work at 
an approved location based on criteria as specified in section 
6329c(b), the leave may be appropriate for these purposes--e.g., 
evacuation of an area due to a hurricane.
    Comment: An agency recommended that managerial discretion be 
allowed in instances where an employee is unavoidably delayed or 
necessarily absent for a short period of time because of a weather/
safety issue.
    OPM response: Weather/safety leave may be provided when employees 
are prevented from safely traveling to or safely performing work at an 
approved location. This type of leave is generally granted in 
conjunction with an agency or OPM operating status announcement. Such 
an operating status announcement may allow for a delayed arrival or 
early departure and the use of weather and safety leave to cover the 
short period of absence. In other circumstances, an agency may 
authorize administrative leave under section 6329a, subject to the 10-
workday calendar year limitation (once section 6329a is implemented), 
for employees whose arrival at work is delayed; however, such use is 
subject to the sole and exclusive discretion of the head of the agency 
or his or her delegees, and should be consistent with agency policy. It 
is anticipated that granting of such leave would be rare.
    Comment: An individual asked what position should be taken if 
officials authorize weather/safety leave when there are no weather/
safety conditions present.
    OPM response: The statute at section 6329c(b) prescribes that 
weather/safety leave may be provided ``only if the employee or group of 
employees is prevented from safely traveling to or performing work at 
an approved location'' due to the conditions specified under Sec.  
630.1603. This type of leave is generally provided in connection with 
an OPM or agency-specific operating announcement. Providing this leave 
when none of the weather/safety conditions listed under Sec.  630.1603 
are present would be inconsistent with the statute. Each agency is 
responsible for ensuring the weather/safety leave is used appropriately 
and, when it is not, taking necessary corrective action.
    Comment: To reflect the statutory language at section 6329c(b), an 
agency recommended that OPM add the word ``only'' to Sec.  630.1603 so 
that it reads ``only if they are prevented from safely traveling.''
    OPM response: The word ``only'' has been added to Sec.  630.1603.

Section 630.1604--OPM and Agency Responsibilities

    Comment: A union asked if it was appropriate for an agency to 
require employees to request annual leave when prevented from traveling 
to the worksite by a weather/safety event and then later requiring the 
employees to request conversion of the annual leave to weather/safety 
leave.
    OPM response: Weather and safety leave generally should be 
authorized based on operating status announcements. In most cases, if 
an employee requests annual leave in order to depart before an 
announcement is made, the employee will remain on annual leave. More 
information will be provided in OPM guidance.
    Comment: An agency asked if weather/safety leave or administrative 
leave applies when OPM or a local Federal Executive Board closes 
installations due to snow.
    OPM response: Weather/safety leave generally will be provided in 
conjunction with an operating status announcement and may be used when 
Government offices are closed because of snow or any other weather or 
safety conditions, provided conditions for granting leave pursuant to 
section 6329c(b) are met.

[[Page 15294]]

