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Chapter 8, Section 4: General Employment Policies

Requirements that federal employees hold security clearances authorizing their access to classified information can affect individuals either before or after they are employed by the federal government.

Security Clearances

Requirements that federal employees hold security clearances authorizing their access to classified information can affect individuals either before or after they are employed by the federal government. In some jobs in certain agencies, possession of a security clearance is a mandatory condition of employment. In other situations, a currently employed worker may need access to classified information only on a temporary or short-term basis.

The Office of Personnel Management has general responsibility for personnel security investigations and suitability policy. Executive Order 12968 of 1995 created a government-wide policy on security clearances designed to replace differing rules in use by various agencies. The order set new standards and guidelines for determining who may have clearances and conducting background investigations. It also established a government-wide policy on employee appeals of denials or revocations of clearances and contained a policy statement on nondiscrimination in granting of clearances.

Key features of the order are:

Access to Classified Information--Persons shall not be granted access to classified information unless they have been determined to be eligible for access by agency heads or designated officials based upon a favorable adjudication of an appropriate investigation of their background, have a demonstrated need-to-know, and have signed an approved non-disclosure agreement.

All employees are subject to investigation by an appropriate government authority prior to being granted access to classified information and at any time during the period of access to ascertain whether they continue to meet the requirements for access.

All employees granted access to classified information shall be required as a condition of such access to provide to the employing agency written consent permitting access by an authorized investigative agency, for such time as access to classified information is maintained and for a period of three years thereafter, to relevant financial records, consumer reports and records maintained by commercial entities within the United States pertaining to any travel by the employee outside the United States. Information may be requested where there are reasonable grounds to believe, based on credible data, that the employee or former employee is, or may be, disclosing classified information in an unauthorized manner to a foreign power or agent of a foreign power; information the employing agency deems credible indicates the employee has incurred excessive indebtedness or has acquired a level of affluence that cannot be explained by other information; or circumstances indicate the employee had the capability and opportunity to disclose classified information that is known to have been lost or compromised.

Financial Disclosure--Agencies shall designate each employee, by position or category where possible, who has a regular need for access to classified information that, in the discretion of the agency head, would reveal: the identity of covert agents; technical or specialized national intelligence collection and processing systems; the details of any code, cipher, or cryptographic system or equipment; particularly sensitive special access programs; or especially sensitive nuclear weapons design information.

Those employees may not be granted access unless the employee: files with the head of the agency a financial disclosure report, including information with respect to the spouse and dependent children of the employee, as part of all background investigations or reinvestigations; is subject to annual financial disclosure requirements, if selected by the agency head; and files relevant information concerning foreign travel, as determined by the Security Policy Board.

Eligibility Determinations--Except in agencies where eligibility for access is a mandatory condition of employment, eligibility for access to classified information shall only be requested or granted based on a demonstrated, foreseeable need for access. Eligibility for access to classified information may be granted where there is a temporary need for access, such as one-time participation in a classified project of a given duration provided the appropriate investigative standards have been satisfied. Access to classified information shall be terminated when an employee no longer has a need for access.

No employee shall be deemed to be eligible for access to classified information merely by reason of federal service or contracting, licensee, certificate holder, or grantee status, or as a matter of right or privilege, or as a result of any particular title, rank, position, or affiliation.

The government may not discriminate on the basis of race, color, religion, sex, national origin, disability, or sexual orientation in granting access to classified information. In determining eligibility for access, agencies may investigate and consider any matter that relates to the determination of whether access is clearly consistent with the interests of national security. No inference concerning the investigative and adjudicative standards may be raised solely on the basis of the sexual orientation of the employee.

No negative inference concerning the investigative and adjudicative standards may be raised solely on the basis of mental health counseling. Such counseling can be a positive factor in eligibility determinations. However, mental health counseling, where relevant to adjudication of access to classified information, may justify further inquiry to determine whether other access eligibility standards are satisfied.

Appeals Procedure for Denials or Revocations of Clearances--Applicants and employees who are determined to not meet the standards for access to classified information shall be provided with:

  • as comprehensive and detailed a written explanation of the basis for that conclusion as the national security interests of the United States and other applicable law permit;
  • any documents, records, and reports upon which a denial or revocation is based, within 30 days upon request and to the extent the documents would be provided if requested under the Freedom of Information Act (5 U.S.C. 552) or the Privacy Act (3 U.S.C. 552a);
  • information of their right to be represented by counsel or other representative at their own expense; to request any documents, records, and reports as described above upon which a denial or revocation is based; and to request the entire investigative file, as permitted by the national security and other applicable law, which, if requested, shall be promptly provided to the employee prior to the time set for a written reply;
  • a reasonable opportunity to reply in writing to, and to request a review of, the determination;
  • written notice of and reasons for the results of the review, the identity of the deciding authority, and written notice of the right to appeal;
  • an opportunity to appeal in writing to a high level panel, appointed by the agency head, comprised of at least three members, two of whom shall be selected from outside the security field. Decisions of the panel shall be in writing, and final except for a personal involvement by the agency head; and
  • an opportunity to appear personally and to present relevant documents, materials, and information at some point in the process before an adjudicative or other authority, other than the investigating entity, as determined by the agency head. A written summary or recording of such appearance shall be made part of the applicant's or employee's security record, unless such appearance occurs in the presence of the appeals panel described above.

Determinations of Need for Access--A determination that an employee does not have, or no longer has, a need for access is discretionary and shall be conclusive.

Reinvestigation Requirements--Employees eligible for access to classified information shall be the subject of periodic reinvestigations and may also be re-investigated if, at any time, there is reason to believe that they may no longer meet the standards for access.

Employee Education and Assistance--The head of each agency shall establish a program for employees with access to classified information to educate them about individual responsibilities and to inform them about guidance and assistance available concerning issues that may affect their eligibility for access to classified information, including sources of assistance for employees who have questions or concerns about financial matters, mental health, or substance abuse.

Employee Responsibilities--Employees granted eligibility for access to classified information shall: protect classified information in their custody from unauthorized disclosure; report all contacts with persons, including foreign nationals, who seek in any way to obtain unauthorized access; report all violations of security regulations to the appropriate security officials; and comply with all other security requirements.

Employees are encouraged and expected to report any information that raises doubts about another employee's continued eligibility for access to classified information.

Sanctions--Employees shall be subject to appropriate sanctions if they knowingly and willfully grant eligibility for, or allow access to, classified information. Sanctions may include reprimand, suspension without pay, removal, and other actions in accordance with applicable law and agency regulations.

Timeliness--The Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458 required each adjudicative agency to: make a determination on at least 80 percent of all applications for personnel security clearances within an average of 120 days after the receipt of the application for a security clearance, including no more than 90 days to complete the investigative phase and no more than 30 days to complete the adjudicative phase; and make a determination on at least 90 percent of all applications within an average of 60 days after receipt of the application, including no more than 40 days for the investigation and 20 days for adjudication.

MSPB Review--Under a U.S. Supreme Court decision, Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), the Merit Systems Protection Board may review the removal action of an employee who was denied a security clearance only to determine whether a clearance was denied, whether the clearance was a requirement for the position and whether the agency's internal procedures--such as giving written notice stating the specific reasons for the action--were followed and if not, whether that was harmful error. The Board may not examine the underlying merits of the security clearance
determination.

Other Orders--Several other executive orders established specific policies relating to security clearances:

  • Executive Order 13381 of 2005 assigned to the Office of Management and Budget responsibility for improving the process for determining eligibility for access to classified national security information.
  • Executive Order 13467 of 2008 generally required that background investigations and adjudications must be reciprocally accepted by all agencies and that each successively higher level of investigation and adjudication may build upon, but not duplicate, the ones below it. Implementing rules covering issues including breaks in service and changes in risk level are at 5 CFR 731.104 and 731.106.

Discipline

There are two general types of discipline: that based on performance and that based on conduct. Generally, misconduct is the failure to follow a workplace rule (for example, tardiness and absenteeism) and poor performance is the failure of an employee to do his or her job at an acceptable level. Depending on the action taken, appeals of final agency actions may be filed either with the Merit Systems Protection Board (see Chapter 10, Section 3) or through grievance procedures--either administrative (see below) or those negotiated under union contracts, if applicable (see Negotiated Grievance Procedures in Section 6 of this chapter). The employee may use one route or the other, but not both. Also, the employee must meet eligibility requirements--for example, the completion of a mandatory probationary period.

In addition, some agencies employ "alternative discipline" techniques designed to resolve workplace disputes that might come from a circumstance where formal disciplinary action otherwise might be taken.

Performance-Based Discipline--Federal agencies may demote or remove an employee for unacceptable performance--that is, performance of an employee which fails to meet established performance standards in one or more critical elements of such employee's position--under Chapter 43 of Title 5 of the United States Code. (Note: Where the agency determines that the level of performance is so poor that it constitutes misconduct, discipline for poor performance may be taken under Chapter 75--see below). While most employees may appeal such an action to the MSPB, the appeal will not succeed if the agency can support its action with substantial evidence that the employee has failed to meet performance standards. MSPB regulations define substantial evidence as the degree of evidence that a reasonable person might accept as adequate to support a conclusion, even though other reasonable persons might disagree. This is a lower burden of proof than exists in disciplinary actions for misconduct.

A key component of an action taken for unacceptable performance is the performance standards. These should reflect what agency management wants from the incumbent of a position and should provide a means to measure the accomplishment of those goals. Agencies have flexibility to develop performance standards, but in a Chapter 43 action an agency must show that the employee's performance under one or more critical elements was below the minimally successful level. The critical elements an employee failed to meet must be reasonable, realistic, attainable, and, in the language of the law, "to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria."

Employee performance standards need not be completely objective, but must be precise enough to invoke a general agreement regarding their meaning, and must provide a firm benchmark toward which employees can aim their performance. The degree of objectivity and specificity required in performance standards varies with the position. Positions with greater discretion and independence frequently require less objectivity and specificity in their performance standards. Even when the standards fail to clearly communicate management's expectations, the Board will sustain a Chapter 43 action if the agency otherwise informed the employee of the specific work requirements.

