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. In some jobs , possession of a security clearance is a 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. Using its own employees and contractors, OPM conducts about nine-tenths of initial background investigations and periodic re-investigations government-wide at the request of other agencies.
Executive Order 12968 of 1995 set standards and guidelines for determining who may have clearances and for conducting background investigations. It also established a governmentwide policy on employee appeals of denials or revocations of clearances and contained a policy statement on nondiscrimination in granting of clearances.
Access to Classified Information—You will not be granted access to classified information unless you have been determined to be eligible for access by your agency head or designated official based on a favorable adjudication of an appropriate investigation of your background, have a demonstrated need-to-know, and have signed an approved non-disclosure agreement.
You 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 you continue to meet the requirements for access.
If you are granted access to classified information, you are required as a condition of such access to provide written consent to your agency 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 you outside the United States. Information may be requested where there are reasonable grounds to believe, based on credible data, that you as an employee or former employee are, or may be, disclosing classified information in an unauthorized manner to a foreign power or agent of a foreign power; information your agency deems credible indicates that you have incurred excessive indebtedness or have acquired a level of affluence that cannot be explained by other information; or circumstances indicate that you had the capability and opportunity to disclose classified information that is known to have been lost or compromised.
Financial Disclosure—Agencies must 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.
If you are one of those designated employees, you may not be granted access unless you: file with the head of the agency a financial disclosure report, including information with respect to your spouse and dependent children, as part of all background investigations or reinvestigations; are subject to annual financial disclosure requirements, if selected by the agency head; and file 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 must 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 must be terminated when you no longer have a need for access.
You may not be deemed to be eligible for access to classified information merely by reason of federal service or as a result of any 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.
Executive Order 13467 of 2008 generally required that background investigations and adjudications 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. Also, 50 U.S.C. 3341 as amended by P.L. 113-126 of 2014 prohibited an agency from rejecting another agency’s determination that an individual is eligible for access to classified information on the basis that the determination is “out of scope”—that is, outside the duties of the position—unless the rejecting agency certifies that it does not employ any personnel who have background investigations that similarly are out of scope. It further established a presumption that those who have been determined to be eligible for access to classified information also are suitable for employment.
Initiatives announced in 2016 include more frequent reinvestigations of clearance holders (see below) including a requirement for reinvestigations every five years regardless of clearance level; improved coordination of information among law enforcement agencies; establishing the semi-independent National Background Investigations Bureau within OPM to oversee investigations, while shifting control of the information to the Defense Department; and tighter scrutiny of whether classified access is needed for a position and thus whether a clearance is needed.
Executive Order 13764 of 2017 incorporated the changes in law and initiatives of the prior years and clarified the responsibilities of OPM, other investigative agencies and the employing agencies in the investigative and adjudicative stages, while creating a Security, Suitability, and Credentialing Performance Accountability Council to oversee ongoing practices and initiate improvements.
Social Media—Publicly available social media information may be collected and used in security clearance investigations, under a May 2016 policy directive from the Office of the Director of National Intelligence. Publicly available social media information is defined as: social media information that has been published or broadcast for public consumption; is available on request to the public; is accessible online to the public; is available to the public by subscription or purchase; or is otherwise lawfully accessible to the public.
Under the directive, the government may not request or require individuals subject to the background investigation to provide passwords or log into private accounts, or take any action that would disclose non-publicly available social media information. Also, it may not create accounts or use existing accounts on social media for the purpose of connecting to the individual or to enlist the assistance a third party to access otherwise non-publicly available information. If information is discovered that raises issues relevant to a clearance determination it is to be investigated according to standard guidelines; no unfavorable actions may be taken solely on uncorroborated or unverified information collected. Standard policies regarding the sharing and storage of information gathered during background investigations also apply.
Only publicly available social media information pertaining to the individual under investigation may be intentionally collected. Absent a national security concern, or criminal reporting requirement, information pertaining to others will not be investigated or pursued. The policy, Security Executive Agent Directive 5, is at https://www.odni.gov/files/documents/Newsroom/Press%20Releases/SEAD5-12May2016.pdf.
State Laws Regarding Drug Use—Several states have decriminalized the use of marijuana, allowing its use for medicinal purposes or in other limited situations. However, under the federal Controlled Substances Act, marijuana is a controlled drug and no state can authorize violations of that law. In addition, the Intelligence Reform and Terrorism Prevention Control Act prohibits a federal agency from granting or renewing a clearance to an unlawful user of a controlled substance. Further, Executive Order 12564 (see Drug Testing, below in this section) states that use of illegal drugs on or off duty by federal employees in positions with access to sensitive information may pose a serious risk to national security and is inconsistent with the trust placed in such employees.
Under a Director of National Intelligence memo of October 25, 2014, use of marijuana in disregard of federal law remains relevant in security clearance determinations even where allowable under law of a lower jurisdiction. It says that in making eligibility decisions for persons proposed for or occupying sensitive national security positions, an adjudicative authority must determine if the use of, or involvement with, marijuana raises questions about the individual’s judgment, reliability, trustworthiness and willingness to comply with law, rules and regulations. Involvement with marijuana also may be considered when agencies make employment suitability determinations and in disciplinary actions, under a May 26, 2015 memo at www.chcoc.gov/transmittals; that memo includes the DNI memo as an attachment.
Appeals Procedure for Denials or Revocations of Clearances—If you are an applicant or employee who is determined to not meet the standards for access to classified information, you must 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 about your right to be represented by counsel or other representative at your 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, must be promptly provided to you 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 must be selected from outside the security field. Decisions of the panel must 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 must be made part of your security record, unless such appearance occurs in the presence of the appeals panel described above. Note: A determination that you do not have, or no longer have, a need for access cannot be appealed.
Reinvestigation Requirements—If you are eligible for access to classified information, you are subject to periodic reinvestigations every five years regardless of level of access and may also be re-investigated if, at any time, there is reason to believe that you may no longer meet the standards for access. Also, some positions of high sensitivity are subject to continuous evaluation of certain financial and other indicators of potential risk.
