Compensatory Time Off for Religious Observances and Other Miscellaneous Changes

• Published date: 29 April 2019
• Record Number: 2019-08533
• Section: Rules and Regulations
• Court: Personnel Management Office

This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

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Vol. 84, No. 82

Monday, April 29, 2019

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 550

RIN 3206–AL55

Compensatory Time Off for Religious

Observances and Other Miscellaneous

Changes

AGENCY

: Office of Personnel

Management.

ACTION

: Final rule.

SUMMARY

: The Office of Personnel

Management (OPM) is issuing final

regulations to amend its current

regulations on compensatory time off for

religious observances. The final rule

addresses comments and clarifies

provisions on employee coverage,

employee and agency responsibilities,

scheduling time to earn and use

religious compensatory time off,

accumulation and documentation, and

employee separation or transfer. We are

also implementing other miscellaneous

changes in the pay and leave area.

DATES

: Effective May 29, 2019.

FOR FURTHER INFORMATION CONTACT

:

Jennifer Melvin by telephone at (202)

606–2858 or by email at pay-leave-

policy@opm.gov.

SUPPLEMENTARY INFORMATION

: On August

30, 2013, the Office of Personnel

Management (OPM) published proposed

regulations (78 FR 53695) regarding

compensatory time off for religious

observances under 5 U.S.C. 5550a and

other miscellaneous changes.

The 60-day comment period for the

proposed regulations ended on October

29, 2013. We received comments from 8

Federal agencies, 2 religious

organizations (including one submission

on behalf of 19 other religious and

policy groups), and 4 individuals. This

Federal Register document provides

general information, addresses the

comments received, and issues final

regulations that reflect changes to the

proposed regulations. OPM is amending

the regulations found in subpart J

(Compensatory Time Off for Religious

Observances) in part 550 (Pay

Administration (General)) of title 5,

Code of Federal Regulations. It is also

revising two definitions used in other

regulations in part 550.

Comments on Proposed Regulations

Modifying From a 26 Pay Period

Limitation to a 13 Pay Period Limitation

Four agencies provided comments

disagreeing with the establishment of a

26 pay period limitation, generally

stating it was an excessively long period

that could lead to potential abuse, could

impact the mission of the agency, and

would be administratively burdensome

on managers, supervisors, and

timekeepers. Three agencies

recommended establishing a 13 pay

period limitation before and a 13 pay

period limitation after for religious

compensatory time off, thus providing a

26 pay period total for earning religious

compensatory time off.

One agency objected to the proposed

26 pay period limit for earning religious

compensatory time following the use of

advanced religious compensatory time

off, and is seeking a two pay period

limit following the use of religious

compensatory time off for employees to

repay the hours used. The agency was

concerned that a 26 pay period limit is

unreasonably long, and does not balance

an agency’s responsibility to carry out

its mission with an employee’s right to

make up the time in 26 pay periods. The

agency points to other available

flexibilities, including earning religious

compensatory time in advance of when

it is needed, using annual leave or

advanced annual leave, leave without

pay, compensatory time off in lieu of

overtime pay, compensatory time off for

travel, and adjusting work schedules.

We have evaluated these comments

and are revising the proposed 26 pay

periods before and 26 pay periods after

the religious observance in which to

earn religious compensatory time off to

be 13 pay periods before and 13 pay

periods after a religious observance in

which to earn religious compensatory

time off. That would allow a total period

of 26 pay periods (about 1 year) during

which the religious compensatory time

off could be earned in connection with

a religious observance. An agency may

not prescribe a lesser or narrower

timeframe in which an employee may

earn religious compensatory time off

before or after using it. This change will

allow employees about a year to

schedule and earn religious

compensatory time off while making it

more administratively feasible for

agencies to administer.

An individual commenter was

opposed to the 26 pay period limitation,

citing that the limitation was too

restrictive, and recommended the

limitation be doubled. The commenter

cites that some religious observances

can be lengthy and questioned if

adequate compensatory time off could

be earned feasibly within the preceding

26 pay periods.

We are not adopting this

recommendation in the final

regulations.

Below we summarize and respond to

other comments on the proposed

regulations, organized by the affected

regulatory section number.

§ 550.1001—Purpose

A religious organization requested

clarification that religious compensatory

time off is not the only method by

which agencies may accommodate

employees who need to abstain from

work due to a personal religious

observance. The commenter requested

we clarify this point by adding language

to the final regulation.

OPM previously addressed this

concern in the Supplementary

Information of the proposed rule (78 FR

53697), in which (as part of a discussion

of § 550.1006) we remind agencies and

employees of the availability of

additional workforce flexibilities,

including annual leave, advanced

annual leave, regular compensatory time

off, alternative work schedules, and

leave without pay, all of which may

play a part in accommodating an

employee’s need to abstain from work

for religious purposes.

We encourage employees to work

with their agencies to make use of all

appropriate workforce flexibilities to

meet their needs. However, this final

rule addresses only religious

compensatory time off procedures, not

the various options that an employee

may choose when taking time off for a

religious observance. We are not

adopting this recommendation in the

final rule.

Two agencies raised issues related to

how earning religious compensatory

time off hours (via work) is in lieu of

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receiving overtime pay. They pointed

out that, contrary to the language in the

proposed definition of overtime work in

§ 550.1003 stating that overtime pay

would normally otherwise be payable

for hours worked to earn religious

compensatory time off, some employees

do not normally receive overtime pay

for work beyond their scheduled hours.

We agree that certain employees—e.g.,

members of the Senior Executive

Service (SES), employees who reach the

premium pay cap, employees who work

during holiday hours, and part-time

employees who perform nonovertime

work beyond their scheduled tour—

would not otherwise receive overtime

pay for hours worked to earn religious

compensatory time off. As further

discussed later in this Supplementary

Information, we are agreeing to delete

language in the definition of overtime

work in § 550.1003 stating that overtime

pay would normally be received for the

hours of work (but for crediting the

hours as earned religious compensatory

time off). However, as a matter of

providing general clarification, we are

adding language under § 550.1001 to

make clear that hours worked to earn

religious compensatory time off provide

a time off credit in lieu of any pay that

would otherwise be payable for that

work.

We are also adding the word

‘‘personal’’ before ‘‘religious

requirements’’ in two places in

§ 550.1001 in response to comments

regarding the definition of religious

compensatory time off in § 550.1003, as

discussed below.

§ 550.1002—Coverage

Two agencies asked for clarification

regarding employees covered by the

religious compensatory time off

regulations. One agency requested the

final regulations clarify that members of

the Senior Executive Service (SES),

employees in senior-level (SL) and

scientific or professional (ST) positions,

and wage grade employees are eligible

to earn religious compensatory time off.

Another agency raised SES coverage

issues in the context of recommending

that we delete ‘‘for which overtime pay

would normally be payable’’ from the

overtime work definition within

§ 550.1003 in the final rule, since SES

members may earn religious

compensatory time off but are not

eligible to be compensated for overtime

hours worked. We agree with the

comments received from the agencies

and are modifying the final regulations

to clarify which employees are eligible

to earn and use religious compensatory

time off.

These final regulations clarify that

coverage applies to each employee (as

defined in 5 U.S.C. 2105) in or under an

Executive agency (as defined in 5 U.S.C.

105) who has a scheduled tour of duty,

which would include members of the

SES, SL/ST employees, and prevailing

rate (blue collar wage) employees who

have a scheduled tour of duty.

Religious compensatory time off is

provided under section 5550a,

subchapter V of chapter 55 (Premium

Pay) of title 5, United States Code.

