Following is guidance newly issued by OPM on the issue of federal employees who are teleworking but have children at home during the day due to closures of schools or day care centers.
OPM and OMB have received numerous questions regarding the circumstances faced by telework-eligible employees who have caregiving responsibilities due to closure of schools and/or unavailability of care providers as a result of locally-directed precautions for COVID-19.
What options do agencies have for dealing with employees in these circumstances?
As OPM explained in its February 7, 2020 guidance, use of weather and safety leave is generally not appropriate for such employees, since they are not prevented from safely working at home. (See Attachment to CPM 2020-02 at https://chcoc.gov/content/human-resources-flexibilities-available-federal-employees-impacted-2019-novel-coronavirus.)
FLEXIBLE WORK SCHEDULES
As one way to help employees address the dual demands of work and caregiving at this time, agencies are encouraged to establish flexible work schedules (FWS) that provide expanded zones of time during which employees may perform telework to facilitate the performance of work despite caregiving responsibilities. An FWS allows an employee to complete his or her 80-hour biweekly basic work requirement by determining his or her own work schedule within the limits set by the agency. An FWS consists of workdays with core hours and flexible hours. Core hours are the designated period of the day when employees must be present for work (including telework). Flexible hours are the part of the workday when employees may (within limits or “bands”) choose their time of arrival and departure and break periods (i.e., work starting and stopping times). Under a maxiflex FWS, an employee may work less than 10 workdays biweekly because of the absence of core hours on one (or more) of the normal workdays. At the same time, under a maxiflex FWS, an employee could choose to have shorter workdays and work more than the normal 10 workdays biweekly (e.g., work on Saturday). An FWS can help an employee to balance work and caregiving responsibilities.
EXCUSED ABSENCES/ADMINISTRATIVE LEAVE
While agencies have a broad management authority to grant excused absences with pay (sometimes called “administrative leave”) under 5 U.S.C. 301-302, the Administration advises that this authority should not be used to grant paid time off for extended periods to address the caregiver issue. The longstanding principle espoused by the Comptroller General is that agencies should grant excused absences sparingly, and only for brief periods.
EVACUATION PAY AUTHORITY
An agency may apply the evacuation pay regulations in a pandemic situation when it issues an oral or written (including electronically transmitted) evacuation order requiring that specific categories of employees not report to their regular worksite in the United States—with their home or other alternative work location as a designated “safe haven.” (See 5 CFR 550.409.)
Pursuant to OPM’s evacuation pay regulations, an agency that has issued an evacuation order has the authority to determine what and how much work evacuated employees are expected to perform—“Evacuated employees at safe havens may be assigned to perform work considered necessary or required to be performed during the period of the evacuation” (5 CFR 550.406(a)). This work assignment authority allows an agency to grant an excused absence for non-work periods. An agency’s use of this authority during an evacuation is not limited by OPM’s rules that govern weather and safety leave. Additionally, it does not rely on an agency’s broad authority to grant an excused absence under 5 U.S.C. 301-302.
When an employee is evacuated to his or her home in a pandemic situation, the Administration expects agencies to maximize the performance of telework to support agency missions. At the same time, it may be appropriate to grant limited amounts of excused absence in certain circumstances. The Administration advises agencies to follow the guidance in this FAQ and provide any such excused absence sparingly.
With respect to granting excused absences under the evacuation pay authority for telework-eligible individuals ineligible for weather and safety leave, the Administration is focused on the following special circumstances:
• An employee has a child or children who attend an elementary or secondary school that is closed due to the COVID-19 pandemic.
• An employee has a younger child or children who are not of school age, and normal childcare arrangements are not in effect due to the pandemic.
• An employee has other family members (e.g., adult child or elderly parent with special needs) in the home who require care and supervision and other caregivers are not available due to the pandemic.
In determining the need for a limited amount of excused absence for employees in the above-described circumstances, agencies should consider the following factors:
• the age and care needs of the employee’s child or children;
• the needs of any adults in the home requiring care by the employee;
• the number of children or other persons in the home requiring care/supervision;
• the presence in the home of other healthy adult caregivers;
• the employee’s ability to perform work at times when direct care/supervision of a child or other person is not needed (e.g., while a child is sleeping), after making appropriate work scheduling flexibilities available; and
• the employee is not also receiving a child care subsidy payment for the same timeframe.
Excused absence under the evacuation pay authority is not a substitute for regular sick leave in cases where a Federal employee would otherwise appropriately use sick leave. This excused absence authority is directed at situations where sick leave is not available to address the circumstance.
Agencies should consult with offices of human resources and general counsel to determine appropriate labor relations obligations. If the agency wishes to change FWS arrangements and/or use this excused absence option quickly due to the circumstances of the current emergency, the agency is strongly encouraged to begin communicating with the appropriate union representatives as soon as possible and otherwise satisfy any applicable collective bargaining obligations under the law at the earliest opportunity.
NOTE: Division E of the Families First Coronavirus Response Act (H.R. 6201, Public Law 116-127, March 18, 2020) provides up to 2 weeks (up to 80 hours) of emergency paid sick leave to all Federal civil service employees in specified circumstances related to COVID-19. The leave is available from April 1, 2020, through December 31, 2020.
Depending on the circumstances, the sick leave is paid at the FLSA-based regular rate of pay or two-thirds of that rate (subject to statutory caps on the daily and aggregate cash value of paid leave). One covered circumstance for which a two-thirds rate applies is when an employee is taking leave to care for his or her son or daughter whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.
This emergency paid sick leave law is administered by the Department of Labor, which is posting information and guidance on the leave provisions of the Act at https://www.dol.gov/agencies/whd/pandemic. Agencies should consult with their HR and general counsel advisors on how to apply these requirements.