Employee Education and Assistance—The head of each agency must 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—If you are granted eligibility for access to classified information, you must: protect classified information in your 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.
You are encouraged and expected to report any information that raises doubts about another employee’s continued eligibility for access to classified information.
Sanctions—You are subject to appropriate sanctions if you 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.
Review—The Merit Systems Protection Board has only limited authority to review personnel actions involving security clearances or sensitive positions in general (see Jurisdiction in Chapter 10, Section 3). However, employees who believe that a decision affecting their eligibility for access to classified information was an act of retaliation for their whistleblowing may challenge the action through an independent procedure, with higher-level review in certain circumstances (see Whistleblowing in Chapter 10, Section 3).
There are two general types of discipline: that based on misconduct—generally involving violations of laws or workplace policies—and that based on poor performance, the failure to work 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). An employee must meet eligibility requirements, such as completing probation. Some agencies employ “alternative discipline” as described below.
Separate disciplinary notice and appeals policies apply to Department of Veterans Affairs employees and where whistleblowing is involved, as described in Chapter 10, Section 3, and to Senior Executive Service members as described in Other Policies in Section 9 of this chapter. See Chapter 5, Section 1 for policies regarding work and leave status during investigations that might lead to disciplinary action and during the period of notice before such an action becomes effective.
Under a January 31, 2014 Presidential memo, agencies may not remove, suspend, or demote a current federal employee if the basis of the action is that the employee has experienced, or is experiencing, financial difficulty through no fault of the employee, and the employee has undertaken a good-faith effort to meet his or her financial obligations. However, that policy does not affect the authority of agencies to take adverse actions against employees for failure to comply with any law, rule, or regulation imposing upon them an obligation to satisfy their financial obligations, including federal, state, or local taxes.
Executive Order 13836 of May 25, 2018 set a series of principles for agencies to follow in disciplinary decisions, including that:
• supervisors and deciding officials should not be required to use progressive discipline;
• disciplinary action should be calibrated to the specific facts and circumstances of each individual employee’s situation and conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time;
• agencies should not require suspension of an employee before proposing to remove that employee, and suspension should not be a substitute for removal in circumstances in which removal would be appropriate;
• agencies should take into account an employee’s disciplinary record and past work reord, including all past misconduct, not only similar past misconduct; and
• agencies should use the procedures of 5 U.S.C. 75 (see below) to address unacceptable performance where appropriate in addition to instances of misconduct, should limit the written notice of adverse action under that chapter to 30 days, and should issue decisions on proposed removals taken under it within 15 business days of the end of the employee reply period following a notice of proposed removal.
The order also stressed using the probationary period to assess employees before they gain full appeal rights, and stated that agencies may not agree, in a settlement with an employee who challenged an adverse action, to alter or delete information about the employee’s conduct or performance from personnel records or to withhold such information from another agency.
Note: The order further told agencies to generally limit performance improvement periods to 30 days and not to agree during bargaining to longer periods or to commit to taking informal steps before a formal period begins. A federal district court ruling of August 24, 2018 overturned those provisions. In light of that decision, agencies were instructed not to enforce those provisions pending an appeal of the court decision; later guidance stressed that other provisions, including general goals for agencies to pursue in bargaining, remain in effect and that agencies are to comply with them. See August 29 and November 8, 2018 memos at www.chcoc.gov/transmittals.
Under 5 U.S.C. 3322, an agency must include in an official personnel file any adverse finding from an investigation that could have led to discipline except that the employee voluntarily separated first, and agencies must weigh that information if considering that person for employment later. The person must be given notice of the agency’s intent to put make such a notation, the opportunity to respond, and a final agency decision. The person also has the right to appeal to the Merit Systems Protection Board, which can order the notice to be removed. Guidance is in a May 7, 2018 memo at www.chcoc.gov/transmittals.
Several MSPB publications at www.mspb.gov/studies/viewallstudies.htm contain further information on adverse action procedures and legal standards.
Performance-Based Discipline—Your agency may take disciplinary actions up to and including removal for unacceptable performance—that is, performance which fails to meet established performance standards in one or more critical elements of your position under 5 U.S.C. 43—so-called “Chapter 43” actions. If your agency determines that your level of performance is so poor that it constitutes misconduct, discipline for poor performance may be taken under 5 U.S.C. 75—so-called “Chapter 75” actions, as described below.
While most employees may appeal a performance-based disciplinary action of a 14-day suspension or more to the MSPB, the appeal will not succeed if the agency can support its action with substantial evidence that the employee 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 your performance under one or more critical elements was below the minimally successful level. The critical elements you 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.”
Your 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 you can aim your 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 you of the specific work requirements.
While you may challenge the validity of the performance standards, MSPB will strike down a standard only if it determines that the agency harmed you 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 you 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 you should not do, but fails to inform you of what you should do, the agency has crafted an invalid “backward standard.”
An agency may notify you of performance deficiencies as soon as they become known; it need not wait until an annual performance review to do so.
If your agency seeks to remove or demote you for poor performance, OPM regulations require that it first: inform you of the critical job elements in which you are deficient, what is required under those critical elements, and that failure to fulfill the elements may lead to demotion or removal; provide you an opportunity period to improve your performance; and assist you in improving your performance.
Many federal agencies use performance improvement plans, or PIPs, to meet those requirements. (Note: Under P.L. 115-41 of 2017 employees of the Veterans Affairs Department are subject to a shortened notice and appeal process that in effect eliminates the performance improvement plan step. See Appeals Procedures in Chapter 10, Section 3.) An agency may not substantially change your performance standards at the beginning of the opportunity period and then find that your performance is unacceptable under the new standards. However, an agency may limit your duties and responsibilities during the opportunity period to specific parts of your 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 you 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.
