§ 351.608 Discretionary temporary exceptions

5 CFR 351.608(a)(a) General.

5 CFR 351.608(a)(1)(1) An agency may use one of the exceptions authorized under this section to retain an employee (i.e., extend an employee's separation date) after the effective date of a reduction in force, notwithstanding the order of release under § 351.601 or the action provisions under § 351.603. Temporary exceptions are time-limited, but the duration may vary depending on a variety of factors as provided in paragraphs (b) through (g) of this section.

5 CFR 351.608(a)(2)(2) After the effective date of a reduction in force action, an agency may not amend or cancel the reduction in force notice of an employee retained under a temporary exception to avoid completion of the reduction in force action. This does not preclude the employee from receiving or accepting a job offer in the same competitive area in accordance with a Reemployment Priority List established under part 330, subpart B, of this chapter, or under a Career Transition Assistance Plan established under part 330, subpart F, of this chapter, or equivalent programs.

5 CFR 351.608(a)(3)(3) Each exception under a paragraph in this section stands alone and may not be sequenced or stacked in combination with another exception. If an agency determines that it can approve more than one exception for an employee, the agency may apply the exception that provides for the longest period of retention.

5 CFR 351.608(a)(4)(4) When an agency makes an exception under this section for more than 30 days, it must:

5 CFR 351.608(a)(4)(i)(i) Notify in writing each higher standing employee in the same competitive level reached for release of the reasons for the exception and the latest date the lower standing employee's retention is projected to end; and

5 CFR 351.608(a)(4)(ii)(ii) List opposite the employee's name on the retention register the reasons for the exception and the latest date the employee's retention is projected to end.

5 CFR 351.608(b)(b) Undue interruption. An agency may make a temporary exception for not more than 90 days when needed to continue an activity without undue interruption.

5 CFR 351.608(c)(c) Government obligation. An agency may make a temporary exception to satisfy a Government obligation to an employee. Any application of this exception is subject to the conditions and limitations established by the agency and this section. The employee must use leave (paid or unpaid) or paid time off continuously to cover all tour of duty hours during the period the exception is in effect. The use of each type of leave or paid time off must be consistent with the established rules governing its use. Administrative leave under 5 CFR part 630, subpart N (or similar authority) may not be used. The exception may not take effect unless the employee signs a written agreement in which the employee attests that he or she understands and agrees with the conditions and limitations established by the agency and this section. Authorized agency applications of this exception include the following:

5 CFR 351.608(c)(1)(1) An exception may be approved under this paragraph (c) for an employee who is eligible for, and has not exhausted, paid parental leave under 5 U.S.C. 6382(d)(2) (or equivalent authority) based on the birth of a child of the employee before the effective date of the reduction in force. The exception may be approved through the date by which the employee would be able to use all remaining available paid parental leave to the employee's credit in connection with the birth, if the leave is used continuously starting on the effective date of the reduction in force.

5 CFR 351.608(c)(2)(2) An exception may be approved under this paragraph (c) for an employee who is eligible for, and has not exhausted, paid parental leave under 5 U.S.C. 6382(d)(2) (or equivalent authority) based on the placement of a child with the employee for adoption purposes before the effective date of the reduction in force. The exception may be approved through the date by which the employee would be able to use all remaining available paid parental leave to the employee's credit in connection with the placement, if the leave is used continuously starting on the effective date of the reduction in force.

5 CFR 351.608(c)(3)(3) An exception may be approved under this paragraph (c) for an employee who is pregnant, or whose spouse is pregnant, as of the effective date of reduction in force and who would be eligible for paid parental leave under 5 U.S.C. 6382(d)(2) (or equivalent authority) based on the expected birth. The exception may be approved through the date that is 12 weeks after the birth.

5 CFR 351.608(d)(d) Leave for a sick leave purpose. An agency may make a temporary exception to retain an employee covered by 5 U.S.C. chapter 63 (or other applicable leave system for Federal employees), who has a condition or circumstance that would warrant continuous use of sick leave during all tour-of-duty hours of the period of retention if the employee had available sick leave, provided—

5 CFR 351.608(d)(1)(1) Such condition or circumstance continues throughout the period of retention;

5 CFR 351.608(d)(2)(2) The employee first uses any available sick leave in accordance with the requirements 5 CFR part 630, subpart D (or other applicable sick leave system), before using any other appropriate leave (paid or unpaid) or paid time off, consistent with any applicable requirements governing use of the leave or paid time off;

5 CFR 351.608(d)(3)(3) The use of leave or paid time off is continuous through all tour-of-duty hours of the period of retention; and

5 CFR 351.608(d)(4)(4) The period of retention does not exceed 90 days.

5 CFR 351.608(e)(e) Annual leave.

5 CFR 351.608(e)(1)(1) An agency may make a temporary exception to retain on accrued annual leave an employee who:

5 CFR 351.608(e)(1)(i)(i) Is being involuntarily separated under this part;

5 CFR 351.608(e)(1)(ii)(ii) Is not covered by § 351.606(b) (because the employee is covered by a Federal leave system under an authority other than 5 U.S.C. chapter 63, a retirement law not referenced in § 351.606(b), or a health benefits law other than 5 U.S.C. chapter 89); and

5 CFR 351.608(e)(1)(iii)(iii) Will attain first eligibility for an immediate retirement benefit under 5 U.S.C. 8336, 8412, or 8414 (or other authority), and/or establish eligibility under 5 U.S.C. 8905 (or other authority) to carry health benefits coverage into retirement during the period represented by the amount of the employee's accrued annual leave.

5 CFR 351.608(e)(2)(2) An agency may not approve an employee's use of any other type of leave after the employee has been retained under this paragraph (e).

5 CFR 351.608(e)(3)(3) This exception may not exceed the date the employee first becomes eligible for immediate retirement or for continuation of health benefits into retirement, except that an employee may be retained long enough to satisfy both retirement and health benefits requirements.

5 CFR 351.608(e)(4)(4) Accrued annual leave includes all accumulated, accrued, and restored annual leave, as applicable, in addition to annual leave earned and available to the employee after the effective date of the reduction in force. When approving a temporary exception under this provision, an agency may not advance annual leave or consider any annual leave that might be credited to an employee's account after the effective date of the reduction in force other than annual leave earned while in an annual leave status.

5 CFR 351.608(f)(f) Military spouse. An agency may extend the separation date beyond the effective date of a reduction in force of a military spouse as defined in § 351.203. The agency may establish a maximum number of days, up to a maximum of 90 days, for which an exception may be approved.

5 CFR 351.608(g)(g) Other exceptions. An agency may make a temporary exception to extend an employee's separation date beyond the effective date of the reduction in force when the temporary retention of the lower standing employee does not adversely affect the right of any higher standing employee who is released ahead of the lower standing employee. The agency may establish a maximum number of days, up to 90 days, for which an exception may be approved.