Section 5541(2) of the premium pay

statute provides a definition for the term

‘‘employee’’ to be used generally for the

purpose of subchapter V. This definition

excludes certain categories of

employees, including SES members

(who are excluded under section

5541(2)(xvi) and (xvii)) and prevailing

rate employees (who are excluded under

section 5541(2)(xi), except for the

purpose of applying sections 5544 and

5550b). However, based on the intent of

Congress and the language in section

5550a stating that ‘‘any employee’’ may

use religious compensatory time off

‘‘notwithstanding any other provision of

law,’’ it has been OPM’s longstanding

position that the employee coverage

exclusions provided within section

5541(2) do not apply in determining

coverage under section 5550a. This

means that members of the SES and

prevailing rate employees are covered

by section 5550a. OPM’s position on

employee coverage dates back to the

early implementation of section 5550a

shortly after its enactment on September

29, 1978 (Public Law 95–390). Further,

Comptroller General Decision B–209327

(July 26, 1983) stated that ‘‘the language

and the legislative history of section

5550a show an intent on the part of

Congress to provide all Federal

employees’’ with religious

compensatory time off. It also found that

the religious compensatory time off law

applies to members of the Senior

Executive Service, who are generally not

covered by the premium pay

subchapter.

An OPM regulation in 5 CFR

534.408(b) that was promulgated in

1995 further clarifies that SES members

are eligible to earn religious

compensatory time off, even though

they are not eligible for overtime pay or

eligible to earn compensatory time off in

lieu of overtime premium pay.

Employees in senior-level (SL) and

scientific or professional (ST) positions

who are paid under 5 U.S.C. 5376 are

not excluded from the definition of

‘‘employee’’ in 5 U.S.C. 5541(2).

Therefore, there has never been any

question about their coverage under the

religious compensatory time off

provision in section 5550a. SL/ST

employees are also covered by the broad

definition of ‘‘employee’’ OPM has

always used (in lieu of the section

5541(2) definition) in determining

coverage under section 5550a.

In these final regulations, we are

modifying the regulations to clarify that

the definition of ‘‘employee’’ in section

5541(2) does not apply in determining

coverage under the religious

compensatory time off provision.

§ 550.1003—Definitions

Overtime Work

Four commenters recommended the

definition of overtime work be modified

or deleted. Two agencies recommended

modifying the definition by deleting

‘‘for which overtime pay would

normally be payable’’. One of the

agencies recommended this language be

deleted from the overtime work

definition due to concerns that the

language may be construed to prevent

members of the Senior Executive

Service (SES) from earning religious

compensatory time off, since they are

not eligible to earn overtime pay. The

other agency noted that not all hours

beyond an employee’s scheduled tour of

duty may normally be paid as overtime

work.

We agree that this language could be

misconstrued and are removing the

language from the definition of overtime

work, as suggested, in these final

regulations.

One religious organization and one

agency commented that the term

overtime work can cause confusion as it

relates to religious compensatory time

off. The religious organization also

stated that applying the term overtime

work to work performed by part-time

employees that is below applicable

overtime thresholds is confusing. Both

commenters suggested replacing the

term with language that is more

descriptive.

The term overtime work is used in the

section of law, 5 U.S.C. 5550a, that

authorizes the use of religious

compensatory time off. The regulations

necessarily use the same term. However,

a special definition of the term is used

for purposes of subpart J in order to

include certain hours that would not be

considered overtime work under the

normally used definition. For example,

the regulatory definition of overtime

work in § 550.1003 in both the proposed

and final regulations states that it is

deemed to include any work performed

by a part-time employee outside of his

or her established part-time tour of

duty—even though the additional work

by a part-time employee may not be in

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excess of the daily/weekly overtime

thresholds that are normally used to

define ‘‘overtime work.’’ For these

reasons, we are not adopting this

recommendation, and the term overtime

work continues to be used in the final

rule.

An agency proposed adding language

to the definition of overtime work to

clarify that religious compensatory time

off may be earned by working on a legal

holiday ‘‘whether within or outside the

employee’s holiday clock hours.’’

Consistent with OPM’s longstanding

guidance, the term overtime work is

deemed to include work performed by

an employee on a legal holiday when he

or she is relieved from working on the

holiday. In other words, the holiday

hours in question are the hours within

the scheduled tour of duty (i.e.,

‘‘holiday hours’’) for which an employee

normally receives either (1) holiday pay

for hours during which the employee is

excused from work or (2) holiday

premium pay for working assigned

hours. If an employee elects to work on

a holiday in order to earn religious

compensatory time off, the agency may

authorize the employee to do so. This

election can be made when an employee

is not otherwise assigned to work the

holiday hours. The employee is working

even though he or she would ordinarily

(but for the election to earn religious

compensatory time off) be excused from

duty. The employee will receive the

regular holiday pay as if excused from

duty. The work during holiday hours

will be credited as religious

compensatory time off and will not

generate entitlement to holiday

premium pay. The proposed regulations

stated that overtime work includes

‘‘work performed by an employee on a

legal holiday.’’ Based on the agency

comment, we are modifying the

definition of overtime work to clarify

that we are referring to holiday hours

within the employee’s scheduled tour of

duty—hours during which the employee

would be excused from duty but for the

employee’s election (with agency

approval) to perform work to earn

religious compensatory time off. Any

work on a holiday outside the

designated holiday hours would be

overtime work hours under the

normally used definition; such work

hours would generate overtime pay, not

holiday premium pay. Thus, there is no

need to ‘‘deem’’ such work to be

overtime work for the purpose of

converting overtime work to religious

compensatory time off under subpart J.

Religious Compensatory Time off

Two commenters expressed concerns

about the definition of religious

compensatory time off—specifically, the

language stating that ‘‘an employee

whose personal religious beliefs require

the abstention from work during certain

periods of time may elect to perform

overtime work in order to make up for

the time the employee takes off to meet

those religious requirements.’’

An agency stated that the reference to

religious ‘‘requirements’’ in the

proposed definition of religious

compensatory time off is an

overstatement of why an employee

chooses to observe certain religious

activities or ceremonies. A commenter

representing the Department of Justice

requested clarification of the term

‘‘require’’ used in the same definition,

noting that the term ‘‘require’’ should be

understood to include both religiously

mandated and religiously motivated

conduct. The commenter stated that the

Department of Justice has taken the

position in past litigation that the Free

Exercise Clause of the First Amendment

and Religious Freedom Restoration Act

(42 U.S.C. 2000bb) protect not only

actions that are religiously mandated

but also actions that are religiously

motivated. The commenter cited a court

case, DeHart v. Horn, 227 F.3d 47 (3d

Cir. 2000)(en banc) to support its

position that attempting to distinguish

between religiously mandated and

religiously motivated actions would

improperly entangle agencies in

deciding inherently religious questions,

and limit the use of religious

compensatory time off in a way that

would be more narrow than intended.

The commenter suggested language that

could be added to the regulation to

clarify that religiously motivated actions

are a basis for using religious

compensatory time off.

Section 5550a provides religious

compensatory time off when an

employee’s ‘‘personal religious beliefs

require the abstention from work during

certain periods of time’’ (emphasis

added). Section 5550a also refers to

‘‘time lost for meeting those religious

requirements’’ (emphasis added). OPM’s

regulatory language uses the same

terminology. By law, religious beliefs

must require (or compel or impose an

obligation on) the employee to be absent

from work. However, it is significant

that the referenced beliefs are not the

official beliefs of an organized religion

to which the employee may belong, but

are the employee’s ‘‘personal’’ religious

beliefs. In other words, it is sufficient

that the employee’s personal religious

beliefs cause the employee to feel an

obligation that he or she should be

absent from work for a religious

purpose.

The DeHart decision dealt with the

issue of whether Constitutional religious

freedom protections applied only to the

orthodox beliefs of an organized religion

that imposed requirements (or

commandments) on members of that

religion or also to the non-orthodox

beliefs of individual members of that

religion. The court ruled that a claim for

religious protection could not be

dismissed solely because of the non-

orthodox or non-mainstream character

of the religious belief in question. It

pointed to Supreme Court decisions

stating that courts should not question

the centrality of a particular religious

belief or attempt to determine whether

a belief is the correct interpretation of a

religion’s creed. Rather, courts should

look at only two threshold requirements

that must be met before beliefs are

accorded First Amendment protection

by a court: (1) The belief is sincerely

held, and (2) the belief is religious in

nature. Id. at 51.

