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November 2020 FLEOA Member Update

Dear FLEOA Members,


As the Presidential election winds down, the House and Senate are set to return to Washington to wrap up some unfinished business before the 116th Congress formally concludes on January 3, 2021. This includes a potential deal on another COVID-19 response and stimulus package, passage of the FY 21 National Defense Authorization Act (NDAA), and funding a solution on government spending for FY21 before the current continuing resolution expires on December 11th.  FLEOA has been heavily engaged on provisions in each of these three measures over the course of the past several months to ensure that they not only adequately prioritize your health and safety, but also recognize the tremendous efforts of our members throughout the pandemic. Below we provide you an update on several of these important initiatives.


Leave Waiver:
As the pandemic impacts every facet of federal law enforcement as essential employees, the inability of federal law enforcement officers to take leave has been pronounced. To address this, FLEOA advocated for and OPM has provided interim guidance for a waiver for all federal employees deemed essential.  Here is the link: https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-16823.pdf.  


Those employees who have annual leave balances that exceed the usual statutory carryover limit will be allowed to "schedule” that excess leave and therefore have it restored in a separate leave account for later. Full-time employees have until the end of the leave year in progress, that’s two years after the date of the end of the exigency of the public business, to use 416 hours or less of restored annual leave, OPM said. Agencies should extend that period by a year for each additional 208 hours of excess leave.


Separately, we’ve been working with Congress on legislation to place that leave waiver into law for all employees. 


FLEOA advocated for and supported the Federal Worker Leave Fairness Act (H.R. 8457 and S. 4777), which was introduced by Rep. Derek Kilmer in the House and Sen. Mazie Hirono in the Senate and would expand OPM’s waiver so that it applies to all federal workers. The waiver created by this legislation would also apply to any future public health emergencies.


Extension of Emergency Paid Family and Sick Leave/Eliminating the Ability of Federal Agencies to Exclude First Responder Personnel. FLEOA advocated for the passage of the Families First Coronavirus Response Act (FFCRA H.R.6201)  https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-16823.pdf  


This act was passed into law earlier this year, and requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 until December 31, 2020. We are advocating for extending it until December 31, 2021.


Generally, the Act provides that employees of covered employers are eligible for:


  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine.  
  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.


In addition to the general extension of the leave provisions of the FFCRA until December 31, 2021, the bill would eliminate a provision in the FFCRA that allowed agencies to exclude health care and first responder personnel from taking emergency paid family or sick leave due to COVID-19.


FLEOA advocated for a full 12 weeks of paid emergency FMLA leave and that the leave does not count towards an employee’s 12 weeks of non-emergency FMLA leave.  


We also ensure that OPM’s authority to exclude certain categories of federal employees from paid family and paid sick leave, respectively was negated so it applied to all federal employees including extending the paid sick leave to VA and TSA personnel.


FLETC COVID-19:
FLEOA was informed that FLETC, like many institutions, had experienced some positive COVID-19 cases. According to FLETC, this necessitated them following CDC guidelines related to testing, quarantining and contact tracing. An issue arose with how extensive those guidelines were being applied and how they are impacting students who were tested and found to be negative.  


Through engagement with FLETC, the DHS Secretary’s office, and FLEOA’s Outside Legal Counsel contact with FLETC Chief Counsel, within a matter of days, the issue was resolved and training was resumed. To prevent any future issues, we’ve requested FLETC’s COVID-19 procedures and policies related to those that test positive. While we support following CDC guidelines for any COVID-19 positive individuals, individuals that are negative should not be impacted and as we reminded FLETC, the student’s rights as American’s don’t stop at FLETC’s gate.


Probation & Pretrial Services Officers Support:
U.S. Probation and Pre-Trial Services officers have borne the brunt of the COVID-19 pandemic with the broad and sometimes surprise release of federal prisoners onto federal probation. Unfortunately, as we’ve told the Administration and Congress, through the FIRST STEP Act or other early prison release programs, U.S. Probation and Pre-Trial Services has routinely been forgotten about with funding, staffing and support.


That is why we are working to ensure that in any future COVID-19 or year-end spending deal Congress increases funding for U.S. Probation and Pre-Trial Services, officers be provided with LEAP, and that the agencies increase staffing and support to ensure they have the tools they need to monitor the tenfold increase in cases they now manage. This is an important officer and citizen safety issue. If former federal prisoners are not properly managed and supported, we are acting in the opposite interests of all Americans.


Pay Cap Waiver:
FLEOA is asking Congress to continue waiving both the annual and bi-weekly pay caps for the pandemic response. We’ve asked that Congress provide a full waiver of the bi-weekly and annual pay caps on premium pay under 5 U.S.C. 5547 up to level II of the Executive Schedule. This waiver of the pay caps would be retroactive to the start date of the COVID-19 public health emergency, and the authority granted by this section would be in addition to the pay cap waiver authority provided to federal agencies under Sec. 18110 of the CARES Act.


Pandemic Pay Differential for Federal Employees:
We are advocating for Congress to pass or include language providing a pandemic pay differential for federal law enforcement officers and other employees into law.  This would establish a $10 billion fund to provide a pandemic pay differential of $13 per hour to essential federal employees for "covered duty,” and which would be on top of any other differential or premium pay (including overtime) the employee is entitled to receive. Covered duty is defined as duty that requires an employee to have regular or routine contact with the public, or reporting to a worksite at which either social distancing is not possible or other COVID-19 preventative measures are not available. This pandemic premium pay would be capped at $10,000 for employees making less than $200,000 per year, and at $5,000 for employees making more than $200,000 per year.  The pay would be retroactive to the start date of the COVID-19 public health emergency and available for 60 days after the termination of the public health emergency.


Emergency Funding for the U.S. Postal Service:   
We are asking Congress to provide the U.S. Postal Service with $25 billion in emergency funding to cover COVID-19-related declines in revenue. It would also remove the ability of Treasury to impose conditions on the $10 billion loan to the U.S. Postal Service provided in the CARES Act.


Fair RETIRE Act Coverage for COVID-19 Disabilities:   
A FLEOA priority and initiated bill, we are asking that a modified version of the text of the "First Responder Fair RETIRE Act,” introduced by Rep. Gerry Connolly and Sen. Jon Tester, be included. Under the HEROES Act, any special category employee who suffers a COVID-19-related disability and is permanently prevented from continuing service in a covered position would be able to maintain their retirement status as if the employee had never been disabled.


While this has been a historic year, that history has largely been made via the efforts of federal law enforcement officers. The least the Congress can and should do, is ensure you have all you need to get the job done and home safely.


Please stay safe and strong and remember that FLEOA will never let you "Go It Alone.” 


Fraternally,


Larry Cosme
National President
Federal Law Enforcement Officers Association