SUBCHAPTER III—VOLUNTARY TRANSFERS OF LEAVE

Last Updated on May 5, 2020 by LawEuro

5 USC PART III, Subpart E, CHAPTER 63, SUBCHAPTER III: VOLUNTARY TRANSFERS OF LEAVE
From Title 5 – GOVERNMENT ORGANIZATION AND EMPLOYEES
PART III—EMPLOYEES
Subpart E—Attendance and Leave
CHAPTER 63—LEAVE

SUBCHAPTER III—VOLUNTARY TRANSFERS OF LEAVE

§6331. Definitions

For the purpose of this subchapter—

(1) the term “employee” means an employee as defined by section 6301(2), excluding an individual employed by the government of the District of Columbia;

(2) the term “leave recipient” means an employee whose application to receive donations of leave under this subchapter is approved;

(3) the term “leave donor” means an employee whose application to make 1 or more donations of leave under this subchapter is approved; and

(4) the term “medical emergency” means a medical condition of an employee or a family member of such employee that is likely to require the prolonged absence of such employee from duty and to result in a substantial loss of income to such employee because of the unavailability of paid leave (disregarding any advanced leave).

(Added Pub. L. 100–566, §2(a), Oct. 31, 1988, 102 Stat. 2834; amended Pub. L. 103–103, §3, Oct. 8, 1993, 107 Stat. 1022.)

Amendments

1993—Par. (4). Pub. L. 103–103 inserted “the term” after par. designation and inserted before period at end “(disregarding any advanced leave)”.

Effective Date of 1993 Amendment

Pub. L. 103–103, §6, Oct. 8, 1993, 107 Stat. 1024, provided that: “Except as provided in section 2 [enacting and repealing provisions set out as notes under this section], this Act [amending this section and sections 6337, 6361, 6362, and 6373 of this title and enacting provisions set out as a note under section 6301 of this title] and the amendments made by this Act shall take effect as of the 120th day after the date of the enactment of this Act [Oct. 8, 1993] or such earlier date as the Office of Personnel Management may by regulation prescribe.”

Repeals

Pub. L. 100–566, §2(d), Oct. 31, 1988, 102 Stat. 2844, which provided for the repeal of subchapters III (§6331 et seq.) and IV (§6361 et seq.) of this chapter effective 5 years after Oct. 31, 1988, and which also contained savings provisions for continued availability of certain leave as if such program had not been terminated, was repealed by Pub. L. 103–103, §2, Oct. 8, 1993, 107 Stat. 1022, effective Oct. 30, 1993.

[Pub. L. 103–103, §2, Oct. 8, 1993, 107 Stat. 1022, provided that the repeal made by that section is effective Oct. 30, 1993.]

Implementation of Leave Transfer and Leave Bank Programs

Pub. L. 100–566, §2(c), Oct. 31, 1988, 102 Stat. 2844, provided that:

“(1) No later than 3 months after the date of the enactment of this Act [Oct. 31, 1988], the Office of Personnel Management shall prescribe regulations to implement leave transfer programs pursuant to the amendments made by this Act [see Short Title of 1988 Amendment note set out under section 6301 of this title].

“(2) No later than 6 months after the date of the enactment of this Act—

“(A) the head of each agency involved under sections 6332 and 6339 of title 5, United States Code, shall establish and begin operating a leave transfer program in accordance with applicable provisions of subchapter III of chapter 63 of title 5, United States Code, and applicable regulations prescribed by the Office; and

“(B) the Office of Personnel Management shall prescribe regulations to implement leave bank programs pursuant to the amendments made by this Act.

“(3) No later than 9 months after the date of the enactment of this Act, the head of each agency involved under section 6362 of title 5, United States Code, shall establish and begin operating a leave bank in accordance with subchapter IV of chapter 63 of title 5, United States Code, and applicable regulations prescribed by the Office.”

Report to Congress

Pub. L. 100–566, §2(e), Oct. 31, 1988, 102 Stat. 2845, provided that:

“(1)(A) Within 2 years after the date of the enactment of this Act [Oct. 31, 1988] and again no later than 6 months before the scheduled termination date of any program under subchapter III or subchapter IV of chapter 63 of title 5, United States Code (excluding any program under sections 6339 and 6372 of such chapter) the Office of Personnel Management shall submit a written report to the Congress with respect to the operations of such programs.

“(B) The Office of Personnel Management may require agencies to maintain such records and to provide such information as the Office may need to carry out subparagraph (A).