As noted above, the law establishing

religious compensatory time off for

Federal employees makes clear that

‘‘personal’’ religious beliefs are a

legitimate basis for claiming the right to

use compensatory time off. The OPM

regulations include the statutory

language describing the condition that

‘‘personal religious beliefs require the

abstention from work.’’ Given the

concerns of commenters, however, we

are adding language in the definition of

religious compensatory time off to

further clarify that the beliefs do not

have to be in line with the official

mandates of a religious organization to

which the employee belongs and can

spring from a sense of personal

obligation. We are also inserting the

word ‘‘personal’’ before ‘‘religious

requirements’’ and before ‘‘religious

obligations’’ in the definition of

religious compensatory time off. Also, as

noted earlier, we are inserting the word

‘‘personal’’ before ‘‘religious

requirements’’ in two places in

§ 550.1001 (Purpose).

§ 550.1004—Employee Responsibilities

An agency recommended that the

term ‘‘in advance’’ in § 550.1004(a)

(dealing with employee requests to use

religious compensatory time off) should

be clarified in the final regulations to

mean ‘‘with enough time to allow the

agency to consider the request.’’ Each

agency is responsible for establishing

procedures under §§ 550.1005 and

550.1006. Under both the proposed and

final § 550.1005(a), those procedures

may include a requirement that an

employee submit a request to use

religious compensatory time off

‘‘sufficiently in advance to

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accommodate necessary scheduling

changes without interfering with the

agency’s ability to efficiently carry out

its mission.’’ We believe this gives

agencies sufficient flexibility to handle

employee requests; therefore, we are not

making changes based on this

recommendation.

We received one comment from an

individual supporting the proposed

requirement that an employee provide

the agency with the name and/or

description of the religious observance

in his or her request, but an agency

expressed concerns that an employee

must submit this information. The

agency noted that many Native

American tribes participate in religious

ceremonies that cannot be named or

described.

An agency decision to allow an

employee to earn and use religious

compensatory time off is made on a

case-by-case basis. Agencies need

appropriate information in the

employee’s request in order to verify

that the request meets all applicable

requirements and to make

determinations that will balance the

religious needs of the employee with the

agency’s ability to accomplish its

mission. The exact nature of the

observance does not need to be

described if there are religious

prohibitions on doing so, as long as the

request provides enough information for

the agency to verify that it meets the

requisite requirements.

Similarly, an individual commented

that employees may practice a wide

variety of religious practices, some of

which may not be widely recognized.

The commenter asked OPM to issue

guidelines for defining religion.

OPM will not attempt to issue such

guidelines. The law authorizing

religious compensatory time off is based

on an individual’s ‘‘personal religious

beliefs,’’ and OPM believes that case law

sufficiently defines religious belief. (See

also our earlier discussion in this

Supplementary Information regarding

the definition of religious compensatory

time off.)

A commenter representing the

Department of Justice also sought

clarification on the meaning of

‘‘required’’ as used in § 550.1004(b)(1).

As discussed in connection with the

Department of Justice comments on the

definition of religious compensatory

time off in § 550.1003, the word

‘‘require’’ is used in the law authorizing

religious compensatory time off (5

U.S.C. 5550a). The language in

§ 550.1004(b)(1) parallels the language

in the law. Our changes to the definition

of ‘‘religious compensatory time off’’ in

§ 550.1003 make clear that it is the

employee’s ‘‘personal’’ religious beliefs

that create the requirement or obligation

to be absent from work. We are making

no additional changes in

§ 550.1004(b)(1).

A religious organization proposed

adjustments be made for the make-up

dates and times in an employee’s

original request due to unforeseen

circumstances. They suggested that, in

the event an adjustment to the dates and

times of overtime work is required, an

employee will submit to the supervisor

for approval a revised schedule that

reflects those changes.

We concur with this comment and are

adding a new paragraph (d) in

§ 550.1004 to address submission of a

revised schedule.

§ 550.1005—Agency Responsibilities

A religious organization expressed

concern that many employees and

managers may lack knowledge regarding

religious compensatory time off and

recommended adding regulations that

address an employing agency’s

responsibility to inform employees

regarding their right to use religious

compensatory time off. The religious

organization recommended establishing

procedures patterned after those found

in regulations implementing the Family

and Medical Leave Act (FMLA) in 29

CFR part 825. Specifically, it

recommended adding regulatory

provisions that would require an agency

(1) to notify an employee of the right to

use religious compensatory time off

‘‘when the agency acquires knowledge

that an employee’s expected absence

may be for a religious reason;’’ (2) to

‘‘responsively answer questions’’ about

religious compensatory time off; and (3)

to provide a notice to the employee

when his or her request for religious

compensatory time off is denied that

states the reasons for the denial.

We are not making changes in the

regulations based on the first two

recommendations identified above.

While we agree there is a need to ensure

that agency managers and employees are

informed regarding religious

compensatory time off, we do not

believe it is necessary to incorporate a

formal notice requirement in

regulations. Rather, consistent with its

administration of other programs related

to leave and other time off, OPM will

take steps to educate agency managers

and employees regarding the religious

compensatory time off program—in

particular, the changes made in these

final regulations. We expect managers to

responsively answer employee

questions about all personnel matters

and do not believe it is necessary to

impose a regulatory requirement under

each personnel program. With respect to

the personnel programs it administers,

OPM is in a position to adjust its

guidance and educational efforts as

necessary.

Ultimately, it is the responsibility of

the employee to notify the supervisor of

his or her intent to use religious

compensatory time off as provided

under § 550.1004. We cannot expect

supervisors to be generally aware that a

requested absence is due to an

employee’s personal religious

obligation. The employee must choose

whether to request religious

compensatory time off and disclose

information about his or her personal

religious obligation. We note that OPM’s

FMLA regulations (5 CFR part 630,

subpart L), which apply to most Federal

employees, also do not place a

regulatory requirement on agency

managers to discern when FMLA leave

may be implicated. (The FMLA

regulations cited by the commenter are

the Department of Labor’s title 29 FMLA

regulations, which are generally not

applicable to Federal employees

covered by title 5.)

We agree with the religious

organization’s third recommendation—

that, if the employee is not granted

religious compensatory time off, the

agency should provide an explanation

for denying the request. We are

incorporating language within

§ 550.1005(b) of the final regulations to

address this recommendation.

Two agencies commented on the

ability of an employee to provide an oral

request to use religious compensatory

time off. The first agency recommended

that the first sentence in § 550.1005(a)

be changed to require all employees to

submit a request in writing. The second

agency also recommended modifying

paragraph (a) of this section by

replacing ‘‘the supervisor’’ with ‘‘the

agency’’ to allow an agency that accepts

an oral request to determine how best to

document an oral request instead of the

supervisor. The second agency stated

that the agency, not the supervisor, is in

the best position to determine how to

document an oral request.

We do not concur with the first

agency’s recommendation to mandate

that a request to use religious

compensatory time off must be in

writing. In extenuating circumstances,

an employee may not be able to make

a request in writing. However, we do

agree that a written request should be

the standard procedure. Accordingly,

we are revising the proposed regulations

to provide that a written request is

required to the maximum extent

practicable. Also, we are requiring the

employee to provide required

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information as soon as practicable after

an oral request is approved, instead of

relying solely on the supervisor’s

documentation of the request. We do

agree with the second agency’s

recommendation to change ‘‘the

supervisor’’ to ‘‘the agency’’ in

§ 550.1005(a) to enable an agency to

make a determination through its

internal policy.

An agency also recommended

changing the third sentence of

§ 550.1005(a) to require all employees to

submit their requests to use religious

compensatory time off sufficiently in

advance to accommodate necessary

scheduling changes, but we are not

adopting this recommendation. Section

550.1004(a) requires employees to

submit requests in advance of the

religious observance. The third sentence

in § 550.1005(a) gives agencies some

discretion in determining how far in

advance is necessary to avoid interfering

with the agency’s ability to efficiently

carry out its mission. Whether a request

has been made ‘‘sufficiently in advance’’

would depend on the exact fact

situation, and thus OPM seeks to

preserve agency discretion in this

regard.

