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.

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.