While an employee may challenge the validity of the performance standards, MSPB will strike down a standard only if it determines that the agency harmed the employee by abusing its discretion in establishing the standards. For example, MSPB will not uphold a removal or demotion based on a standard that requires an unreasonably high level of performance.

Nor may an agency hold an employee to a standard that requires perfect performance--not a single error during the rating period--unless the agency can show that death, injury, or a breach of security could result from a single failure to fulfill the standard. Finally, where an agency writes a performance standard that describes acceptable performance in terms of what employees should not do, but fails to inform them of what they should do, the agency has crafted an invalid "backward standard."

An agency may notify the employee of performance deficiencies as soon as they become known; it need not wait until an annual performance review to do so.

OPM regulations require an agency that seeks to remove or demote an employee for poor performance to first (1) inform the employee of the critical job elements in which he or she is deficient, (2) inform the employee what is required under those critical elements, (3) inform the employee that failure to fulfill the elements may lead to demotion or removal, (4) provide the employee an opportunity to improve his or her performance, also known as an "opportunity period," and (5) assist the employee in improving his or her performance.

Many federal agencies use performance improvement plans, or PIPs, to meet those requirements. An agency may not substantially change the employee's performance standards at the beginning of the opportunity period and then find that the employee's performance is unacceptable under the new standards. However, an agency may limit an employee's duties and responsibilities during the opportunity period to specific parts of his or her regular duties, which puts focus on the areas of deficiency.

There is no definitive rule on the length of the opportunity period. The sole criterion is that the employee must have a reasonable opportunity to improve. How long is "reasonable" depends on the position and the duties involved, but the MSPB has found opportunity periods of 30 days, and even less, acceptable in some instances. If an employee is on extended leave during the opportunity period, extension of the period may be considered in order to ensure a reasonable opportunity to improve. When an employee's performance improves to an acceptable level, but then, within a year, relapses in the same area in which the improvement had occurred, the agency may remove or demote the employee without affording a new opportunity to improve.

An agency has considerable flexibility in the assistance it provides during the opportunity period. For example, the agency can provide written feedback on work products, oral counseling and guidance, or formal training sessions. However, the agency must do something and it must meet its commitments. Where an agency either fails to provide assistance or fails to provide promised types of assistance, MSPB has held that the agency has not provided a reasonable opportunity to improve. In that event, the agency action may be reversed.

Finally, the agency must monitor and document the employee's performance during the opportunity period. The agency must be prepared to prove, by substantial evidence, that the employee's performance during the opportunity period was deficient as measured against the critical elements of the position.

Although the agency bears a relatively low burden of proof in taking a disciplinary action on performance grounds, it must present evidence, testimonial and documentary, about an employee's performance during the opportunity period. If the agency fails to present substantial evidence, the Board will reverse the action.

Conduct-Based Discipline--Adverse actions based on conduct charges are brought under Chapter 75 of Title 5, United States Code. In general, an agency must establish by a preponderance of the evidence that the action is in the interests of the efficiency of the service because of the employee's conduct (or, when this section is used for performance reasons, that the employee has performed poorly), and that all relevant factors were considered in selecting the penalty.

When taking an adverse action on conduct grounds an agency generally must comply with certain requirements in personnel laws and rules. These requirements include 30 days of advance notice in writing of the charges (unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment might be imposed) that must explain the charges and be specific enough to permit a detailed reply. The employee must be told of his or her right to review the material on which the action is based.

An agency generally may not suspend an employee or put him or her on annual leave during a notice period. However, an agency may shorten the notice period or indefinitely suspend an employee if it has reason to believe he or she has committed a crime, so long as there is a connection between the alleged crime and the efficiency of the service.

MSPB and arbitrators have the authority to impose lesser penalties, under the standards MSPB outlined in a 1981 decision, Douglas v. Veterans Administration (6 MSPB 313). These "Douglas factors" are used to weigh whether a penalty is appropriate for an offense and whether it is consistent with past disciplinary actions in similar situations.

An employee also can successfully challenge a conduct-based action by showing that it was the result of a prohibited personnel practice. If this claim is raised, the agency must show that its decision was taken for legitimate reasons. If a prohibited practice is proved, the Office of Special Counsel may seek discipline against the supervisor who took it by filing a complaint with MSPB.

Also, an agency's failure to meet procedural requirements in taking an adverse action, if it is judged a "harmful error" to the employee's case, can be grounds for overturning the decision.

An employee believing the action was motivated by discrimination further could challenge the decision through equal employment opportunity channels.

Alternative Discipline--Alternative discipline is used by some agencies instead of traditional discipline, usually when the traditional penalty would be less than removal. For example, in a case where traditional discipline might call for a penalty of suspension without pay, under alternative discipline, the employee and the agency might agree that a letter in lieu of the suspension is appropriate. Like alternative dispute resolution (see Chapter 10, Section 7) commonly cited benefits of alternative discipline include avoidance of the costs of litigating appeals, grievances, or complaints that often follow traditional discipline, as well as reducing the negative impact on the relationship between a supervisor and a disciplined employee.

Typical features of an alternative discipline agreement between an employee and agency are: description of the employee's offense; employee admission of wrongdoing; employee promise to modify his or her behavior; notation of the specific traditional disciplinary penalty and the specific alternative discipline; acknowledgment that the agreement will be kept to support possible future disciplinary action based on new offenses and/or acknowledgment of the disposition of the agreement at the end of a specified reckoning period; and notification of the possible penalty for a subsequent offense. Also, there is usually a waiver of appeal and/or grievance rights, and a statement that the agreement was voluntarily entered into by the employee and the agency.

Employees with Disabilities--Agencies may hold employees who are protected under the Americans with Disabilities Act (see Chapter 10, Section 2) to the same performance and conduct standards applying to all employees, although agencies must make reasonable accommodations to enable individuals with disabilities to meet those standards. Guidance is at www.eeoc.gov/facts/performance-conduct.html.

Challenging Discipline--Employees who have been disciplined may be able to:

  • File an appeal with the MSPB. After a decision from an administrative judge, the employee can request a further review by the Board and can appeal that decision to the U.S. Court of Appeals for the Federal Circuit. In discrimination cases, the employee can also ask the Equal Employment Opportunity Commission (EEOC) to review the Board's action, and in some cases they can obtain additional review from a Special Panel appointed by the two agencies. Matters taken to the EEOC (and the Special Panel) can then be taken to court.
  • File a grievance. Employees covered by union bargaining units--whether or not they are dues-paying union members--can file grievances under the negotiated procedures agreed to by the union and their agency (employees not in a bargaining unit may be able to file administrative grievances; see below). The first step in the negotiated grievance process is typically an informal hearing presided over by an agency official other than the employee's supervisor. With concurrence from the union, further review can be obtained by taking the grievance to arbitration. The arbitrator's decision can then be reviewed in the U.S. Court of Appeals for the Federal Circuit or, if discrimination issues are involved, alternatively at the MSPB. After the MSPB issues a decision, the employee can take the case to a U.S. district court for a new trial.
  • File a discrimination complaint. Employees can seek review of discrimination claims, first in their agencies and then at the EEOC. At the agency level, the process includes a counseling stage and an investigative stage. The agency's EEO office then issues a recommended decision stage which the agency then accepts or modifies in its final decision. Further multilevel review is then available at the EEOC, and, after that, the employee can file a discrimination complaint in a U.S. district court. (In addition, at various points during the administrative process the employee can decide to go directly to court.)
  • Seek assistance in other forums. There are a variety of other ways for employees to contest discipline. Among them is seeking to have the agency's inspector general conduct an investigation or seeking to have the Office of Special Counsel pursue a corrective action against the agency.

Eligibility to use these routes depends in many cases on the action taken, the employee's job status, and other factors. See the pertinent sections of Chapter 10 for details.

Administrative Grievances

In non-union settings, administrative grievance processes are generally available for matters not ordinarily appealable elsewhere, such as suspensions of under 14 days. Agencies have a great deal of latitude in the design of such programs, but in general they provide a route to present a complaint and receive fair consideration, which may involve hearings, fact-finding and other information gathering techniques.

Union-represented employees also may use administrative grievance processes if there is no negotiated grievance procedure or where such a procedure excludes the matter at issue.

Decisions on administrative grievances are final.

For information on negotiated grievances, see Negotiated Grievance Procedures in Section 6 of this chapter.

Educational Credentials

Agencies examine whether employees have valid educational credentials for purposes of basic qualification determinations, to meet education requirements, to substitute for specialized experience and to assure proper use of agency funding of academic degree programs and repayment of student loans.

The OPM Qualifications Standards Operating Manual (www.opm.gov/qualifications), which establishes position qualification and education requirements, states that only degrees from an accredited college or university recognized by the Department of Education are acceptable to meet positive education requirements or to substitute for experience. Student loan repayments are only allowable for tuition paid to colleges or universities accredited by a nationally recognized accrediting agency or association recognized by the Department of Education (20 U.S.C., Sections 1085, 1071, and 1001-1002). Federal agencies may not pay for degree training at "diploma mill" institutions (5 U.S.C., Section 4107(a)(3) and Title 5, Code of Federal Regulations, Part 410). The Department of Education lists the accrediting institutions it recognizes at www.ope.ed.gov/accreditation.

Note: 5 U.S. Code, Section 4101, allows agencies to fund individual training courses for employees that are provided by private vendors, including non-accredited institutions. Approval of such training requires participation by supervisors and human resources personnel. The training must be clearly job related and the provider must deliver the quality and quantity of training purchased.

Agencies are responsible for ensuring that qualification requirements are met and independently validate educational claims. The Office of Personnel Management attempts to verify the most recent or highest degree claimed in most background investigations. Whenever a claimed degree is not verified, or a potential bogus degree is identified, OPM notifies the requesting agency's personnel security officer. If it appears fraud occurred, the case may be referred for review and possible adjudication.

Fraud occurs when an individual makes an intentional false statement in an attempt to obtain employment, promotion, training, special assignment, or other employment-related benefit. Claiming a degree the individual knows to be bogus and attempting to obtain one of these benefits is fraud. To be disqualifying under 5 CFR 731, the false statement must be material and intentional. Section 731.101(b) defines a "material" statement as one that is "capable of influencing, or has a natural tendency to affect, an official decision." To establish intent in a diploma mill case, evidence must show the individual reasonably knew the educational institution was a bogus institution (for example, the individual only had to pay a sum of money for the degree without doing any work, had the degree backdated, or bought a transcript that shows the grades the person desired).