Section 630.1605--Telework and Emergency Employees

    Comment: An individual commenter objected to Sec.  630.1605(a)(1) 
because the commenter viewed the regulation as forcing an employee to 
telework when an agency closes during a weather or safety event. The 
commenter stated that this rule had the effect of treating all telework 
employees as emergency employees. The commenter further stated that the 
safety of the employee should be given priority. The commenter noted 
that some existing collective bargaining agreements do not allow 
employees to telework when an agency is closed due to a weather/safety 
event.
    OPM response: The weather/safety leave regulation does not force 
employees to telework. Rather it recognizes that weather/safety leave 
is normally unnecessary if an employee is eligible for and 
participating in a telework program and is able to work at his or her 
alternative work location, notwithstanding the conditions at the 
default workplace. The regulation simply provides a framework and 
criteria for decisions about whether to grant weather and safety leave 
to Federal employees, including those employees who are approved to 
telework. If a telework-participating employee does not meet the 
criteria for the granting of weather/safety leave and seeks not to 
telework, the employee has other options--the same options the employee 
would have on any other day he/she seeks not to work (e.g., requesting 
annual leave, requesting leave without pay etc.). Since the employee 
has the option to telework, the employee is able to work without 
compromising his/her safety. Weather/safety leave is granted solely 
because of safety risks. As stated in the law at section 6329c(b), 
weather/safety leave is to be granted ``only if'' an employee is 
``prevented from safely traveling to or performing work at an approved 
location,'' and for an authorized teleworker the telework site (usually 
the employee's home) is an approved work location. Emergency employees 
are governed by a different set of guidelines than telework-
participating employees. Unlike many emergency employees, the 
teleworker is not expected to report to the regular worksite when an 
emergency has caused the regular office to be closed to the public. To 
the extent that an existing collective bargaining agreement contains 
provisions that conflict with the nonstatutory requirements in 
telework-related regulations in Sec.  630.1605(a), however, this 
regulation may not be enforced during the current term of the agreement 
(5 U.S.C. 7116(a)(7)).
    Comment: Another individual commented that the denial of weather/
safety leave to teleworkers penalizes those who only occasionally 
telework and discourages employees from agreeing to situational 
telework. The commenter recommended that the regulations include an 
annual threshold for situational teleworking days under which an 
employee, with supervisor concurrence, would not be required to 
telework or take leave when the government is closed for weather and 
safety purposes.
    OPM response: As noted above, the statute at section 6329c(b) 
permits weather/safety leave only if the employee is prevented from 
safely traveling to or performing work at an approved location. 
Occasional teleworkers have the same ability as regular teleworkers to 
perform work at an approved location (the telework site) during 
weather/safety events. Occasional teleworkers also realize the benefits 
of teleworking, although not as frequently as regular teleworkers. OPM 
does not believe that the inability to receive weather/safety leave on 
the rare occasions when weather/safety events close offices will 
discourage a significant number of employees from seeking the benefit 
of occasional teleworking. Even if it does cause some employees to not 
engage in occasional teleworking, however, the regulation is consistent 
with the underlying purpose of this later statute, which is to limit 
weather/safety leave to situations where an employee is unable to 
perform work at an approved location.
    Comment: A union asked what criteria are necessary to determine if 
an employee can reasonably work from home and what happens if the 
employee does not have a home and equipment that are suitable for 
teleworking. The union also commented that it was not equitable for 
those with telework agreements to work on days when those without 
agreements are not required to work. The union further said that it is 
not reasonable to force teleworkers to be forecasters of weather and 
safety events such that they must be telework ready on all workdays. 
The union additionally stated that telework policies are trending 
toward expecting employees to maintain their residence in a continuous 
telework-ready state by requiring mandatory telework during emergency 
closure of the regular worksite, which in effect requires employees to 
provide ``free rent'' of their residential office to the government on 
days when they were not planning to telework.
    OPM response: The regulations on weather/safety leave related to 
teleworkers apply only to employees who are already ``participating in 
a telework program'' (as defined in Sec.  630.1602). For such telework 
program participants who already telework at home, they must have a 
home and equipment suitable for teleworking. Agency telework policies 
and employee telework agreements establish the criteria for determining 
whether an employee can reasonably work from home. At a minimum, and 
subject to other requirements of the agency, teleworkers must have 
sufficient work and a workplace conducive to performing the work. If 
the employee does not have a suitable home or cannot transport needed 
equipment to his or her home, then the employee should not have a 
telework agreement. Employees without telework agreements cannot work 
from home; therefore, they may be granted weather/safety leave under 
these regulations.
    Employees with telework agreements gain the benefits of 
teleworking, but generally will not be granted weather/safety leave 
when a weather/safety event can be reasonably anticipated. Warnings for 
these anticipated events are usually broadcast in the media well in 
advance and, for that reason, teleworkers are generally expected to 
know that they need to be prepared to work from home when the event 
occurs. Because agencies may provide weather/safety leave to 
teleworkers when, in the agency's judgment, the event could not be 
reasonably anticipated and an employee is otherwise prevented from 
performing work, there is no need for teleworkers to be prepared to 
telework on days when a major event is not anticipated unless it 
coincides with an already scheduled telework day. There is no 
requirement for employees to maintain their residence in a continuous 
telework-ready state or dedicate any part of their residence for 
telework purposes beyond any requirements in connection with their 
normally scheduled telework. For employees who have a regular telework 
schedule, there is essentially no difference between activities 
required to maintain a residence in a telework-ready state when 
expecting a weather event and maintaining it in a telework ready state 
when preparing for any other telework day, nor is there any meaningful 
difference in how an employee would dedicate space in their residence 
under these respective scenarios. OPM also notes that these regulations 
do not require mandatory telework during emergency closures, but 
instead bar