Two commenters requested

clarification on the process for

disapproving a request. One agency

requested additional guidance on an

agency’s responsibility for denying a

request. A second agency asked for

clarification on several factors that may

be relevant when considering an

employee’s request. It asked if a request

could be denied if the employee has not

fulfilled his or her responsibilities (such

as providing the name of observance,

dates and times, etc.) within his or her

request; or if the request may be denied

if the description provided is unclear,

inadequate, or unreasonable. It also

asked what the order would be for

approving multiple time off requests of

different types (from different

employees) for a given day. The agency

asked whether religious compensatory

time off must be approved before other

requests for time off from other

employees for the same time period if

an agency cannot approve all of the

requests.

In considering agencies’ ability to

disapprove an employee’s request

related to religious compensatory time,

a distinction must be made between a

request to ‘‘use’’ religious compensatory

time off (i.e., take time off to engage in

a religious observance) and a request to

‘‘earn’’ religious compensatory time off

(i.e., perform extra work that will be

credited as religious compensatory time

off hours to be applied against a past or

future use of time off). Paragraphs (a)

and (b) of § 550.1005 pertain to a request

to ‘‘use’’ religious compensatory time

off—in other words, the scheduling of

time off to engage in a religious

observance. Paragraph (c) of § 550.1005

pertains to the earning of religious

compensatory time off hours. As further

explained below, an agency can deny a

request to ‘‘use’’ religious compensatory

time off (as defined in § 550.1003) only

if it would interfere with the agency’s

ability to efficiently carry out its

mission. However, an agency has more

flexibility in approving or denying the

timing of overtime work to ‘‘earn’’

religious compensatory time off hours.

When the regulations refer to a request

for ‘‘religious compensatory time off’’

without making a distinction between

‘‘earning’’ versus ‘‘using’’ religious

compensatory time off (e.g.,

§ 550.1004(a)), the regulation in

question should be understood as

referring to a request to ‘‘use’’ religious

compensatory time off, which

necessarily includes plans to ‘‘earn’’ the

necessary hours through overtime work.

We are not providing additional

guidance in the regulations on an

agency’s responsibilities for approving a

request to use religious compensatory

time off. As explained in § 550.1005(b),

an agency must approve an employee’s

request based on personal religious

requirements unless the agency

determines that approving the request

would interfere with the agency’s ability

to efficiently carry out its mission. That

is to say, an agency may deny a request

to use religious compensatory time off

for a religious observance requiring

absence from work at specific times

based on the requester’s sincerely held

religious beliefs only if approving the

request would interfere with the

agency’s ability to efficiently carry out

its mission. If the information provided

by the employee regarding the religious

observance is not sufficient to determine

whether the request is to use religious

compensatory time off for a religious

observance requiring absence from work

at specific times based on the

requester’s sincerely held religious

beliefs, an agency may request more

information before acting on the request.

The requirement that a denial under

§ 550.1005(b) must be based on an

agency determination that the

employee’s absence would interfere

with the accomplishment of the

agency’s mission is a reflection of the

statutory standard for determining

whether a request to use religious

compensatory time off must be

approved. In making determinations on

approving multiple time off requests

from different employees for the same

day, agencies should use appropriate

judgment. For example, an agency may

not be able to approve an employee’s

request to use religious compensatory

time off if the office has several

employees who are ill and are using sick

leave, and the employee who is

requesting religious compensatory time

off is needed in the interim to achieve

the agency’s mission. We note that

employees have a statutory right to use

sick leave.

A religious organization

recommended an affirmative statement

be included in the final regulations that

a supervisor should not make any

judgment about the employee’s religious

beliefs or his or her affiliation with a

religious organization—a statement that

has been included in OPM guidance, as

documented on page 5 of the U.S.

Government Accountability Office’s

report on religious compensatory time

off (GAO–13–96, October 12, 2012).

OPM declines to make this change.

Section 550.1005(b) states that an

agency must approve an employee’s

request to use religious compensatory

time off unless the agency determines

that approving the request would

interfere with the agency’s ability to

efficiently carry out its mission. OPM

defines the term religious compensatory

time off in § 550.1003 based on the

statutory language. As we are clarifying

in the final regulations, if an employee

feels a personal obligation to be absent

from work based on the employee’s

personal religious beliefs, the

employee’s request to use ‘‘religious

compensatory time off’’ must be

approved, absent a finding that an

employee’s absence would interfere

with the agency mission. Since the

employee’s personal religious beliefs are

at issue, the orthodox views of any

religious organization with which the

employee may be affiliated (in any

degree) are not relevant. As Federal

courts have ruled, neither courts nor

Government officials should be making

judgments about the validity or

correctness of a person’s sincerely held

beliefs that are religious in nature. We

have concluded that our clarification of

the definition of religious compensatory

time off in the final regulations

sufficiently addresses the concerns

expressed by the commenter.

An agency commented that

§ 550.1005(c) should be revised to

clarify that agencies may authorize ‘‘up

to’’ 26 pay periods prior to and after a

religious observance for an employee to

earn religious compensatory time off.

While we are revising the timeframe to

be 13 pay periods before or after a

religious observance in these final

regulations, the issue raised by the

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commenter is still relevant. The agency

presumed that § 550.1005(c) allows

agencies to set narrower (shorter)

timeframes at their discretion.

The agency’s presumption is

incorrect, as this provision was

intended to place an obligation on the

agency to allow an employee to earn

religious compensatory time off within

the regulatory timeframe established in

§ 550.1006(c). Proposed §550.1005(c)

was not intended to permit agencies to

establish a narrower timeframe in which

an employee may earn religious

compensatory time off. Proposed

§ 550.1005(c) must be read in

conjunction with § 550.1006(b) and

(c)(1), which allow an employee to earn

religious compensatory time off within

the regulatory timeframe. Agencies do

not have the discretion to establish a

narrower timeframe for earning religious

compensatory time off hours. Within the

regulatory timeframe, agencies do have

some discretion in approving the

specific occasions when an employee

will be allowed to perform overtime

work and earn religious compensatory

time off hours based on mission

requirements; however, that discretion

does not extend to establishing a blanket

policy that narrows the timeframe for

earning hours set forth in § 550.1006. In

response to the agency’s comments, we

are revising § 550.1005(c) to refer to the

deadline in § 550.1006(c).

§ 550.1006—Scheduling Time To Earn

and Use Religious Compensatory Time

Off

An agency asked whether, for a

targeted religious observance,

employees could earn religious

compensatory time off in advance of the

observance as well as after the

observance to repay the time.

As provided under § 550.1006(a), the

scheduling of time to earn and use

religious compensatory time off by an

employee is subject to the agency’s

approval as provided under § 550.1005.

These regulations provide rules

allowing an employee to earn religious

compensatory time off (by working)

before the religious observance, after the

religious observance, or through a

combination of time worked both before

and after the religious observance. The

employee may earn the hours in

advance of using religious

compensatory time off or earn the hours

to repay the hours already used as

religious compensatory time off.

Agencies must approve an employee’s

request to earn religious compensatory

time off as provided under § 550.1005(c)

and monitor the employee’s

accumulation of such hours. The

specific timing of when an employee

will be allowed to earn religious

compensatory time off by performing

overtime work is a matter of agency

discretion based on the needs of the

agency. In other words, agencies can

consider the specific work requirements

of the individual employee’s

organization in deciding the specific

times when the employee will be

allowed to perform overtime work to

earn religious compensatory time off

hours.

An agency recommended the final

rule require employees ‘‘to normally

earn religious compensatory time off in

advance of the religious observance.’’

Alternatively, if OPM chooses to retain

the provision allowing an employee to

earn religious compensatory time off

after the given religious observance, the

agency recommended that the final rule

allow an agency to temporarily require

an employee to earn religious

compensatory time off in advance for

any future religious observances if the

employee did not perform the required

overtime work to make up for the

religious compensatory time off used

previously (e.g., where the agency had

to retroactively charge the employee

annual leave or leave without pay to

recover the debt of hours, as provided

in § 550.1006(c)(3)). The agency

proposed that, if this retroactive

charging occurred, the employee would

be required to earn religious

compensatory time off in advance for a

1-year period beginning on the date the

action to make a retroactive correction

was taken.