“(2) The excepted agencies that establish programs under sections 6339 and 6372 of title 5, United States Code, shall report to the Congress on the operation of such programs within 2 years after the date of the enactment of this Act and again no later than 6 months before the scheduled termination of any such programs.”

Continuation of Temporary Leave Transfer Programs

Pub. L. 100–566, §2(f), Oct. 31, 1988, 102 Stat. 2845, provided that: “Any temporary program allowing for transfers of leave among officers or employees of the Federal Government may, if such program is being implemented with respect to an agency (or any unit thereof) as of the date of the enactment of this Act [Oct. 31, 1988], continue to be implemented with respect to such agency (or unit), notwithstanding any provision of law which would otherwise terminate the authority for such program, pending the commencement of a leave transfer program with respect to such agency pursuant to amendments made by this Act [see Short Title of 1988 Amendment note set out under section 6301 of this title]. The Office of Personnel Management (or, in the case of a program established by another agency, such other agency) shall prescribe regulations to ensure that any leave which has been transferred to the credit of an officer or employee and which remains unused as of the date on which any such temporary program terminates (and a successor program commences pursuant to amendments made by this Act) shall not be lost by reason of that termination.”

§6332. General authority

Notwithstanding any provision of subchapter I, and subject to the provisions of this subchapter, the Office of Personnel Management shall establish a program under which annual leave accrued or accumulated by an employee may be transferred to the annual leave account of any other employee if such other employee requires additional leave because of a medical emergency.

(Added Pub. L. 100–566, §2(a), Oct. 31, 1988, 102 Stat. 2834.)

§6333. Receipt and use of transferred leave

(a)(1) An application to receive donations of leave under this subchapter, whether submitted by or on behalf of an employee—

(A) shall be submitted to the employing agency of the proposed leave recipient; and

(B) shall include—

(i) the name, position title, and grade or pay level of the proposed leave recipient;

(ii) the reasons why transferred leave is needed, including a brief description of the nature, severity, anticipated duration, and, if it is a recurring one, the approximate frequency of the medical emergency involved;

(iii) if the employing agency so requires, certification from 1 or more physicians, or other appropriate experts, with respect to any matter under clause (ii); and

(iv) any other information which the employing agency may reasonably require.

(2) If an agency requires that an employee obtain certification under paragraph (1)(B)(iii) from 2 or more sources, the agency shall ensure, either by direct payment to the expert involved or by reimbursement, that the employee is not required to pay for the expenses associated with obtaining certification from more than 1 of such sources.

(3) An employing agency shall approve or disapprove an application of a proposed leave recipient for leave under this subchapter, and, to the extent practicable, shall notify the proposed leave recipient (or other person acting on behalf of the proposed recipient, if appropriate) of the decision of the agency, in writing, within 10 days (excluding Saturdays, Sundays, and legal public holidays) after receiving such application.

(b)(1) A leave recipient may use annual leave received under this subchapter in the same manner and for the same purposes as if such leave recipient had accrued that leave under section 6303, except that any annual leave, and any sick leave, accrued or accumulated by the leave recipient and available for the purpose involved must be exhausted before any transferred annual leave may be used.

(2)(A) The requirement under paragraph (1) relating to exhaustion of annual and sick leave shall not apply in the case of a leave recipient who—

(i) sustains a combat-related disability while a member of the armed forces, including a reserve component of the armed forces; and

(ii) is undergoing medical treatment for that disability.

(B) Subparagraph (A) shall apply to a member described in such subparagraph only so long as the member continues to undergo medical treatment for the disability, but in no event for longer than 5 years from the start of such treatment.

(i) the term “combat-related disability” has the meaning given such term by section 1413a(e) of title 10; and

(ii) the term “medical treatment” has such meaning as the Office of Personnel Management shall by regulation prescribe.

(1) may accumulate without regard to any limitation under section 6304; and

(2) may be substituted retroactively for any period of leave without pay, or used to liquidate an indebtedness for any period of advanced leave, which began on or after a date fixed by the employing agency of the employee as the beginning of the medical emergency involved.

(Added Pub. L. 100–566, §2(a), Oct. 31, 1988, 102 Stat. 2834; amended Pub. L. 110–181, div. A, title XVI, §1675(a), Jan. 28, 2008, 122 Stat. 484.)

Amendments

2008—Subsec. (b). Pub. L. 110–181 designated existing provisions as par. (1) and added par. (2).

