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Pay & Leave Leave Administration

Fact Sheet: Restoration of Annual Leave

Agencies may restore annual leave that was forfeited because it was in excess of the maximum leave ceilings (i.e., 30, 45, or 90 days) if the leave was forfeited because of an administrative error, exigency of the public business, or sickness of the employee. An agency must restore the annual leave in a separate leave account.

Administrative Error

The employing agency determines what constitutes an administrative error.

Exigency of the Public Business

The employing agency determines that an exigency - i.e., an urgent need for the employee to be at work - is of major importance and that excess annual leave cannot be used.  An employee's use of earned compensatory time off or credit hours does not constitute an exigency of the public business. If the use of earned compensatory time off or credit hours that are about to expire results in the forfeiture of excess annual leave, the forfeited leave cannot be restored.

Sickness

The employing agency determines that the annual leave was forfeited because of aperiod of absence due to an employee's sickness or injury that occurred late in the leave year or was of such duration that the excess annual leave could not be rescheduled for use before the end of the leave year.

An agency may consider for restoration annual leave that was forfeited due to an exigency of the public business or sickness of the employee only if the annual leave was scheduled in writing before the start of the third biweekly pay period prior to the end of the leave year.

Time Limit for Using Restored Annual Leave

An employee must schedule and use restored annual leave not later than the end of the leave year ending 2 years after--

  • the date of restoration of the annual leave forfeited because of administrative error;
  • the date fixed by the head of the agency or designee as the date of termination of the exigency of the public business; or
  • the date the employee is determined to be recovered from illness or injury and able to return to duty.

Restored annual leave that is not used within the established time limits is forfeited with no further right to restoration.  Administrative error may not serve as the basis to extend the time limit within which to use restored annual leave.  This is so even if the agency fails to establish a separate leave account, fix the date for the expiration of the time limit, or properly advise the employee regarding the rules for using restored annual leave, absent agency regulations requiring otherwise.

Examples of How to Calculate Time Limits for Use of Restored Annual Leave

In the following examples, based on the 2013 leave year, the employees have requested the use of “use or lose” annual leave, have scheduled their annual leave before the start of the third biweekly pay period prior to the end of the leave year, and work in an agency where the leave year ends on January 11, 2014.  Please see our Leave Year Beginning and Ending Dates, and Annual Leave (General Information) fact sheets for more information.

Administrative Error – 5 CFR 630.306(a)(1)

Scenario

In response to an internal agency audit conducted in August 2014, the human resources office of an agency finds that an administrative error resulted in an employee forfeiting 16 hours of annual leave that he should not have forfeited.  The agency restores the employee’s forfeited annual leave on August 11, 2014. 

In order to avoid the forfeiture of the restored annual leave, the employee must schedule and use it no later than end of the leave year ending 2 years after the date of restoration of the annual leave.  The date of restoration of the annual leave is August 11, 2014.  Two years after August 11, 2014, is August 11, 2016.  August 11, 2016, occurs in the 2016 leave year, which ends January 7, 2017.  Thus, the employee must schedule and use the restored annual leave no later than January 7, 2017.

Exigency of the Public Business – 5 CFR 630.306(a)(2)

Scenario 1

An employee puts in a written request for 72 hours of annual leave to be taken in the last two pay periods of the 2013 leave year.  However, he is called to jury duty on January 6, and performs 3 days of jury duty from January 6-8.  Since 5 U.S.C. 6322 prohibits the loss of or reduction in annual leave where an employee is summoned to perform jury service, the head of the agency determines that the jury duty constitutes an exigency of the public business (5 CFR 630.305).  The employee forfeits 24 hours of annual leave. Since his annual leave was cancelled because of an exigency of the public business, the requirements for the restoration of forfeited annual leave are met.  The agency restores his forfeited annual leave. 

Since the employee’s jury duty is over on January 8, 2014, the head of the agency determines this date to be the end of the exigency of the public business.  In order to avoid its forfeiture, the employee must schedule and use the restored annual leave no later than the end of the leave year ending 2 years after the termination date of the exigency.  Two years after the exigency of the public business terminates is January 8, 2016.  January 8, 2016, occurs in the 2015 leave year, which ends January 9, 2016.   Thus, the employee must schedule and use the restored annual leave no later than January 9, 2016. 

