[Federal Register Volume 72, Number 115 (Friday, June 15, 2007)]
[Rules and Regulations]
[Pages 33147-33148]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-11584]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Rules
and Regulations
[[Page 33147]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 531 and 550
RIN 3206-AL09
Locality-Based Comparability Payments and Evacuation Payments
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: These regulations finalize the interim regulations that
provide the rules for determining an employee's official worksite when
he or she teleworks from an alternative worksite during an emergency
situation, such as a pandemic health crisis, and permit an agency to
provide evacuation payments to an employee who is ordered to evacuate
from his or her regular worksite and directed to work from home (or an
alternative location mutually agreeable to the agency and the employee)
during a pandemic health crisis. The final regulations revise the
interim regulations to clarify that an employee need not have a
telework agreement when directed to work from home. These regulations
are issued as part of OPM's efforts to provide agencies with guidance
to ensure they are able to fulfill their critical missions while at the
same time protect their employees should a pandemic health crisis
occur.
DATES: The regulations are effective July 16, 2007.
FOR FURTHER INFORMATION CONTACT: Gene Holson by telephone at (202) 606-
2858, by fax at (202) 606-0824, or by e-mail at pay-performance-
policy@opm.gov.
SUPPLEMENTARY INFORMATION: On August 17, 2006, the Office of Personnel
Management (OPM) published interim regulations (71 FR 47692) in 5 CFR
parts 531 and 550 concerning pay actions for employees affected by a
pandemic health crisis. The interim regulations (1) Clarified the rules
for determining an employee's official worksite for the purpose of
identifying his or her location-based pay entitlements when the
employee teleworks from an alternative worksite during an emergency
situation such as a pandemic health crisis and (2) authorized agencies
to provide evacuation payments to an employee who is ordered to
evacuate from his or her regular worksite and directed to work from the
employee's home (or an alternative location mutually agreeable to the
agency and the employee) during a pandemic health crisis. The 60-day
comment period for the interim regulations ended on October 16, 2006.
OPM received comments from three Federal agencies.
One agency commented on the use of the term ``critical missions''
in the summary of the interim regulations: ``These regulations are
issued as part of OPM's efforts to provide agencies with guidance to
ensure they are able to fulfill their critical missions while at the
same time protect their employees should a pandemic health crisis
occur.'' The commenter noted that ``The National Strategy for Pandemic
Influenza'' and ``Federal Preparedness Circular 65'' use the term
``essential functions'' instead of ``critical missions.'' The agency
recommended that OPM replace the term ``critical missions'' with
``essential functions'' to ensure consistency in the terminology used
in other Federal guidance. We are not making this change. We used
``critical missions'' in the summary accompanying the interim
regulations to be consistent with the terminology used in OPM's
Pandemic Influenza guidance on OPM's Web site at http://www.opm.gov/
pandemic/index.asp. The term itself is not in the interim or final
regulations.
Official Worksite
The same agency also requested clarification of the provision in
Sec. 531.605(d)(3), which states that an authorized agency official
may make a temporary exception to the requirement that a telework
employee must report at least once a week on a regular and recurring
basis to the regular worksite in order for the employee to continue
receiving the locality rate for the regular worksite. The commenter
inquired as to whether there is a time limit on how long a temporary
exception under Sec. 531.605(d)(3), may be in effect. There is no such
time limit. The intent of Sec. 531.605(d)(3) is to address certain
situations where the employee is retaining his or her residence in the
commuting area for the regular worksite but is temporarily unable to
report to the regular worksite for reasons beyond the employee's
control. The fact that an employee may receive lesser pay or benefits
if the official worksite is changed to the telework location is not a
basis or justification for using this temporary exception. A key
consideration is the need to preserve equity between the telework
employee and non-telework employees who are working in the same area as
the telework location. The temporary exception should generally be used
only in cases where (1) the employee is expected to stop teleworking
and return to work at the regular worksite in the near future, or (2)
the employee is expected to continue teleworking but will be able to
report to the regular worksite at least once a week on a regular and
recurring basis in the near future. Examples of appropriate temporary
situations include: (1) Recovery from an injury or medical condition,
or to assist with a family member's recovery from an injury or medical
condition; (2) emergency situations that prevent an employee from
regularly commuting to the normal worksite, such as a severe weather
emergency or a pandemic health crisis; or (3) the employee is away from
the area on extended official travel. (See the revised fact sheet,
Official Worksite for Location-Based Pay Purposes, on OPM's Web site at
http://www.opm.gov/oca/pay/html/Official_Duty_Station.asp.) The
commenter also asked whether the authority to make a temporary
exception may be delegated. The regulatory provisions at Sec.
