Emergency Paid Leave Concerns

By Brandon Wilson, NASCOE President
May 26, 2021

Recently you may have heard that the new Emergency Paid Leave (EPL) provisions contained in the American Rescue Plan (ARPA) do not apply to County Office (CO) employees.  NASCOE has been working to address this issue for some time and shares the concern of members regarding this benefit not being equally available to CO employees.

Historically, through the labor management agreement, NASCOE has requested that USDA allow CO employees the opportunity to enjoy benefits like those provided for GS employees by Federal law.  USDA has normally responded to those requests favorably such as they did in the fall of 2020 by allowing CO employees access to the Paid Parental Leave benefit. 

The EPL benefit provides paid leave to covered Federal (GS) employees when they are unable to work due to certain COVID-19 situations.  Although this is a great benefit, it is important to note that when this leave is used, it will be reduced from the total service used to calculate Federal civilian annuity retirement benefits.

While in negotiations with USDA regarding this benefit, it was brought to NASCOE’s attention that USDA’s Office of General Counsel believes they cannot grant EPL benefits to CO employees.  ARPA language defined eligible employees as those individuals “for whom annual and sick leave is provided under subchapter I of chapter 63 of title 5, United States Code.”  The USDA Office of General Counsel says County employees do not meet this definition, as their annual and sick leave is provided under Title 7. 

Moving forward, NASCOE remains in discussions with USDA about rectifying outstanding concerns associated with allowing the leave to be available for CO employees.  In addition, the NASCOE Executive Committee will examine demand for this benefit and consider other proposals for similar CO COVID-19 leave alternatives. 

Rest assured, NASCOE leadership fully understands how important new benefits, as well as all our existing benefits, are to each of you.  NASCOE is committed to tirelessly fighting for them on your behalf no matter how long it takes.  We cannot do it alone and appreciate the support of membership as we work to ensure that you continue to have the same privileges that other GS employees enjoy. 

Legislative Committee Update – March 29, 2021

By Clint Bain and Neil Burnette

We hope this legislative update finds you all well.  With COVID-19 continuing to impact our work environment, we are doing our best to serve NASCOE members and production agriculture.  Recently, the Department of Agriculture announced our offices would be operating under limited capacity.  We continue to urge our leadership to make decisions regarding office status based on data in the local area as opposed to government wide mandates.  It is our belief that the new team leading USDA understands the importance of allowing our county offices to operate and service our customers.

In addition to COVID office concerns, we have heard about various states lowering annual employee ceilings.  Despite FSA receiving a budget increase this year, some state offices have cited “budget cuts” as the reason for lowering the total number of county office employees NASCOE leadership is working to better understand the budget challenges our agency faces for the current fiscal year. FSA employees continually respond to every challenge as they do their part to support American farmers.  Over the past two years, county office employees have worked tirelessly implementing trade adjustment and COVID relief payments.      

The chart below provides details about recent FSA spending levels. These funding levels can be found in the annual Agriculture Appropriations report.  The funding chart appears as the Comparative Statement of Budget Authority (CSBA).   

FPAC Business Center (including transfers)FSA Salaries and Expenses (including transfers)
FY 2021 = $291,960,000FY 2021 = $1,437,038,000
FY 2020 = $280,186,000FY 2020 = $1, 414,214,000
FY 2019 = $292,659,000FY 2019 = $1,375,177,000

NASCOE has been diligent showing members of Congress the need to provide funding increases year after year.  To assist Congress with preparing this year’s budget, NASCOE visited with the House Agriculture Chairman and spoke about staffing concerns before the House Agriculture Sub-Committee on Nutrition and Forestry. 

Please keep us updated should you hear about employee ceilings in your state being lowered based on funding reductions.  NASCOE leadership shares the frustration and concerns of those states that had a reduction in staffing.  We will continue to work with the new administration and use every avenue available to seek resolution to these issues.

American Rescue Plan Act

NASCOE Legislative Co-Chairs
Clint Bain and Neil Burnette
March 10, 2021

The House approved the $1.9 trillion COVID Relief Bill which is now headed to President Biden for signature. The following provisions are a few of the items contained in the bill:

AGRICULTURE The measure would appropriate $4 billion to the Agriculture Department to purchase and distribute food and agricultural commodities, including seafood, and to make grants and loans to small and midsized food processors and distributors.  