Under 5 CFR 5.2, 5.3, and 731, OPM is authorized to investigate and adjudicate cases where qualification falsification or fraud occurs in appointments subject to investigation by OPM. Agencies may take actions when OPM does not have authority to do so, or decides not to exercise authority.

When the individual holds a security clearance, or a responsible position, such as a public trust position, where standards of trustworthiness and integrity are particularly high, agencies may consider whether that person should continue to hold a security clearance or remain in the position even when the bogus degree claimed was not material in the initial employment decision.

Agencies are responsible for deciding appropriate action in cases involving excepted service employees and competitive service employees who made bogus claims after or outside the initial examination or appointment process (for example, during the merit placement process). Agencies take actions involving competitive service employees under authorities such as 5 CFR 315 or 5 CFR 752.

HIV/AIDS in the Workplace

Office of Personnel Management guidelines (see www.opm.gov/ehs/hivaids.htm) state that employees with HIV/AIDS must be allowed to continue working as long as they are able to maintain acceptable performance and do not pose a safety or health threat to themselves or others in the workplace. If the HIV infection results in medical conditions that impair an employee's ability to perform safely and effectively, the agency should treat the employee the same way it would any other employee suffering from a serious illness.

Employees may not refuse to work with fellow employees or clients who are HIV-infected or diagnosed with AIDS and they may not engage in behavior that creates an uncomfortable or hostile environment for them. Co-workers who engage in this type of conduct may be subject to disciplinary action under the Rehabilitation Act of 1973, as amended in 1992 to conform with the Americans with Disabilities Act of 1990. Supervisors are responsible for making sure that the agency's HIV/AIDS workplace policies are understood and complied with.

Nevertheless, the concerns of these employees should be taken seriously and should be addressed with appropriate information and counseling. In addition, employees, such as health care personnel, who may come into direct contact with the body fluids of persons having HIV/AIDS are to be provided with appropriate information and equipment to minimize the risks of such contacts.

Employees who object to attending HIV/AIDS training based on a personal religious belief or practice may request to be exempted. Title VII of the 1964 Civil Rights Act and Equal Employment Opportunity Commission regulations (29 CFR 1605.2) state that employers have an obligation to accommodate the religious practices of an employee unless the employer can demonstrate that accommodation would result in undue hardship on the conduct of its business.

Employees with HIV/AIDS may request sick leave, annual leave, or leave without pay to pursue medical care or to recuperate from the ill effects of their medical condition. The agency should make its determination on whether to grant leave the same way it would for other employees with medical conditions. In addition, employees with HIV/AIDS are entitled to a total of 12 administrative weeks of unpaid leave under the Family and Medical Leave Act of 1993. Under the Federal Employees Leave Sharing Amendments Act of 1993, they may also participate in leave sharing programs run by their agency after their own leave has been exhausted.

Employees with HIV/AIDS can continue their coverage under the Federal Employees Health Benefits (FEHB) and/or the Federal Employees' Group Life Insurance (FEGLI) programs in the same manner as other employees. Although the law requires that employees in leave-without-pay status for 12 continuous months will have their FEHB and FEGLI coverage terminated, the employee does have the privilege of converting to private policies without having to undergo a medical examination. Coverage under the Federal Long-Term Care Insurance Program continues as long as the enrollee pays the premiums. Federal Employees Dental and Vision Insurance Program enrollees who begin a period of non-pay status must make arrangements to make direct premium payments or else coverage will be canceled.

Federal employees who are diagnosed as terminally ill with a life expectancy of nine months or less may elect to receive all or a portion of their FEGLI basic life insurance as a "living benefit." For more information, see Section 2 in Chapter 2.

Employees with HIV/AIDS may be eligible for disability retirement (see Chapter 3, Section 6) if their medical condition warrants and if they have the requisite years of federal service to qualify.

HIV/AIDS-related policies or programs that would affect the working conditions of bargaining unit employees are subject to collective bargaining where applicable.

Health Promotion

Agencies are responsible for determining the best way to provide employee health programs based on the agency mission, employee health needs, program goals and objectives, and available resources. Some agencies share employee health services with other agencies. For example, in a building or location with multiple agencies, one program may be developed to provide health services to participating agency employees. This can be done through interagency agreements or consortia.

Health promotion staff may be employed either full-time or part-time, or assigned the duties on a collateral basis. Sometimes agencies form employee health committees with representatives from various offices to integrate services and coordinate and promote programs. An agency might also choose to use a contractor to provide employee health program services, while many agencies rely on employees who volunteer to coordinate and communicate health promotion activities at their office locations.

Employee health programs can be fully funded by the agency, by employee contributions or fees, or by a combination. In some cases employees form a non-profit organization to provide health activities. Many federal fitness centers are operated this way. The employee organization enters into an agreement with the agency, which provides support such as space and equipment. An employee organization can collect fees directly from employees to cover the costs of services.

Typically, agencies use one or a combination of the following:

  • Health Units--A health unit or occupational health center can be a source for providing preventive health services to employees. An occupational health registered nurse is the most common staff, however, occupational health physicians, physicians' assistants, nurse practitioners, licensed practical nurses, and trained technicians may be available depending on the size, scope, and complexity of the services required.

  • Fitness Centers--Many agencies provide fitness centers. These facilities also might be used to provide health education and intervention activities, as well as health screenings. Many fitness centers require some type of screening to identify health risks before membership is granted. On-Site facilities can be sponsored by the agency, a consortia, and/or employee organizations.

  • Educational Programs--Agencies can provide information to help employees understand their risks for disease and the tools for making healthy lifestyle choices.

  • Preventive Screenings and Health Fairs--Agencies may offer screenings including body fat, cholesterol and blood pressure measurements, health risk appraisals, and cardiac risk profiles, as well as health information, smoking cessation classes, and nutrition counseling. Agencies may use work scheduling flexibilities to allow employees to participate. Such flexibilities include alternative work schedules, granting sick and annual leave including advance leave, and granting excused absences.

  • HealthierFeds--The HealthierFeds initiative, www.healthierfeds.opm.gov, provides information directed at individuals as well as agencies designed to foster a healthier lifestyle through proper exercise, diet and health choices. It includes information on topics such as disease prevention and smoking cessation, preventive health services and federal health benefits in general.

Genetic Information

Executive Order 13145 of 2000 prohibited federal departments and agencies from making employment decisions based on protected genetic information, a request for genetic services, or the receipt of genetic services. The order applies to current federal employees, applicants for federal jobs, and former federal employees.

The order defined protected genetic information as information about an individual's genetic tests or genetic tests of that individual's family members and information about the occurrence of disease, or medical condition or disorder in family members of the individual. Protected genetic information does not include current health status information about applicants and employees, such as age, sex, and physical examination results exclusive of family medical history. Departments and agencies have a limited right under the Rehabilitation Act of 1973 to acquire information about, and act on the basis of, an individual's current health status.

Federal departments and agencies may not discharge, fail or refuse to hire, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment because of protected genetic information or a request for, or receipt of, genetic services. Similarly, federal departments and agencies may not limit, segregate, or classify an individual or otherwise adversely affect the individual's status because of such information. They may request or require family medical history from an applicant or employee only in limited circumstances:

  • First, a federal department or agency may request or require family medical history from an applicant as long as it has made a conditional offer of employment. A federal department or agency also may ask for family medical history from a current employee where the request or requirement is consistent with the Rehabilitation Act standards for seeking medical information from current employees.
  • Second, departments and agencies must meet these additional prerequisites: the information may be used only to determine whether the department or agency needs to require further medical testing of the individual to assess whether the individual has a current medical condition that may affect his/her ability to perform the essential functions of the job s/he seeks or holds; and medical personnel involved in making the decision whether to require further testing will be the only persons with access to this information.

The order further permitted a department or agency to use an applicant's or employee's family medical history where the department or agency subsequently provides genetic or health care services to the individual at the individual's request.

The order also restricted the conditions in which an agency may obtain or disclose protected genetic information about an individual or information about an individual's request for genetic services. These circumstances include:

  • where the department or agency provides genetic or health care services;
  • where the department or agency engages in research that complies with Part 46 of Title 45, Code of Federal Regulations, which concerns the protection of human subjects of medical research;
  • where the department or agency seeks to monitor the biological effects of toxic substances in the workplace;
  • where the department or agency is compelled by proper authority, and
  • where the genetic information is collected as a part of a lawful program, the primary purpose of which is for identification purposes.

An individual must consent to the collection and use of protected genetic information before the department or agency may obtain it for health care or monitoring purposes. Consent must be knowing and voluntary.

Protected genetic information must be kept confidential and separate from personnel files, just like other medical information.

The order does not create any legally enforceable right or benefit. Because much of what is prohibited under the order is also prohibited under Section 501 of the Rehabilitation Act of 1973, federal sector applicants and employees who believe that a department or agency has violated a provision of the order may pursue that issue under the procedure set forth at 29 CFR Part 1614. Individuals should be aware, however, that not all conduct that violates the order will also constitute a violation of the Rehabilitation Act.

The Genetic Information Nondiscrimination Act of 2008 also prohibits the use of genetic information in making employment decisions. See Other Forms of Discrimination in Chapter 10, Section 2.

Transgender Employees

Office of Personnel Management policy (www.opm.gov/diversity/transgender/guidance.asp) instructs agencies to provide a non-discriminatory work environment to employees irrespective of their gender identity or perceived gender non-conformity. For employees who transition from living and working as one gender to another, the agency is to treat the transition "with as much sensitivity and confidentiality as any other employee's significant life experiences, such as hospitalization or marital difficulties."

Medical information about individual employees is protected under the Privacy Act. Other employees may be given only general information about the employee's transition. Personal information about the employee is considered confidential and is not to be released without the employee's prior agreement. Agencies may provide a trainer or presenter to meet with employees to answer general questions.

Agency dress codes are to be applied to employees transitioning to a different gender in the same way that they are applied to other employees of that gender. Dress codes are not to be used to prevent a transgender employee from living full-time in the role consistent with his or her gender identity. Managers, supervisors, and co-workers are to use the name and pronouns appropriate to the employee's new gender in their communications and in employee records.