Note: Executive Order 13836 of May 25, 2018 ordered agencies to generally limit such periods to no more than 30 days and also not to agree to a longer period during bargaining. A federal district court ruling of August 24, 2018 overturned those provisions. In light of that decision, agencies were instructed not to enforce those provisions pending an appeal of the court decision; later guidance stressed that other provisions, including general goals for agencies to pursue in bargaining, remain in effect and that agencies are to comply with them. See August 29 and November 8, 2018 memos at www.chcoc.gov/transmittals.
If you are on extended leave during the opportunity period, extension of the period may be considered in order to ensure a reasonable opportunity to improve. When your 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 you 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, the agency action may be reversed.
Finally, your agency must monitor and document your performance during the opportunity period. The agency must be prepared to prove, by substantial evidence, that your performance during the opportunity period was deficient as measured against the critical elements of the position.
Although your agency bears a relatively low burden of proof in taking a disciplinary action on performance grounds, it must present evidence, testimonial and documentary, about your 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 5 U.S.C. 75. 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 your conduct (or, when this section is used for performance reasons, that you have performed poorly), and that all relevant factors were considered in selecting the penalty.
When taking an adverse action on conduct grounds your agency generally must comply with certain requirements in personnel laws and rules. These include 30 days of advance notice in writing of the charges (unless there is reasonable cause to believe you have 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. You must be told of your right to review the material on which the action is based.
An agency may shorten the notice period or indefinitely suspend you if it has reason to believe you have committed a crime, so long as there is a connection between the alleged crime and the efficiency of the service. Note: See Appeals Procedures in Chapter 10, Section 3. for special policies applying to employees of the Veterans Affairs Department under P.L. 115-41 of 2017 including a shortened notice period and a lower burden of proof for management in an appeal.
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.
You 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.
If you believe the action was motivated by discrimination, you also 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. 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 you and your supervisor.
Typical features of an alternative discipline agreement are: description of your offense; an admission of wrongdoing; a promise to modify 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 on both sides.
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—If you have been disciplined, depending on the action taken, your job status, and other factors you may be able to:
• File an appeal with the MSPB. After a decision from an administrative judge, you 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, you can also ask the Equal Employment Opportunity Commission to review the Board’s action, and in some cases you 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. See Chapter 10, Section 3.
• File a grievance. If you are covered by union bargaining units—whether or not you are a dues-paying union member—you can file a grievance under the negotiated procedures agreed to by the union and your agency (if you are not in a bargaining unit, you may be able to file an administrative grievance; see below). The first step in the negotiated grievance process typically is an informal hearing presided over by an agency official other than your 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, you can take the case to a U.S. district court for a new trial. See Negotiated Grievance Procedures in Section 6 of this chapter.
• File a discrimination complaint. You can seek review of discrimination claims, first in your agency 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, you can file a discrimination complaint in a U.S. district court. In addition, at various points during the administrative process you can decide to go directly to court. See Chapter 10, Section 2.
• Seek assistance in other forums. There are a variety of other ways for you 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 on grounds that a prohibited personnel practice occurred. See Chapter 10, Section 4.
In non-union settings, administrative grievance processes generally are available for matters not ordinarily appealable elsewhere, such as suspensions of fewer than 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.
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.
Only degrees from an accredited college or university recognized by the Department of Education (see https://ope.ed.gov/accreditation) are acceptable to meet education requirements or to substitute for experience (see www.opm.gov/policy-data-oversight/classification-qualifications). Note: Accreditation is not required for training; see Training and Professional Development in Section 3 of this chapter. Agencies are responsible for ensuring that qualification requirements are met and independently validate educational claims. OPM 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 in an intentional false statement in an attempt to obtain employment, promotion, training, special assignment, or other employment-related benefit such as by claiming a degree the applicant knows to be bogus and attempting to obtain one of these benefits. 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 that the applicant reasonably knew the educational institution was a bogus institution (for example, 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 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. This includes a determination of eligibility to continue to hold a security clearance or remain in a position where standards of trustworthiness and integrity are particularly high, 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 https://archive.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 ability to perform safely and effectively, the agency should treat them the same way it would any other employee suffering from a serious illness.
You may not refuse to work with fellow employees or clients who are HIV-infected or diagnosed with AIDS and you may not engage in behavior that creates an uncomfortable or hostile environment for them. If you engage in this type of conduct, you 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, your concerns should be taken seriously and should be addressed with appropriate information and counseling. In addition, if you are in a position, such as a health care worker, who may come into direct contact with the body fluids of someone having HIV/AIDS, you must be provided with appropriate information and equipment to minimize the risks of such contacts.
If you object to attending HIV/AIDS training based on a personal religious belief or practice, you 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 an employer has an obligation to accommodate religious practices unless it can demonstrate that accommodation would result in undue hardship on the conduct of its business.
HIV/AIDS-related policies or programs that would affect the working conditions of bargaining unit employees are subject to collective bargaining where applicable.
The ADA prohibits discrimination and harassment in the workplace based on HIV/AIDS infection; see Americans with Disabilities Act in Chapter 10, Section 2. Guidance on confidentiality, reasonable accommodation and other issues is at www.eeoc.gov/eeoc/publications/hiv_individual.cfm.
If you are infected with HIV/AIDS, you may request sick leave, annual leave, or leave without pay to pursue medical care or to recuperate from the ill effects of the medical condition. Your agency should make its determination on whether to grant leave the same way it would for other employees with medical conditions. In addition, if you have HIV/AIDS, you are entitled to a total of 12 administrative weeks of unpaid leave under the Family and Medical Leave Act of 1993, you may also participate in leave sharing programs run by your agency after your own leave has been exhausted, and/or take unpaid leave. See Chapter 5. Also see Chapter 3, Section 6 for information on disability retirement. If the condition is deemed to be life-threatening, see Chapter 3, Section 7 for information on the alternative form of annuity and see Living Benefits in Chapter 2, Section 2.