The package also would appropriate such sums as may be necessary for loan modifications and payments to farmers and ranchers who are members of groups that have been socially disadvantaged in Agriculture Department programs. The department could pay as much as 120% of each such farmer or rancher’s debt on loans it made or guaranteed.

It would provide $1.01 billion for grants and loans to improve land access for socially disadvantaged farmers, ranchers, and forest landowners, as well as scholarships, outreach, financial training, and other technical assistance. A portion of this funding will support the activities of one or more equity commissions that will address racial equality issues within the Department of Agriculture and its programs.

FEDERAL EMPLOYEE LEAVE – The measure would provide $570 million for an Emergency Federal Employee Leave Fund to be administered by the Office of Personnel Management. The funds could be used to reimburse federal agencies for emergency leave taken by civilian employees and postal workers which include the following purposes: employee is experiencing COVID-19 symptoms and seeking medical diagnosis, obtaining a COVID-19 vaccine, subject to quarantine orders, or looking after children participating in virtual learning classes.

Paid leave could not exceed 600 hours per employee or $2,800 for a biweekly pay period, and it would have to be used by Sept. 30, 2021. Any leave provided to an employee would reduce the total service used to calculate retirement benefits.

TAX PROVISIONS – The bill provides another round of direct payments of as much as $1,400 for an individual, $2,800 for joint filers, and $1,400 for each qualifying dependent. The payments would begin to phase out for individuals with adjusted gross incomes of $75,000 and would be zero for AGIs of $80,000 or more. Those amounts would be doubled for joint filers. Payments would be based on 2019 or 2020 tax returns.

NOT INCLUDED – Senate Democrats did not include the House passed $15 an hour minimum wage provision.

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.

NDAA Carryover Leave Provision Update

Clint Bain and Neil Burnette
December 30, 2020

As part of the National Defense Authorization Act (NDAA), Congress passed legislation that will allow Federal Employees to carryover an additional 25% of their annual leave into year 2021.  President Trump recently vetoed the Legislation; however, the House and Senate are expected to override the veto making this year’s NDAA bill public law.

NASCOE is hearing that some State Offices are indicating the NDAA may have an unintended negative effect on employees who have accumulated “restored” annual leave, particularly those who plan to retire in 2021.  

NASCOE has consulted legal counsel and contacted various Executive and Legislative branch officials about the legislation’s effect on FSA employees.  We believe Congress did not intend that this provision would negatively impact our County Office employees carrying over “restored leave” and should not lead our members toward early retirement.  We believe the intent of the Legislative branch is to allow “non-essential” employees, who did not have restored leave, the ability to carryover an additional 25 percent of annual leave for use during 2021. 

Even though we believe the language will not affect county office employees with restored leave who were deemed essential, the Office of Personnel Management (OPM) will have the sole responsibility of interpreting the intent of this new law and how it is applied to Federal employees.  At this point we do not anticipate any scenario where OPM will nullify any earned leave that was “restored” due to an exigency of public business.

We will update membership with any subsequent Department or OPM guidance.

Annual Appropriations and COVID Relief Signed by the President

Clint Bain and Neil Burnette
December 28, 2020

Last night, President Trump signed the annual appropriations and COVID relief stimulus package.  The signing of this measure provides a full year spending allocation for government agencies and averts any further shutdown concerns. We highlighted key aspects of the USDA budget in our December 22nd News Flash.

The COVID Relief Bill also makes available significant additional funding for farmers as referenced in our December 21st News Flash.  Farm Bureau has recently released their assessment of forthcoming programs.  If you wish to read their analysis please click here.  Note:  while some groups are offering their interpretation of provisions, FSA will release final rules and regulations for the programs in the near future.

NDAA Carryover Leave Provision

Clint Bain and Neil Burnette, NASCOE Legislative Co-Chairs
December 23, 2020

As part of the National Defense Authorization Act (NDAA), Congress passed legislation that will allow Federal Employees to carryover an additional 25% of their annual leave into year 2021.  While this sounds like a great benefit for Federal Employees, NASCOE is hearing that it may have an unintended negative effect on County Office employees who plan of retiring in 2021 and have accumulated “restored” annual leave.  The language in the bill states the extra leave (60 hours) will not be included in lump sum payments that federal employees receive when they leave federal service.