We disagree, and are not adopting

these recommendations. We see no

compelling reason to revise the

longstanding policy that allows an

employee to earn religious

compensatory hours after using the

hours for a religious observance. Nor do

we, at this time, support limiting an

employee’s future options based on a

past failure to repay hours within the

regulatory timeframe. Any such failure

results in an appropriate negative

consequence—a retroactive application

of annual leave (or other appropriate

paid time off) or leave without pay. Any

debt resulting from retroactive

application of leave without pay is

subject to debt collection.

An agency recommended changing

the term ‘‘may’’ to ‘‘must’’ in

§ 550.1006(c)(3) (and similarly under

§ 550.1008(b)) with regard to agencies

taking corrective action to eliminate or

reduce the negative balance of religious

compensatory time off by making a

corresponding reduction in the

employee’s annual leave balance.

We believe the agency perceives there

to be a discretionary authority for the

elimination or reduction of the debt.

The charge to annual leave is provided

in the regulation as a ‘‘may’’ authority,

but there still remains a mandatory

requirement to recoup any debt owed

with a ‘‘must’’ charge to leave without

pay, thus creating a debt that must be

repaid. While we agree it would be a

reasonable agency policy to first charge

annual leave to liquidate the debt, we

use the term ‘‘may’’ to recognize that

agencies may choose not to establish

that policy or may fail to take this

corrective action first before charging

leave without pay. Allowing agencies

the discretion to make an annual leave

correction is consistent with

longstanding OPM guidance.

Accordingly, we are not adopting this

suggestion.

An agency also recommended

allowing employees to cover negative

balances through credit hours earned,

compensatory time off in lieu of

overtime pay earned, compensatory

time off for travel earned, or substitution

of other paid time.

We agree with this recommendation

and are making changes in the final

regulations to allow for the substitution

of credit hours, compensatory time off

in lieu of overtime pay, compensatory

time off for travel, and time-off awards

to liquidate an employee’s debt of

hours. We are revising § 550.1006(c)(3)

to provide that any positive balance of

annual leave, credit hours,

compensatory time off for overtime,

compensatory time off for travel, or

time-off awards may be applied to

reduce the debt of hours before it is

converted to a monetary debt. An

agency may determine the order in

which to apply these forms of paid time

off to offset the negative religious

compensatory time off balance. We are

including only types of accrued paid

time off that can be used for any

purpose. Thus, we did not include sick

leave or military leave, as these types of

leave have certain parameters and

conditions on their use.

§ 550.1007—Accumulation and

Documentation

Two agencies recommended

establishing a limitation on the number

of religious compensatory time off hours

that may be accumulated. An individual

commenter recommended placing a

limitation on the amount of religious

compensatory time off hours an

employee may earn per pay period out

of concerns that an employee could be

tempted to work extreme hours per day

or per week in order to earn enough

compensatory time off for a religious

observance.

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We disagree, as there is no authority

for a limitation on the number of hours

that may be earned or used. In general,

an agency must approve an employee’s

request to use religious compensatory

time off, unless the agency determines

that approving the request would

interfere with the agency’s ability to

carry out its mission (see § 550.1005(b)).

Further, as explained in the

Supplementary Information regarding

§ 550.1007 in the proposed rule (78 FR

53698), agencies must monitor any

accumulation to ensure that the

employee is earning the religious

compensatory time off for a specific

religious observance and is not

stockpiling the religious compensatory

time off for unidentified purposes.

One agency recommended deleting

the term ‘‘appropriate’’ for the type of

records that must be kept under

§ 550.1007(a), which includes the name

and/or description of the religious

observance, the dates and times, and the

amount of religious compensatory time

off each employee earns and uses. The

same agency also requested clarification

on whether records may be paper-based

or electronic.

We agree that the term ‘‘appropriate’’

is ambiguous and unnecessary, and we

are deleting it in the final regulations.

Each agency has the discretion to

determine if records should be kept

electronically or paper-based.

An agency recommended revising

§ 550.1007(b) from ‘‘an employee may

accumulate only the amount needed to

cover an approved absence for a

religious observance that has already

occurred’’ to read, ‘‘an employee may

accumulate only the amount needed to

fund a previously approved absence

from work for a religious observance

that has already occurred.’’

We disagree in applying the term

‘‘fund’’ to these regulations. Employees

accumulate hours to use for religious

purposes. An employee may earn

religious compensatory time off in

advance or after it is used. Instead of

becoming indebted, the employee is

choosing to work overtime hours to

cover periods of absences for religious

observances.

An agency asked if earned religious

compensatory time off that is not used

as planned would be forfeited or paid

out as compensatory time off in lieu of

overtime pay, or any other form of time

off.

As provided within § 550.1008, upon

the employee’s separation from Federal

service or transfer to another Federal

agency, the losing agency must

compensate the employee for any

positive balance to his or her credit. The

agency must pay the employee for the

hours of religious compensatory time off

earned at the hourly rate of basic pay in

effect at the time the religious

compensatory time off was earned.

Religious compensatory time off cannot

be forfeited, paid as overtime premium

pay, provided as compensatory time off

in lieu of overtime pay, or converted to

any other forms of time off.

An agency requested that

§ 550.1007(c)(1) be removed from the

final regulations. This section provides

that if the employee does not use his or

her religious compensatory time off as

planned, the positive balance may be

redirected toward a future religious

observance that has been approved,

even if that future observance is beyond

the normally applicable regulatory

timeframe (notwithstanding

§ 550.1006(b)). The agency

recommended removing this section

because including it could leave room

for error in its administration.

We are not adopting this

recommendation to remove

§ 550.1007(c)(1) from the final

regulations. It is appropriate to allow

earned religious compensatory time off

that has not been used as planned to be

applied toward a future religious

observance that has been properly

requested and approved.

Two agencies provided additional

comments on allowing the unused

positive balance of religious

compensatory time off to be redirected

to a future religious observance when

the employee was unable to use the

hours earned as originally planned and

approved. One agency agreed with

allowing employees to redirect earned

hours to a different religious

observance, but objected to not having

some kind of deadline for using the

hours. It recommended establishing a 13

pay period deadline for using religious

compensatory time off that has been

previously earned, whether used as

originally planned or for a different

religious observance in the future. We

understand this agency to be proposing

that there be a strict rule that earned

hours of religious compensatory time off

must be used within 13 pay periods of

when earned. Any different religious

observance to which hours are

redirected would have to occur within

that 13 pay period window. The agency

did not specify a proposed consequence

for failure to meet that deadline.

Another agency commented that there

should be a cutoff period established for

purposes of determining what happens

to the religious compensatory time off if

not used by a certain pay period.

We disagree with these comments. We

do not support a cutoff date for

eliminating a positive balance of unused

religious compensatory time off via

either forfeiture or cash payment.

Earned religious compensatory time off

hours are intended to be used for a

religious observance. Under the

regulations, the cashing out of unused

religious compensatory time off hours

occurs only when an employee leaves

the agency (via separation or transfer),

which maximizes the possibility that

the hours will be used for the intended

purpose and prevents abuse that might

occur if employees were allowed to

repeatedly cancel planned uses of

religious compensatory time off and

convert the hours to a cash payment

after a certain amount of time has

elapsed.

Under paragraph (c), if an employee

does not use earned religious

compensatory time off as planned, the

employee may redirect the hours

towards a future religious observance

without regard to the normal bar on

earning hours outside the regulatory

timeframe. This is the preferred

approach, since it ensures that the hours

are used to meet religious obligations, as

intended by the law. If an employee

does not redirect the hours to another

religious observance, the positive

balance remains to the employee’s

credit until transfer or separation from

the agency. An employee with a positive

balance of hours will be barred from

earning any additional religious

compensatory time off until the hours

have been used or the employee

establishes the need for additional

hours, as provided in the regulations.

