OPM Declares Border Emergency to Lift Biweekly Premium Pay Cap for Federal Employees

OPM has declared an emergency on the southern border which will allow federal employees detailed there to receive premium pay in excess of the biweekly pay cap.

The Office of Personnel Management (OPM) issued a memo recently seeking the help of federal employees to assist with the influx of unaccompanied children seeking refuge in the United States. As can be seen from the comments on the article Federal Employees Asked to Help with Influx of Migrant Children, the issue has been of significant interest to federal employees.

Waiver of Biweekly Premium Pay Cap

OPM has now issued guidance for agencies on how to apply premium pay caps and determining a federal employee’s Fair Labor Standards Act (FLSA) exemption status while working on this program. In effect, OPM has told agencies that the annual premium cap is still in effect for these employees. The biweekly premium pay cap is being waived by OPM. As OPM has now declared this to be an emergency, many of the impacted employees are likely to receive a substantial increase in pay.

OPM Declares Emergency at the Southern Border

OPM has now declared that the situation on our southern border is an emergency.

According to OPM, “OPM also has the authority to make a determination that a qualifying emergency exists” even though this determination is normally made by the head of the impacted agency.

Under OPM regulations, an emergency is defined as a temporary condition posing a direct threat to human life or property.  

In support of the emergency declaration, OPM writes that unaccompanied children being assisted by the Department of Health and Human Services (HHS) following entry “are subject to conditions posing a direct threat to their lives, as they are in need of food, shelter, supervision, and protection, and unable to provide such resources for themselves.” 

According to OPM:

[T]he presence of unaccompanied children at the southern border constitutes an emergency for purposes of the premium pay cap determination; thus, any employees determined by the agency head to be performing work in connection with this emergency are covered by the annual premium pay cap. This determination applies to all Federal employees covered by the title 5 premium pay provisions performing work in support of the HHS UC Program, including employees voluntarily detailed to HHS from other agencies. 

There are two premium pay caps. One is an annual pay cap and the other is a biweekly pay cap. With its latest guidance, OPM has lifted the biweekly pay cap for federal employees working on the southern border.

For employees stationed in the United States, the cap is at the GS-15, step 10, adjusted rate of basic pay. In 2021, this amount is $143,598.

This waiver of the biweekly premium pay limitation—and application of an annual limitation— applies to employees performing work in support of the Unaccompanied Children (UC) Program. It will end when their voluntary assignment or detail ends and they return to their home agencies or resume their normal duties.

The annual pay limitation for these employees is effective on the first day of the pay period in which such work began, including such work performed before the OPM memo was issued.

Request for Information from Committee on Oversight and Reform

The crisis on America’s southern border has attracted attention of the House Committee on Oversight and Reform. On April 21st, Ranking Member Jody Hice (R-GA) wrote a letter to the acting director of OPM requesting information:

I am writing to request information on the impact the current border crisis is having on the U.S. federal workforce. There is nothing seasonal about the current crisis on the southwest border, particularly in the case of the increasing numbers of unaccompanied alien children (UAC) being smuggled into the country. Due to the unprecedented influx of UAC encountered by the Department of Homeland Security (DHS) and referred to the Department of Health and Human Services (HHS), HHS is currently caring for over 20,000 UACs, a record. The Federal Emergency Management Agency (FEMA) has even been activated to attend to the crisis.

On the same day, Arizona Governor Doug Ducey asked President Biden to declare a national emergency due to the border situation. In a new conference, Governor Ducey said:

President Biden, if you care about the border, if you care about stopping the cartels who are engaging in all kinds of bad acts… President Biden, if you want to stop the disaster that’s unfolding here and will only get worse in the coming months… President Biden, you should declare a national emergency and deploy the vast powers of your administration to stop what is happening here….

President Biden had previously informed House Speaker Nancy Pelosi (D-CA) he had terminated the national emergency on the southwest border declared by former President Trump in order to build a border wall.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47

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