Scenario 2

An employee puts in a written request for 72 hours of annual leave to be taken in the last two pay periods of the 2013 leave year.  However, due to an unexpected project, the employee’s scheduled annual leave request is cancelled, and she is required to work to complete the project.  The head of the agency determines that the project constitutes an exigency of the public business (5 CFR 630.305).  The employee forfeits the 72 hours of annual leave. Since her annual leave was cancelled because of an exigency of the public business, the requirements for the restoration of forfeited annual leave are met.  The agency restores her forfeited annual leave. 

The project is completed on January 15, 2014, and the head of the agency determines this date to be the end of the exigency of the public business.  In order to avoid its forfeiture, the employee must schedule and use the restored annual leave no later than the end of the leave year ending 2 years after the termination date of the exigency.  Two years after the exigency of the public business terminates is January 15, 2016.  January 15, 2016, occurs in the 2016 leave year, which ends January 7, 2017.  Thus, the employee must schedule and use the restored annual leave no later than January 7, 2017. 

Sickness of the Employee – 5 CFR 630.306(a)(3)

Scenario 1

An employee puts in a written request for 40 hours of annual leave for the week of January 6, 2014, to go on a family ski vacation.  However, at the end of December, he is involved in a serious car accident and is hospitalized through the end of January.  He forfeits the 40 hours of annual leave.  He is then released to an inpatient rehabilitation center for further care.  He returns to work on March 10, 2014.  Since his annual leave was cancelled because of his injury and could not be rescheduled before the end of the leave year, the requirements for the restoration of forfeited annual leave are met.  The agency restores the 40 hours of forfeited annual leave to the employee.

In order to avoid the forfeiture of his restored annual leave, the employee must schedule and use it no later than the end of the leave year ending 2 years after the date that he is determined to be recovered and able to return to duty.  He is determined able to return to duty on March 10, 2014.  Two years after March 10, 2014, is March 10, 2016.  March 10, 2016, occurs in the 2016 leave year, which ends January 7, 2017.  Thus, the employee must schedule and use the restored annual leave no later than January 7, 2017. 

Scenario 2

An employee puts in a written request to take annual leave during the last 3 weeks of the leave year.  However, the employee has influenza during the week of December 22, so she requests to substitute sick leave for her scheduled annual leave while she has the flu.  On December 30, she informs her agency that she has recovered from the flu and doesn’t need any more sick leave, but she would like to use her already-scheduled annual leave.   She returns to work on January 13 after she uses her remaining scheduled annual leave to learn that the 32 hours of annual leave that she did not take during the week of December 22 was forfeited.  Since her annual leave was cancelled because of her own illness and could not be rescheduled before the end of the leave year, the requirements for the restoration of forfeited annual leave are met.  The agency restores her forfeited annual leave. 

In order to avoid the forfeiture of her restored annual leave, the employee must schedule and use it no later than the end of the leave year ending 2 years after the date that she is determined to be recovered and able to return to duty.  Since she informed her agency she was recovered on December 30, the agency sets December 30, 2013, as the date she is determined to be recovered from her illness.  Two years after December 30, 2013, is December 30, 2015.  December 30, 2015, falls in the 2015 leave year, which ends January 9, 2016.  Thus, the employee must schedule and use the restored annual leave no later than January 9, 2016. 

National Emergency by Reason of Certain Terrorist Attacks

On March 4, 2002, OPM issued final regulations that permit "use or lose" annual leave to be restored to employees whose services are determined to be necessary for the current national emergency.  Such employees are entitled to have their excess annual leave restored without the administrative burden of scheduling and canceling such leave.  In addition, the time limitations for using restored annual leave are suspended for the entire period during which employees' services are determined to be essential for activities associated with the national emergency. At the end of the national emergency, or when the services of the employee no longer are determined to be necessary, a new time limit will be established for using all restored leave available to the employee.

References

  • 5 U.S.C. 6304(d) and (e)
  • 5 CFR 630.305-311
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