This approach prevents employees from

stockpiling religious compensatory time

off for undesignated purposes.

Given the comments received about a

possible cutoff date for eliminating a

positive balance of unused religious

compensatory time off via either

forfeiture or cash payment, we are

adding a new paragraph (d) in

§ 550.1007 to make clear that there are

no time limits on using accumulated

religious compensatory time off—that

unused religious compensatory time off

hours remain to the employee’s credit

until used, or until the employee’s

separation or transfer.

§ 550.1008—Employee Separation or

Transfer

An agency commented that when an

employee separates or transfers, he or

she should only be compensated for

unused religious compensatory time off

when, at the time the employee earned

it, he or she did not expect to separate

or transfer prior to the deadline for

using it. The agency wanted to ensure

that an employee does not stockpile

religious compensatory time off hours

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when the employee does not expect to

use those hours before separating or

transferring and thus would receive

payment for the unused hours.

Another agency submitted a similar

comment concerning the stockpiling of

hours. The agency recommended that

agencies be provided the flexibility to

liquidate via a cash payment unused

religious compensatory time off. While

the agency appreciates the opportunity

employees have to retain unused time

for future observances, it is concerned

about the indefinite carryover of hours.

Currently, the proposed regulations

would only allow an agency to pay an

employee for the unused hours upon

separation or transfer to another agency.

Instead of tracking the time annually or

waiting for the employee to separate or

transfer, the agency recommended the

regulations allow agencies to determine

if and when they would pay out the

hours in situations other than separation

or transfer. The agency asserted this

flexibility would assist agencies in

balancing timekeeping records if an

agency has determined the unused

timeframe to be excessive, since the

hours cannot be forfeited.

We disagree. If an employee works the

hours but does not use the hours (i.e.,

has a positive balance), the employee

should be compensated for the hours

worked at the time of separation or

transfer, as provided in § 550.1008(a).

As for an employee potentially

stockpiling hours, § 550.1007(c)(2)

provides that an employee may

accumulate additional religious

compensatory time off hours only if

needed to cover an approved period of

absence for a future religious observance

based on the specific dates and times

that the employee has identified. This

provision is meant to prevent the

stockpiling of hours.

An agency also recommended

revisions to § 550.1008(b) by replacing

the term ‘‘may’’ to ‘‘must’’ when taking

corrective action to eliminate or reduce

a negative balance of religious

compensatory time off by reducing the

employee’s annual leave balance upon

separation or transfer.

The same agency made a similar

recommendation for § 550.1006(c)(3),

which we have already addressed. The

charge to annual leave is provided in

the regulation as an optional authority

(using the language ‘‘may’’), but there

remains a mandatory requirement (using

the language ‘‘must’’) for an agency to

recoup the debt owed with a charge to

leave without pay, thus creating a debt

that must be repaid.

It also recommended that the

substitution of other forms of paid time

off—such as earned credit hours, regular

compensatory time off earned in lieu of

overtime, or compensatory time off

earned for travel—be allowed to repay a

negative balance in addition to the use

of annual leave.

We agree that the substitution of other

forms of paid time off should be

allowed. Consistent with the change we

made in § 550.1006(c)(3), we are

revising § 550.1008(b) to allow for the

substitution of credit hours,

compensatory time off in lieu of

overtime pay, compensatory time off for

travel, or time-off awards to liquidate

the negative debt. However, the use of

sick leave or military leave would not be

appropriate, as there are parameters on

the appropriate uses of these specific

leave categories.

General Comments

An individual commenter

recommended that the final rule include

dispute resolution or appeal procedures

if an employee’s request is denied under

5 CFR 550.1005(b). The commenter

wanted to ensure a common knowledge

of the appeals processs within agencies.

We are not adopting this

recommendation in the final

regulations. Each agency has established

appeal procedures that an employee

must follow if he or she seeks to grieve

an agency’s denial of a request for

religious compensatory time off. We

have added language to § 550.1005(b) to

provide that an agency must explain its

reasoning for a denial of a request to use

and/or earn religious compensatory time

off.

An individual commenter was

opposed to the establishment of

religious compensatory time off,

observing that some employees may not

identify with a religious group. The

commenter recommended a general

compensatory personal time off bank be

established instead. The commenter

specifically cited the time off needed by

working parents for various family

commitments. The commenter stated

that parents often have to opt out of

school events and activities because of

a lack of compensatory time available or

having to use other leave, such as

annual leave or sick leave. The

commenter also expressed that the

proposal could face appeals from

employees who do not identify with a

religious group or practice but routinely

participate in humaniatarian efforts as a

moral or ethical belief. The commenter

recommended that those individuals

should be allowed to earn compensatory

time off without needing to qualify their

efforts as ‘‘religious’’.

We cannot adopt this

recommendation because there is no

statutory authority to establish a

compensatory personal time off bank as

described by the commenter, and

Congress has mandated that agencies

permit religious compensatory time off

in the circumstances described by these

regulations, unless doing so, in a

particular instance, would interfere with

the agency’s mission. We note that

employees may use certain leave or time

off for general purposes, including the

purposes cited by the commenter. For

example, annual leave may used used

for any purpose. While annual leave

must normally be earned or accrued

before it is used, it is possible for an

agency to approve advanced annual

leave. (See https://www.opm.gov/policy-

data-oversight/pay-leave/leave-

administration/fact-sheets/advanced-

annual-leave.) Also, while regular

compensatory time off in lieu of

overtime under 5 U.S.C. 5543 must be

earned in advance, it may also be used

for any purpose.

Transitional Provisions

An agency commented that the

proposed regulations did not address

the treatment of employees who owe

religious compensatory time at the time

the final regulations become effective.

The agency noted that some employees

may have used religious compensatory

time off more than 26 pay periods prior

to the effective date of the final

regulations and still not have worked

the time to make it up. It asked whether

such employees would have an

additional 26 pay periods to repay the

debt of hours or if the employing agency

would have the authority to establish an

alternative deadline. The agency stated

that it favored giving such employees a

reasonable period to repay the hours

owed (by performing work).

We agree that clarification is needed

regarding the treatment of the

employees described by the agency who

have a negative balance of religious

compensatory time off when the final

regulations take effect—whether the

period of time since the religious

compensatory time off was used exceeds

the regulatory timeframe (originally

proposed as 26 pay periods, but

established as 13 pay periods in these

regulations) or is some lesser period of

time. This comment also brought to

light that the proposed regulations did

not specifically address employees who

have a positive balance of religious

compensatory time off when the final

regulations take effect. Therefore, we are

adding a new § 550.1010 to provide

transitional rules for employees who

have either a negative or positive

balance of religious compensatory time

off as of the effective date of the final

regulations.

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Paragraph (b) of § 550.1010 states that,

for an employee who has a negative

balance (i.e., debt) of used but not-yet-

earned religious compensatory time off

hours as of the effective date of the final

regulations, the 13 pay period limitation

in § 550.1006(c) is applied as if the

effective date were the date on which all

the hours of religious compensatory

time off (represented in the negative

balance) were used. Thus, employees

will have a full 13 pay periods to earn

the needed number of religious

compensatory time off hours. Since

these regulations are changing the rules

midstream for these employees, we

believe it is appropriate to start the

clock when the new regulations take

effect.

Paragraph (c) of § 550.1010 addresses

employees who have a positive balance

of earned but unused religious

compensatory time off hours as of the

effective date of the final regulations. It

provides that the employing agency

must confirm and document that the

hours are connected to one or more

specific religious observances requiring

the employee’s absence from work in

order to meet the employee’s personal

religious requirements. The agency must

give the employee an opportunity to

direct all unused hours to such a future

religious observance. If the employee

does not direct all of those unused

hours, the employee may not earn any

additional religious compensatory time

off hours until the employee establishes

a need to earn such time off hours,

consistent with § 550.1007(c)(2).

Miscellaneous Changes

In addition to the proposed revision

of subpart J of part 550 of title 5 of the

Code of Federal Regulations, we also

proposed to modify the definitions of

rate of basic pay in § 550.103 and

firefighter in § 550.1302. We did not

receive any comments on those

proposed revisions. Therefore, these

final regulations are making final the

additional miscellaneous proposed

changes.

