Fedweek

The House and Senate have passed a final version of the annual defense authorization bill, which among other things would close the loophole in the paid parental leave authority for federal employees and temporarily raise “use or lose” annual leave limits.

The bill, HR-6395, passed both chambers with enough support to overcome the veto threatened byPresident Trump, who objected to an ever-growing number of provisions. However, if he carries through on that threat some Republicans might change their votes to side with him, meaning that an override is not guaranteed.

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The measure aims to correct what has been called an oversight in last year’s version of the bill, which authorized federal employees up to 12 weeks of paid time within 12 months for births, adoptions or foster placements occurring October 1 of this year and afterward. That time is available as a substitute for unpaid time that has been available for those purposes under the Family and Medical Leave Act although with some differences—including that paid time can be taken only after births or placements where unpaid leave can be taken either before or after.

However, last year’s law as written applied only to employees under the Title 5 body of civil service law, meaning it excluded employees including Title 38 medical personnel, the entirety of the FAA, and TSA employees other than screeners (who were specifically included). The measure would include them—the VA acted on separate authority to extend the benefit to its Title 38 personnel—along with several smaller categories of employees not under Title 5. The bill would apply the widened eligibility retroactively to October 1.

However, neither the original law nor this session’s defense bill allow the benefit for Postal Service employees, where such a benefit could be created only through bargaining.

The measure also addresses concerns about employees losing annual leave because they were unable to take it for reasons related to the pandemic. OPM earlier allowed agencies to waive those limits for employees they deemed to have been needed for frontline type work but some members of Congress sought a broader protection, arguing that other employees were limited in their ability to take the leave, as well.

Under the provision, employees below the SES level could carry 25 percent more leave into 2021 than their normal limit; since the limit for most is 240 hours, that would come to 60 hours. Any amount over the normal limit could not be credited toward the lump-sum payment paid to those who retire or separate from the government for other reasons, however. The current leave year ends January 2; the 2021 leave year begins the next day and runs through January 1, 2022.

Also included was House language to require that agency EEO offices operate independently of agencies’ human resources and general counsel offices and report directly to the head of the agency; require agencies to more fully track and publicly report on EEO complaints, including the details of any finding of discrimination or retaliation and the discipline against those found to have taken such an action; and prohibit use of nondisclosure agreements that seek to prevent an employee from disclosing waste, fraud, or abuse to Congress, the Office of Special Counsel or to an inspector general.

Among the provisions dropped from the bill was one the House had added to override a presidential memo of earlier this year delegating to the Defense Secretary the discretion to exclude DoD employees from union eligibility on national security grounds. Many employees already are excluded for that reason but the memo was seen as paving the way for a potentially much wider extension.

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