Fact Sheet: Disabled Veteran Leave

Disabled Veteran Leave Entitlement

Under the Wounded Warriors Federal Leave Act of 2015 (Public Law 114-75, November 5, 2015), an employee hired on or after November 5, 2016, who is a veteran with a service-connected disability rating of 30 percent or more from the Veterans Benefits Administration (VBA) of the Department of Veterans Affairs is entitled to up to 104 hours of disabled veteran leave for the purposes of undergoing medical treatment for such disability.

An eligible employee will receive the appropriate amount of disabled veteran leave as of the employee’s “first day of employment,” as defined below. Disabled veteran leave is a one-time benefit provided to an eligible employee. The employee will have a single, continuous 12-month eligibility period, beginning on the “first day of employment” in which to use the leave or it will be forfeited with no opportunity to carry over the leave into subsequent years. An employee may not receive a lump-sum payment for any unused or forfeited leave under any circumstance.

Definitions

The new disabled veteran leave regulations include defined terms under 5 CFR 630.1303. Below are definitions of some key terms that will be helpful when reading this fact sheet.

Employee. Has the same meaning as provided for in the definition of “employee” under section 2105 of title 5, United States Code.

Employment. Service as an employee during which the employee is covered by a leave system under which leave is charged for periods of absence, but excluding service in a position in which the employee is not covered by 5 U.S.C. 6329 due to application of another statutory authority.

First day of employment. The first day of service that qualifies as employment that occurs on or after the later of—

1. The earliest date an employee is hired (after the effective date of the employee’s qualifying service-connected disability as determined by VBA); or
2. The effective date of the employee’s qualifying service-connected disability, as determined by VBA.

Hired. The action (on or after November 5, 2016) of—

1. Receiving an initial appointment to a civilian position in the Federal Government in which the service qualifies as employment;
2. Receiving a qualifying reappointment (following a break in service of at least 90 days) to a civilian position in the Federal Government in which the service qualifies as employment; or
3. Returning to duty status in a civilian position in the Federal Government in which the service qualifies as employment under this subpart, when such return immediately followed a break in civilian duty (with the employee in continuous civilian leave status) to perform military service.

Qualifying service-connected disability. A veteran’s service-connected disability rated at 30 percent or more (as determined by VBA), including a combined degree of disability of 30 percent or more that reflects the combined effect of multiple individual disabilities. A temporary disability rating issued under 38 U.S.C. 1156 is valid for as long as it is in effect.

Service-Connected. Refers to a disability that was incurred or aggravated in the line of duty in the active military, naval, or air service (as determined by VBA), as defined under 38 U.S.C. 101(16).

Veteran. A person who served on active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable, as defined under 38 U.S.C. 101(2).

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Employee Coverage

Covered Employees

There are several requirements that must be met in order for an employee to be eligible for disabled veteran leave under OPM’s regulations. Those requirements are that an employee must—

• Be in the civil service (as defined in 5 U.S.C. 2105)*;
• Be covered by the disabled veteran leave statute at 5 U.S.C. 6329;
• Be a veteran as the term is defined in 38 U.S.C. 101(2);
• Have a service-connected disability (as the term is defined in 38 U.S.C. 101(16)) rating of 30 percent or more**—as determined by VBA;
• Be hired (as that term is defined 5 CFR 630.1303) on or after November 5, 2016; and
• Be subject to a leave system for which leave is charged for absences.

*Employees of the United States Postal Service and Postal Regulatory Commission are not considered employees in the civil service under 5 U.S.C. 2105, except as otherwise provided by law. The disabled veteran law in 5 U.S.C. 6329 expressly provides that Postal employees are covered civil service employees under that law, but are subject to regulations prescribed by the Postmaster General.

** A disability rating of 30 percent or more includes a rating of one disability rated at 30 percent or more, or a combined degree of disability of 30 percent or more that reflects the combined effect of multiple individual disabilities. A temporary disability rating issued under 38 U.S.C. 1156 is valid for as long as it is in effect.

Employees not covered

The following categories of employees are not covered by the new disabled veteran leave authority:

• Employees not covered under 5 U.S.C. 2105 (such as employees of Department of Defense nonappropriated fund instrumentalities);
• Employees not covered by a leave system (such as those with intermittent work schedules or leave-exempt Presidential appointees); and
• Employees under leave systems that are governed by an independent statutory authority (such as Federal Aviation Administration (FAA) or Transportation Security Administration (TSA) employees).

12-month eligibility period

An eligible employee may only use disabled veteran leave during the continuous 12-month eligibility period beginning on the “first day of employment.”  The 12-month eligibility period is determined after the agency has established that an employee is eligible to receive disabled veteran leave.  As explained in the Definitions section of this fact sheet, the first day of employment is the later of—

1. the date the employee is hired (in a qualifying employment); or
2. the effective date of the employee’s qualifying service-connected disability rating. 