Effective Date of 2008 Amendment

Pub. L. 110–181, div. A, title XVI, §1675(b), Jan. 28, 2008, 122 Stat. 484, provided that: “The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Jan. 28, 2008], except that, in the case of a leave recipient who is undergoing medical treatment on such date of enactment, section 6333(b)(2)(B) of title 5, United States Code (as amended by this section) shall be applied as if it had been amended by inserting ‘or the date of the enactment of this subsection [probably should be “paragraph”], whichever is later’ after ‘the start of such treatment’.”

§6334. Donations of leave

(a) An employee may, by written application to the employing agency of such employee, request that a specified number of hours be transferred from the annual leave account of such employee to the annual leave account of a leave recipient in accordance with section 6332.

(b)(1) In any one leave year, a leave donor may donate no more than a total of one-half of the amount of annual leave such donor would be entitled to accrue during the leave year in which the donation is made.

(2) A leave donor who is projected to have annual leave that otherwise would be subject to forfeiture at the end of the leave year under section 6304(a) may donate no more than the number of hours remaining in the leave year (as of the date of the transfer) for which the leave donor is scheduled to work and receive pay.

(3) The employing agency of a leave donor may waive the limitation under paragraphs (1) and (2). Any such waiver shall be made in writing.

(c) The Office of Personnel Management shall prescribe regulations to include procedures to carry out this subchapter when the leave donor and the leave recipient are employed by different agencies.

(Added Pub. L. 100–566, §2(a), Oct. 31, 1988, 102 Stat. 2835.)

§6335. Termination of medical emergency

(a) The medical emergency affecting a leave recipient shall, for purposes of this subchapter, be considered to have terminated on the date as of which—

(1) the leave recipient notifies the employing agency of such leave recipient, in writing, that the medical emergency no longer exists;

(2) the employing agency of such leave recipient determines, after written notice and opportunity for the leave recipient (or, if appropriate, another person acting on behalf of the leave recipient) to answer orally or in writing, that the medical emergency no longer exists; or

(3) the leave recipient is separated from service.

(b)(1) The employing agency of a leave recipient shall, consistent with guidelines prescribed by the Office of Personnel Management, establish procedures to ensure that a leave recipient is not permitted to use or receive any transferred leave under this subchapter after the medical emergency terminates.

(2) Nothing in section 5551, 5552, or 6306 shall apply with respect to any annual leave transferred to a leave recipient under this subchapter.

(Added Pub. L. 100–566, §2(a), Oct. 31, 1988, 102 Stat. 2836.)

§6336. Restoration of transferred leave

(a)(1) The Office of Personnel Management shall establish procedures under which, except as provided in paragraph (2), any transferred leave remaining to the credit of a leave recipient when the medical emergency affecting the leave recipient terminates shall be restored on a prorated basis by transfer to the appropriate accounts of the respective leave donors.

(2) Nothing in paragraph (1) shall require the restoration of leave to a leave donor—

(A) if the amount of leave which would be restored to such donor would be less than 1 hour or any other shorter period of time which the Office may by regulation prescribe;

(B) if such donor retires, dies, or is otherwise separated from service, before the date on which such restoration would otherwise be made; or

(b) At the election of the leave donor, transferred annual leave restored to such leave donor under subsection (a) may be restored by—

(1) crediting such leave to the leave donor’s annual leave account in the then current leave year;

(2) crediting such leave to the leave donor’s annual leave account, effective as of the first day of the first leave year beginning after the date of the election; or

(3) donating such leave in whole or part to another leave recipient; if a leave donor elects to donate only part of restored leave to another recipient, the donor may elect to have the remaining leave credited to the donor’s annual leave account in accordance with paragraph (1) or (2).

(c) The Office shall prescribe regulations under which this section shall be applied in the case of an employee who is paid other than on the basis of biweekly pay periods.

(d) Restorations of leave under this section shall be carried out in a manner consistent with regulations prescribed to carry out section 6334(c), if applicable.

(Added Pub. L. 100–566, §2(a), Oct. 31, 1988, 102 Stat. 2836.)

§6337. Accrual of leave

(a) For the purpose of this section—

(1) the term “paid leave status under subchapter I”, as used with respect to an employee, means the administrative status of such employee while such employee is using sick leave, or annual leave, accrued or accumulated under subchapter I; and

(2) the term “transferred leave status”, as used with respect to an employee, means the administrative status of such employee while such employee is using transferred leave under this subchapter.

