This policy covers the provisions of the Federal Employees Leave Sharing Act of 1988 (Public Law 100-566), the Federal Employees Leave Sharing Amendments Act of 1993 (Public law 103-103) (5 U.S.C. 6331-6340 and 6373), and Office of Personnel Management (OPM) regulations providing for a leave transfer program in which Department employees may voluntarily donate annual leave to other employees to cover periods of absence caused by medical emergencies.
Available Paid Leave means accrued, accumulated, recredited and restored annual or sick leave. Available leave does not include annual or sick leave advanced to the employee or any annual or sick leave accrued while on donated leave that has not been transferred to the employee's regular leave accounts.
Leave Donor means an employee whose voluntary written request to transfer annual leave to the annual leave account of an approved leave recipient has been certified by his or her HRO. Leave donors must be employees of the Department unless one of the conditions later in this policy are met. Note that Presidential Appointees who have “frozen leave balances” may donate annual leave within stated parameters and limitations.
Leave Recipient means a current employee whose application to receive annual leave from the accounts of one or more donors has been authorized by the agency.
Medical Emergency means a medical condition of an employee or family member, including normal pregnancy and the period of confinement and recuperation associated with it, which is likely to require an employee's absence from duty for a prolonged period of time and substantial loss of income to the employee because of the unavailability of paid leave. Note that the period of absence for pregnancy is usually 6 weeks for a normal delivery and recovery or 8 weeks for a Cesarean section and recovery.
Substantial loss of income is defined as 24 hours of unpaid absence (or the anticipation of), or in the case of part-time employees or those working an uncommon tour, at least 30 percent of the average number of hours worked in the employee's biweekly scheduled tour. Advanced leave is not to be regarded as available paid leave for purposes of making the substantial loss of income determination.
An employee may not directly or indirectly intimidate, threaten, or coerce any other employee or interfere with any right that an employee may have with respect to donating, receiving, or using annual leave. Such acts of coercion will be the basis for taking disciplinary action.
False statements or other misrepresentations made in connection with an employee's application to be a leave recipient or a donor may be cause for: disqualification from the program; disciplinary action, up to and including removal from the Federal service; criminal prosecution; and liability for the amount of leave dishonestly gained.
The recipient, or his or her personal representative, is responsible for finding donors. Neither the Department nor its component organizations may advertise or solicit donors on behalf of a recipient.
Supervisors are encouraged to allow approved leave recipients or, in the case of an incapacitated recipient, one employee representative of the recipient, a reasonable amount of official time to find donors. In determining the amount of time to allow, supervisors should consider both the need of the approved recipient and the workload requirements of the unit.
A leave recipient may not receive more than one calendar year (2,087 hours) of donated leave for any given medical emergency. Leave recipients with part-time or uncommon tours of duty are limited to receiving, for any given medical emergency, the number of hours they would have been expected to work during the year (based on an average of the hours worked in the previous 12 months), except for the medical emergency.
A leave recipient may not receive donated leave for any period which is covered by unemployment benefits or worker's compensation.
Employees may not apply for the Leave Transfer Program nor may leave donations be accepted until the emergency actually starts.
Persons involved in the leave transfer program are responsible for guarding the privacy of leave recipients and donors. Communications with either group must be kept confidential. No information should be revealed to anyone (including to a recipient who wishes to thank donors) who does not have a need to know or to anyone without the written and specific permission of the person whose privacy will be broached. Individuals granted access must be advised of the requirements of this paragraph.
In accordance with Public Law 107-306 (November 27, 2002), leave may transferred and/or received for the purposes of participation tin the Voluntary Leave Transfer Program (VLTP) between Departmental employees and employees of the Central Intelligence Agency, the National Security Administration, the Federal Bureau of Investigation, and the Defense Intelligence Agency as long as these agencies have VLTPs in place. Leave transfer may not occur between Commerce employees and employees of the United States Postal Service and the Government of the District of Columbia since neither are covered under any Title 5 leave provisions. With the exception of active duty military, leave transfer may occur between Commerce employees and employees of the Department of Defense.