Guidance on insurance coverage issues is in FEHB Carrier Letter 2011-12 at www.opm.gov/carrier/carrier_letters/cltrs2011.asp.

Drug Testing

The Drug-Free Federal Workplace Program was mandated in 1986 by Executive Order 12564. It required all agencies to develop a program including testing, education, and rehabilitative services through an employee assistance program (EAP). The Mandatory Guidelines for Federal Workplace Drug Testing Programs were published in 1988 and revised in 1994. Every agency has a plan in place that spells out the extent of the agency's efforts to make the workplace drug free.

There are six drug testing situations:

  • random testing, including unannounced testing of employees in positions designated because of safety or security-sensitive issues;
  • applicant testing, normally for positions requiring random testing;
  • reasonable suspicion testing, when performance or conduct problems and unusual behavior suggest that drugs may be involved;
  • post-accident testing, after a serious accident;
  • follow-up testing, for those who have already tested positive or otherwise identified themselves as drug users; and,
  • voluntary testing for those willing to be included in the random testing pool.

Employees who come forward and admit illegal drug use prior to being tested or otherwise are found to be using illegal drugs are not immediately disciplined. However, this "safe harbor," which is designed to provide such workers with an opportunity to undergo rehabilitation, also provides for mandatory follow-up testing.

Agencies must comply with the disciplinary instructions of E.O. 12564, which require the following actions in cases of confirmed positive drug tests:

  • removal from sensitive positions;
  • mandatory EAP referrals for assessment and rehabilitation;
  • mandatory initiation of discipline on a first finding of illegal drug use; and
  • mandatory initiation of removal from the federal service upon a second finding of illegal drug use.

All agencies follow essentially the same type of procedures and follow a model plan that was developed by the Department of Health and Human Services, OPM, and the Department of Justice. Differences from one agency to another are found primarily in the types of positions tested. Also see www.opm.gov/employment_and_benefits/worklife/healthwellness/eap/index.asp.

Alcohol Policy

Use or abuse of alcohol by federal employees is a management concern to the extent that it affects an employee's ability to perform his or her duties or raises concerns about health and safety issues or employee conduct. Supervisors are not responsible for diagnosing alcoholism in employees. But they are responsible for taking corrective and disciplinary actions when performance or conduct problems surface, and referring employees to the agency's employee assistance program.

Indicators that might trigger a referral to the EAP include: unexplained or unauthorized absences from work; frequent tardiness; excessive use of sick leave; patterns of absence such as the day after payday or frequent Monday or Friday absences; frequent unplanned absences due to "emergencies"; absence from duty station without explanation or permission for significant periods of time; performance problems; strained relationships with co-workers; and the appearance of being inebriated or under the influence of alcohol.

EAPs provide short-term counseling, assessment, and referral of employees with alcohol and drug abuse problems, among other services. This service is confidential.

Human resources or employee relations officers may advise management of adverse, disciplinary, or other administrative actions that may be taken. They also advise employees of their rights and the procedures in such cases. They do not obtain confidential information from the EAP nor do they independently approach the employee regarding the problem.

If an employee is away from work receiving treatment, he or she will usually be carried in some type of approved leave status. In most cases, it is considered appropriate for the employee to be carried on any available sick leave. Otherwise, annual leave or leave without pay may be appropriate. Normally, the employee would not be charged as absent without approved leave (AWOL) unless the employee's absence had not been approved.

The cost of treatment is the employee's responsibility. FEHB program plans have some kind of coverage; however, that coverage is limited.

After the employee's return to duty, there typically will be some type of follow-up care such as a 12-step program or other group meetings, therapy, EAP sessions, or a combination.

Alcohol Testing--Generally, agencies do not have the authority to conduct mandatory alcohol testing. Although some agencies may have the equipment and trained personnel to administer an alcohol test, such a test would be voluntary. Most alcohol testing would probably be conducted with a breathalyzer.

Unless the employee is in a job with specific medical or physical requirements, the agency cannot order the employee to undergo any type of medical examination, including a breathalyzer. Examples of the types of jobs that may have specific medical requirements include police officers, certain vehicle operators, air traffic controllers, and various direct patient-care personnel.

Law enforcement personnel on federal property may administer alcohol tests to drivers when there is an accident or reasonable cause to do such testing. However, cause for such testing must be based on a violation of motor vehicle and traffic rules and not mandatory testing by the agency.

An agency may conduct voluntary alcohol testing. If intoxication is indicated by the test, the agency may use it as a basis for some type of administrative action, such as sending the employee home, or taking disciplinary action. An agency may not take disciplinary action solely because an employee declines to undergo a voluntary alcohol test.

Smoking Policy

General Services Administration Bulletin 2009-B1 generally bans smoking in interior space owned, rented or leased by the Executive Branch, in any outdoor areas under its control in front of air intake ducts, in courtyards, and within 25 feet of doorways. The bulletin overrode prior policies that had allowed smoking in specially equipped indoor areas and certain other areas, leaving exceptions only for: residential accommodations for persons residing in a building owned, leased or rented by the government; portions of federally owned buildings leased, rented or otherwise provided in their entirety to nonfederal parties; and nonfederal governmental workplaces that serve as the permanent or intermittent duty station of one or more federal employees.

The requirements apply to leased or owned space under the jurisdiction, custody or control of GSA. In addition, federally leased space located in a privately owned building is subject to state and local government smoking restrictions, if the restrictions are more stringent than the federal policy.

In some cases, local smoking policy is subject to bargaining.

Domestic Partners

A June 2, 2010 Presidential memo directed agencies, to the extent consistent with law, to provide to the same-sex domestic partners of agency employees and their children the same level of access to certain agency-administered benefits as is provided to spouses and their children.

The memo defines "domestic partnership" as a committed relationship between two adults, of the same sex, in which the partners:

(1) are each other's sole domestic partner and intend to remain so indefinitely;

(2) maintain a common residence, and intend to continue to do so (or would maintain a common residence but for an assignment abroad or other employment-related, financial, or similar obstacle);

(3) are at least 18 years of age and mentally competent to consent to contract;

(4) share responsibility for a significant measure of each other's financial obligations;

(5) are not married or joined in a civil union to anyone else;

(6) are not the domestic partner of anyone else;

(7) are not related in a way that, if they were of opposite sex, would prohibit legal marriage in the U.S. jurisdiction in which they reside;

(8) are willing to certify, if required by the agency, that they understand that willful falsification of any documentation required to establish that an individual is in a domestic partnership may lead to disciplinary action and the recovery of the cost of benefits received related to such falsification, as well as constitute a criminal violation under 18 U.S.C. 1001, and that the method for securing such certification, if required, shall be determined by the agency; and

(9) are willing promptly to disclose, if required by the agency, any dissolution or material change in the status of the domestic partnership.

Agencies may choose to secure documentation such as a sworn affidavit to establish the existence of a domestic partnership but they are not required to do so. In determining whether to require documentation, agencies are to consider whether a similar requirement is imposed upon opposite-sex spouses, consistent with the memo's intention that same-sex domestic partners be treated in the same manner as opposite-sex spouses for purposes of these benefits, to the extent permitted by law.

The memo directed that the following benefits should be made available to same-sex domestic partners and their children to the same extent that such benefits are available to spouses and their children: credit union membership; access to fitness facilities; hardship transfers to maintain or improve the health of a domestic partner; planning and counseling services including briefings on employee pay and allowances, career counseling, retirement counseling, financial counseling, resource and referral services, planning sessions for permanent change of duty station, deployment support, parenting support groups, and elder care support groups; family assistance services including adoption counseling, parenting counseling, child care, elder care, financial planning, and home improvements; family and morale/wellness/recreation events; access to medical treatment; access to lodging or allowances; joint consideration of transfers; and accidental death and dismemberment insurance.

It further ordered that same-sex domestic partners and/or their children qualify for child care services and subsidies, employee assistance programs, certain noncompetitive appointments when returning with an employee from an overseas assignment, evacuation payments, and unpaid leave for family purposes.

In addition, the memo noted certain other benefits being offered by agencies that are outside Title 5, U.S. Code, and directed such agencies to ensure that such benefits being offered to their employees' spouses and their children are also offered at an equivalent level, wherever legally permissible, to their employees' same-sex domestic partners and their children. The types of such benefits include: reimbursement of a portion of a health insurance premium paid to insure their same-sex domestic partner; dental insurance; vision insurance; dependent life insurance; relocation assistance and expense program; employment opportunities for spouse/same-sex domestic partner upon permanent transfer of employee; business travel accident insurance; receipt of transferred annual leave to provide care to same-sex domestic partner with medical emergency; reimbursement for certain eligible expenses such as fitness center memberships, physical exams and homeowners insurance; and expressions of sympathy recognizing hospitalization, illness, or death.

The memo also created an ongoing obligation for agencies to make sure that any new benefits they make available to their employees' spouse or spouse's children also be made available to employees' same-sex domestic partners or their children. Agencies were told to keep that directive in mind when reviewing regulations, policies, collective bargaining agreements, and other potential sources of new employee benefits.

OPM was ordered to issue rules to include same-sex domestic partners among those presumed eligible for insurable interest annuities (a policy that had been proposed but not finalized as of the publication of this edition of the Federal Employees Almanac), and the General Services Administration was ordered to make them eligible as family members for certain travel and relocation payments (see Chapter 11. Section 1).

The memo is at http://www.whitehouse.gov/the-press-office/presidential-memorandum-extension-benefits-same-sex-domestic-partners-federal-emplo and June 2, 2010 guidance to agencies is at www.chcoc.gov/transmittals.

In addition, domestic partners may be eligible for certain other benefits, although eligibility policies vary. See Eligibility in Chapter 2, Section 3 for policies under the Federal Long-Term Care Insurance Program; see Qualifying Family Members in Chapter 5, Section 1 for policies regarding use of shared leave due to a family member's condition or use of sick leave for family care or bereavement; see Family and Medical Leave Act in Chapter 5, Section 4 for policies under that law; and see Overseas Employment in Section 1 of this chapter for policies regarding certain State Department-administered benefits and allowances.