(b)(1) Except as otherwise provided in this section, while an employee is in a transferred leave status, annual leave and sick leave shall accrue to the credit of such employee at the same rate as if such employee were then in a paid leave status under subchapter I, except that—

(A) the maximum amount of annual leave which may be accrued by an employee while in transferred leave status in connection with any particular medical emergency may not exceed 5 days; and

(B) the maximum amount of sick leave which may be accrued by an employee while in transferred leave status in connection with any particular medical emergency may not exceed 5 days.

(2) Any annual or sick leave accrued by an employee under this section—

(A) shall be credited to an annual leave or sick leave account, as appropriate, separate from any leave account of such employee under subchapter I; and

(B) shall not become available for use by such employee, and may not otherwise be taken into account under subchapter I, until, in accordance with subsection (c), it is transferred to the appropriate leave account of such employee under subchapter I.

(c)(1) Any annual or sick leave accrued by an employee under this section shall be transferred to the appropriate leave account of such employee under subchapter I, and shall be available for use—

(A) as of the beginning of the first applicable pay period beginning after the date on which the employee’s medical emergency terminates as described in paragraph (1) or (2) of section 6335(a); or

(B) if the employee’s medical emergency has not yet terminated, once the employee has exhausted all transferred leave made available to such employee under this subchapter.

(2) In the event that the employee’s medical emergency terminates as described in section 6335(a)(3)—

(A) any leave accrued but not yet transferred under this section shall not be credited to such employee; or

(B) if there remains, as of the date the emergency so terminates, any leave which became available to such employee under paragraph (1)(B), such leave shall cease to be available for any purpose.

(d) Nothing in this section shall be considered to prevent, with respect to a continuing medical emergency, further transfers of leave for use after leave accrued under this section has been exhausted by the employee.

(Added Pub. L. 100–566, §2(a), Oct. 31, 1988, 102 Stat. 2837; amended Pub. L. 103–103, §4, Oct. 8, 1993, 107 Stat. 1022.)

Amendments

1993—Subsecs. (c), (d). Pub. L. 103–103 amended subsec. (c) generally and added subsec. (d). Prior to amendment, subsec. (c) read as follows:

“(1) Any annual or sick leave accrued by an employee under this section shall be transferred to the appropriate leave account of such employee under subchapter I, effective as of the beginning of the first applicable pay period beginning after the date on which the employee’s medical emergency terminates as described in paragraph (1) or (2) of section 6335(a).

“(2) If the employee’s medical emergency terminates as described in section 6335(a)(3), no leave shall be credited to such employee under this section.”

Effective Date of 1993 Amendment

Amendment by Pub. L. 103–103 effective as of the 120th day after Oct. 8, 1993, or such earlier date as the Office of Personnel Management may by regulation prescribe, see section 6 of Pub. L. 103–103, set out as a note under section 6331 of this title.

§6338. Prohibition of coercion

(a) An employee may not directly or indirectly intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce, any other employee for the purpose of interfering with any right which such employee may have with respect to contributing, receiving, or using annual leave under this subchapter.

(b) For the purpose of subsection (a), the term “intimidate, threaten, or coerce” includes promising to confer or conferring any benefit (such as an appointment, promotion, or compensation), or effecting or threatening to effect any reprisal (such as deprivation of appointment, promotion, or compensation).

(Added Pub. L. 100–566, §2(a), Oct. 31, 1988, 102 Stat. 2837.)

§6339. Additional leave transfer programs

(a) For the purpose of this section—

(1) the term “excepted agency” means—

(A) the Central Intelligence Agency;

(B) the Defense Intelligence Agency;

(D) the Federal Bureau of Investigation;

(E) the National Geospatial-Intelligence Agency; and

(F) as determined by the President, any Executive agency or unit thereof, the principal function of which is the conduct of foreign intelligence or counterintelligence activities; and

(2) the term “head of an excepted agency” means—

(A) with respect to the Central Intelligence Agency, the Director of Central Intelligence;

(B) with respect to the Defense Intelligence Agency, the Director of the Defense Intelligence Agency;

(D) with respect to the Federal Bureau of Investigation, the Director of the Federal Bureau of Investigation;

(E) with respect to the National Geospatial-Intelligence Agency, the Director of the National Geospatial-Intelligence Agency; and

(F) with respect to an Executive agency designated under paragraph (1)(F), the head of such Executive agency, and with respect to a unit of an Executive agency designated under paragraph (1)(F), such individual as the President may determine.