To be eligible for the Department’s leave transfer program, an employee's actual or anticipated unpaid absence and substantial loss of income as a result of the medical emergency must meet the above definitions.
Application to be a Recipient
A potential leave recipient must:
- Complete Form OPM-630, Application to Become a Leave Recipient Under the Voluntary Leave Transfer Program, indicating the hours of leave requested to be donated. This may include an amount to liquidate an indebtedness for advanced annual or sick leave or retroactively substitute for periods of leave without pay which were directly related to the instant medical emergency;
- Provide a brief description, not to exceed 100 words, of the nature and severity of the medical emergency;
- Attach documentation of the medical emergency stating the medical condition, the prognosis, anticipated duration of the condition, and if it is a recurring one, the approximate frequency of the medical emergency.
If the application is made on behalf of an incapacitated employee, the form must include a statement signed by the incapacitated employee or a member of his or her immediate family or other appropriate person (such as an individual with power of attorney), expressly authorizing the personal representative to make such application. The statement must indicate the relationship of the signer to the recipient.
If the employee is caring for another person, the form must include a certificate from one or more health care providers specifying the medical condition of that person, the prognosis, anticipated duration of the condition, and if it is a recurring one, the approximate frequency of the medical emergency.
For an application to be considered for approval, an employee or a personal representative must submit the application within 30 calendar days of the termination of a medical emergency.
Disposition of Application to be a Recipient
Supervisory Responsibilities. Consistent with responsibility for leave approval, supervisors are responsible for reviewing a potential recipient's application to ensure that:
- A medical emergency exists,
- The substantial loss of income criterion of eligibility has been met or will be met by the time donated leave might be available,
- The medical certification is attached and that the application is otherwise complete, and
- The amount of time which the employee wishes covered by leave donations is consistent with the absence which the health care provider says is required.
Defining the medical emergency. In determining whether a medical emergency exists, the following should be considered: the authenticity and severity of the hardship situation; whether the medical emergency could have been foreseen by the employee; and the extent to which the hardship situation is within the control of the employee.
Elective surgery and routine medical tests are not within the definition of an emergency. Absence in conjunction with a normal pregnancy which meets the substantial loss of income definition, including medical care before the birth, confinement and the usual recuperation period after the birth, is qualifying as a medical emergency.
Second opinions. If there is any doubt whether a medical emergency exists, the employee may be asked to obtain a second opinion. If medical certification from two or more physicians is deemed necessary, the agency shall pay the physician or reimburse the employee upon presentation of appropriate documentation.
Inconsistencies between the physician's statement of the expected duration of the medical emergency and the amount of time requested by the employee must be resolved before the application reaches the HRO or delay will occur. Applications which a supervisor signs which are internally inconsistent will be returned to the supervisor for resolution.
Unemployment Compensation Exclusion/OWCP Exception. An employee who is in receipt of unemployment compensation bene-fits may not receive leave donations, however, an employee in receipt of workers’ compensation may receive leave donations if he or she meets the leave transfer eligibility requirements. An employee injured in the line of work should continue in a pay status for 45 days pending processing of an OWCP claim prior to seeking leave donations. If the Department of Labor’s decision on the employee’s entitlement is not timely and the employee meets leave transfer eligibility requirements, the employee may then receive leave donations. In this case, the employee and leave-approving official should be advised that if donated leave hours are bought back, the donated hours must be restored to the leave donors.
Since an employee incurs an overpayment for any hours which are covered by donated leave and for which he or she later receives workers’ compensation, the employee should be prepared to repay any overpayment unless the donated hours are bought back and restored to the leave donor.
A leave-approving official with knowledge that an employee has applied for unemployment benefits or workers's compensation or has intentions of resigning, retiring, or transferring, must apprize the HRO of the potential for dual compensation.
Human Resources Office Responsibilities. The HRO is responsible for quality checking a sample of the leave recipients’ applications to confirm that they are complete and consistent, and that all eligibility criteria have been met. The leave balances shown on the recipient's application must be consistent with information in the automated personnel/payroll system.