Child Care

Many federal facilities provide on-site child development centers. There are more than 200 child care centers in federal buildings, about half in space controlled by the General Services Administration and the rest operated by other departments and agencies--most numerously by the Defense Department, whose centers generally are open to children of civilian employees as well as to children of uniformed military personnel. A listing of child care centers in GSA-controlled space is at www.gsa.gov—select For Citizens & Consumers, then Child Care in Federal Buildings. Information on the DoD child care program is at www.defense.gov/specials/childcare.

The Office of Personnel Management compiles child and elder care resources, which provide employees, managers, and employee assistance counselors with information about organizations and agencies across the country that can help employees locate quality child (and elder care--see below) services. See www.opm.gov/employment_and_benefits/worklife.

Public Law 107-67, Section 630, created permanent authority for federal agencies to provide subsidies to their lower-income employees for certain child care expenses. The law and implementing regulations published at 5 CFR Part 792 allow agencies flexibility in determining eligibility and procedures under the program.

Executive agencies may use any appropriated funds, including revolving funds, ordinarily used for salaries for this purpose. Agencies determine the amount of funds they are willing to allocate for this purpose.

Federal employees interested in participating in this program should contact the individual or organization named on their agency's announcements to get more information about any tuition assistance program operating there. If their child is not yet enrolled in child care, employees should identify a licensed and/or regulated child care provider of either center-based or family child care, and assure there is a space for their child before applying for tuition assistance.

The subsidy is not limited to enrollment in government centers but is open to all licensed and/or regulated child care. If employees already have their child(ren) enrolled in licensed and/or regulated child care (center-based or family child care), and they wish to receive tuition assistance, they should fill out the tuition assistance application forms and submit them to the person or organization named on the agency's form.

Employees are free to choose among both accredited and non-accredited providers so long as the provider is state or locally licensed or regulated standards of safety and care for children. Eligible programs include programs at overseas locations, daytime summer programs, full- and part-time care and before and after school programs. Overseas programs do not have to be state licensed or regulated; agencies with such programs can adopt their own criteria.

Employees may be required to apply for the tuition assistance subsidy on an annual basis. Employees must be prepared to provide copies of their recent pay stubs and latest IRS tax submissions. If a family receives local and/or state child care subsidies, they must indicate the source and the amount on their application.

Agencies can choose to administer the program themselves or they can enter into an agreement or contract with an organization that provides scholarship services. Regardless of who administers the program, the decision about which model to use for determining eligibility and the amount of the subsidy is the responsibility of the agency.

In most cases the agency pays the child care provider directly. The agency can pay for up to one month in advance. Child care subsidies can only be paid from appropriated funds.

Each agency has the discretion to determine who qualifies. Agencies may choose a particular definition for one location and a different definition at another location. In general, agencies consider the total family income and that the amount of subsidy would be reduced by any current state and/or local subsidy the parents/guardians currently receive. Agencies also determine the amount of tuition assistance for each eligible employee. They may use a sliding scale, prescribe a sum based on a percentage of total family income or a percentage of child care costs, or use another model.

Child care subsidies are generally taxable as income to the employee who benefits from them. However, if an agency implements the child care subsidy program as a dependent care assistance program as described in section 129 of the Internal Revenue Code, amounts of up to either $2,500 or $5,000 may be excluded from gross income.

Flexible Spending Accounts--Under the flexible spending account program (see Chapter 1, Section 9), federal employees may set aside up to $5,000 annually pretax to be used for certain dependent care expenses. However, this amount is reduced by any amount received as a child care subsidy.

Elder Care

Unlike child care, federal agencies do not host on-site elder care facilities, nor do they offer subsidies for employees to pay the costs of such care. Many agencies do, however, have programs at the workplace to ease the stress that caregiving employees experience. In most cases these efforts are directed by the agency's work/life coordinator.

The scope and number of programs vary by agency. They typically include resource and referral programs, on-site seminars and other information sessions, employee assistance programs, and support groups. Some agencies provide briefings to supervisors and managers on the need to support those with elder care responsibilities, including guidance on allowable flexibilities.

OPM encourages agencies to use personnel flexibilities available to federal employees to ease the burden of elder care such as part-time employment, flexible work schedules, compressed work schedules, leave programs, and telework. It publishes a Handbook of Elder Care Resources that covers health insurance, finances (including Social Security and taxes), legal issues such as power of attorney, and housing options. The handbook also describes resources to help older adults function independently, addresses medical issues, helps find nursing homes and home health care agencies and includes a list of federal and national elder care organizations. The handbook and other resources are at www.opm.gov/employment_and_benefits/worklife.

Flexible Spending Accounts--Under the flexible spending account (FSA) program (see Chapter 1, Section 9), federal employees may set aside up to $5,000 annually pretax to be used for certain dependent care expenses. An adult (for example, parent, grandparent, adult disabled child) may qualify as a dependent for purposes of an FSA if the employee is providing more than half of that person's maintenance for the year and is claiming that person as a dependent for federal income tax purposes.

Payment of Expenses to Obtain Professional Credentials

Chapter 57 of Title 5, United States Code 5757 provides agencies with discretionary authority to use appropriated funds or funds otherwise available to the agency to pay for expenses for employees to obtain professional credentials. This also includes expenses for professional accreditation, state-imposed and professional licenses, and professional certification, and examinations to obtain such credentials. Agencies may not use this authority on behalf of any employee occupying or seeking to qualify for appointment in any position that is excepted from the competitive service because of the confidential, policy-determining, policy-making, or policy-advocating character of the position.

Payment of Liability Insurance Premiums

Under P.L. 106-58, federal agencies are required to reimburse law enforcement employees, supervisors and managers for up to half the cost of professional liability insurance. Some agencies reimburse the maximum, others less; check with your personnel office regarding your agency's policy.

Generally speaking, professional liability insurance insures against legal liability (and litigation defense costs) for suits alleging damages due to injuries to other persons, damage to their property or other damage or loss to other persons, including the expenses of litigation and settlement that result from or arise out of any "tortious act," error or omission--whether common law, statutory or constitutional--while in the performance of official duties. This can include payment of punitive damages where allowed under state law.

The IRS has determined that the reimbursement is not taxable to the employee receiving it.

For purposes of the reimbursement provision:

  • a law enforcement officer is anyone whose duties are primarily the investigation, prosecution or detention of individuals suspected of convicted of offenses against the criminal laws of the United States--generally speaking, all those covered by the special retirement system for law enforcement officers;
  • a supervisor is anyone having the authority over personal actions such as assignments, promotions, discipline or removal if the exercise of the authority is not merely routine or clerical but requires exercise of independent judgment; and
  • a management official is someone whose duties require or authorize the individual to form, determine or influence the policies of the agency--effectively, anyone not eligible for membership in a bargaining unit.

Student Loan Repayments

Student loan repayment authority in 5 U.S.C. 5379 (5 CFR Part 537) permits agencies to repay the student loans of federal employees to attract or keep highly qualified individuals. These payments (before taxes) can be up to $10,000 a year and $60,000 lifetime. To receive student loan repayment benefits, an employee must sign a service agreement to remain in the service of the agency for a period not less than three years.

This authority is used at the discretion of the agency. Those interested in participating in the program must contact the agency in which they work or wish to work for further details. Agencies choosing to use this flexibility must establish a plan describing how this incentive will be implemented within that agency. Agencies can use the incentive in conjunction with other recruitment and retention incentives.

Public Law 106-398 made several changes to the law, including removing the limitation of the incentive to professional, technical, or administrative personnel, removing the limitation of the incentive to employees covered under General Schedule pay rates, and broadening the types of loans that qualify.

The repayment authority is limited to federally insured student loans made by educational institutions or banks and other private lenders authorized by the Higher Education Act of 1965 and the Public Health Service Act. The Higher Education Act covers guaranteed student loan programs such as Stafford Loans, Supplemental Loans, Plus Loans, Federal Consolidation Loans, Defense Loans, National Direct Student Loans and Perkins Loans. Loans covered under the Public Health Service Act include Nursing Student Loan Program loans, Health Profession Student Loan Program loans, and Health Education Assistance Loan Program loans.

The level of academic degree for which a student loan was obtained is not a consideration in determining eligibility for the incentive, nor is whether a degree, diploma, or certificate was earned. The repayment authority does not exclude employees who have defaulted on their student loans from receiving this benefit. However, agencies may exclude them.

Part-Time employees and excepted service employees (except Schedule C), assuming they are otherwise eligible, can receive student loan repayment benefits. However, temporary employees and term employees with less than three years remaining on their appointments are not eligible.

Agencies are not required to make payments in one lump sum. They may if they choose, but doing so may result in a large tax liability for the recipient of the student loan repayment benefit.

Tax withholdings must be deducted or applied at the time any loan repayment is made. Tax withholdings may not be amortized or assessed later than when the loan repayment is made.

The three-year service requirement begins when the first payment is made by the agency to the holder of the loan. The three-year service agreement is established in statute and may not be pro-rated. Any employee who does not meet the service requirement is required to reimburse the government. However, agencies may waive recovery if they determine it to be against equity and good conscience or contrary to the public interest.

Notes: P.L. 110-84 authorized forgiveness of the balance remaining on certain federal student loans after public servants, including federal employees, have made required payments for 10 years, starting with October 2007. Thus, the benefit won't be available until 2017. The Department of Veterans Affairs has a separate student loan repayment authority under Section 7681 of Title 38, United States Code called the Education Debt Reduction Program. VA may make payments of up to about $53,000 over five years on behalf of recently appointed employees in certain health care occupations for which it is having recruitment or retention problems to repay loans acquired while pursuing the degree that led to qualification for the position. Payments under the program are not taxable.

Public Transit Subsidies

As a general rule, the federal government cannot subsidize an employee's cost of commuting to or from work. Section 629(a), Title IV-General Provisions of Public Law 101-509, constitutes a specific legal exception to this general rule. It provides that federal agencies may participate in any program established by a state or local government that encourages employees to use public transportation. Such programs may involve the sale of discounted transit passes or other incentives that reduce the cost to the employee of using public transportation. The provisions of section 629 were made permanent in 1993 (P.L. 103-172), which also encouraged agencies to provide non-monetary incentives for alternatives to commuting, such as telecommuting.

