On March 11, 2021, the America Rescue Plan Act (ARPA) was signed into law. Among other things, the ARPA establishes the Emergency Federal Employee Leave (EFEL) Fund (the Fund), administered by the Office of Personnel Management (OPM). The Fund provides a conditional and temporary leave category for federal employees in response to the ongoing COVID-19 public health emergency. This leave is known as Emergency Paid Leave (EPL).
Employees must read all information provided before applying for and/or approving EPL. Exhaustion of the Fund can result in the EPL conditional approval being canceled and the employee being indebted for the value of the leave taken which cannot be reimbursed to CBP by OPM. Additionally, EPL will have long-term impacts on the calculation of retirement annuity benefits.
Availability of EPL
This leave is available to covered and eligible employees taking qualified leave from March 11, 2021 to September 30, 2021 (EPL may be conditionally approved retroactively) or until the Fund is exhausted, whichever comes first. Once the Fund is exhausted, this leave will not be available.
CBP is prohibited from providing EPL outside of the Fund.
Eligible employees include those who are covered by the Title 5 annual leave and sick leave programs. Specifically, these are employees who:
- Are appointed in the civil service as described in 5 U.S.C. 2105 (as provided in 5 U.S.C. 6301(2)(A));
- Hold a civil service position in the executive branch; and
- Are covered by the title 5 annual and sick leave program (i.e., are not excluded from coverage by another law and not in an excluded category listed in clauses (i) through (xiii) of 5 U.S.C. 6301(2)).
Further in order to be eligible to use this leave, employees must meet the criteria for at least one of the eight qualifying circumstances listed below in “Coverage” and as a result, must be unable to work, including telework.
NOTE: Because CBP remains in a COOP-active status, employees whose positions are normally excluded from telework can be required to telework. Since the funds for this leave are limited, if there are assignments available (even assignments outside of the employee’s position description) for employees who do not traditionally telework, supervisors should make every effort to assign those duties and require the employee to telework before approving EPL.
Covered employees who meet the criteria of at least one of the following eight qualifying circumstances and who present documentation for these qualifying circumstances may take this leave from March 11, 2021 through September 30, 2021 OR until the Fund is exhausted. Employees must be:
- Subject to federal, state, or local government quarantine or isolation order related to COVID-19 (including government advisory);
- Advised by health care provider to self-quarantine due to COVID-19 concerns;
- Caring for an individual subject to federal, state, or local government quarantine or isolation order related to COVID-19 or advised by health care provider to self-quarantine due to COVID-19 concerns;
- Experiencing symptoms of COVID-19 and actively seeking a medical diagnosis;
- Caring for employee’s child when required because, due to COVID-19 precautions, the child’s school or place of care has been closed, or the child is participating in virtual learning instruction, or the child’s care provider is unavailable;
- Experiencing any other substantially similar condition (as approved by OPM);
- Caring for a family member (i) who has a mental or physical disability or who is 55 years of age or older and (ii) who is incapable of self-care, without regard to whether another individual other than the employee is available to care for such family member, if the place of care for such family member is closed or the direct care provider is unavailable due to COVID-19; or
- Obtaining immunization related to COVID-19 or recovering from any injury, disability, illness, or condition related to such immunization (after using any administrative leave provided by the agency).
Necessary Documentation for Each Qualifying Circumstance
To confirm eligibility for EPL, the employee must present documentation with their EPL request forms for the claimed qualifying circumstance as follows. If an employee is:
- the name of the son or daughter being cared for;
- the name of the school, place of care, or child care provider and a brief description of the situation (i.e., closure, use of on-line instruction, unavailability of the child care provider); and
- a written explanation regarding why the employee’s circumstances (e.g., ages of children, number of children, special needs of children, lack of other adults in the home) make the employee unable to work (including telework) during the requested hours of leave.
- the name of the family member with a mental or physical disability and a written certification by the employee that the identified family member has a mental or physical disability (as defined in paragraph D.9.b), if applicable;
- the name and age of the family member that is 55 years or older, if applicable;
- a written certification by the employee that the identified family member is “incapable of self-care”
- the name of the place of care that is closed or the direct care provider that is unavailable and a written explanation of how the closure or unavailability is due to COVID-19; and
- a written explanation regarding why the employee’s care responsibilities make the employee unable to work (including telework) during the requested hours of leave.
EPL is a separate leave flexibility used at employee request; employees may not be required to first use any other available paid leave.