By law, disabled veteran leave is available only to an eligible employee who is “hired” on or after November 5, 2016.  (See Definitions section.)  In the scenarios discussed below, a qualifying hiring date is presumed.  

Many employees will have a qualifying VBA disability rating in effect before they are hired.  For these employees, the 12-month eligibility period will begin on the date the employee is hired because the date of hire is the later date.

Some employees may be hired before a qualifying VBA disability rating has been determined. These employees may be waiting for a pending VBA disability rating or file a VBA disability rating claim after the date the employee is hired.  An employee who does not have a qualifying VBA disability rating at the time of hire can establish eligibility for disabled veteran leave at a later time. For these employees, whether the hiring date or the effective date of the qualifying disability rating is the start date of the 12-month eligibility period will depend on exact circumstances.  The effective date could be before or after the hiring date.  The later of the two dates will be the start date of the 12-month eligibility period.    

Some possible scenarios are described below:

• An employee’s qualifying disability rating has an effective date before November 5, 2016.  The employee is hired in a position subject to 5 U.S.C. 6329 on or after November 5, 2016.  The hiring date is the later date and the “first day of employment,” which starts the 12-month eligibility period.
• An employee’s qualifying disability rating has an effective date on or after November 5, 2016.  The employee is hired in a position subject to 5 U.S.C. 6329 on or after that effective date.  The hiring date is the later date and the “first day of employment.”
• An employee is hired on or after November 5, 2016, in a position subject to 5 U.S.C. 6329 but does not have a qualifying disability rating in effect at that time.  The employee is later awarded a qualifying disability rating that is made effective after the hiring date. The effective date is the later date and the “first day of employment.”
• An employee is hired on or after November 5, 2016, in a position subject to 5 U.S.C. 6329.  At the time hired, the employee has a pending VA disability claim.  Later, VBA determines that the employee has a qualifying service-connected disability and sets the effective date retroactively to a date before the hiring date.  The hiring date is the later date and the “first day of employment.”

An employee may only use credited disabled veteran leave during the 12-month period beginning on the “first day of employment.”  An employee will only have one 12-month eligibility period established based upon his or her “first day of employment.”

The 12-month eligibility period expires one day before the anniversary date of the first day of employment.  For example, if the first day of employment is December 6, the 12-month eligibility period expires on December 5 of the next year.  The 12-month eligibility period is not extended because of a break in service.  

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Crediting of Disabled Veteran Leave

In order to demonstrate eligibility for disabled veteran leave, an employee must submit documentation from VBA certifying the service-connected disability rating and its effective date to the employing agency.  An agency cannot credit disabled veteran leave until the employee provides the necessary certifying documentation.

Once an agency has confirmed eligibility for disabled veteran leave, the agency must credit an eligible employee with the appropriate amount of disabled veteran leave as of the “first day of employment.”

Crediting of Hours by Work Schedule

An employee under a regular full-time work schedule will receive an initial crediting of 104 hours of disabled veteran leave. An employee who has a part-time or seasonal work schedule or an uncommon tour of duty will receive a proportionally equivalent amount of disabled veteran leave initially credited based upon the hours in the employee’s work schedule. (See 5 CFR 630.1305(b).) The initial crediting of hours may be subject to offset (reduction), as shown in the table below and discussed in the next section.

Work Schedule	Formulas for Computing Hours Initially Credited Based on # of Hours in Established Tour	Examples	Offset
Full-time nonseasonal	104	104	Reduced by # of hours of (1) sick leave to the employee’s credit as of the first day of employment or (2) equivalent disabled veteran leave used under another authority (if in 12-month period). See 5 CFR 630.1305(d) and (e).
Part-time nonseasonal	(h/80) x 104	20 hours/week or 40 hours biweekly: (40/80) x 104 = 52
Uncommon tour of duty	(h/80) x 104	144 hours/biweekly: (144/80) x 104 = 187
Seasonal tour (part-time or full-time)	(h/2,080) x 104	Full-time for half year: (1,040/2,080) x 104 = 52

*Where “h” represents the hours in the established tour for the period of time designated (i.e., 80 hours for a biweekly pay period and 2,080 hours for a 52-week annual period). For part-time employees, the hours are based on the scheduled part-time tour established for the purpose of charging leave when absent.

Offsetting the Disabled Veteran Leave

When determining the amount of disabled veteran leave to credit to an employee, an agency must offset the initial crediting of disabled veteran leave by—

• Any hours of sick leave to the employee’s credit as of the “first day of employment” (5 CFR 630.1305(d)); or
• Any hours of “equivalent” disabled veteran leave used by an employee in a position not covered by 5 U.S.C. 6329 (i.e., equivalent leave granted under another authority such as the personnel authority of the FAA or the TSA) (5 CFR 630.1305(e)).