[[Page 15295]]

weather/safety leave from being granted when employees can telework.
    Comment: A union said that it is the responsibility of the agency 
to timely notify employees of an impending weather/safety condition if 
the agency wants the employees to telework on a day when the employees 
would have otherwise worked in the office. The union believed it unfair 
and burdensome to make employees take annual leave when they do not 
bring work home.
    OPM response: Under Sec.  630.1605(a)(3), agencies have discretion 
in determining whether a weather/safety condition could be reasonably 
anticipated and whether the employee took reasonable steps to prepare 
for teleworking. OPM defers to an agency's judgment as to whether to 
provide notice in some manner of impending weather/safety conditions 
for which teleworking employees will not receive weather/safety leave. 
An agency notice, whether provided or not provided, may be a 
consideration in the determination as to whether an employee took 
reasonable steps to prepare for teleworking.
    Comment: Three commenters expressed concern about employee 
dependent care responsibilities when an employee participates in a 
telework program and a weather or safety condition occurs that prevents 
safe travel. Two of the commenters pointed out that agencies often have 
telework policies that do not permit telework when employees have small 
children or other dependents at the telework site. Because Sec.  
630.1605(a)(1) prohibits agencies from granting weather and safety 
leave when an employee can telework at an approved telework site, the 
commenters believe that this section precludes agencies from granting 
weather and safety leave to employees with dependent care 
responsibilities.
    OPM response: An agency may determine that, under certain 
conditions, employees are capable of teleworking even if they have 
school-age children or elderly parents in the home and establish a 
policy of allowing telework in such situations. However, if these 
circumstances diminish an employees' ability to perform agency work, 
they will not be eligible to telework under these conditions (5 U.S.C. 
6502(b)(1)). If an agency policy bars telework at home in the given 
child/elder care situation, then the home is not an approved location. 
Thus, if the employee is not permitted to telework under agency 
policies, and cannot safely travel to or perform work at the regular 
office location, an agency may grant weather/safety leave to the 
employee. If agency policies allow an employee to telework with a 
school-age child or an elderly parent in the home in a weather/safety 
situation, any time spent in giving care to such individuals would not 
be considered hours of work. Under this scenario, an employee would be 
expected to account for work and non-work hours during his or her tour 
of duty and take the appropriate leave (paid or unpaid) to account for 
the time spent away from normal work-related duties.
    Comment: An agency recommended that agencies be permitted to grant 
employees administrative leave when needed to address the effects of 
weather/safety events to ensure their safety, the safety of others, the 
integrity of their property, and/or their ability to report to work. 
The agency provided as examples the need to clear snow or remove excess 
water from their property.
    OPM response: To the extent that activities such as clearing snow 
are truly necessary to ensure that the employee can safely travel to or 
safely perform work at an approved location, within the meaning of 
section 6329c(b)(3), the agency can provide weather/safety leave at its 
discretion for the period needed. Employees would need to use their 
annual leave or other time off for activities such as clearing snow on 
sidewalks or basement water removal that are not necessary to ensure 
that the employee can safely travel to or perform work at an approved 
location. OPM's guidance on dismissal and closure policy and procedures 
will further address agency discretion in regard to granting weather/
safety leave.
    Comment: The same agency asked why Sec.  630.1605(a)(2)(iii) is 
necessary since agencies may not approve weather/safety leave if an 
employee could reasonably anticipate the need to telework.
    OPM response: Paragraphs (i) and (ii) of Sec.  630.1605(a)(2) 
provide for the granting of weather/safety leave in two instances where 
the employee might otherwise be expected to telework. Paragraph (iii) 
provides that agencies can determine not to provide weather/safety 
leave in circumstances such as those provided under (i) and (ii) when 
the employee can safely travel to or perform work at the regular 
worksite. In these instances, the telework site might not be viable, 
but the employee might be able to work at the regular worksite. An 
employee is generally expected to report to the regular worksite--even 
on a day when he or she is scheduled to telework--if conditions at the 
telework site do not permit the performance of work (e.g., lack of 
internet access, loss of power).
    Comment: The same agency asked when weather/safety leave is ever 
applicable to the telework site. The agency asked if it would be 
provided when the employee loses power while teleworking.
    OPM response: Weather/safety leave may be granted to an employee at 
a telework site as provided under Sec.  630.1605(a)(2)(ii). Examples of 
when weather/safety leave might be provided include weather-related 
damage to a home that makes occupying the home unsafe, loss of power at 
home (which makes the home not an approved location under agency 
telework policies), and employees not being prepared for teleworking 
when the conditions could not be anticipated (tornado or earthquake). 
The agency has discretion to grant weather/safety leave whenever an 
employee is prevented from safely working because of one of the 
conditions in Sec.  630.1603.
    Comment: A union requested that OPM clarify that under Sec.  
630.1605(a)(2)(iii) it is presumed that, if Government offices are 
closed, the weather/safety conditions prevent the employee from safely 
traveling to their traditional worksite.
    OPM response: No such presumption applies. The agency must 
determine the actual facts. Section 630.1605(a)(2)(iii) addresses 
situations when an employee who participates in telework is unable to 
work from home or another alternative location, due to a weather/safety 
event, but the employee's regular worksite is open (or has reopened) 
for business. Even if the employee (who is a telework program 
participant) is not able to telework at home under the conditions 
described in paragraph (i) or (ii), the agency may choose not to 
provide an employee with weather/safety leave if the employee can 
safely travel to and work at the regular worksite--regardless of 
whether the given day was a scheduled telework day. Section 
630.1605(a)(2)(iii) does not apply if the regular worksite is closed 
for weather/safety reasons.
    Comment: An agency recommended that OPM correct the section 
reference in Sec.  630.1605(a)(2)(iii) from ``630.1603(a)'' to 
``630.1603.'' Another agency recommended that the same change be made 
in Sec.  630.1605(a)(3). Two unions recommended that OPM provide in 
Sec.  630.1605(b) that agencies inform employees of their designation 
as emergency employees at the time the designation is made.
    OPM response: These changes have been made. OPM removed the 
paragraph designation from the

