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COVID-19 Pay Cap Waiver

May 1, 2020 

Dear Fellow Members, 

As you continue to battle the COVID-19 crisis and do so while placing yourselves and your family in harm’s way, one of the priority issues FLEOA has been advocating for is a waiver of pay caps for all federal law enforcement officers during this national emergency. Waiving pay caps would allow agencies to pay their personnel above the bi-weekly, premium, and annual pay limits during the emergency. It would not require any further agency or OPM action to implement. As a result of working closely with our Congressional contacts, a pay cap waiver was included in Section 18110 of the CARES Act passed on March 27th. 

While we are continuing to press Congress to create a blanket pay cap waiver that would not require any further agency or OPM action, we have remained engaged with the Administration and OPM on the implementation of Section 18110.  After a number of discussions, we now have some additional clarity on how Section 18110 applies to our members. 

Based on these discussions, OPM has determined that Section 18110 applies to all agencies across the federal government. For this reason, OPM issued a guidance memo which stated, in part, that: 

"The recently enacted "Coronavirus Aid, Relief, and Economic Security Act” (CARES Act) (Public Law 116-136, March 27, 2020) contains two sections providing an agency head with the authority to waive the biweekly premium pay limitation found at 5 U.S.C. 5547(a) and apply a higher annual premium pay cap and to exclude premium pay from the aggregate limitation on pay found at 5 U.S.C. 5307 for work performed in response to COVID-19.  The U.S. Office of Personnel Management (OPM) is issuing this memorandum to provide information on these new provisions.  (See Attachment for the legislative text of sections 16003 and 18110 of the CARES Act.)  For previously issued OPM guidance concerning COVID-19, please visit: www.opm.gov/coronavirus."  

"For employees who perform work in emergency or mission critical situations that do not meet the coverage conditions of the CARES Act waiver authorities, the head of an agency may apply an annual premium pay cap instead of a biweekly premium pay cap, subject to the conditions provided in law and regulation.  (See 5 U.S.C. 5547(b) and 5 CFR 550.106-550.107.)  OPM has no authority to further waive the title 5 premium pay limitation or aggregate pay limitation."

The full OPM guidance can be found here.

This means that if you are in a role providing direct support related to the CARES Act coronavirus response, your agency can completely waive all of the pay cap (bi-weekly, premium pay and annual) for you.  If you are in a role providing non-direct support, your agency can still waive the bi-weekly pay cap for you.

It is our understanding that several agencies, including DOD and DOI, have taken steps to implement the waiver authority for their agency personnel.  It is also clear that other agencies and their Human Capital personnel may not be aware of the applicability of Section 18110 to their agency.  For that reason, we have requested FLEOA’s Agency Presidents to query their respective agencies to determine if they have or have not issued guidance in line with the guidance from OPM.  

As we continue to navigate this crisis, rest assured that FLEOA will continue to look for ways to ensure that you never feel as if you are going it alone.

Fraternally, 

Larry Cosme

National President

Federal Law Enforcement Officers Association