An employee may have a sick leave balance as of the first day of employment in the following situations:

• A former Federal employee is rehired after a break in service of at least 90 days and the rehire date qualifies as the “first day of employment” triggering eligibility for disabled veteran leave.  The rehired employee is entitled to a recredit of the former sick leave balance.  Such recredited sick leave hours will offset the initial crediting of disabled veteran leave hours, which would reduce or eliminate the disabled veteran leave benefit.
• A veteran is first hired in a qualifying position as a Federal employee on or after November 5, 2016, and does not have eligibility for disabled veteran leave as of the hire date.  Later, the veteran files a claim for VA disability compensation, which is approved, and the effective date of the disability rating is after the hire date.  That effective date of the VBA disability rating is the “first day of employment” and the start date of the 12-month eligibility period for using disabled veteran leave.  The hours of sick leave to the employee’s credit (if any) as of that start date would offset the initial crediting of disabled veteran leave hours. 
• A Federal employee is called up to perform military duty as a reservist.  After such military service, the employee qualifies for disabled veteran leave.  The hours of sick leave to the employee’s credit (if any) as of the start date of the 12-month eligibility period would offset the initial crediting of disabled veteran leave hours. 

For an employee who was granted an “equivalent” disabled veteran leave benefit under an authority other than 5 U.S.C. 6329, eligibility for disabled veteran leave under section 6329 is determined at the point the employee moves to a position covered by section 6329.  Employment in a noncovered position cannot trigger the first day of employment under section 6329.  (See definition of “employment” in 5 CFR 630.1303.) 

However, OPM regulations provide that, if 12 months have elapsed since the commencing date of the eligibility period for using the equivalent benefit, the employee is considered to have received the full benefit (regardless of the number of hours actually used), which totally offsets (i.e., eliminates) the section 6329 benefit (5 CFR 630.1305(e)(2)).  

If the employee is still within that 12-month period, OPM regulations provide that the section 6329 leave benefit is offset by the number of hours of equivalent disabled veteran leave (under another authority) that were used by the employee (5 CFR 630.1305(e)(3)).  (There is no additional offset based on the employee’s sick leave balance; however, the number of hours of disabled veteran leave used may be adjusted if  those hours were used under a different work schedule, consistent with 5 CFR 630.1305(c).)  In that case, the employee would be able to use any remaining disabled veteran leave during the 12-month eligibility period established under section 6329 (i.e., the period starting on the date of first employment in a position covered by section 6329).   

Conversion of Disabled Veteran Leave Balance Based on Change in a Tour of Duty

When an employee is converted to a different tour of duty for leave purposes, including in conjunction with movement to a different agency, the employee’s balance of unused disabled veteran leave must be converted to the proper number of hours based on the proportion of hours in the new tour of duty compared to the former tour of duty.  For seasonal employees, hours must be annualized in determining the proportion.  (See 5 CFR 630.1305(c).) 

For example, if an employee has a balance of 60 hours of disabled veteran leave and changes from a full-time schedule (80 hours per biweekly pay period) to a half-time schedule (part-time schedule of 40 hours per biweekly pay period), the 60-hour balance would be converted to a 30-hour balance [60 x (40/80) = 30]. 

These balance conversion rules do not apply to disabled veteran leave that was credited to a U.S. Postal Service or Postal Regulatory Commission employee under Postmaster General regulations, since those regulations do not provide for variable crediting of hours based on type of work schedule.  OPM defers to the Postmaster General regulations on crediting; thus, when an employee moves from a Postal agency to a non-Postal agency, the non-Postal agency may not apply the conversion rule in OPM regulations to a disabled veteran leave benefit originally established under Postmaster General regulations—even if there is a change in work schedule upon movement to the non-Postal agency or later changes in work schedule.  The balance at the time of separation under Postmaster General regulations will be carried over and will be adjusted during the 12-month eligibility period only when hours of disabled veteran leave are used. 

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Requesting and Using Disabled Veteran Leave

Use of Leave for Medical Treatment

Disabled veteran leave may only be used for the medical treatment of a qualifying service-connected disability, which includes any individual disability that is part of a combined disability rating of at least 30 percent. Medical treatment may include a period of rest, but only if the period of rest is specifically ordered by the employee’s health care provider as part of a prescribed course of treatment for the qualifying service-connected disability. Qualifying medical treatment may be provided or prescribed by any health care provider who is covered by the definition of “health care provider” in OPM’s Family and Medical Leave Act (FMLA) regulations at 5 CFR 630.1202.