Zika Virus Exposure
Policies regarding preventing exposure of federal employees to the Zika virus and for responding if employees are exposed to it were set by March 7 and September 16, 2016 Office of Personnel Management memos at www.chcoc.gov/transmittals. The virus is spread primarily through the bites of infected mosquitoes and has been linked to neurological disorders as well as to birth defects in children of women infected while pregnant.
The former memo, pertaining mainly to international travel assignments, said agencies should be “mindful of the health risks in determining the need” for travel to Zika-affected areas and should consider alternatives such as teleconferencing. For travel to affected areas deemed necessary, agencies “should carefully consider” requests from employees who wish to opt out and/or solicit qualified volunteers.
The latter memo provided guidance on protecting workers from workplace exposure to the virus while strongly encouraging agencies to use personnel flexibilities and to make workplace accommodations such as approving telework for employees who wish to work from home or at an approved alternative worksite for reasons related to the virus.
An employee must be ill due to the Zika virus to use sick leave and cannot use it simply due to exposure, since sick leave usage by persons exposed to a communicable disease is limited to cases where exposure requires quarantine or confinement as directed by health care authorities. Similar standards apply to use of sick leave for general family care, to care for a family member with a serious health condition, and to use of Family and Medical Leave Act leave.
The policy encouraged agencies to be flexible in granting requests for annual leave, including requests for advanced annual leave, to employees who wish to be absent for reasons related to the Zika virus, as well as advanced sick leave for those who qualify to take sick leave. The same applies to requests for leave without pay and requests to use compensatory time off, compensatory time off for travel and credit hours earned under a flexible work schedule. Further, employees who have a personal or family medical emergency related to the virus may use donated leave, if they otherwise qualify.
See Chapter 5, Sections 1-4 for further information about leave and time off policies.
The OPM policy also references Equal Employment Opportunity Commission interpretations of how laws including the Pregnancy Discrimination Act and the Americans with Disabilities Act apply to Zika exposure. Under the former law, an employer must accommodate someone who is pregnant and working in a job that would subject her to a risk of becoming infected with the Zika virus to the same extent as it accommodates other employees who have work restrictions for reasons unrelated to pregnancy. For example, an employer would have to allow a pregnant employee to take leave, to telework, or to work in a different job temporarily in order to avoid exposure to the Zika virus if the employer allows other employees to take leave, to telework, or to work in another job temporarily due to restrictions unrelated to pregnancy such as injury or illness. Further, an employer can expedite processing of such requests to a pregnant employee without violating the rights of others making such requests. However, an employer may not compel a pregnant employee to change work arrangements in such a way even out of concern that she may contract the virus, nor may it ask a woman if she is pregnant or intends to become pregnant when deciding on assignments to places where employees may be exposed to the virus.
Under the ADA (and the Rehabilitation Act, which applied the ADA to the federal workforce), someone with the Zika virus may have a protected disability if he or she is substantially limited in performing activities such as caring for self, or if major bodily functions, like immune system functions, are affected. In that case, an employer cannot take a negative action against the employee on that basis unless the virus made the employee unable to do his or her job or the virus poses a significant risk of substantial harm to the employee or others in the workplace, The employee further may become eligible for accommodations such as leave, telework or temporary reassignment to another job if the employer has one, and retaliation against the employee for making such a request is prohibited.
An employer may require that the employee present reasonable documentation of such a disability and the need for an accommodation. That information may be disclosed to managers and supervisors, to first aid and safety personnel if someone may require emergency treatment, to government officials investigating compliance with the ADA or the Rehabilitation Act, and for workers’ compensation and insurance purposes. Disclosure to co-workers is prohibited. Except when seeking documentation for a requested accommodation, an employer may not ask employees whether they have the virus or test them for it unless it has a reasonable belief, based on objective evidence, that an employee will be unable to do his or her job because of a medical condition or will pose a direct threat due to a medical condition. Asking employees whether they have traveled to areas where the Zika virus is present is not considered a disability-related question and thus is permitted, although the employer may not ask such a question only of women. See Chapter 10, Section 2 for further information about those laws.
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 others in the same building or nearby.
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.
Federal Employees Health Benefits program plans may provide financial and other incentives for participation in health and wellness programs; check with your plan.
Also see www.opm.gov/policy-data-oversight/worklife/health-wellness.
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 your genetic tests or genetic tests of your family members and information about the occurrence of disease, or medical condition or disorder in your family members. Protected genetic information does not include current health status information about you as an applicant or an employee, 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, your current health status.
Federal departments and agencies may not discharge, fail or refuse to hire, or otherwise discriminate against you 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 you or otherwise adversely affect your status because of such information. They may request or require family medical history from you only in limited circumstances:
• First, if you are an applicant, a federal department or agency may request or require family medical history from you as long as it has made a conditional offer of employment. If you are a federal employee, your agency also may ask for family medical history 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 you to undergo further medical testing to assess whether you have a current medical condition that may affect your ability to perform the essential functions of the job; 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 your family medical history where the department or agency subsequently provides genetic or health care services to you at your request. The order also restricted the conditions in which an agency may obtain or disclose protected genetic information about you or information about your 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 45 CFR 46, 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.
A department or agency may not obtain genetic information for health care or monitoring purposes without your knowing and voluntary consent.
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 at 29 CFR 1614. However, 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.
Office of Personnel Management policy (at www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials--see Guidance Regarding Nondiscriminatory Practices in Federal Employment) instructs agencies to provide a work environment that is free from discrimination for non-merit factors including sexual orientation and gender identity.
Employees receiving medical treatment may use sick leave or Family and Medical Leave under applicable regulations. An employee’s medical treatment is to be treated with “as much sensitivity and confidentiality as any other private or highly personal life experience of an employee.”
Medical information received by the agency about an employee is protected under the Privacy Act. Managers and supervisors are to be sensitive to concerns about the privacy of employees’ medical information and are to advise employees to respect the privacy and dignity of all employees. Other employees may be provided information about an employee’s medical history only if they have a need to know the information in the performance of their duties, in accordance with the Privacy Act. Personal information about the employee may not be released to anyone without a need to know unless the employee has provided prior written consent to having the information disclosed.