(b)(1) The head of an excepted agency shall, by regulation, establish a program under which annual leave accrued or accumulated by an employee of such agency may be transferred to the annual leave account of any other employee of such agency if such other employee requires additional leave because of a medical emergency.

(2) To the extent practicable, and consistent with the protection of intelligence sources and methods (if applicable), each program under this subsection shall be established—

(A) in a manner consistent with the provisions of this subchapter applicable to the program; and

(B) without regard to any provisions relating to transfers or restorations of leave between employees in different agencies.

(c)(1) Notwithstanding any provision of subsection (b), the head of an excepted agency may, at his sole discretion, by regulation establish a program under which an individual employed in or under such excepted agency may participate in a leave transfer program established under the provisions of this subchapter outside of this section, including provisions permitting the transfer of annual leave accrued or accumulated by such employee to, or permitting such employee to receive transferred leave from, an employee of any other agency (including another excepted agency having a program under this subsection).

(2) To the extent practicable and consistent with the protection of intelligence sources and methods, any program established under paragraph (1) shall be consistent with the provisions of this subchapter outside of this section and with any regulations issued by the Office of Personnel Management implementing this subchapter.

(d) The Office shall provide the head of an excepted agency with such advice and assistance as the head of such agency may request in order to carry out the purposes of this section.

(Added Pub. L. 100–566, §2(a), Oct. 31, 1988, 102 Stat. 2838; amended Pub. L. 103–359, title V, §501(i), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 104–201, div. A, title XI, §1122(a), Sept. 23, 1996, 110 Stat. 2687; Pub. L. 107–306, title III, §322, Nov. 27, 2002, 116 Stat. 2391; Pub. L. 110–417, [div. A], title IX, §931(a)(1), Oct. 14, 2008, 122 Stat. 4575.)

Amendments

2008—Subsec. (a)(1)(E), (2)(E). Pub. L. 110–417 substituted “National Geospatial-Intelligence Agency” for “National Imagery and Mapping Agency” wherever appearing.

2002—Subsec. (b). Pub. L. 107–306, §322(a)(1), (2), redesignated subsec. (c) as (b) and struck out former subsec. (b) which read as follows: “Notwithstanding any other provision of this subchapter, neither an excepted agency nor any individual employed in or under an excepted agency may be included in a leave transfer program established under any of the preceding provisions of this subchapter.”

Subsec. (b)(2). Pub. L. 107–306, §322(b)(1), substituted “under this subsection” for “under this section” in introductory provisions.

Subsec. (c). Pub. L. 107–306, §322(a)(3), added subsec. (c). Former subsec. (c) redesignated (b).

Subsec. (d). Pub. L. 107–306, §322(b)(2), struck out “of Personnel Management” after “The Office”.

1996—Subsec. (a)(1)(E). Pub. L. 104–201, §1122(a)(1), substituted “National Imagery and Mapping Agency” for “Central Imagery Office”.

Subsec. (a)(2)(E). Pub. L. 104–201, §1122(a)(2), substituted “National Imagery and Mapping Agency, the Director of the National Imagery and Mapping Agency” for “Central Imagery Office, the Director of the Central Imagery Office”.

1994—Subsec. (a)(1)(E), (F). Pub. L. 103–359, §501(i)(1), added subpar. (E) and redesignated former subpar. (E) as (F).

Subsec. (a)(2)(E), (F). Pub. L. 103–359, §501(i)(2), added subpar. (E), redesignated former subpar. (E) as (F), and substituted “paragraph (1)(F)” for “paragraph (1)(E)” in two places in subpar. (F).

Change of Name

Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of the intelligence community deemed to be a reference to the Director of National Intelligence. Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of the Central Intelligence Agency deemed to be a reference to the Director of the Central Intelligence Agency. See section 1081(a), (b) of Pub. L. 108–458, set out as a note under section 3001 of Title 50, War and National Defense.

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–201 effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as a note under section 193 of Title 10, Armed Forces.

§6340. Inapplicability of certain provisions

Except to the extent that the Office of Personnel Management may prescribe regulations, nothing in section 7351 shall apply with respect to a solicitation, donation, or acceptance of leave under this subchapter.

(Added Pub. L. 100–566, §2(a), Oct. 31, 1988, 102 Stat. 2838.)