The law establishing the transit subsidy program is permissive in nature by allowing but not mandating federal agencies' participation in state or local government programs (including, for example, those sponsored by transit districts, authorities, etc., created by a state or local government) designed to encourage the use of public transportation. This may be as general as participating in state or local government sponsored events promoting the use of public transportation or as specific as providing reduced cost incentives to the employee.

Federal agencies that choose to offer reduced cost incentives to their employees may use appropriated funds, if otherwise available, to subsidize up to $125 of federal employees' public transportation costs per month. There is no specific appropriation to cover this expense, however. The cost must be absorbed from other appropriated funds. In union-represented workplaces, terms of the program often are set by contract.

Employer operated and employee operated vanpools as well as private or public transit operated vanpools may qualify.

Under tax law, such subsidies are tax-free to the employee so long as the value is $125 a month or less (with changes to the Consumer Price Index, the monthly limit may increase in increments of $5). Any amount, up to the monthly tax-free limits, by which an employee elects to reduce compensation to fund either transit or vanpool benefits, is not subject to the Federal Insurance Contributions Act (FICA; that is, Social Security), the Federal Unemployment Tax Act, and federal income tax withholding. These amounts may also be exempt from city or state income taxes. For pretax program participants, since FICA would not be collected on the amount of compensation that is exchanged for the benefit, employees under the Federal Employees Retirement System may experience a minimal reduction in their Social Security benefits at retirement. The tax implications are the same whether the employee receives a direct cash payment or a transit pass worth a certain amount.

Federal agencies that elect to participate in the program are required to set up safeguards that preclude any improprieties in the use of federal funds and to limit program participation to eligible federal employees. Office of Management and Budget (OMB) memo M-07-15 sets general guidance, although agencies that have sufficient other controls can use their own procedures with OMB consent. Agencies are required to consult, as appropriate, with their respective labor organizations.

Parking Costs--Federal agencies may elect to reimburse employees for their qualified parking expenses at or near transit stations, park-and-ride lots, or vanpool staging areas, using employee pretax salary funds, up to a maximum cost of $240 per month. Appropriated funds may not be used for these purposes unless exceptional circumstances exist.

Parking costs are treated separately from transit costs, even if they are incurred in conjunction with an employee's use of public transit or vanpools. Agencies also may provide such parking at the agency's office for vanpools and carpools. Agencies that make cash reimbursements for parking must establish a bona fide reimbursement arrangement to establish that their employees have, in fact, incurred such expenses. Agency provision of single occupancy vehicle parking is not consistent with the intent of the executive order, but may be permitted under other authority.

Waivers of Collections

Overpayments--Under 5 U.S.C. Section 5584, the heads of Executive Branch agencies may waive collection of debts owed to the agency, regardless of the amount of the debt, due to overpayments. Each agency is responsible for establishing waiver policies and standards and determining levels of approval. All waiver requests must be directed to the agency that made the erroneous payment resulting in an overpayment debt.

The Office of Personnel Management is responsible for regulating various types of pay and allowances and also issues claims settlement decisions regarding compensation and leave matters (see Chapter 10, Section 1). However, OPM does not have authority under Section 5584 to waive overpayment debts resulting from erroneous payments of pay and allowances, except for such overpayment debts owed to OPM by its own employees. Also, while the General Services Administration Civilian Board of Contract Appeals has authority to settle claims involving expenses incurred by federal civilian employees for official travel, transportation, and relocation (see Chapter 11, Section 3), it does not have authority under Section 5584 to waive collection of debts resulting from erroneous payments of such expenses. Any waiver request involving such matters must be directed to the agency that made the erroneous payment, and any agency waiver decision is not subject to review by GSA.

A waiver may be granted only if the authorized official determines that collection of the overpayment debt would be against equity and good conscience and not in the best interests of the United States. A waiver may not be granted if, in the opinion of the authorized official, there is an indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person with an interest in obtaining a waiver, in connection with the overpayment debt. A waiver may not be granted unless an application for waiver is received within three years of the date on which the erroneous payment was discovered. If an agency collected some or all of an overpayment debt prior to the granting of a waiver, the agency must refund any amount covered by the waiver if an application for refund is made within two years of the date of the waiver.

While waiver makes an erroneous payment a valid payment, it does not make the payment creditable basic pay in computing retirement contributions and benefits.

Other Debts--Other laws establish an independent authority to waive collection of certain other compensation-related debts owed to employing agencies by federal employees. These include:

  • The law governing federal student loan repayment benefits for federal employees provides discretionary authority to waive, in whole or in part, collection of a debt resulting from an employee's failure to complete the required period of service if it is shown that recovery would be against equity and good conscience or against the public interest. (5 U.S.C. 5379(c)(3) and 5 CFR 537.109(e).)
  • The law governing recruitment and relocation incentives provide discretionary authority to waive the requirement to repay all or part of an incentive for an employee who does not complete the agreed-upon service period when the agency determines collection would be against equity and good conscience and not in the best interest of the United States. (5 U.S.C. 5753(g) and 5 CFR 575.111 and 575.211.)
  • The law governing physicians comparability allowances provides that a physician who fails to complete at least one year of service is liable to refund allowances received unless the head of the agency waives the liability based on a determination that such failure is necessitated by circumstances beyond the control of the physician. (5 U.S.C. 5948(e).)
  • The law governing OPM-approved voluntary separation incentive payments (buyouts) provides that OPM may waive repayment of the gross amount of the payment when re-employment with the government of the United States triggers the repayment requirement. (5 U.S.C. 3524(c) and 5 CFR 576.203.)

Separately, agency-specific buyout authorities may provide for waivers by those agencies.

Combined Federal Campaign

Authorized by 5 CFR 950, the Combined Federal Campaign (CFC) is the government's only annual fund-raising drive. Once a year, employees are given the opportunity to contribute to eligible charities of their choice. They may select from among hundreds of eligible national, international, and local charitable organizations. Eligibility is determined by OPM's office of CFC operations. Local organization eligibility is determined by committees of federal employees in each CFC throughout the country. Employees who wish to donate make a pledge in which they state the amount they wish to give and the charitable organization(s) participating in the campaign to which they wish their contributions to go. Most employees choose to participate through payroll deductions. If they do, CFC contributions are deducted each pay period and sent to the charity or charities of choice by the local campaign office.

Dates for the CFC drive are decided locally, but most take place between September 1 and December 15. Annual campaigns usually run for about six weeks. Pledges are deducted from the donor's paycheck starting in the first pay period of the following year. Participation by federal employees in the CFC is strictly voluntary. Federal regulations stipulate that managers cannot solicit from those they supervise. Neither may 100 percent participation goals be set nor may donations be required in a certain amount. Also contributor lists cannot be sold or leased, and lists of non-contributors cannot be compiled and used for any purpose.

Information about CFC policies is at www.opm.gov/cfc.

Personal Use of Office Equipment

A 1999 document from the Federal Chief Information Officers Council titled "Recommended Executive Branch Model Policy/Guidance on Limited Personal Use of Government Office Equipment Including Information Technology" provides a model for defining acceptable use conditions (available at www.cio.gov/documents/limited_personaluse_memo_policy.pdf). However, each agency has its own policies which control at that agency. Many of them have adopted the model document in large part or in whole.

Under the model policy, limited personal use of the government office equipment by employees during non-work time is considered to be an "authorized use" of government property. Federal employees are permitted limited use of government office equipment for personal needs if the use does not interfere with official business, involves minimal additional expense to the government and is done during the employee's non-work time. This privilege to use government office equipment for nongovernment purposes may be revoked or limited at any time by appropriate federal agency or department officials.

The policy does not create right to use government office equipment for nongovernment purposes. Nor does the privilege extend to modifying such equipment, including loading personal software or making configuration changes.

"Government office equipment including information technology" includes but is not limited to personal computers and related peripheral equipment and software, library resources, telephones, facsimile machines, photocopiers, office supplies, Internet connectivity, and e-mail.

"Minimal additional expense" means that employee's personal use of government office equipment is limited to situations where the government is already providing equipment or services and the employee's use of such equipment or services will not result in any additional expense to the government or the use will result in only normal wear and tear or the use of small amounts of electricity, ink, toner or paper. Examples of minimal additional expenses include making a few photocopies, using a computer printer to print a few pages of material, making occasional brief personal phone calls (within agency policy and 41 CFR 101-35.201), infrequently sending personal e-mail messages, or limited use of the Internet for personal reasons.

"Employee non-work time" means times when the employee is not otherwise expected to be addressing official business. Employees may for example use government office equipment during their own off-duty hours such as before or after a workday (subject to local office hours), lunch periods, authorized breaks, or weekends or holidays (if their duty station is normally available at such times).

"Personal use" means activity that is conducted for purposes other than accomplishing official or otherwise authorized activity. Executive Branch employees are specifically prohibited from using government office equipment to maintain or support a personal private business. The ban on using government office equipment to support a personal private business also includes employees using government office equipment to assist relatives, friends, or other persons in such activities. Employees may, however, make limited use under this policy of government office equipment to check their Thrift Savings Plan or other personal investments, or to seek employment, or communicate with a volunteer charity organization.

Employees are expected to refrain from using government office equipment for activities that are inappropriate.

It is the responsibility of employees to ensure that they are not giving the false impression that they are acting in an official capacity when they are using government office equipment for nongovernment purposes.

Executive Branch employees do not have a right of privacy while using any government office equipment at any time, including accessing the Internet, using e-mail. By using government office equipment, Executive Branch employees imply their consent to disclosing the contents of any files or information maintained or pass-through government office equipment.

By using this office equipment, consent to monitoring and recording is implied with or without cause. Any use of government communications resources is made with the understanding that such use is generally not secure, is not private, and is not anonymous. Agency officials, such as system managers and supervisors, may access any electronic communications.

Unauthorized or improper use of government office equipment could result in loss of use or limitations on use of equipment, disciplinary or adverse actions criminal penalties and/or employees being held financially liable for the cost of improper use.

Telephone Use

Rules governing use of federal telephones are found in 41 CFR Part 101-35. The general policy is that all telephone calls placed over government-provided and commercial long-distance systems that will be paid for or reimbursed by the government must be used to conduct official business only. Official business calls may include emergency calls and other calls the agency determines are necessary in the interest of the government.

