Legal Eagle, May 2018 Edition



New weather and safety leave regulations are in effect at federal agencies. May 10, 2018 was the deadline for federal agencies to have new rules in place implementing the Office of Personnel Management’s weather and safety regulations.

Previously, agencies have been permitted to dismiss employees from work for weather or safety reasons, but that leave was done under a catchall authority called “administrative leave.” There was never technically any legal authority for agencies to permit administrative leave for weather and safety reasons.

The Administrative Leave Act of 2016 (part of the National Defense Authorization Act for Fiscal Year 2017, P.L. 114-328) formally created four new categories of statutorily authorized paid leave – administrative leave, investigative leave, notice leave, and weather and safety leave. OPM’s new regulations concern the granting and recording of weather and safety leave.

Pursuant to the final rules, weather and safety leave will be granted “only when an agency determines that employees cannot safely travel to and from, or perform work at, their normal worksite, a telework site, or other approved location because of severe weather or other emergency situations.”

How Does Weather and Safety Leave Work?

An agency may grant weather and safety in the event of an Act of God (including hurricanes, tornadoes, floods, wildfires, earthquakes, landslides, snowstorms, or avalanches), a terrorist attack, or any other condition that prevents employees from traveling safely or performing work at an approved location. 5 CFR Section 630.1603; 5 USC Section 6329c(b).

Federal employees covered by Chapter 5 and Chapter 38 are entitled to paid weather and safety leave when granted by their respective agency or OPM. However, intermittent employees who do not have an established regular tour of duty during the administrative workweek are not entitled to weather and safety leave.

Special Rules for Teleworking Employees

OPM guidance indicates that weather and safety leave will be used only “sparingly” in the cases of employees who telework. OPM’s position is that weather and safety leave should be unnecessary for telework-ready employees who are able to work reasonably and safely at their telework locations.

These special telework rules apply only to employees who are already “participating in a telework program” under 5 CFR Part 630.1602, and who have a telework agreement in place, among other requirements. If an employee is not already working under a telework agreement, agencies cannot force them to telework, and the agency must grant weather and safety leave during covered events.

Telework-ready employees are expected to prepare for weather and safety emergencies so that they can work during them. For example, if a severe weather event is forecasted, it will be incumbent on telework-ready employees to prepare by bringing home any equipment (such as a laptop computer) necessary to complete their work. If an employee fails to adequately prepare for a forecasted emergency covered under these new rules and is unable to telework due to the lack of preparation, they would be disqualified from receiving weather and safety leave. However, they may request annual leave or leave without pay.

An agency does have discretion, however, to grant weather and safety leave to teleworking employees when weather or safety conditions could not have been reasonably anticipated, and teleworking employees did not have time to prepare for telework.

Designated Emergency Employees

Agencies may designate emergency employees deemed critical to agency operations as exempt from weather and safety leave. Agencies should inform such employees of their designation well in advance of the possible occurrence of covered emergency situations. It is unclear, and will vary by agency, whether employees designated as “critical” for the purposes of orderly shutdowns will be the same as those required to work during weather and safety emergencies.

Employees designated as emergency employees by their agency should enter into a telework agreement so that they may continue to provide service to the agency in the event they cannot reach their main work site due to a weather or safety emergency.

Conflict with CBAs

As with most new statutes and rules, if there is a conflict between the weather and safety leave rules in the Administrative Leave Act, and existing provisions of a collective bargaining agreement (CBA), the CBA is superseded by the Act.

Terms that do not conflict with the new rules remain in effect until the CBA expires or is renegotiated.

Miscellaneous Provisions

Of note, agencies may grant weather and safety leave in increments of one hour, unless it establishes otherwise through collective bargaining or in its own policy.

Employees who have scheduled, pre-approved leave (paid or unpaid) will not receive weather and safety leave.

More Rules on the Horizon

OPM’s weather and safety rules are just the first foray into implementing the Administrative Leave Act of 2016. OPM is expected to propose and promulgate rules regarding the three other newly created categories of leave, but there is no indication of when rules for administrative leave, investigative leave, and notice leave will be finalized.