The Office of Personnel Management has issued new guidance on Emergency Paid Leave (“EPL”), a component of the American Rescue Plan Act of 2021 that provides most federal employees up to 600 hours (or 15 weeks) of leave if they are unable to work for a qualifying COVID-related reason, including if they are quarantining pursuant to a healthcare provider’s advice or a government order, experiencing symptoms or receiving treatment for COVID, or are caring for a family member whose other care options are unavailable because of COVID. (TSA, FAA, and VA employees are covered by a separate provision administered by their agencies, rather than by OPM.)
Although an employee is entitled to EPL to get vaccinated, OPM continues to encourage agencies to grant administrative leave for this purpose, in order to preserve the Fund for other qualifying uses.
Congress has made $570 million available for EPL until September 30, 2021, but as the guidance makes clear, if the Fund is exhausted before that date, employees will lose the opportunity to take advantage EPL.
Due to the possibility of fund exhaustion, agencies will grant EPL on a conditional basis. Employees and their agencies must enter into a written agreement, in which the employee certifies their understanding that the paid leave is tentative and contingent upon fund availability. At the end of the biweekly pay period during which the employee took the leave, the agency requests reimbursement from OPM. If funds are not available, the leave is canceled and the employee must use another form of available paid leave or paid time off, or take leave without pay and resolve any overpayment.
It may be possible to retroactively obtain EPL, but the rules are less than clear. According to OPM, if an employee took some other form of leave for a qualifying reason during the covered time period, they can request that the agency apply EPL to that past period of leave and the paid leave originally used be restored. However, OPM allows an agency to grant that request only if the employee was not allowed to use EPL, or was unaware that EPL was available, at the time the leave was taken. To avoid this Catch 22, employees should apply for EPL to cover any leave authorized under the statute.
There are some limits on EPL that are worth noting. First, while EPL is paid at the same hourly rate as the employee’s regular salary, that pay cannot exceed $2,800 in any biweekly pay period. Second, while EPL leave hours are considered creditable service for purposes of calculating an employee’s retirement eligibility, unlike annual and sick leave, EPL leave will not be counted when calculating their actual annuity. As with the retroactivity provisions, this limitation – whether added by Congress or OPM – adds needless confusion to what should be a routine benefit.
The guidance further explains each qualifying reason and lays out the documentation needed to prove eligibility. In most cases, these requirements are not onerous. For example, an employee requesting leave because they are experiencing symptoms is permitted to self-certify their eligibility. Additionally, employees self-quarantining under the advice of a healthcare provider can provide just the healthcare provider’s name; they are not required to provide any explanation, record, note, or letter from their provider.
However, employees seeking leave to care for children because of remote schooling or a lack of childcare must provide “a written explanation regarding why the employee’s circumstances (e.g., ages of children, number of children, special needs of children, lack of other adults in the home) make the employee unable to work (including telework) during the requested hours of leave.” Similarly, an employee who needs to use leave to care for a family member with a disability must submit “a written explanation regarding why the employee’s care responsibilities make the employee unable to work (including telework) during the requested hours of leave.” Permitting agencies to evaluate whether an employee in a caregiving role is truly “unable to work” based on their care obligations leaves federal employees vulnerable to an inconsistent application of the “unable to work” standard and is inconsistent with the broad remedial purposes of EPL.
If you have questions about your eligibility for EPL or paid COVID-19 leave, or you are concerned that your agency is not properly administering COVID-19 leave, please contact the experienced employment attorneys at Kalijarvi, Chuzi, Newman & Fitch, P.C.