Executive Order Requirements

Executive Orders 13563 and 12866

direct agencies to assess all costs and

benefits of available regulatory

alternatives and, if regulation is

necessary, to select regulatory

approaches that maximize net benefits

(including potential economic,

environmental, public health and safety

effects, distributive impacts, and

equity). Executive Order 13563

emphasizes the importance of

quantifying both costs and benefits, of

reducing costs, of harmonizing rules,

and of promoting flexibility. This rule

has been designated a ‘‘significant

regulatory action,’’ under Executive

Order 12866 and has been reviewed by

the Office of Management and Budget.

Executive Order 13771

This final rule is not subject to the

requirements of E.O. 13771 (82 FR 9339,

February 3, 2017) because the rule is

related to agency organization,

management, or personnel.

Regulatory Flexibility Act

I certify that this regulation will not

have a significant economic impact on

a substantial number of small entities

because it will apply only to Federal

agencies and employees.

Paperwork Reduction Act

Requirements

This rule does not impose any new

reporting or record-keeping

requirements subject to the Paperwork

Reduction Act.

List of Subjects in 5 CFR Part 550

Government employees.

Office of Personnel Management.

Alexys Stanley,

Regulatory Affairs Analyst.

For reasons stated in the preamble,

OPM is amending part 550 of title 5 of

the Code of Federal Regulations as

follows:

PART 550—PAY ADMINISTRATION

(GENERAL)

Subpart A—Premium Pay

■1. The authority citation for subpart A

of part 550 continues to read as follows:

Authority: 5 U.S.C. 5304 note, 5305 note,

5504(d), 5541(2)(iv), 5545a(h)(2)(B) and (i),

5547(b) and (c), 5548, and 6101(c); sections

407 and 2316, Pub. L. 105–277, 112 Stat.

2681–101 and 2681–828 (5 U.S.C. 5545a);

section 2(h), Pub. L. 113–277, 128 Stat. 3005;

E.O. 12748, 3 CFR, 1992 Comp., p. 316.

■2. In § 550.103, the definition of ‘‘rate

of basic pay’’ is revised to read as

follows:

§ 550.103 Definitions.

* * * * *

Rate of basic pay means the rate of

pay fixed by law or administrative

action for the position held by an

employee, including any applicable

locality payment under 5 CFR part 531,

subpart F; special rate supplement

under 5 CFR part 530, subpart C;

retained rate under 5 CFR part 536; or

similar payment or supplement under

other legal authority, before any

deductions and exclusive of additional

pay of any other kind.

* * * * *

■3. Revise subpart J to read as follows:

Subpart J—Compensatory Time Off for

Religious Observances

Sec.

550.1001 Purpose.

550.1002 Coverage.

550.1003 Definitions.

550.1004 Employee responsibilities.

550.1005 Agency responsibilities.

550.1006 Scheduling time to earn and use

religious compensatory time off.

550.1007 Accumulation and

documentation.

550.1008 Employee separation or transfer.

550.1009 Relationship to premium pay and

overtime work.

550.1010 Transitional provisions.

Authority: 5 U.S.C. 5550a.

Subpart J—Compensatory Time Off for

Religious Observances

§ 550.1001 Purpose.

This subpart implements 5 U.S.C.

5550a, which permits an employee

whose personal religious beliefs require

the abstention from work during certain

periods of time to elect to engage in

overtime work and earn a special form

of compensatory time off to make up for

the time lost in meeting those personal

religious requirements. Religious

compensatory time off differs from other

forms of compensatory time off in that

the sole purpose is to adjust an

employee’s work schedule to

accommodate a religious observance.

The employee earns religious

compensatory time off by spending an

equal amount of time in overtime work

before and/or after taking time from the

employee’s scheduled tour of duty to

meet personal religious requirements.

Hours worked to earn religious

compensatory time off provide a time

off credit in lieu of any pay that would

otherwise be payable for that work.

§ 550.1002 Coverage.

This subpart applies to each employee

(as defined in 5 U.S.C. 2105) in or under

an Executive agency (as defined in 5

U.S.C. 105) who has a scheduled tour of

duty. The definition of ‘‘employee’’ in

section 5541(2) does not apply to this

subpart.

§ 550.1003 Definitions.

In this subpart:

Overtime work means work performed

by an employee outside his or her

scheduled tour of duty for the purpose

of making up time lost for meeting

personal religious requirements, as such

term is explained in the definition of

‘‘religious compensatory time off’’ in

this section. It is also deemed to include

work performed by a part-time

employee outside of his or her

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scheduled tour of duty, even if that

work is below applicable overtime

thresholds (e.g., below 40 hours in a

week), and work an employee performs

during holiday hours (within the

employee’s scheduled tour of duty)

during which the employee would

otherwise be excused from duty.

Rate of basic pay means the rate of

pay fixed by law or administrative

action for the position held by an

employee, including any special rate

under 5 CFR part 530, subpart C;

locality rate under 5 CFR part 531,

subpart F; retained rate under 5 CFR

part 536; or similar rate under other

legal authority, before any deductions

and excluding additional pay of any

other kind. For example, a rate of basic

pay does not include additional pay

such as night shift differentials under 5

U.S.C. 5343(f) or environmental

differentials under 5 U.S.C. 5343(c)(4).

Religious compensatory time off

means compensatory time off, as

authorized by 5 U.S.C. 5550a, under

which an employee whose personal

religious beliefs require the abstention

from work during certain periods of

time may elect to perform overtime

work in order to make up for time the

employee takes off to meet those

personal religious requirements. Those

requirements need not be officially

mandated by a religious organization to

which the employee belongs. It is

sufficient that the employee’s personal

religious beliefs cause the employee to

feel an obligation that he or she should

be absent from work for a religious

purpose. An employee approved to

perform overtime work under this

subpart will be granted an equal amount

of compensatory time off from his or her

scheduled tour of duty (in lieu of

overtime pay or other pay otherwise

payable) to meet his or her personal

religious obligations.

Scheduled tour of duty means the

regular work hours in an established

full-time or part-time work schedule

during which the employee is charged

leave or time off when absent.

§ 550.1004 Employee responsibilities.

(a) An employee is required to

provide his or her supervisor with a

request for religious compensatory time

off in advance of the religious

observance by following the agency’s

procedures established in accordance

with §§ 550.1005 and 550.1006.

(b) At the time the religious

compensatory time off is requested, the

employee must provide the agency with

the following information:

(1) The name and/or description of

the religious observance that is the basis

of the employee’s request to be absent

from work in order to meet the

employee’s personal religious

requirements;

(2) The date(s) and time(s) the

employee plans to be absent to

participate in the religious observances

identified in paragraph (b)(1) of this

section; and

(3) The date(s) and time(s) the

employee plans to perform overtime

work to earn religious compensatory

time off to make up for the absence.

(c) An employee must comply with

the agency’s procedures for requesting

religious compensatory time off,

including any time limitations

prescribed under § 550.1006.

(d) In the event that an adjustment to

the dates and times of planned overtime

work is required due to unforeseen

circumstances, the employee must

submit for approval a revised schedule

to reflect those changes.

§ 550.1005 Agency responsibilities.

(a) An agency may require an

employee to submit his or her request to

use religious compensatory time off

with all the information specified in

§ 550.1004(b) in a manner that is

administratively acceptable to the

agency. To the maximum extent

practicable, the agency must require that

the request be in writing (including

electronic communications). If the

agency accepts an oral request, the

agency must document all the

information specified in § 550.1004(b)

and must require the employee to

submit a written document containing

all the information as soon as

practicable. An agency may require an

employee to submit a request to use

religious compensatory time off

sufficiently in advance to accommodate

necessary scheduling changes without

interfering with the agency’s ability to

efficiently carry out its mission.