Requesting to Use Disabled Veteran Leave

An employee must file an application to use disabled veteran leave in a manner the employing agency requires. This can be written, orally, or in electronic format. The application must include a personal self-certification by the employee that the leave will be (or was) used for purposes of being furnished medical treatment for a qualifying service-connected disability. Unless the need for leave is critical and unforeseeable (e.g., a medical emergency or the unexpected availability of an appointment for surgery or other critical treatment), the employee must request the leave in advance, within the time limits the agency may require, and specify the specific days and hours of absence required for the medical treatment.

Retroactive Substitution

An employee is permitted to retroactively substitute disabled veteran leave for other forms of leave or time off taken for the purpose of receiving treatment for a qualifying disability (excluding periods of absence without leave (AWOL) or suspension, but including forms such as leave without pay (LWOP), sick leave, annual leave, compensatory time off, or other paid time off) when the leave or time off was taken during the employee’s 12-month eligibility period for the medical treatment of a qualifying disability. Retroactive substitution may be necessary when an employee has a pending claim under review by VBA that is later approved with a retroactive effective date. In that situation, the employee should keep documentation or records relating to medical treatment of a condition that may later be covered as a qualifying service-connected disability.

Medical Certification

In addition to the required employee self-certification, an agency, at its discretion, may additionally require a signed medical certification from a health care provider that the medical treatment was for a qualifying service-connected disability.  An agency may require an employee to submit medical certification before approving any retroactive substitution as described above.

When an agency requires such medical certification, the agency may specify that it include—

• A written statement signed by the health care provider that the medical treatment is for one or more service-connected disabilities of the employee that resulted in a 30 percent or more disability rating;
• The date or dates of treatment or, if the treatment extends over several days, the beginning and ending dates of the treatment;
• If the leave was not requested in advance, a statement that the treatment required was of an urgent nature or there were other circumstances that made advanced scheduling not possible; and
• Any additional information that is essential to verify the employee's eligibility.

The employee must provide the additional medical certification within 15 calendar days of the agency’s request unless the agency determines that more time is required (not to exceed 30 calendar days).  

Employee Transfers or Separations

When an employee with a positive balance of disabled veteran leave transfers between qualifying agencies or separates from qualifying Federal employment and returns later to qualifying Federal employment, the employee is entitled to a recredit of any unused disabled veteran leave—if the employee is still within his or her originally established 12-month eligibility period.  (See 5 CFR 630.1308(c) and (d).)

The losing agency must certify the number of unused disabled veteran leave hours and the expiration date of the employee’s established 12-month eligibility period to the gaining agency. 

In the event that certification is not available upon transfer or reemployment, the recredit of disabled veteran leave may be supported by written documentation available to the employing agency in its official personnel records concerning the employee, the official records of the employee’s former employing agency, copies of contemporaneous leave and earning statement(s) provided by the employee, or copies of other contemporaneous written documentation acceptable to the agency.

If an employee’s work schedule changes in conjunction with movement to a different agency (during the 12-month eligibility period), the balance of disabled veteran leave must generally be converted to the proper number of hours based on the proportional relationship between the two schedules (5 CFR 630.1305(c)).  (See the section of this fact sheet entitled “Conversion of Disabled Veteran Leave Balance Based on Change in a Tour of Duty.”)

Forfeiture of Disabled Veteran Leave

Any unused disabled veteran leave will be forfeited at the end of the employee’s established 12-month eligibility period. There are no circumstances under which the leave may remain to an employee’s credit afterwards.

Effect of Decrease or Discontinuation of 30 Percent Disability Rating

Disabled veteran leave is subject to forfeiture if an employee receives a discontinued or decreased service-connected disability rating which no longer qualifies the employee for disabled veteran leave. If an employee's service-connected disability rating is decreased or discontinued during the 12-month eligibility period resulting in the employee no longer having a qualifying service-connected disability rating, the employee must notify the agency of the effective date of the change in the disability rating, and the employee is no longer eligible for disabled veteran leave as of the end of the day before the effective date of the rating change. Any unused disabled veteran leave to the employee’s credit as of the end of the day before the effective date of the rating change will be forfeited. A rating change has no effect on any disabled veteran leave the employee used prior to the effective date of the rating change.

An employee may not receive a lump-sum payment for any forfeited disabled veteran leave under any circumstance.

References

• 5 U.S.C. 6329
• 5 CFR, part 630, subpart M
• Federal Register Notice 81 FR 51775, August 5, 2016 (final rule)
• Federal Register Notice 81 FR 36186, June 5, 2016 (proposed rule)
• Wounded Warriors Federal Leave Act of 2015 (Public Law 114-75, November 5, 2016)

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