[[Page 15296]]

Sec.  630.1603 references and modified Sec.  630.1605(b) to state ``an 
agency should inform employees of their designation as emergency 
employees well in advance.''
    Comment: A union objected to the provision at Sec.  630.1605(b) 
giving agencies discretion to designate emergency employees who are 
critical to agency operations. The union said that the provision would 
not prohibit or deter an agency from broadly construing ``necessary for 
critical agency operations'' and excluding an overly large group of 
employees from weather/safety leave. The union recommended that Sec.  
630.1605(b) be stricken in its entirety or, at a minimum, modified to 
narrow the types of employees who could be categorized as emergency 
employees. The union said that these employees should not be required 
to physically report to work when their colleagues are granted weather 
and safety leave.
    OPM response: Agencies have extensive experience with designating 
emergency employees under prior dismissal and closure procedures used 
for weather and other emergencies. Since the Telework Enhancement Act 
of 2010, OPM has incorporated telework into our emergency operating 
announcements not only for the safety of our employees, but also to 
support continuity of operations, both for mission-critical functions 
and more general work to the extent possible. The Federal Government 
has a vital role in our economy and it is extremely important that we 
continue operations to the greatest degree possible. OPM believes 
agencies are in the best position to make determinations as to which 
employees should be designated as emergency employees and which 
employees are eligible to telework. Agencies are also in the best 
position to decide if emergency employees are needed at the worksite or 
whether their duties can be performed while teleworking.