(b) An agency must approve an

employee’s request to use religious

compensatory time off unless the agency

determines that approving the request

would interfere with the agency’s ability

to efficiently carry out its mission. If the

employee’s request to use religious

compensatory time off is denied, the

agency must provide a written

explanation as to the reason the request

has been denied, regardless of whether

the employee’s request was written or

oral.

(c) The agency must provide the

employee with an opportunity to earn

religious compensatory time off before

the deadline established in

§ 550.1006(c), although the specific

timing of when an employee will be

allowed to earn religious compensatory

time off by performing overtime work is

a matter of agency discretion based on

the needs of the agency.

§ 550.1006 Scheduling time to earn and

use religious compensatory time off.

(a) The scheduling of time to earn and

use religious compensatory time off by

an employee is subject to the agency’s

approval as provided in § 550.1005.

(b) For an employee who earns

religious compensatory time off prior to

using it, religious compensatory time off

may be earned up to 13 pay periods in

advance of the pay period in which the

targeted religious observance

commences and must be linked to

specific dates and times for future use,

as compatible with agency mission

requirements.

(c)(1) An employee who uses religious

compensatory time off prior to earning

it must fulfill his or her obligation to

perform overtime work in exchange for

the advanced religious compensatory

time off within 13 pay periods after the

pay period in which he or she used

religious compensatory time off, or the

agency must take action as provided in

paragraph (c)(3) of this section.

(2) The 13 pay periods described in

paragraph (c)(1) of this section are

calculated beginning with the first pay

period beginning after the date on

which the religious compensatory time

off was used.

(3) If the employee fails to earn

religious compensatory time off within

13 pay periods after taking religious

compensatory time off, the agency may

take corrective action to eliminate or

reduce the negative balance by making

a corresponding reduction in the

employee’s balance of annual leave,

credit hours, compensatory time off in

lieu of regular overtime pay,

compensatory time off for travel, or

time-off awards. An agency may

determine the order of precedence for

applying the various types of paid time

off to offset the negative balance. Any

negative balance of religious

compensatory time off remaining after

any charging of these types of paid time

off must be resolved by charging the

employee leave without pay, which

would result in an indebtedness that is

subject to the agency’s internal debt

collection procedures.

§ 550.1007 Accumulation and

documentation.

(a) Agencies must keep records of the

name and/or description of the religious

observance, and the dates, times, and

amount of religious compensatory time

off each employee earns and uses. An

agency must credit religious

compensatory time off for work

performed on a time-for-time basis,

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under its time and attendance

procedures.

(b) Except as provided in paragraph

(c) of this section, an employee may

accumulate only the amount of religious

compensatory time off needed to cover

an approved absence for a religious

observance that has already occurred or

to cover an approved absence for a

future religious observance. An

employee may only accumulate the

amount of religious compensatory time

off needed to cover the specific dates

and times for which the employee has

submitted a request for religious

compensatory time off under

§ 550.1004.

(c) If the employee does not use his

or her earned religious compensatory

time off as planned—

(1) The positive balance of unused

compensatory time off may be

redirected toward a future religious

observance that has been approved,

even if that future observance is more

than 13 pay periods after the

compensatory time off was originally

earned (notwithstanding § 550.1006(b));

and

(2) The employee may not earn any

additional religious compensatory time

off until the retained amount of

religious compensatory time off has

been used or the need to earn additional

religious compensatory time off has

been properly established and

documented.

(d) Accumulated religious

compensatory time off that is not used

as planned is not subject to time limits

for usage. Unused religious

compensatory time off hours remain to

the employee’s credit until used (subject

to the agency’s approval under

§ 550.1005), or the employee’s

separation or transfer (subject to

§ 550.1008), as applicable.

§ 550.1008 Employee separation or

transfer.

(a) Upon an employee’s separation

from Federal service or transfer to

another Federal agency, the losing

agency must compensate the employee

for any positive balance of earned

religious compensatory time off to his or

her credit. The agency must pay the

employee for hours of earned religious

compensatory time off at the hourly rate

of basic pay in effect at the time

religious compensatory time off was

earned.

(b) For an employee who has a

negative balance of religious

compensatory time off upon an

employee’s separation from Federal

service or transfer to another Federal

agency, the losing agency may take

corrective action to eliminate or reduce

the negative balance by making a

corresponding reduction in the

employee’s balance of annual leave,

earned credit hours, compensatory time

off in lieu of regular overtime pay,

compensatory time off for travel, or

time-off awards. An agency may

determine the order of precedence for

applying the various types of paid time

off to offset the negative balance. Any

negative balance of religious

compensatory time off remaining after

any charging of these types of paid time

off must be resolved by charging the

employee leave without pay, which

would result in an indebtedness that is

subject to the agency’s internal debt

collection procedures.

(c) For purposes of applying

paragraphs (a) and (b) of this section, an

hourly rate of basic pay is computed by

dividing the annual rate of basic pay by

2,087 hours (or 2,756 hours for

firefighter hours subject to that divisor

under subpart F of this part).

§ 550.1009 Relationship to premium pay

and overtime work.

The premium pay provisions for

overtime work in subpart A of this part

and section 7 of the Fair Labor

Standards Act of 1938, as amended

(FLSA), do not apply to overtime work

performed by an employee that is used

to earn religious compensatory time off

under this subpart. The overtime hours

worked to earn religious compensatory

time off under this subpart do not create

an entitlement to premium pay

(including overtime pay) under subpart

A of this part or FLSA overtime pay

under 5 CFR part 551. Religious

compensatory time off is not considered

in applying the premium pay

limitations described in §§ 550.105,

550.106, and 550.107.

§ 550.1010 Transitional provisions.

(a) This section applies only with

respect to employees who as of May 29,

2019 had a positive balance of earned

but unused religious compensatory time

off hours or a negative balance (i.e., a

debt) of used religious compensatory

time off hours not yet repaid by earned

hours.

(b) If an employee described in

paragraph (a) of this section has a

negative balance (i.e., a debt) of used but

not-yet-earned religious compensatory

time off hours as of the date specified

in paragraph (a) of this section, the 13

pay period limitation in § 550.1006(c) is

applied as if such date were the date on

which the hours of religious

compensatory time off were used.

(c) If an employee described in

paragraph (a) of this section has a

positive balance of earned but unused

religious compensatory time off hours as

of the date specified in paragraph (a) of

this section, the agency must confirm

and document that the hours are

connected to one or more specific

religious observances requiring the

employee’s absence from work in order

to meet the employee’s personal

religious requirements. The agency must

give the employee an opportunity to

direct all unused hours to such a future

religious observance. If the employee

does not so direct all of those unused

hours, the employee may not earn any

additional religious compensatory time

off hours until the employee establishes

a need to earn such time off hours.

Subpart M—Firefighter Pay

■4. The authority citation for subpart M

of part 550 continues to read as follows:

Authority: 5 U.S.C. 5545b, 5548, and 5553.

■5. In § 550.1302, paragraph (2)(iii) of

the definition of ‘‘firefighter’’ is revised

to read as follows:

§ 550.1302 Definitions.

* * * * *

Firefighter ***

(2) * * *

(iii) Covered by the General Schedule

and classified in the GS–0099, General

Student Trainee Series (as required by

§ 362.203(f) of this chapter), if the

position otherwise would be classified

in the GS–0081 series.

* * * * *

[FR Doc. 2019–08533 Filed 4–26–19; 8:45 am]

BILLING CODE 6325–39–P

DEPARTMENT OF HOMELAND

SECURITY

6 CFR Part 5

[Docket No. DHS–2019–0006]

Privacy Act of 1974: Implementation of

Exemptions; Department of Homeland

Security/ALL–018 Administrative

Grievance Records

AGENCY

: Privacy Office, Department of

Homeland Security.

ACTION

: Final rule.

SUMMARY

: The Department of Homeland

Security (DHS) is giving concurrent

notice of an updated reissued system of

records pursuant to the Privacy Act of

1974 for the ‘‘Department of Homeland

Security/ALL–018 Administrative

Grievance Records’’ System of Records

and this final rule. This system of

records covers all current and former

DHS employees, except for employees

of the Office of the Inspector General

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