To the maximum extent practicable, federal employees must place calls on government-provided long-distance telephone systems and services instead of using commercial toll services. The following practices are prohibited and a willful violation may result in criminal, civil, or administrative action, including suspension or dismissal:

  • use of any government system or service, or any other telephone service, where the government pays the cost of the long-distance call, for other than official business, except emergency calls and calls the agency determines are necessary in the interest of the government;
  • making an unauthorized long-distance telephone call with the intent to later reimburse the government; and
  • unauthorized use of telephone call detail data.

Telephone calls may be authorized when they: do not adversely affect the performance of official duties by the employee or the employee's organization; are of reasonable duration and frequency; and could not reasonably have been made at another time; or are provided for in a collective bargaining agreement.

Personal long-distance calls that must be made during working hours may be made over the commercial long-distance network if consistent with the criteria above and they are: charged to the employee's home phone number or other nongovernment number (third-number call); made to a toll-free number; charged to the called party if a nongovernment number call); or charged to a personal telephone credit card.

If it is cost-effective to do so, agencies collect for any unauthorized calls: the value of the call, computed on the basis of commercial long-distance rates rounded to the nearest dollar; and an additional amount rounded to the nearest dollar to cover administrative costs of determining that the call was unauthorized and processing the collection. Reimbursing the government for unauthorized calls does not exempt an employee from potential administrative, civil, or criminal action.

Individual agencies have their own policies on using telephone facilities and services. Many of these policies allow for a certain amount of local phone calling for routine personal purposes and for some government-paid long-distance calls for personal purposes, for example by employees on travel. The directives also include individual agency procedures for collection and reimbursement for unauthorized calls.

Freedom of Information Act

Under the Freedom of Information Act (FOIA) (5 U.S.C. 552) individuals may request from agencies documents that otherwise might not be disclosed or published by the government.

While some documents and information are protected from disclosure for national security, business confidentiality, personal privacy, or other reasons, millions of other reports, correspondence, and regulations may be released.

Agencies have an obligation, under this 1966 statute, to make a reasonable effort to search for and turn over copies of records they have decided are releasable. If an individual's request is denied, the agency must state the reason, and there are formal administrative appeal rights for such denials.

The law specifies only two requirements for requesting information: (1) requests must "reasonably describe" the document sought, and (2) they must be made in accordance with an agency's published FOIA procedures.

Agencies have up to 20 working days to answer an FOIA request and must "promptly" provide information deemed releasable. They may charge reasonable search fees, copying fees, and, in the case of commercial-use requests, fees for the review of records.

Requesters can apply for a waiver of fees under a "public interest" standard. Agencies have up to 20 working days to decide an appeal of a denial and to inform the individual that he or she may bring a court action to challenge it.

A January 21, 2009 Presidential memo directed agencies to administer FOIA with a "clear presumption" of openness. "The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," it said. "Non-disclosure should never be based on an effort to protect the personal interests of government officials at the expense of those they are supposed to serve." The presumption of disclosure should be applied to all decisions involving FOIA, it said, and agencies should take affirmative steps to make information public rather than wait for specific requests, should use modern technology and make timely disclosures.

A Justice Department-compiled overview of the act is at www.usdoj.gov/oip/index.html. In addition, many agencies maintain online postings of information they have released under FOIA requests. An index of agency home pages is at www.usa.gov.

Privacy Act

The Privacy Act of 1974 gives federal employees several rights with regard to records that are part of what the Act calls a "system of records." A system of records under the Privacy Act means "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying particular assigned to the individual."

The Act allows federal employees to inspect and receive copies of their files, subject to various exemptions that an agency may claim if it has published regulations pursuant to the exemptions.

Employees can request correction or amendment of any Privacy Act-covered information about them that the employee feels is in error. If the agency does not correct the record, the employee can appeal the agency's denial to a person whose name and address should be provided in the denial letter. If the employees lose such an appeal, they have the right to file a brief statement giving reasons for disputing the record, which will accompany the record if it is sent somewhere else by the agency.

Agencies are also required to publish public notices of all systems of records maintained.

The law requires agencies to obtain an employee's written permission prior to disclosing to other persons or agencies information about the individual, unless such disclosures are specifically authorized under the Act. Information can be disclosed without an individual's consent, for example, under circumstances in which: disclosure would be required under the Freedom of Information Act; disclosure is to an employee or officer of the agency that maintains the record who has a need for the information to perform official duties; disclosure is pursuant to a "routine use" as published in the agency's public notice of the system of records containing the information; disclosure is to another agency for a specific civil or criminal law enforcement activity in response to the written request of the agency head; disclosure is pursuant to a showing of compelling circumstances affecting the health or safety of an individual; or disclosure is made pursuant to a court order.

The Privacy Act generally bars the release of personal information such as names and home addresses to unions. However, the information can be provided without the employee's consent if there are no other adequate alternative means of communicating with bargaining unit members.

Agencies are required by the Act to keep an accurate accounting of all disclosures of their employees' records to other agencies or persons, except when the disclosure was required by the Freedom of Information Act or when a disclosure was made within the agency on a need-to-know basis. With the exception of disclosures requested by law enforcement agencies, a list of all recipients of an employee's records must be given to the worker upon request.

Under the Privacy Act, federal employees may sue an agency for refusing to release or amend their records. Employees also may sue if they are adversely affected by an agency's failure to comply with any of the other provisions of the Act. Employees may be able to obtain money damages in certain circumstances if they can prove, among other things, that they have been adversely affected as a result of the agency's intentional and willful disregard of the Act's provisions. Court costs and attorney fees may be awarded.

The Act provides criminal penalties for the knowing and willful disclosure of records to those not entitled to receive them, willfully maintaining a record that is not in accordance with the Privacy Act, and knowing and willful attempt to gain access to an individual's records under false pretenses.

Currently employed workers who desire access to or amendment of their personnel records should contact their personnel office or their agency's designated Privacy Act officer if they need assistance in processing their request. Usually, the request will have to be made to the employing agency. Requests from former federal employees regarding their Official Personnel Folders should be directed to:

National Personnel Records Center

1 Archives Drive
St. Louis, MO 63138
Phone (314) 801-0800
Fax (314) 801-9195
www.archives.gov/st-louis

When making a Privacy Act request, employees should be sure to provide enough identifying information to enable the agency to find their records, and assure the agency of their identity. Generally, this means that employees should provide their full name, date of birth, and Social Security number to facilitate this process.

A Justice Department-compiled overview of the Privacy Act is at www.usdoj.gov/oip/04_3.html.

Religious Freedom Guidelines

Employees' religious practices ranging from keeping a Bible or Koran on a desk to participating in prayer sessions during breaks and wearing religious medallions and symbols must be tolerated and protected by federal supervisors and other agency officials, under a Presidential memo of August 14, 1997. While the "Guidelines on Religious Exercise and Religious Expression in the Federal Workplace" did not create any new legal rights or substantive procedures, they spell out what all federal agencies must do to protect government workers' rights to practice, pursue, or express their religious beliefs on the job.

The guidelines generally instruct the heads of all executive departments and agencies to permit and protect employees' exercise of religious freedom rights in the workplace. They include a number of specific examples designed to demonstrate how and what supervisors and managers must allow (or refrain from) in carrying out this general religious freedom mandate. However, while casting a protective mantle over most forms of workplace religious expression, the guidelines also warn that under the First Amendment "supervisors and employees must not engage in activities or expressions that a reasonable observer would interpret as government endorsement or denigration of religion or a particular religion."

Main points of the guidelines include:

  • Federal Employees' Religious Expression Rights--The guidelines stress that a federal worker generally has the right to express personal religious convictions on the job "except where the employee's interest in the expression is outweighed by the government's interest in the efficient provision of public services or where the expression intrudes upon the legitimate rights of other employees or creates the appearance, to a reasonable observer, of an official endorsement of religion." These protections extend to employees' religious expressions in private work areas, religious discussions with co-workers, and display of religious messages or symbols on personal attire. Generally, these practices must be permitted as long as they do not interfere with workplace efficiency or convey any official government endorsement of religion. Similarly, even workplace "proselytizing"--that is, employees' efforts to "spread the faith" or "persuade fellow employees of the correctness of their religious views"--is protected "to the same extent as those employees may engage in comparable speech not involving religion," according to the guidelines. However, workers must refrain from proselytizing, the guidelines add, "when a fellow employee asks that it stop or otherwise demonstrates that it is unwelcome."

  • A Ban on Employment-Based Religious Discrimination--This prohibition covers discrimination in employment terms and conditions (that is, hiring, firing, promotions, pay, etc.). It also extends to religious harassment that creates a hostile environment (for example, an employee's repeated derogatory remarks to co-workers "about their faith or lack of faith"), as well as coercive actions that encourage or discourage employee participation in religious activities (for example, supervisors may invite co-workers to family religious celebrations or ceremonies, but may not indicate they "expect to see" employees in church or at a religiously oriented meeting).

  • Management's Religious Accommodation Obligation--Under federal law, the guidelines stress, an agency must accommodate workers' religious beliefs and practices "unless such accommodation would impose an undue hardship on the conduct of the agency's operations." Additionally, an agency cannot deny a worker's religious accommodation request if it "regularly permits similar accommodations for nonreligious purposes." This means that managers must make accommodations--like work schedule adjustments and tolerance of religious attire at work--as long as these accommodations do not result in a real (rather than "speculative") undue hardship that affects the agency's ability to conduct business or carry out its mission.

Association Rights

The 1996 Federal Employee Representation Improvement Act (P.L. 104-177) guaranteed the right of employee associations to represent the views of their members before higher management.

Rules at 5 CFR Part 251 require agencies to consult with employee associations and govern agency relations with managerial, supervisory, professional and other organizations that are not labor unions. The rules:

  • Require agencies to establish and maintain systems for intra-management communication and consultation with their supervisors and managers, and establish consultative relationships with associations whose membership is primarily composed of federal supervisory and/or managerial personnel.
  • Authorize agencies to provide support services to organizations representing federal employees, and their members, when such action would benefit the agency's programs or be warranted as a service to employees. This includes space for meeting purposes, excused absence for training, internal agency mail and e-mail and other support.
  • Reaffirm the eligibility of members of managerial and other federal employee organizations to make an allotment for dues withholding from their paychecks.