Within 10 working days of receipt of a complete application package, the HRO will notify the applicant and the applicant's leave-approving official in writing whether the application satisfies all program requirements. Reasons will be provided when an application is deemed not to satisfy requirements.
Notices will inform eligible applicants of the right and responsibility to seek leave donors.
Requests for Extension. In the case of a change of anticipated duration of a medical emergency, the HRO may extend the leave recipient's status and eligibility, and increase the total number of donated hours of leave the recipient may receive, subject to the limitation of this policy.
To obtain an extension, a recipient must submit a written request through his or her supervisor to the HRO and provide acceptable documentation of continuing medical emergency. This documentation should be provided timely and in its entirety before the date initially projected as the end of the emergency. The fact that donated leave is available beyond the projected termination date of the medical emergency does not permit the leave recipient to ignore this requirement. The leave recipient, the recipient's representative, and the recipient's leave-approving official must exercise initiative in monitoring the termination date of the emergency. Extensions for non-medical reasons may not be granted.
Application to be a Donor to a Department Recipient
Employees, who wish to donate a specific number of hours of annual leave to the leave account of a named recipient in the Department, must complete Form OPM-630A, Request to Donate Annual Leave to Leave Recipient Under the Voluntary Leave Transfer Program, and submit it to the recipient's HRO. Donations of annual leave must be made in whole-hour increments.
Disposition of Application to be a Donor
The prospective donor's HRO must review the donor's application to determine that the:
- Donor's application is complete, signed and dated;
- Donor has sufficient leave, including restored annual leave previously forfeited, to make the donation; and
- Limitations in this policy have been observed, unless a waiver has been approved.
The donor must be notified of the decision on the application within 15 work days of its submission. Notices denying the donation must state the reasons for the denial.
Leave Donations from Other Federal Agencies
The transfer of annual leave from a leave donor of another Federal agency will be accepted if any one of the following conditions is met:
- The amount of annual leave donated by Commerce leave donors does not meet a leave recipient's needs as requested and approved;
- A family member of a leave recipient is employed by another agency and requests to donate annual leave to the recipient; or
- In the judgment of the recipient's HRO, acceptance of leave transferred from another agency would further the purpose of the voluntary leave transfer program.
Before accepting the transfer from a leave donor of another Federal agency, the recipient's HRO must, in addition to determining that the requirements in this policy have been met, verify that the donor's agency has approved the donor's request to transfer annual leave to the specified Commerce leave recipient.
Leave Donations to Employees of Other Federal Agencies
An employee who wishes to donate leave to an employee of an agency other than the Department may apply to do so by completing Optional Form 630-B, Request to Donate Annual Leave to Leave Recipient (Outside Agency) Under the Leave Transfer Program. If available, a copy of the recipient's approved application should be attached to the 630-B.
Before an employee of the Department can effectively donate annual leave to an employee in another agency, the donor's HRO must verify the recipient's having been approved to receive the transfer, notify the recipient's employing agency by phone or by fax of the amount of annual leave to be credited to the recipient's annual leave account, and debit the donor's annual leave account.
Leave Recipient Status Reports
Leave recipients must notify their leave-approving officials on the status of their medical emergencies at 3-month intervals. If required by the leave-approving official, the recipient must provide certification by a physician of the expected duration of the continuing medical emergency. The status reports must be forwarded by the leave-approving official to the HRO for inclusion in the leave transfer file. If a leave recipient is incapacitated and cannot submit the report, his or her personal representative may do so.
The leave transfer program officer shall be responsible for auditing the leave recipient's leave balances in accordance with this policy, instructing the recipient's supervisor or timekeeper as to what balances should be reflected on the employee's time and attendance report, and monitoring the final disposition of leave when the medical emergency terminates.
Restoration of Unused Leave
If, at the end of a medical emergency, unused transferred leave remains in the recipient's donated leave account, the HRO must arrange to have the leave returned to the donor's accounts following the guidelines later described in this policy.
Limitations on Donations
Approving officials have the discretion to allow all or part of a leave donor's donation of annual leave. A donor may donate only unused annual leave, including restored annual leave previously forfeited, that is in his or her account at the time of the donation. A donor may not donate leave to an immediate supervisor.