Employees are to follow dress and appearance rules “consistent with the professional standards of their occupation.” Employees may seek to update information regarding their gender and name in their official personnel folder “consistent with any changes in legal documentation.”
In addition, under GSA Bulletin 2016-B1, policies barring discrimination by federal agencies occupying space under General Services Administration jurisdiction apply to discrimination due to gender identity, including transgender status. That policy (at www.gsa.gov/federalmanagementregulation—select “FMR & Related Files”) requires that agencies allow individuals to use single-sex restrooms and other single-sex areas consistent with their self-identified gender identity, with no requirement that they be undergoing or have completed any medical procedure. Further, agencies may not require transgender individuals to use single-occupancy restrooms such as family facilities, although they may make them available to individuals voluntarily.
Guidance on insurance coverage issues is in FEHB Carrier Letter 2015-12 at www.opm.gov/healthcare-insurance/healthcare/carriers.
Information on anti-discrimination laws and appeals is at www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm. Also see the publication Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment at www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials and see Other Forms of Discrimination in Chapter 10, Section 2.
The Drug-Free Federal Workplace Program, mandated by Executive Order 12564 of 1986. requires agencies to develop a program including testing, education, and rehabilitative services through an employee assistance program (EAP). 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, the Office of Personnel Management and the Department of Justice (see www.opm.gov/policy-data-oversight/worklife/employee-assistance-programs); however, agencies differ in the types of positions tested.
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.
For security clearance implications, see Security Clearances, above in this section.
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.
An employee who is away from work receiving treatment usually will 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 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. 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 based on a violation of motor vehicle or traffic rules. An agency may conduct voluntary alcohol testing. If intoxication is indicated by the test, the agency may use it as a basis for 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.
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 leaves exceptions 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.
A June 2, 2010 Presidential memo directed agencies to provide, to the extent consistent with law, same-sex domestic partners of agency employees and their children with 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 (including partnerships in which only one partner earns income);
(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 at the time the partnership was formed;
(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, is 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. For most purposes, the dissolution of a domestic partnership will end eligibility for benefits. Notice must be provided to the employing agency within 30 days by either the employee or the former partner.
The memo directed that the following benefits be made available to qualifying 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 qualifying 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. Rules carrying out those policies were finalized in 2012.
In addition, the memo directed agencies to ensure that certain other benefits they currently offer or make newly available to employees’ spouses and children are also offered at an equivalent level, where legally permissible. OPM later issued rules to include qualifying same-sex domestic partners among those presumed eligible for insurable interest annuities (see General Types of Survivor Annuities in Chapter 3, Section 4), and the General Services Administration issued rules making them eligible as family members for certain travel and relocation payments, within additional restrictions (see Chapter 11, Section 1).
See the June 2, 2010 Office of Personnel Management guidance on the Presidential memo at www.chcoc.gov/transmittals.
In addition, domestic partners and their children may be eligible for certain other benefits; policies vary among programs. See Chapter 2, Section 4 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 overseas assignment benefits and allowances.
Note: Benefits Administration Letter 13-211 extended eligibility effective in calendar year 2014 under the health insurance and vision-dental insurance programs to children of unmarried same-sex partners (although not to the partners themselves) living in a jurisdiction that did not recognize same-sex marriage and who certified that they would marry if it did. However, Benefits Administration Letter 15-207 generally ended that policy effective in 2016 in light of the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges (135 S. Ct. 2584), which required all states to perform and recognize same-sex marriages.
See www.opm.gov/retirement-services/publications-forms/benefits-administration-letters. Limited exceptions were allowed through September 30, 2018 for children of same-sex domestic partners of enrollees stationed overseas, as described in FEHB Eligibility and Enrollment Rules in Chapter 2, Section 1, and in Eligibility in Chapter 2, Section 4.
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 military personnel. A listing of child care centers in GSA-controlled space is at www.gsa.gov/resources-for/citizens-consumers/child-care. Information on the DoD child care program is at https://militarychildcare.com.
Rules at 5 CFR 792 authorize federal agencies to provide subsidies to their lower-income employees for certain child care expenses for children under age 13; under age 18 if disabled. A child may bear any of the following relationships to either you, your spouse or a same-sex domestic partner who meets certain standards (see Domestic Partners, above): a biological child who lives with you; an adopted child; a stepchild; a foster child; a child for whom a judicial determination of support has been obtained; or a child to whose support you, who are a parent or legal guardian, make regular and substantial contributions. The regulations allow agencies flexibility in determining financial eligibility and procedures under the program.
Agencies may use any appropriated funds, including revolving funds, ordinarily used for salaries for this purpose. Each has the discretion to determine the level of funding and 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 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.
If you are interested in participating in this program, contact the individual or organization named on your agency’s announcements to get more information about any tuition assistance program operating there. If your child is not yet enrolled in child care, you 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 your child before applying for tuition assistance. Applications are made using OPM Form 1643, available at www.opm.gov/forms.
The subsidy is not limited to enrollment in government centers but is open to all licensed and/or regulated child care. If you already have your child(ren) enrolled in licensed and/or regulated child care (center-based or family child care), and you wish to receive tuition assistance, you should fill out the tuition assistance application form and submit it to the person or organization named on your agency’s form.
You 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 can adopt their own criteria.
You may be required to apply for the tuition assistance subsidy on an annual basis and provide recent pay and tax records along with information on any other child care subsidies you receive. Agencies can choose to administer the program themselves or they can enter into an agreement or contract with an organization that provides scholarship services. In most cases the agency pays the child care provider directly.
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.
Also see the Child Care Resources Handbook at www.opm.gov/policy-data-oversight/worklife/dependent-care.
Flexible Spending Accounts—Under the flexible spending account program (see Chapter 1, Section 9), you 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.
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.