Section 630.1606--Administration of Weather and Safety Leave

    Comment: Two unions expressed concern about the regulation in Sec.  
630.1606(c), which provides that an employee may not receive weather/
safety leave for hours during which the employee is on other 
preapproved leave (paid or unpaid) or paid time off. The unions 
objected to the rule that agencies should not approve weather/safety 
leave for an employee who, ``in the agency's judgment, is cancelling 
preapproved leave or paid time off, or changing a regular day off in a 
flexible or compressed work schedule, for the primary purpose of 
obtaining weather and safety leave.'' One union stated that, if 
employees have a right to modify scheduled time off, the primary 
purpose of a modification should not be left to the determination of 
management. The union warned that this rule could result in mass 
grievances, which could result in large costs to both the agency and 
the union. The other union voiced similar concerns, stating that an 
agency should be required to prove that an employee is cancelling 
preapproved leave for the primary purpose of obtaining weather/safety 
leave.
    OPM response: The reason behind the rule on cancelling scheduled 
time off is to prevent employees from receiving paid leave when the 
employee was not actually going to be available to perform work. This 
is not a new policy and is currently reflected in OPM's operating 
status guidance for the Washington, DC, area. One good example is a 
situation in which an employee is on vacation in a distant location. 
Based on the unions' position, such an employee should be allowed to 
cancel preapproved leave and receive weather/safety leave even though 
the employee was not available to work at the regular worksite and is 
not affected by the weather/safety emergency. Another example is an 
employee who is in the middle of a 6-week period of scheduled unpaid 
leave under the Family and Medical Leave Act in order to recover from a 
serious illness and who clearly has no intention to report to work on 
the day of a weather/safety emergency. If such an employee tried to 
cancel the unpaid leave on the day of the weather/safety emergency, it 
would clearly be for the primary purpose of obtaining weather/safety 
leave. Given the variety of possible circumstances, OPM cannot 
prescribe a simple ``bright line'' rule (or even a set of rules) that 
does not require some judgment on the part of agency officials. 
Supervisors and managers are regularly called upon to exercise judgment 
in other contexts, and OPM believes they are capable of exercising 
appropriate judgment in this particular context and coming to a fair 
decision. OPM plans on providing additional guidance in this area 
regarding when a cancellation of preapproved leave would not prevent 
the granting of weather/safety leave because the employee's leave plans 
are also changed due to the weather/safety emergency--for example, when 
a doctor's appointment that was the reason for a request for sick leave 
is cancelled because of the same weather/safety event (e.g., a major 
snowstorm), or when an employee is unable to leave for vacation because 
the employee's flight is cancelled due to such an event. (We note that 
any sick leave would mandatorily be cancelled if the doctor's 
appointment is cancelled and the employee is not sick.)
    Comment: One individual described the two sentences in Sec.  
630.1606(c) as being contradictory. Another individual found the 
paragraph confusing and requested language changes to clarify that 
weather/safety leave was not allowed unless the employee demonstrated 
that the weather/safety event prevented the employee from using 
preapproved leave for the originally planned purpose.
    OPM response: After considering these comments, OPM does not 
believe the sentences are contradictory and will leave the paragraph 
unchanged. The first sentence prohibits the granting of weather/safety 
leave to employees on preapproved leave. The second sentence bars an 
employee from receiving weather/safety leave if the agency determines 
that the employee cancelled preapproved leave for the primary purpose 
of receiving weather/safety leave. This bar does not apply to employees 
who cancel their preapproved leave because their leave plans are 
disrupted by the weather/safety event or some other reason (e.g., a 
cancelled medical appointment or scheduled flight to a vacation 
destination). These employees may be approved for weather and safety 
leave if not otherwise required to telework or report to work under 
Sec.  630.1605. OPM will be issuing guidance that will address this 
provision in more detail.
    Comment: One agency noted prior policy regarding early departures 
and asked if the regulations are intended to bar weather/safety leave 
whenever an employee has pre-approved leave, no matter what the 
circumstances of the employee's leave.
    OPM response: As addressed above, employees who cancel their 
preapproved leave because their leave plans are disrupted by the 
weather/safety event may be granted weather/safety leave, and OPM will 
be issuing more detailed guidance on that matter. OPM will also be 
issuing guidance that will provide more information on the relationship 
of preapproved leave to early dismissal from work at a Federal office 
or alternate work location.
    In addition to the changes noted above, OPM made minor technical 
changes to Sec.  630.1604 to improve clarity. We also changed 
``approve'' to ``provide'' in several places in Sec. Sec.  630.1605(a) 
and 630.1606(c) where the context was the providing of leave, since the 
term ``approve'' might suggest

[[Page 15297]]

the employee is requesting that a leave entitlement be invoked. There 
is no entitlement to weather and safety leave; it is always provided at 
the agency's discretion.

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.

Executive Order 13771

    This rule is not subject to the requirements of E.O. 13771 (82 FR 
9339, February 3, 2017) because the rule is related to agency 
organization, management, or personnel.

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.
Jeff T.H. Pon,
Director.

    For the reasons stated in the preamble, OPM is amending part 630 of 
title 5 of the Code of Federal Regulations as follows:

PART 630--ABSENCE AND LEAVE

0
1. The authority citation for part 630 is revised to read as follows:

    Authority:  5 U.S.C. chapter 63 as follows: Subparts A through E 
issued under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129), 6303(e) and 
(f), 6304(d)(2), 6306(b), 6308(a) and 6311; subpart F issued under 5 
U.S.C. 6305(a) and 6311 and E.O. 11228, 30 FR 7739, 3 CFR, 1974 
Comp., p. 163; subpart G issued under 5 U.S.C. 6305(c) and 6311; 
subpart H issued under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129) 
and 6326(b); subpart I issued under 5 U.S.C. 6332, 6334(c), 
6336(a)(1) and (d), and 6340; subpart J issued under 5 U.S.C. 6340, 
6363, 6365(d), 6367(e), 6373(a); subpart K issued under 5 U.S.C. 
6391(g); subpart L issued under 5 U.S.C. 6383(f) and 6387; subpart M 
issued under Sec. 2(d), Public Law 114-75, 129 Stat. 641 (5 U.S.C. 
6329 note); and subpart P issued under 5 U.S.C. 6329c(d).