In any one leave year, a donor may not donate more than:
A. one-half of the amount of annual leave he or she would be entitled to accrue during the leave year in which the donation is made; or
B. in the case of a donor who expects to have annual leave that otherwise would be subject to forfeiture at the end of the leave year, the lesser of 1) one-half of the amount of annual leave he or she would be entitled to accrue during the leave year in which the donation is made or 2) the number of hours remaining in the leave year that the leave donor is scheduled to work as opposed to being on annual leave) and receive pay. Example: A donor wishes to donate 104 hours of leave subject to forfeiture two weeks before the end of the leave year. The donor has scheduled 16 hours of annual leave during the remaining 80 hours of the leave year. The donor may donate only 64 hours since there are only 64 hours left in the leave year during which the donor is scheduled to work and receive pay.
Human resources office directors have the authority to grant waivers of the above limitations for
annual leave donations when it is anticipated that insufficient donations will be received from other sources or the donor is a family member. Waivers may not be granted solely to avoid annual leave forfeiture at the end of the leave year. Waivers requests must be in writing and include a description of the circumstance.
Waiver of Limitation on Outside Donations
Requests for waivers of the limitations on donations from other Federal agencies may be granted to promote the good of the program, e.g., when it is anticipated that insufficient donations will be received from other sources or the donor is a family member. Waivers may not be granted solely to avoid annual leave forfeiture at the end of the leave year.
A request for waiver must be in writing and include a description of the circumstances. A request for waiver must be approved or disapproved in writing by the HRO.
Use of Transferred Leave
Personal illness. An employee may use donated leave for personal illness when all accrued sick and annual leave to the employee's credit have been exhausted and when the employee has unpaid absence of at least 24 hours.
NOTE: Advanced sick or annual leave available to the employee shall not be included for purposes of determining that a substantial loss of income (unpaid absence of 24 hours or a pro rata amount for part-time employees) exists.
Care of a family member. Before being allowed to use donated leave to care for a family member, an employee must use his or her own:
A. accrued sick leave to the extent that it would be available for expanded care of a family member under the sick leave policy. Example: an employee who has only 60 hours of sick leave must exhaust 60 hours before receiving donated leave to care for a family member. An employee who can maintain an 80-hour sick leave balance must exhaust the excess not to exceed 480 hours total sick leave before being allowed to use donated annual leave to care for a family member.
B. accrued annual leave in its entirety; and
C. have unpaid absence of at least 24 hours (see NOTE above).
When the medical emergency of a leave recipient using donated leave to care for a family member continues into a new leave year, the employee shall again be required to use sick leave to the extent required by law in order to remain eligible for leave transfer. Consequently, an employee who has sick leave remaining after using 480 hours in 2000 to care of the family
member will be required to use sick leave up to 480 hours (or the available leave) in 2001. Also, if the medical emergency of a family member continues after a hiatus in donations during which leave in set aside accounts is made available to the recipient, the recipient must use annual leave and sick leave accruals first and donated hours of leave only as they are necessary to complete the employee’s basic work requirement.
To establish retirement eligibility or continuance of health benefits. An employee who is being involuntarily separated due to a RIF, a transfer of function or an adverse action resulting from the employee’s decision to decline relocation, may use donated annual leave to remain on the agency’s rolls to establish initial eligibility for immediate retirement (including discontinued service or voluntary early retirement) and for continuance of health benefits. Operating units have the authority to approve the use of any or all donated annual leave made available to the employee, as of the effective date of the RIF or relocation, for the above purposes.
Liquidating indebtedness. Donated annual leave may be used on a current basis or applied retroactively to the beginning of the medical emergency, regardless of when it commenced, to liquidate an indebtedness for advanced annual or sick leave or to substitute for periods of LWOP, including unpaid leave invoked under the FMLA. When using donated annual leave on a current basis it must be applied to the employee’s annual leave account and not the sick leave account. Any LWOP or advanced leave liquidated by donated leave must be directly related to the instant medical emergency. At the supervisor's discretion, a recipient's certification shall be acceptable or the leave recipient may be asked to submit acceptable medical documentation showing the direct relationship to the medical emergency for all periods of LWOP or advanced leave for which the recipient proposes to substitute donated leave.