A Presidential memo of June 23, 2014 encouraged 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. See the Handbook on Leave and Workplace Flexibilities and Work-Life Programs for Elder Care at www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets.
Flexible Spending Accounts—Under the flexible spending account program (see Chapter 1, Section 9), you 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 you are providing more than half of that person’s maintenance for the year and are claiming that person as a dependent for federal income tax purposes.
Payment of Expenses to Obtain Professional Credentials
Under 5 U.S.C. 5757, agencies may pay expenses for you 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.
Identity and Credit Protection Services
The large majority of current or former federal employees are eligible for identity protection and related services due to two separate intrusions, which occurred in 2014 but were not discovered until 2015, of Office of Personnel Management databases—one of personnel files maintained for OPM by the Interior Department and the other of background investigation-related files maintained by OPM itself.
The personnel files breach involved records of some 4.2 million current and former federal employees. This included personal identifying information including names, addresses, Social Security numbers, educational histories and career events. While most of the affected individuals work, or had worked, for the Executive Branch, the breach also implicated employees who had worked exclusively for the Legislative or Judicial Branches but whose information had been transferred to OPM, for example in preparation for the filing of applications for retirement benefits.
Following the discovery of that breach, OPM entered into a contract with Winvale/CSID to provide automatic free access to identity restoration services provided by the contractor. Also provided for free was identity theft insurance with no deductible to cover costs such as lost income, legal fees, expenses incurred for refiling of loans, grants and other lines of credit and certain other associated costs involved with identity restoration. While the original 2015 contract provided only up to $1 million in such insurance, this was increased to a $5 million limit effective June 1, 2016, to cover 10 years dating from 2015.
Affected persons may voluntarily enroll for additional free services including: monitoring of the three major credit bureaus for activity including changes to personal information, public records, inquiries, loans, new account openings, bankruptcies, and existing accounts reported past due; surveillance of the Internet and alerts if it finds personal information being illegally traded or sold online; monitoring of municipal court systems and public records for criminal activity and arrest records and alerts if there is a match to name and date of birth; monitoring of loans that do not require credit inquiries; monitoring of a national change of address database and alerts if mail is being redirected; monitoring and alerts if a sex offender registers using part of a stolen identity; and monitoring of names and addresses associated with a Social Security number and alerts if a new one is added.
Notices including an identifier number to enroll were sent, mostly by email, in the summer of 2015.
During the investigation of the personnel files breach, it was discovered that a separate breach of background investigation files had occurred earlier in 2014. This involved current and former federal employees who had applied for a security clearance or had one renewed since 2000, and in some cases before; all but about 600,000 of them also had been affected by the personnel files breach. Also affected were military and contractor personnel and persons who had background checks done for other reasons, such as to gain access to certain federal buildings, plus some spouses and others with close relationships to security clearance applicants who were named on those forms (SF-86, -85 or -85p)—about 21.5 million persons in all.
In addition to personal and career information similar to that taken in the personnel files breach, the clearance files involved residency and educational history; employment history; information about immediate family and other personal and business acquaintances; health, criminal and financial history; and in some cases fingerprints, findings of interviews conducted by background investigators, and the user names and passwords used in filling out the forms.
OPM then issued a contract to a separate company, ID Experts, to provide free benefits similar to those provided in the personnel records breach for affected persons (and their children who were under age 18 as of July 1, 2015). As with the first contract, it initially provided only up to $1 million in identity theft insurance but this was increased to a $5 million limit effective June 1, 2016, also to cover 10 years dating from 2015.
Over the latter months of 2015, notices were sent by mail including an identifying number to elect additional free services including continuous credit monitoring and identity monitoring services similar to those provided due to the personnel files breach. A second mailing went out in mid-2016 to those whose initial letters had been undeliverable, following further efforts to locate them.
When the original Winvale/CSID contract, related to the personnel files breach, expired as of December 1, 2016, a replacement contract took effect immediately, with ID Experts. Those who had signed up for the optional services under the former contract were mailed notices in late 2016 that they had to re-enroll with the new provider if they wanted to keep those services. That applied only to those affected only by the personnel files breach since the contract related to the background files breach was continuing.
Further information regarding both incidents, the available services, enrollment procedures for those not already enrolled, and information for those who did not receive a notice and want to check whether they were affected, is at www.opm.gov/cybersecurity, phone (800) 750-3004.
That site also has information on steps to consider personally taking, including: closely monitoring their financial accounts; ordering and reviewing their credit reports; placing a fraud alert on those files; being vigilant against disclosing personal information on the phone, through email or online; and installing protective software on personal computers and other devices.
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 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, you must sign a service agreement to remain in the service of the agency for not less than three years.
This authority is used at the discretion of the agency. If you are interested in participating in the program, you must contact the agency in which you 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. 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.
Student loan repayments are allowable only for tuition paid to colleges or universities accredited by a nationally recognized accrediting agency or association recognized by the Department of Education. See https://ope.ed.gov/accreditation.
The level of academic degree for which a student loan was obtained is not a consideration in determining your eligibility, nor is whether a degree, diploma, or certificate was earned. The repayment authority does not exclude you if you have defaulted on your student loan from receiving this benefit. However, your agency may exclude you.
A part-time employee or excepted service employee (except Schedule C), can receive student loan repayment benefits if otherwise eligible. However, a temporary or term employee with less than three years remaining on the appointment is 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. 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 your agency to you as the holder of the loan and may not be prorated. If you do not meet the service requirement, you are required to reimburse the government. Agencies may waive recovery if they determine it to be against equity and good conscience or contrary to the public interest.
Also see www.opm.gov/policy-data-oversight/pay-leave/student-loan-repayment.
The Public Service Student Loan Forgiveness Program cancels the balance remaining on certain federal student loans after public servants, including federal employees, have made 120 required monthly payments (the payments need not be consecutive) since the counting period started with October 2007. Covered loans include direct subsidized loans, direct unsubsidized loans and direct PLUS loans. Direct consolidation loans also are eligible although only payments toward that loan are counted toward the 120 qualifying payments requirement. See https://studentaid.ed.gov/sa/repay-loans/forgiveness-cancellation/public-service.