Subparts N and O--[Added and Reserved]

0
2. Subparts N and O are added and reserved.

0
3. Subpart P is added to read as follows:
Subpart P--Weather and Safety Leave
Sec.
630.1601 Purpose and applicability.
630.1602 Definitions.
630.1603 Authorization.
630.1604 OPM and agency responsibilities.
630.1605 Telework and emergency employees.
630.1606 Administration of weather and safety leave.
630.1607 Records and reporting.

Subpart P--Weather and Safety Leave


Sec.  630.1601   Purpose and applicability.

    (a) This subpart implements 5 U.S.C. 6329c, which allows an agency 
to provide a separate type of paid leave when weather or other safety-
related conditions prevent employees from safely traveling to or safely 
performing work at an approved location due to an act of God, terrorist 
attack, or other applicable condition. Section 6329c(d) directs OPM to 
prescribe regulations to carry out the statutory provisions on weather 
and safety leave, including regulations on the appropriate uses and the 
proper recording of this leave.
    (b) This subpart applies to an employee as defined in 5 U.S.C. 2105 
who is employed in an agency, but does not apply to an intermittent 
employee who, by definition, does not have an established regular tour 
of duty during the administrative workweek.
    (c) As provided in 5 U.S.C. 6329c(e), this subpart applies to 
employees described in subsection (b) of 38 U.S.C. 7421, 
notwithstanding subsection (a) of that section.


Sec.  630.1602   Definitions.

    In this subpart:
    Act of God means an act of nature, including hurricanes, tornadoes, 
floods, wildfires, earthquakes, landslides, snowstorms, and avalanches.
    Agency means an Executive agency as defined in 5 U.S.C. 105, 
excluding the Government Accountability Office. When the term 
``agency'' is used in the context of an agency making determinations or 
taking actions, it means the agency heads or management officials who 
are authorized (including by delegation) to make the given 
determination or take the given action.
    Employee means an individual who is covered by this subpart, as 
described in Sec.  630.1601(b) and (c).
    OPM means the Office of Personnel Management.
    Participating in a telework program means an employee is eligible 
to telework and has an established arrangement with his or her agency 
under which the employee is approved to participate in the agency 
telework program, including on a routine or situational basis. Such an 
employee who teleworks on a situational basis is considered to be 
continuously participating in a telework program even if there are 
extended periods during which the employee does not perform telework.
    Telework site means a location where an employee is authorized to 
perform telework, as described in 5 U.S.C. chapter 65, such as an 
employee's home.
    Weather and safety leave means paid leave provided under the 
authority of 5 U.S.C. 6329c.


Sec.  630.1603   Authorization.

    Subject to other provisions of this subpart, an agency may grant 
weather and safety leave to employees only if they are prevented from 
safely traveling to or safely performing work at a location approved by 
the agency due to--
    (a) An act of God;
    (b) A terrorist attack; or
    (c) Another condition that prevents an employee or group of 
employees from safely traveling to or safely performing work at an 
approved location.


Sec.  630.1604   OPM and agency responsibilities.

    (a) OPM is responsible for prescribing regulations and guidance 
related to the appropriate use of leave under this subpart and the 
proper recording of such leave, including OPM guidance on 
Governmentwide dismissal and closure policies and procedures that 
provides for use of consistent terminology in describing various 
operating status scenarios. In issuing any operating status 
announcements for the Washington, DC, area, OPM must make the specific 
policies and procedures related to those announcements consistent with 
the regulations in this subpart and with OPM's Governmentwide guidance.
    (b) Employing agencies are responsible for--
    (1) Establishing and applying policies and procedures related to 
use of leave under this subpart that are consistent with OPM 
regulations and guidance described in paragraph (a) of this section; 
and
    (2) Using terminology required by OPM-issued Governmentwide 
guidance in any agency-specific operating status announcements they 
issue (for a specific geographic location or area).


Sec.  630.1605   Telework and emergency employees.