Effect of liquidating indebtedness on an annuity. Ordinarily, the beginning date of an immediate annuity is based on the last days of an employee’s pay status. Accordingly, when transferred annual leave is substituted at a date other then the beginning of the LWOP period just prior to the employee’s separation for retirement purposes, the employee will not receive annuity for any period of LWOP prior to the period for which the transferred leave is substituted. If an employee has a substantial period of LWOP, the period of time for which the transferred annual leave is substituted can make a substantial difference in the accrued annuity payment.
Supervisory approval. A leave recipient may use the annual leave transferred to his or her account only for the medical emergency for which the leave transfer was approved, or with operating unit approval, to remain on the agency’s rolls to establish initial eligibility for retirement and for continuance of health benefits.
Use of donated leave must have supervisory approval as with any other form of leave. Moreover, it is subject to the same conditions and requirements as regularly accrued annual leave, except that transferred annual leave is not subject to the annual maximum carryover limitation.
Disposition on transfer to another agency. When a leave recipient transfers to another Federal
agency, any unused donated annual leave will be transferred with the employee. Form SF-1150A, Transfer of Leave Records for Leave Recipient Covered by the Voluntary Leave Transfer Program (Addendum to SF-1150), will be used to effect the transfer of unused donated annual leave.
Prohibitions. Transferred annual leave may not be:
- Transferred to a leave recipient other than the person specified to receive the leave;
- Used for a personal day of leave;
- Used to make up Time in Pay status under an Unscheduled Leave Policy;
- Included in a lump sum payment; or
- Made available for recredit upon reemployment of a donor or leave recipient by a Federal agency.
Accruals of Annual and Sick Leave While on Donated Leave
A leave recipient accrues annual and sick leave while on donated leave just as any employee does who is in a pay status and subject to the Leave Act. By law, these leave accruals must be set aside until a maximum of 40 hours each has accumulated or, in the case of a part-time employee or employee on an uncommon tour, until the average number of hours in the employee's weekly tour of duty have accumulated. Leave in an employee's set aside accounts must be maintained separate from donated leave, regular leave or restored leave. In the case of an employee caring for a family member, set aside sick leave must be separate from any sick leave the employee was not required to use for care of the family member. There is no exception to the regulation which requires set aside of leave accruals while an employee is on donated leave.
Under law, set aside leave must be transferred to the employee's regular annual and sick leave accounts when the medical emergency ends or when the employee has temporarily exhausted donated leave, whichever event occurs first. Leave which is released to the employee's use from a set aside account may be used for any purpose for which available leave might be used normally including for a personal day of leave or to make up Time in Pay status under an Unscheduled Leave Policy.
Employees may use their set aside leave, even if they have not reached the 40-hour maximum when they have temporarily exhausted donated leave. These employees will continue to accrue the set aside leave up to the 40-hour maximum. However, once an employee's maximum set aside accounts are emptied, leave accruals may not be set aside in any amount for the same emergency again.
Termination of Personal Emergency
Leave recipient status ends:
- On the date set forth on the application for donated leave;
- At the end of the pay period in which the leave recipient or his or her personal representative notifies the supervisor and the HRO that his or her medical emergency is over;
- When the leave recipient's Federal employment is terminated (resignation, retirement, or death);
- At the end of the biweekly pay period in which the Department is notified of OPM’s approval of the leave recipient's application for disability retirement; or
- At the end of the pay period in which the leave recipient's HRO determines, after written notice to the employee and opportunity for the employee or the employee's representative to respond orally or in writing, that the leave recipient is no longer affected by a medical emergency.
45-day Extension for Donations
When the medical emergency affecting a leave recipient ends no further requests for transfer of annual leave to the leave recipient may be granted. However, when a leave recipient returns to work without adequate donated annual leave to cover his or her entire period of incapacitation, the HRO may deem a recipient’s medical emergency to continue for an additional 45 days for the purpose of providing the leave recipient time within which to receive donations of annual leave.