The Department of Veterans Affairs has a separate student loan repayment authority called the Education Debt Reduction Program with maximums of $40,000 annually and $200,000 lifetime, for health care occupations where recruitment and retention is difficult. A separate program with maximums of $40,000 annually and $160,000 lifetime, applies to recently graduated medical students who are training in specialties where the VA is experiencing a shortage. See www.vacareers.va.gov/why-choose-va/education-support.asp.
Public Transit Subsidies
As a general rule, the federal government cannot subsidize your cost of commuting to or from work. Section 629(a), Title IV-General Provisions of Public Law 101-509, constitutes a specific 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 were made permanent in 1993 under 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 $265 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 you so long as the value is under that monthly amount. Any amount, up to the monthly tax-free limits, by which you elect 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 you receive a direct cash payment or a transit pass worth a certain amount.
Agencies that participate must set up eligibility standards and safeguards against improper use of the subsidies, under Office of Management and Budget memo M-07-15 (at www.whitehouse.gov/omb/memoranda).
Parking Costs—Federal agencies may elect to reimburse you for qualified parking expenses at or near transit stations, park-and-ride lots, or vanpool staging areas, using pretax salary funds, up to a maximum of $265 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 your 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.
Waivers of Collections
Overpayments—Under 5 U.S.C. 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 the board.
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 .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, for about six weeks in the autumn, employees and retirees are given the opportunity to elect to contribute to any of hundreds of eligible national, international, and local charitable organizations, including local charities in other areas. (Note: The Office of Personnel Management may grant permission for short-time special solicitations of employees, outside of the annual campaign, in support of victims in emergency situations.)
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. If you wish to donate, you make a pledge designating an amount and your choice of charity or charities. Contributions will be deducted each pay period starting in the first pay period of the following year. Contributions in the form of pledges of time also can be made; such volunteering is to be done on an employee’s own time, however. See a June 1, 2018 memo at www.chcoc.gov/transmittals.
Participation in the CFC is strictly voluntary. 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. See www.opm.gov/combined-federal-campaign.
Personal Use of Office Equipment
Each agency has its own policies governing acceptable use of office equipment for personal purposes. Many of them use a model policy published by the Federal Chief Information Officers Council titled Recommended Executive Branch Model Policy/Guidance on Limited Personal Use of Government Office Equipment Including Information Technology (at www.cio.gov under Document Library).
Under the model policy, you may make limited personal use of the government office equipment during non-work time as an “authorized use” of government property. You 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 your 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 email.
“Minimal additional expense” means that personal use of government office equipment is limited to situations where the government is already providing equipment or services and the 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 email messages, or limited use of the Internet for personal reasons.
“Employee non-work time” means times when you are not otherwise expected to be addressing official business. You may for example use government office equipment during off-duty hours such as before or after a workday (subject to local office hours), lunch periods, authorized breaks, or weekends or holidays (if the 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. You may, however, make limited use under this policy of government office equipment to check Thrift Savings Plan or other personal investments, or to seek employment, or communicate with a volunteer charity organization. You are expected to refrain from using government office equipment for activities that are inappropriate.
It is your responsibility to ensure that you are not giving the false impression that you are acting in an official capacity when using government office equipment for nongovernment purposes. Also see Misuse of Position in Chapter 10, Section 5.
As an Executive Branch employee, you do not have a right of privacy while using any government office equipment at any time, including accessing the Internet or using email. By using government office equipment, you imply your 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.
In addition, restrictions may apply to electronic communications with political content, including the creation or forwarding of email and the use of social media. See Hatch Act in Chapter 10, Section 4.
Rules governing use of federal telephones are at 41 CFR 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. Personal 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. Individual agencies have their own policies on using telephone facilities and services which may allow for certain amounts of phone calling for routine personal purposes, including while on travel, that incur a cost to the government. Agencies may require reimbursement for unauthorized calls for which there was an additional cost.
Freedom of Information Act
Under the Freedom of Information Act (FOIA) at 5 U.S.C. 552, you may request from agencies documents that otherwise might not be disclosed or published by the government, subject to exceptions for national security, business confidentiality, personal privacy and certain other reasons.
Agencies have an obligation 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.
Amendments to 5 U.S.C. 552 enacted in 2016 by P.L. 114-185: prohibit an agency from withholding information requested under FOIA unless the agency reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or disclosure is prohibited by law; establish a “foreseeable harm” standard for invoking the deliberative process exemption and bar agencies from invoking that exemption for records 25 years old or older; generally prohibit an agency from charging a fee for providing records if the agency misses a deadline for complying with an FOIA request; require agencies to establish a minimum of 90 days for requesters to file administrative appeals and to provide dispute resolution services throughout the FOIA process; and require the Office of Government Information Services to offer mediation services to resolve disputes between agencies and FOIA requesters.
Those revisions also required numerous operational changes in the FOIA process including requiring agencies to: make their disclosable records and documents available for public inspection in an electronic format; make available for inspection in an electronic format records that have been requested three or more times; create a consolidated online request portal that allows a member of the public to submit a request for records to any agency from a single site; and identify records of general interest or use to the public that are appropriate for public disclosure and post them in a publicly-accessible electronic format.
Also see www.foia.gov.
The Privacy Act of 1974 gives you 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 you to inspect and receive copies of your files, subject to various exemptions that an agency may claim if it has published regulations pursuant to the exemptions.
You can request correction or amendment of any Privacy Act-covered information about you that you feel is in error. If the agency does not correct the record, you can appeal the agency’s denial to a person whose name and address should be provided in the denial letter. If you lose such an appeal, you 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 your written permission prior to disclosing to other persons or agencies information about you, unless such disclosures are specifically authorized under the Act. Information can be disclosed without your 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 your 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 your records must be given to you on request.