Agencies have broad discretion in implementing these requirements.

While agencies are required to communicate and consult with associations of supervisors and managers, dealings with other non-labor organizations representing federal employees are discretionary, because, among other things, of the likelihood that members of such organizations will also be members of bargaining units for which labor organizations hold exclusive recognition regarding their conditions of employment.

Benefits Upon Death in Service

The following summarizes policies governing benefits for employees who die in service--that is, while actively employed. These benefits differ from benefits upon the death of a retiree. For further details on each of these benefits, see the pertinent material in each applicable section of this Federal Employees Almanac.

Unpaid Compensation--This includes the unpaid hours worked, and the unused hours of annual leave accrued as of the date of death. This amount is distributed in a lump sum payment to the employee's beneficiary or by order of precedence established by federal statute.

Health Insurance--If the employee was enrolled in the self and family option under the Federal Employees Health Benefits program at the date of death and there is a survivor annuity payable to a spouse and/or children, the survivor may continue health insurance coverage. Premiums will be deducted from the survivor annuity. If the employee was enrolled in the self and family option at the date of death, but there is no survivor annuity payable, the enrollment terminates with the survivors having the right to convert to a private policy within 30 days. Exception: If covered under the Federal Employees Retirement System and the deceased federal employee has at least 18 months of service, the survivor may keep the health benefits coverage, but will be required to pay the enrollee's share of the premiums directly to OPM. If the employee was enrolled in self-only coverage at the date of death, the enrollment terminates at death with no right to enroll or convert for the survivors.

Life Insurance--Any Federal Employees' Group Life Insurance benefits payable will be paid in the order of precedence established by federal statute, unless the employee has an SF 2823, Designation of Beneficiary form, on file. However, a valid court order filed with the employing agency after October 1998 and before the employee's death will take precedence over a designation of beneficiary.

Long-Term Care Insurance--If a spouse or other eligible family member is enrolled in the Federal Long-Term Care Insurance Program upon the employee's death, that coverage continues as long as the enrollee continues to pay the premiums. However, eligibility to first enroll would end unless the individual is eligible through receipt of a survivor annuity or under other eligibility rules.

Dental and Vision Insurance--A member of a family who receives an immediate annuity as the survivor of an employee or of an annuitant is eligible to enroll in the Federal Employees Dental and Vision Insurance Program or to continue coverage if covered by that person's enrollment at the time of death.

Thrift Savings Plan--All money in the employee's TSP account is payable in the order of precedence established by federal statute, unless the employee has a TSP-3, Beneficiary Election form on file, which would govern instead. A spouse beneficiary may keep the account open and has the same account management and withdrawal rights as employee participants. Other beneficiaries must close out the account, either by taking a withdrawal or by transferring the money to an individual retirement account or other qualifying retirement savings plan.

Death Gratuity Payment--If an employee's death results from an injury sustained in the line of duty, a death gratuity payment may be paid to the personal representative of the employee. The amount payable is up to $10,000 minus the amount payable by Office of Workers' Compensation Programs (OWCP) under 5 U.S.C. 8331 (f), usually $200, and 8134 (a), usually $800.

Flag Honor--Agencies are authorized to present an American flag to the next of kin of a federal or postal employee who dies of injuries incurred in connection with employment with the government, including death in the line of duty and death due to the individual's status as an employee. If no request is received from the next of kin, the flag may be presented to the appropriate individual as determined by the Office of Personnel Management. An agency may disclose information necessary to show that a deceased individual was an employee to the extent that the information is not classified and that such disclosure does not endanger national security.

Death Overseas--Section 3973 of Title 22, U.S. Code, provides for the payment of a death gratuity in an amount equal to one year of the employee's salary at the time of death to members of the Foreign Service who died outside the United States in the performance of duty. Additionally, certain travel and transportation benefits are provided.

In addition, under 5 U.S.C. 8102(a) a death gratuity of $100,000 is payable upon the death of an employee due to injuries incurred in connection with the employee's service with an Armed Force in a contingency operation. This includes employees of non-appropriated fund instrumentalities. The gratuity is payable by the Department of Labor's Office of Workers' Compensation Programs as a death benefit under the Federal Employees Compensation Act. It is paid to survivors under a standard order of precedence unless the employee chose a different payout on a designation form that agencies are to provide to employees deployed in a contingency zone of operations. The amount is offset by any other death gratuity payment as described above.

The death gratuity is payable for employees of certain agencies who died on or after October 1, 2001, due to injuries incurred in connection with service with an Armed Force in theater of operations of Operation Enduring Freedom and Operation Iraqi Freedom. Implementing rules are at 20 CFR Part 10, subpart J.

Public Safety Officers Benefits--The Public Safety Officers' Benefits Act of 1976 (42 U.S.C. 3796) authorizes a benefit to specified survivors of public safety officers, including those of the federal government, found to have died as the direct and proximate result of a personal injury, traumatic injury involving external force sustained in the line of duty, and to officers found to have been permanently and totally disabled as the direct result of a catastrophic injury sustained in the line of duty. The benefit for a qualified survivor or a qualified disabled officer is $323,035 (inflation-adjusted effective each October 1), offset by any death gratuity payable as described above. Contact the Public Safety Officers' Benefits Program, Bureau of Justice Assistance, 633 Indiana Ave. N.W., Washington, DC 20531-0001, www.ojp.usdoj.gov/BJA/grant/psob/psob_main.html.

Under 5 U.S.C. 5724 agencies may pay the moving, transportation and relocation expenses attributable to a change of residence within the United States of the immediate family of a federal law enforcement officer who dies in the performance of official duties, and may pay the expenses of preparing and transporting the remains of the deceased officer to where the family will reside, or to another appropriate place for interment.

Survivor Annuity, General--The surviving spouse and/or children of an employee who dies in service may be eligible for a survivor annuity under CSRS or FERS dependent upon the employee's retirement system. (Note: These policies generally parallel those for survivors of retirees; see Chapter 3, Section 4.)

For survivor benefits to be payable upon death in service, the employee must have 18 months of creditable civilian service and be covered by the applicable retirement system at the date of death. The surviving spouse must have been married to the employee for at least nine months at the time of death or be a parent of a child of the marriage. The length of marriage requirement is deemed satisfied in cases involving accidental death.

If a survivor annuity is payable, OPM authorizes payment and the Treasury Department prepares and mails the check or transfers the payment via direct deposit. OPM will send the survivor a statement indicating when to expect their first regular monthly payment shortly after OPM authorizes it. After that, the annuity payment is payable on the first business day of the month.

Benefits may also be payable to a former spouse in accordance with a court order. The amount awarded by the court to a former spouse reduces the amount payable to any surviving spouse.

Annuity payments are taxable.

CSRS: A spousal annuity is 55 percent of an annuity computed as if the employee had retired on a disability retirement as of the date of death. Spouses receive 55 percent of the higher of:

  • an annuity computed under the general formula based on the deceased employee's high-3 average salary and length of service to date of death, including credit for unused sick leave; or
  • a "guaranteed minimum" which is the lesser of 40 percent of the deceased employee's high-3 average salary; or the regular annuity obtained after increasing the deceased employee's length of service by the period of time between the date of death and the date he or she would have been age 60.

A lump-sum death benefit may be payable if the annuity amounts paid out by the time survivor annuities end--such as at the survivor's death--do not equal the deceased employee's contributions, plus interest.

FERS: If the employee has at least 18 months of civilian service, the surviving spouse will receive:

  • a lump sum ($30,792.98 in 2012, indexed each year), plus
  • a lump sum of the higher of 50 percent of annual basic pay at time of death or 50 percent of high-3 average salary, plus
  • any Social Security benefits payable.

In addition, if the employee had more than 10 years of service and died while subject to FERS deductions, the surviving spouse will receive an annuity equal to 50 percent of the employee's basic annuity as of date of death. This earned annuity is computed in the same manner as if the employee retired, but without any reduction for age.

Children's Benefits--In addition to any spousal benefits payable, eligible children receive benefits in a set dollar amount established by law. Children must be unmarried, under the age of 18 (or 22 if attending school) or any age if disabled before age 18.

Children's benefits are indexed each year. In 2012 the children's rate when there is a surviving parent is $487 per month per eligible child or $1,460 per month divided by the number of eligible children (if four or more). If there is no surviving parent the rate is $584 per month per eligible child or $1,752 per month divided by the number of eligible children (if four or more). The amount payable to children of CSRS employees is not reduced by any Social Security survivor benefits payable to the children; benefits to children of FERS and CSRS Offset employees are reduced by the amount of the Social Security benefit. A child annuity is paid to his or her legal guardian if one has been appointed. If there is no legal guardian, OPM will make the payment (at its discretion) to the person who is responsible for the child.

If No Survivor Annuity Is Payable--If your spouse and/or children are not eligible for a survivor annuity under the rules described above in Survivor Annuity, General, or if there is no surviving spouse or child, your retirement contributions, plus interest as applicable, will be paid as a lump-sum to the beneficiary you designated (on form SF 2808 for CSRS, SF 3102 for FERS, available from your personnel office or at www.opm.gov/forms) or, in the absence of a designated beneficiary, in the order of precedence established under statute (see Chapter 3, Section 4). The amount includes:

  • CSRS: Retirement deductions withheld from your pay, redeposits of refunds previously paid, deposits for civilian service where no deductions were taken, deposits for post-1956 military service and interest on deductions through December 31, 1956 (if any). Note: In the case of an employee or former retiree who dies with less than five years of creditable service, interest is paid to the date of separation (or transfer to a position not covered by CSRS) on any amount over one year of service.
  • FERS: Retirement deductions (including any CSRS Interim and CSRS Offset) withheld from pay, deposits for civilian service performed before January 1, 1989, deposits for post-1956 military service, redeposits of CSRS refunds previously made, the balance left after the return of excess deductions (civilian and military), and the variable interest on deductions and deposits if the service covered totals at least one year. Note: For transferees with a CSRS component, interest on the CSRS component of the lump sum accrues under CSRS rules.

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