    (a) Telework employees. (1) Except as provided under paragraph 
(a)(2) of this section, employees who are participating in a telework 
program and are able to safely travel to and work at an approved 
telework site may not be

[[Page 15298]]

granted leave under Sec.  630.1603. Employees who are eligible to 
telework and participating in a telework program under applicable 
agency policies are typically able to safely perform work at their 
approved telework site (e.g., home), since they are not required to 
work at their regular worksite.
    (2)(i) If, in the agency's judgment, the conditions in Sec.  
630.1603 could not reasonably be anticipated, an agency may provide 
leave under this subpart to the extent an employee was not able to 
prepare for telework as described in paragraph (a)(3) of this section 
and is otherwise unable to perform productive work at the telework 
site.
    (ii) If an employee is prevented from safely working at the 
approved telework site due to circumstances, arising from one or more 
of the conditions in Sec.  630.1603, applicable to the telework site, 
an agency may, at its discretion, provide leave under this subpart to 
the employee.
    (iii) Notwithstanding paragraphs (a)(2)(i) and (ii) of this 
section, an agency may decide not to provide leave under this subpart 
when the conditions in Sec.  630.1603 do not prevent the employee from 
safely traveling to or safely performing work at a regular worksite, 
even if the affected day is a scheduled telework day.
    (3) In making a determination under paragraph (a)(2) of this 
section, an agency must evaluate whether any of the conditions in Sec.  
630.1603 could be reasonably anticipated and whether the employee took 
reasonable steps (within the employee's control) to prepare to perform 
telework at the approved telework site. For example, if a significant 
snowstorm is predicted, the employee may need to prepare by taking home 
any equipment (e.g., laptop computer) and work needed for teleworking. 
To the extent that an employee is unable to perform work at a telework 
site because of failure to make necessary preparations for reasonably 
anticipated conditions, an agency may not provide weather and safety 
leave, and the employee would need to use other appropriate paid leave, 
paid time off, or leave without pay.
    (b) Emergency employees. An agency may designate emergency 
employees who are critical to agency operations and for whom weather 
and safety leave may not be applicable. To the extent practicable, an 
agency should inform employees of their designation as emergency 
employees well in advance in anticipation of the possible occurrence of 
the conditions set forth in Sec.  630.1603. If the agency wishes to 
provide for the possibility that an emergency employee could work from 
an approved telework site in lieu of traveling to the regular worksite 
in appropriate circumstances, an agency should encourage the employee 
to enter into a telework agreement providing for that contingency. An 
agency may designate different emergency employees for the different 
circumstances expected to arise from these conditions. Emergency 
employees must report to work at their regular worksite or another 
approved location as directed by the agency, unless--
    (1) The agency determines that travel to or performing work at the 
worksite is unsafe for emergency employees, in which case the agency 
may require the employees to work at another location, including a 
telework site as provided in paragraph (a) of this section, as 
appropriate; or
    (2) The agency determines that circumstances justify granting leave 
under this subpart to emergency employees.


Sec.  630.1606   Administration of weather and safety leave.

    (a) An agency must use the same minimum charge increments for 
weather and safety leave as it does for annual and sick leave under 
Sec.  630.206.
    (b) Employees may be granted weather and safety leave only for 
hours within the tour of duty established for purposes of charging 
annual and sick leave when absent. For full-time employees, that tour 
is the 40-hour basic workweek as defined in 5 CFR 610.102, the basic 
work requirement established for employees on a flexible or compressed 
work schedule as defined in 5 U.S.C. 6121(3), or an uncommon tour of 
duty under Sec.  630.210.
    (c) Employees may not receive weather and safety leave for hours 
during which they are on other preapproved leave (paid or unpaid) or 
paid time off. Agencies should not provide weather and safety leave to 
an employee who, in the agency's judgment, is cancelling preapproved 
leave or paid time off, or changing a regular day off in a flexible or 
compressed work schedule, for the primary purpose of obtaining weather 
and safety leave.


Sec.  630.1607   Records and reporting.

    (a) Record of placement on leave. An agency must maintain an 
accurate record of the placement of an employee on weather and safety 
leave.
    (b) Reporting. In agency data systems (including timekeeping 
systems) and in data reports submitted to OPM, an agency must record 
weather and safety leave under section 6329c and this subpart as a 
category of leave separate from other types of leave.

[FR Doc. 2018-07348 Filed 4-9-18; 8:45 am]
 BILLING CODE 6325-39-P