The Office of Personnel Management has issued new regulations according to the Administrative Leave Act of 2016 that pertain to weather and safety leave for federal employees. Federal workers who telework for their agencies should take note of the new regulations in particular.
Weather and safety leave was a new category of authorized paid leave created by the Administrative Leave Act of 2016. OPM determined that it would better serve agencies if the final regulations on the weather and safety leave were issued separately from the other categories. Those other categories of leave (administrative leave, investigative leave, notice leave) will have regulations issued separately by OPM at a later date.
About the New Regulations
Under the regulations, agencies may grant weather and safety leave when it is determined that employees cannot safely travel to or from, or perform work at, their normal worksite, a telework site, or other approved location because of severe weather or another emergency situation. Weather and safety leave is a form of paid time off authorized under the Administrative Leave Act. It will generally be used in conjunction with an operating status announcement issued by OPM or an agency.
OPM said that it is particularly noteworthy under the new regulations that an agency will be unable, in most circumstances, to grant weather and safety leave to an employee who is a telework program participant and able to safely perform telework at his or her home. This new provision will apply regardless of what is stated (or not stated) in the employee’s telework agreement and in agency policies and agreements.
The final regulations, which take effect on May 10, are published on FederalRegister.gov.
Comments About the New Regulations
OPM addressed the various comments it received during the draft phase of the regulations.
One commenter objected to the provision which forces employees to telework when an agency closes due to weather. The comment stated that this rule had the effect of treating all telework employees as emergency employees and that the safety of the employee should be given priority. The commenter also 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 said in its response to this comment that weather and safety leave does not force federal employees to telework, but instead 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.
OPM said that 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, and since an employee has an option to telework, s/he can do so without compromising his/her safety.
OPM further stated in a memo to HR officers:
Under section 6329c(b) of the Administrative Leave Act, as reflected in OPM regulations, an agency may grant weather and safety leave only if an employee is prevented from safely traveling to or performing work at an “approved location” due to an act of God, a terrorist attack, or another condition that prevents an employee or group of employees from safely traveling to or safely performing work at an approved location.
Because employees who are participating in a telework program under applicable agency policies are typically able to safely perform work at their approved locations (e.g., their homes), such an employee will generally not be granted weather and safety leave.
If, in the agency’s judgment, the employee could not reasonably have anticipated these conditions, and thus was unable to prepare for telework or otherwise unable to perform productive work, the agency could exercise the discretion to grant weather and safety leave.
Conversely, the new regulations provide that an agency may not grant weather and safety leave if these conditions could have been reasonably anticipated and the employee did not take reasonable steps within his or her control to prepare to perform telework at the approved telework site.
Other comments and OPM’s response to each are available in the Federal Register notice.