NDAA Carryover Leave Provision Update/Conclusion

Clint Bain and Neil Burnette
January 14, 2021

The 2021 higher annual leave carryover limit established under section 1111 of the National Defense Authorization Act for Fiscal Year 2021 (H.R. 6395), was enacted on January 1, 2021.  Since the enactment, OPM has issued their determination of how this new rule will affect Federal employees. 

As you may recall, NASCOE consulted with legal counsel, our legislative consultant and contacted various Executive and Legislative branch officials regarding the legislation and the potential adverse effect it could have on county office employees.  We believed then and it is now confirmed that this provision will not negatively impact county office employees.  FSA employees who were deemed essential due to an exigency of public business will be able to have all their excess leave restored as previously granted by the FSA administrator. 

According to OPM, Section 1111 of the NDAA does not eliminate the annual leave restoration rules in 5 U.S.C. 6304(d), which are applied after annual leave hours in excess of the normally applicable annual leave carryover limit are forfeited. The following table issued by OPM, shows key differences between excess leave under section 1111 and restored leave under 5 U.S.C. 6304(d):

Section 1111 (NDAA)Section 6304 (d)
Approach to allowing carryover above normal limitsHigher carryover limit prevents forfeiture (conditions for applying higher limit are determined by OPM Director)Leave in excess of the carryover limit is forfeited and then restored if certain statutory conditions are met
Time limits on usageMust be used during leave year 2021Varies, but at least 2 years. (See 5 CFR 630.306- 630.310.)
Inclusion in lump-sum annual leave payment upon separationMay not be included.Is included.
Limitation on amountLeave carryover ceiling is 125% of normal ceiling (for most employees, 300 hours instead of 240 hours)No limitation (but cannot be more than a given employee can accrue in a full leave year)

In conclusion, county office employees who were previously concerned about having their leave restored or receiving lump sum payments for restored leave at retirement can now be assured that OPM has made a clear interpretation of Section 1111 of the NDAA bill. Restoration of forfeited carryover leave should be processed as scheduled with no adverse effects to county office employees.