Operating units have the authority to establish a timeframe within which the employee may apply for the 45-day extension period to receive donated annual leave.
Disposition of Leave Accruals
Any annual or sick leave accrued by a leave recipient while using donated leave which has not been exhausted when the medical emergency ends will be transferred from the employee’s set aside accounts to the employee’s regular leave accounts. This transfer will be effective the first pay period beginning after the medical emergency ends.
When a medical emergency ends due to termination of the leave recipient's employment as a result of resignation, retirement, death, any annual or sick leave accrued by a leave recipient while using donated leave which has not been exhausted and which remains in the employee's set aside accounts shall not be credited to the employee for any purpose.
Restoration of Donated Annual Leave
Any donated annual leave, including donated restored annual leave, remaining to the credit of a leave recipient when the medical emergency ends must be restored to the annual leave accounts of all leave donors unless specified below. If the number of donors eligible for restoration exceeds the number of hours of annual leave to be restored, no donated leave is restored.
The amount of unused donated annual leave to be restored to each donor must be determined as follows:
A. divide the number of hours of unused transferred annual leave by the total number of hours of annual leave transferred to the recipient from all donors who are not excluded from consideration.
B. multiply the result by the number of hours of annual leave transferred by each donor not excluded from consideration.
C. round-down the result to two places after the decimal period and restore the leave to the nearest quarter hour to those donors not excluded below.
If a leave donor retires from Federal service, dies, or is otherwise separated from Federal service before the date unused donated annual leave can be restored, no leave will be restored to that donor nor will the donor be included in the above distribution computation. Unused donated leave shall be restored to donors who have transferred to or are employed by other Federal agencies to the extent administratively feasible.
Donors may elect to have unused transferred annual leave restored to them as follows:
A. crediting the donor's annual leave account in the current year. Note that unused transferred annual leave credited to a leave donor’s account in the current leave year may be subject to forfeiture (i.e., the “use or lose” rule);
B. crediting the donor's annual leave account, effective as of the first day of the first leave year after the date of the donor's election; or
C. donating the unused transferred annual leave in whole or in part to another recipient. Donors wishing to exercise this option must complete a new donor application. If a donor elects to donate only a part of the unused transferred annual leave, the remaining leave must be restored in whole using option a or b above.
Transferred annual leave restored to the account of a leave donor may not be restored in excess of the annual maximum leave accrual as specified in the annual leave policy.
In no case shall the amount of annual leave restored to a leave donor exceed the amount transferred to the leave recipient by the leave donor.
Leave Transfer Files
Files maintained for this program constitute a system of records under the Privacy Act. Files must be maintained in the recipient's personnel office and must be kept separate from other personnel files.
The following documents must be kept in the leave transfer file of each leave recipient:
- Recipient application and all supporting documentation;
- Donor application(s);
- Copies of the recipient's time and attendance reports for all pay periods during which the recipient participates in the program;
- Reports from the leave recipient, or his or her personal representative, on the status of his or her medical emergency;
- Written notice of termination of the medical emergency from the leave recipient to his or her supervisor and the HRO;
- Requests for extensions and approvals of extensions; and
- Any other correspondence associated with the case.
Case files may be destroyed one year following the year in which the case is closed.
From time to time, OPM may require the following information, the:
- Number of leave recipient applications that were received during the year;
- Number of leave recipient applications that were disapproved during the year;
- Number of leave recipient applications authorized for a personal medical emergency and the number authorized for a family medical emergency;
- Grade or pay level of each leave recipient and leave donor and gender of each leave recipient;
- Total amount of leave transferred to each leave recipient's annual leave account;
- Total amount of transferred leave used by each leave recipient;
- Number of leave recipients who returned to work after termination of the medical emergency;
- Number of leave recipients who retired on disability retirement within 6 months after termination of the medical emergency; and
- Estimated direct and indirect cost of administering the leave transfer program during the year.
Updated October 2000.