NASCOE has been working over the past week to research the following concerns on behalf of the membership:

  • Does this language exclude prior leave restored in previous years from being paid out?  For example, in August of 2020, OPM allowed employees in Federal agencies to carry over leave due to carrying out COVID-19 relief in their respective agencies.  The FSA Administrator subsequently restored excess leave for all County Office employees who assisted with COVID-19 relief.
  • NASCOE reads the language provided in the NDAA to be separate from any other provisions which allowed prior leave to be carried over into the new year due to COVID-19 relief efforts.  Is this interpretation accurate?

Currently, USDA states that the Office of Personnel Management (OPM) will have the sole responsibility of interpreting the intent of this new law and how it is applied to Federal employees.  We realize that immediate retirement decisions may hinge on how this legislation will ultimately be implemented.  We also know that some State Offices are notifying employees this new provision may make any previously restored annual leave ineligible for a lump-sum payment upon retirement.    It is our hope to find out more information regarding the intent of the legislation, and pass this along to you as soon as possible. 

Omnibus Spending Package Passes House and Senate

Clint Bain and Neil Burnette
December 22, 2020

Last night, Congress passed the COVID-19 Relief and Omnibus Spending package as anticipated.  They also passed a one-week Continuing Resolution through December 28th to allow time for procedural requirements to take place and obtain the President’s signature on the measure.  The Omnibus budget provides federal civilian employees a 1% across the board pay raise.  The bill also provides language that extends the deadline to repay deferred payroll taxes to the end of 2021 instead of next April.

The following bullet points highlight the Agricultural Appropriations funding affecting FSA employees:

  • Funding for FSA salaries and expenses increased by $22,824,000 over the 2020 enacted budget;
  • Funding for the Business Center increased by $11,774,000 over the 2020 enacted level; 
  • There was $15,000,000 earmarked for the hiring of new employees to fill vacancies and anticipated vacancies at county offices;
  • Funds made available to county committees shall remain available until expended;
  • Funding for Dairy Indemnity Program payments shall remail available until expended;
  • The final bill continues previous law provisions related to both the relocation of county-based employees and county office closures.

Legislative News Flash – Federal Appropriations and COVID-19

Clint Bain and Neil Burnette
December 21, 2020

The House of Representatives and US Senate announced agreement to provide additional COVID-19 assistance and the fiscal year 2021 appropriations measures.  We expect one additional continuing resolution providing the time needed to send these bills to the President’s desk.  We do not expect a government shutdown.

The COVID-19 assistance details are posted below for your review.  We will send a second update outlining the annual funding levels provided through the appropriations bill.

Covid-19 Agriculture Assistance – $13 billion total

  • $11.1875 billion for agriculture producers, growers, and processors
  • Coronavirus Food Assistance Program (CFAP) payments for the 2020 crop year – option for 2018 and 2019 sales – (cattle included)
  • Up to $1 billion for livestock and poultry contract growers
  • $20 million to improve and maintain animal disease prevention and response capacity
  • May extend the term of a marketing assistance loan
  • No less than $1.5 billion to purchase food and agricultural products, including seafood
  • Up to $200 million to support timber harvesting and hauling businesses
  • May make payments to producers of advanced biofuel, biomass-based diesel, cellulosic biofuel, conventional biofuel, or renewable fuels with market losses due to COVID-19
  • May make recourse loans available to dairy product processors, packagers, or merchandisers
  • $100 million to support the Farm Bill’s Specialty Crop Block Grant Program
  • $100 million for the Farm Bill’s Local Agriculture Market Program
  • $75 million for the Farm Bill’s Farming Opportunities Training and Outreach Program
  • $400 million to pay for milk to be processed into dairy products and donated to non-profit entities (food banks, feeding programs, etc.)
  • Establishes a Federal livestock dealer trust to ensure that livestock producers are paid for their animals
  • $60 million to make facility upgrade and planning grants to existing meat and poultry processors to help them move to Federal inspection
  • $28 million to be distributed as block grants to state departments of agriculture for use to support existing farm stress programs

*Additional funds were provided to domestic nutrition programs.

Continuing Resolution

Clint Bain and Neil Burnette, Legislative Co-Chairs
December 11, 2020

The House of Representatives and the U.S. Senate have both passed a stopgap spending bill which the President is expected to sign late Friday.  This CR will fund the government for one week, setting a new deadline of December 18.  Congressional Leaders are optimistic that they can complete work on an omnibus appropriations bill that will fund all sectors of the government prior to the proposed new deadline of December 18.

Your Legislative team will continue to monitor the situation over the next several days and inform membership if there are any major unexpected developments.