531.605(d)(3) do not restrict an agency's ability to delegate the
authority to make such temporary exceptions.
Evacuation Payments
One agency suggested there is too much emphasis on ``pandemic
health crisis'' in the regulations and recommended replacing that term
with ``emergency situations, such as a pandemic health crisis'' because
the agency believes that most emergency situations will be weather-
related and
[[Page 33148]]
not health-related. In addition, the agency suggested there is no need
for the new regulations at Sec. 550.409. The agency recommended
deleting Sec. 550.409 and suggested adding the term ``such as a
pandemic health crisis'' after ``other reasons'' to the regulations at
Sec. 550.401(a). We are not adopting these recommendations. Unlike
emergency situations where employees may be ordered to evacuate a
designated geographic area (including evacuating their worksites and
homes), during a pandemic health crisis employees may likely be ordered
to evacuate their worksites to promote ``social distancing'' but not
ordered to evacuate their homes. Because of these unique conditions, we
believe it is imperative to limit the use of the evacuation payment
authority in Sec. 550.409 to a pandemic health crisis.
One agency recommended revising Sec. 550.409(a) to make clear that
an agency's authority during a pandemic health crisis to order an
employee to evacuate from his or her worksite and perform work from the
employee's home includes the situation where the agency and the
employee do not have a telework agreement in place at the time the
order to evacuate is issued. We agree and have revised Sec.
550.409(a). The agency also recommended that OPM delete the provision
in Sec. 550.409(a) which limits an agency's authority to order an
employee to perform work from a location other than the employee's home
to a location that is ``mutually agreeable to the agency and the
employee.'' The agency believes it is impractical to require an agency
and an employee to engage in discussions with the intent of reaching an
agreement as to where the employee is going to work, especially in the
context of an emergency health crisis. We are not adopting this
recommendation. During a pandemic health crisis, if an employee does
not comply with his or her agency's order to work from home, or the
agency and the employee cannot agree on an alternative work location,
the agency may disapprove the employee's evacuation payments. Under
these circumstances, the employee may be required to use his or her
accrued annual leave (i.e., ``enforced leave''), may be furloughed, or
disciplined, as appropriate.
One agency noted that the issue of temporary promotion pay is not
clearly addressed in the regulations. Under Sec. 550.409(a), evacuated
employees may be assigned to perform any work necessary or required to
be performed without regard to his or her grade, level, or title. The
regulations also require agencies to compute evacuation payments under
Sec. 550.404, which states that evacuation payments must be based on
the rate of pay to which the employee was entitled immediately before
the issuance of the order to evacuate. The commenter recommended
revising the regulations to clarify that evacuation payments must be
based on the rate of pay to which the employee was entitled immediately
before the issuance of the order to evacuate, notwithstanding an
agency's policy or collective bargaining agreement regarding an
employee's entitlement to a noncompetitive temporary promotion when the
employee is required to perform higher-level duties during the period
of evacuation. We are not adopting this recommendation. While there may
be circumstances in which it will be necessary to temporarily suspend
certain provisions of an agency policy or a collective bargaining
agreement in an emergency, it would be inappropriate to provide such a
broad authorization to do so. The decision to take such action must be
made on a case-by-case basis taking into consideration the facts and
circumstances that exist at that time.
E.O. 12866, Regulatory Review
The Office of Management and Budget has reviewed this rule in
accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will apply only to Federal agencies and employees.
List of Subjects in 5 CFR Parts 531 and 550
Administrative practice and procedure, Claims, Government
employees, Law enforcement officers, Wages.
Office of Personnel Management.
Linda M. Springer,
Director.
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Accordingly, the interim rule amending 5 CFR parts 531 and 550, which
was published at 71 FR 47692 on August 17, 2006, is adopted as final
with the following change:
PART 550--PAY ADMINISTRATION (GENERAL)
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1. The authority citation for subpart D of part 550 continues to read
as follows:
Authority: 5 U.S.C. 5527; E.O. 10982, 3 CFR parts 1959-1963, p.
502.
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2. Amend Sec. 550.409 by revising the first sentence of paragraph (a)
to read as follows:
Sec. 550.409 Evacuation payments during a pandemic health crisis.
(a) An agency may order one or more employees to evacuate from
their worksite and perform work from their home (or an alternative
location mutually agreeable to the agency and the employee) during a
pandemic health crisis without regard to whether the agency and the
employee have a telework agreement in place at the time the order to
evacuate is issued.* * *
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[FR Doc. E7-11584 Filed 6-14-07; 8:45 am]
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