In advance of using any EPL, employees are required to submit:
- Supporting documentation and certifications for a description of the documentation required for each qualifying circumstance;
- Signed “Employee Agreement in Connection with Emergency Paid Leave” which provides (1) the calculation of the number of hours for which the employee is eligible to take EPL (leave-hours cap), (2) employee acknowledgment that the employee must repay any overpayment of leave because of Fund exhaustion or miscalculation of leave cap; and
- Separate written leave request for each individual pay period. Leave request must be submitted to the employee’s supervisor on the COVID-19 Emergency Paid Leave DHS Employee Notification and Leave Request Form.
If CBP does not receive reimbursement for conditionally granted EPL, the EPL will be canceled and the employee will be obligated to take action to resolve any overpayment debt through one of several options. The employee may:
- Submit a corrected timecard to reflect a different leave status, e.g., sick leave (if appropriate), annual leave, leave without pay (LWOP), advanced leave, etc.
- Repay the value of the leave through salary offset, or
- Voluntarily provide monetary reimbursement to the agency.
Leave Hours and Payment
A full-time employee may only use up to a total of 600 hours of EPL from March 11, 2021 to September 30, 2021, and cannot exceed $2,800 per pay period. This limit is adjusted proportionally for part-time employees (e.g., an employee who only works 40 hours per pay period can only use 300 hours of EPL).
Since the pay an employee receives for EPL will be at the rate of pay the employee would receive if using annual leave, the employee may only use the number of hours in a pay period which collectively equates to $2,800 total. The employee must use duty time, personal accrued or advanced leave (such as sick or annual leave), or leave without pay for any remaining hours in a pay period to fulfill the regularly scheduled bi-weekly work hours.
When submitting an initial application for EPL, the employee must include the available number of EPL on the “Employee Agreement in Connection with Emergency Paid Leave”. The employee can calculate the number of hours by dividing $2,800 by their hourly rate of pay for annual leave.
Employees without premium pay can calculate their hourly rate of pay for EPL in the following manner:
- Access the most recent Earnings and Leave Statement (ELS) for which they used annual leave,
- Identify the number of hours used and the value of that leave,
|Code||Description||Hours P/P||Hours YTD||Amount P/P||Amount YTD|
|**||***** PAY PERIOD HOURS & GROSS PAY ****||80.00||5,480.00||49,265.60|
- Divide the value of the leave by the number of hours used (548.00 ÷ 8 = 68.50 per hour). This is the monetary value of the EPL.
Find the number of hours an employee is eligible for:
($2,800) ÷ (annual leave monetary value per hour) = (leave-hours cap, which is the number of EPL hours available to employee for the pay period)
From the example above: ($2,800) ÷ (68.50/hour) = 40.87. Rounded down to the nearest quarter hour, this employee would have a 40.75 leave-hour cap, or in other words, the number of EPL hours available for one pay period would be 40 hours and 45 minutes.
The value of the annual leave takes into account any differential pay the employee regularly receives. These differential pay types include, but are not necessarily limited to:
- Recurring overtime/premium payments (such as standby duty premium pay and related FLSA overtime pay associated with regularly scheduled overtime hours; law enforcement availability pay; Border Patrol overtime supplements);
- Nonforeign area cost-of-living allowances and post differentials;
The value of the annual leave for EPL purposes does not include:
- The value of Night Differential Pay when using 8 or more hours of this leave type in a pay period: the 8-hour rule in 5 CFR 550.122(b), “An employee is entitled to a night pay differential for a period of paid leave only when the total amount of that leave in a pay period, including both night and day hours, is less than 8 hours.”
- Sunday Premium Pay.
Employees are responsible for correcting any miscalculations of their leave-hours cap and if the EPL eligibility is exceeded and the employee is overpaid, the employee will be responsible for eliminating the resulting leave debt.
EPL Impact on Benefits
- Hours of EPL will be creditable service for purposes of (1) determining periods of time during which an employee has a rate of basic pay used in computing an employee’s high-3 average rate of basic pay and (2) determining an employee’s total service credit for the purpose of establishing eligibility for a retirement annuity benefit.
However, the number of EPL hours used will be included in the employee’s retirement record, and will work to adjust the employee’s annuity payment. This provision doesn't change the date you would be eligible to retire, but the amount you would receive each month.
For example, if an employee used 600 hours of EPL and also worked 30 years, the computation of your benefit would be affected as follows: Rather than multiplying your 30 years of service times the average high-3 salary, your total service would be reduced by 600 hours (3 months and 14 days), so instead of 30 times the average high-3 salary, it would be multiplied by 29 years and 8 months. While the difference may be a relatively small number it will apply to every month's annuity payment, and thus adds up over time.
- Basic pay generated by EPL is subject to retirement and Thrift Savings Plan (TSP) deductions/contributions.
- Time covered by EPL remains creditable service for other purposes (just as other paid leave) e.g., creditable service for purposes of determining an employee’s annual leave accrual rate.