Under the Privacy Act, you may sue an agency for refusing to release or amend your records. You also may sue if you are adversely affected by an agency’s failure to comply with any of the other provisions of the Act. You may be able to obtain money damages in certain circumstances if you can prove, among other things, that you 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.
If you are a current federal employee who wants to see or amend your personnel records, you should contact your agency’s personnel office or designated Privacy Act officer. If you are a former federal employee who wants access to your Official Personnel Folder, your request should be directed to:
National Personnel Records Center
1 Archives Drive
St. Louis, MO 63138
Phone (866) 272-6272
When making a Privacy Act request, provide enough identifying information to enable the agency to find your records, and assure the agency of your identity, including full name, date of birth and Social Security number.
Religious Freedom Guidelines
A Presidential memo of August 14, 1997 titled Guidelines on Religious Exercise and Religious Expression in the Federal Workplace (at https://clintonwhitehouse2.archives.gov/WH/New/html/19970819-3275.html) spells out what federal agencies must do to protect their workers’ rights to practice, pursue, or express their religious beliefs on the job. It provides examples of what supervisors and managers must allow (or refrain from) and states that both management and employees must not engage in activities or expressions that a reasonable observer would interpret as government endorsement or denigration of religion or of a particular religion.
Main points include:
• Federal Employees’ Religious Expression Rights—You generally have 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 your 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, efforts to “spread the faith” or “persuade fellow employees of the correctness of your religious views”—is protected “to the same extent as you may engage in comparable speech not involving religion,” according to the guidelines. However, you 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 at a religious gathering).
• 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 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.
Also see Work Schedule Adjustments for Religious Observances in Section 2 of this chapter and see Title VII of the Civil Rights Act in Chapter 10, Section 2.
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 251 require agencies to consult on matters related to agency operations and personnel management managerial, supervisory, professional and other organizations that have substantial membership in the agency and that are not affiliated with a labor organization. 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 email 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.
Such consultation and communication may not take on the character of negotiations or consultations regarding conditions of employment of bargaining unit employees.
Additionally, agency management, supervisors, and managers are to be included in the decision-making process and notified of executive level decisions on a timely basis even if individual supervisors and managers are not affiliated with an association of management officials and/or supervisors, under an April 1, 2016 memo at www.chcoc.gov/transmittals.
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 reasons, of the prospect that members of such organizations will also be members of bargaining units.
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 in law.
Health Insurance—If you were enrolled in the self plus one or 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 a child/children, the survivor(s) may continue health insurance coverage. Premiums will be deducted from the survivor annuity. If you were enrolled in the self plus one or self and family option at the date of death, but there is no survivor annuity payable, the enrollment terminates with the survivor(s) having the right to convert to a private policy within 30 days. Exception: If you were covered under the Federal Employees Retirement System when you died and had at least 18 months of service, your survivor may keep the health benefits coverage, but will be required to pay the enrollee’s share of the premiums directly to the Office of Personnel Management. If you were enrolled in self-only coverage at the date of death, the enrollment terminates with no right for your survivor to enroll or convert.
Life Insurance—Any Federal Employees’ Group Life Insurance benefits payable will be paid in the order of precedence established by federal statute, unless you have an SF 2823, Designation of Beneficiary form, on file. However, a valid court order filed with your employing agency after October 1998 and before your death will take precedence.
Long-Term Care Insurance—If your spouse or other eligible family member is enrolled in the Federal Long-Term Care Insurance Program when you die, 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 your family who receives an immediate annuity as your survivor, whether as an employee or an annuitant, is eligible to enroll in the Federal Employees Dental and Vision Insurance Program or to continue coverage if covered by your enrollment at the time of death.
Thrift Savings Plan—All money in your TSP account is payable in the order of precedence established by federal statute, unless you had a valid 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 death results from an injury sustained in the line of duty, a death gratuity payment may be paid to your personal representative. The amount payable is up to $10,000 minus the amount payable by Office of Workers’ Compensation Programs 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 your next of kin if you die of injuries incurred in connection with employment with the government, including death in the line of duty and death due to your status as an employee. If no request is received from your 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 you were an employee to the extent that the information is not classified and such disclosure does not endanger national security. Policies are at 5 CFR 550.1501 and guidance is in a September 9, 2014 memo at www.chcoc.gov/transmittals.
Death Overseas—22 U.S.C. 3973 provides for the payment of a death gratuity in an amount equal to one year of your salary at the time of death if you were a member 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 if your death was due to injuries incurred in connection with your 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 you 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. Rules are at 20 CFR 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 varies according to the date of death or disability and is offset by any death gratuity payable as described above. Contact the Public Safety Officers’ Benefits Program, Bureau of Justice Assistance, 810 7th St. N.W., Washington, DC 20531, phone (888) 744-6513, https://www.psob.gov.
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—If you die in service, your surviving spouse and/or children may be eligible for a survivor annuity under CSRS or FERS, depending on your 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, you must have 18 months of creditable civilian service and be covered by the applicable retirement system at the date of death. Except in cases of accidental death, the surviving spouse must have been married to you for at least nine months at the time of death or be a parent of a child of the marriage.
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 you 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 your 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 your high-3 average salary; or the regular annuity obtained after increasing your length of service by the period of time between the date of death and the date you would have been age 60.
Note: In almost all cases the benefit will be based on the general formula.
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 your contributions, plus interest.
FERS: If you had at least 18 months of civilian service, your surviving spouse will receive:
• a lump sum ($33,998 in 2019, 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 you had more than 10 years of service and died while subject to FERS deductions, your surviving spouse will receive an annuity equal to 50 percent of your earned annuity as of date of death. This earned annuity is computed in the same manner as if you had 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 2019 the children’s rate when there is a surviving parent is $537 per month per eligible child or $1,610 per month divided by the number of eligible children (if four or more). If there is no surviving parent the rate is $645 per month per eligible child or $1,935 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, and any deposits to capture credit for military service time. 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.