On March 11, 2020, the Mayor declared both a public emergency and public health emergency in the District of Columbia due to the Coronavirus Disease 2019 (COVID-19). Our workforce has met this challenge skillfully during a time of need to continue serving our city’s residents. The continued sacrifices by our employees are saving lives and helping us get navigate through this pandemic.

The public emergency and the District’s response has continued to created unique talent management obstacles. Employees are limited in their ability to use accrued annual leave or universal leave in the current climate, and challenges exist with the typical administrative prerequisites for rolling over leave into the next calendar year or restoring annual leave or universal leave that could not be used or requested due to exigencies of the public business. Without a deviation from existing regulations, many employees will suffer inequitable annual leave or universal leave forfeitures at the end of the year.

For the reasons outlined in this issuance, the Director of the D.C. Department of Human Resources is again granting variances to restore annual and universal leave that could not be used due to the exigencies of the public business. Under the terms of these variances, employees under the Mayor’s personnel authority who would otherwise forfeit their accrued annual or universal leave at the close of the 2021 leave year shall have their forfeited leave restored to a separate leave account for the employees’ use in leave years 2022 and 2023.

In December 2019, scientists identified a new infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). SARS-CoV-2 is the strain of coronavirus that causes coronavirus disease 2019 (COVID-19). Since that time and as of the date of this issuance, COVID-19 has spread globally across at least 191 countries, killing at least one million people and becoming a pandemic. In response, nations have had to severely limit domestic and international travel, and local leaders, including the Mayor, have declared public health emergencies and issued unprecedented stay-at-home orders.

Our essential and emergency employees have responded to the pandemic with skill and dedication. Most of our workforce has been unable to exercise or schedule annual leave or universal leave options as they respond to significant public health challenges, dramatic unemployment, and extreme economic pressures. Moreover, for executive branch agencies that are subordinate to the Mayor, the Council for the District of Columbia has authorized the Mayor to deny leave or rescind approval of previously approved leave where appropriate and necessary to respond to the public health emergency. As a result, multiple agencies have expressed concern about employees or agency heads having to forfeit annual leave or universal leave, respectively, at the end of the leave year. 

Section 1009.9

6-B DCMR § 1009.9 limits the number of hours an Executive Service employee may carry from one leave year to the next to 40 hours of universal leave. 6-B DCMR § 1009.9 provides:

An Executive Service employee may carry over not more than forty (40) hours of unused universal leave for use in succeeding years. All other unused leave shall be forfeited at the end of the leave year.

Section 1238.1

6-B DCMR § 1238.1 limits the number of hours an employee can carry from one leave year to the next to 240 hours of annual leave. 6-B DCMR § 1238.1 provides, in relevant part:

… annual leave that is not used by an employee shall accumulate for use in succeeding years, except that annual leave in excess of two hundred forty (240) hours at the beginning of the first full biweekly pay period of the calendar year, or the corresponding period for an employee who is not paid on the basis of biweekly pay periods, shall be forfeited …

Section 1239.1(b)

6-B DCMR § 1239.1(b) provides that annual leave may be restored when employees are prevented from exercising annual leave due to exigencies of the public business deemed by the agency head to be of major importance.  Such leave may only be restored when the annual leave was requested, approved, and subsequently denied and forfeited due to the exigency. Section 1239.1 provides, in pertinent part:

… annual leave may be restored when … (b) exigencies of the public business, deemed by the agency head to be of major importance, causes denial and forfeiture of annual leave previously scheduled at least three (3) biweekly pay periods prior to the end of the leave year …

Personnel regulations should be as flexible and responsive as possible. See DC Code § 1-604.01. Accordingly, 6-B DCMR § 104.1 authorizes the Director of the Department of Human Resources to grant a variance from the personnel regulations if there is a practical difficulty or unnecessary hardship in complying with the regulations; the variance is within the spirit of the regulations; the efficiency of the District government will be protected and promoted by the granting of the variance; and the integrity of the Services (e.g. Career, Legal, Excepted, and Executive) will be protected and promoted by the granting of the variance.

Granting variances that relax and suspend the regulatory requirements in 6-B DCMR §§ 1009.9 and 1239.1(b) meet these requirements and are appropriate because:

• The urgency and scope of the exigency has made the use of accrued annual leave or universal leave inconsistent with public service;
• The variations are within the spirit of the annual leave restoration regulations and Executive Service regulations for purposes of responding to a public health emergency;
• The efficiency of the District government and different service types are protected and promoted by allowing employees to focus on the immediate emergency response and other public business without loss of leave benefits; and
• The scope of the variance is limited to the unique challenges arising due to the extreme circumstances resulting from the COVID-19 pandemic. Therefore, use of the forfeited leave restored to a separate leave account is limited to calendar years 2022 and 2023.

For the reasons outlined in this issuance, the Director grants variances to 6-B DCMR §§ 1009.9 and 1239.1(b). The variances, which are applicable to calendar year 2021 for all employees under the Mayor’s personnel authority, are as follows:

        1009.9     An Executive Service employee may carry over not more than forty (40) hours of unused universal leave for use in succeeding years. All other unused leave shall be forfeited at the end of the leave year. However, due to the COVID-19 public emergency, universal leave accrued during leave year 2021 that is forfeited under this subsection shall be restored for employees’ use in leave years 2022 and 2023.

1239.1    As provided in section 1203 (h) (2) of the CMPA (D.C. Official Code § 1-612.03 (h) (2)), annual leave may be restored when:

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2. Exigencies of the public business, deemed by the personnel authority to be of major importance, causes a direct or indirect forfeiture of annual leave.

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Based on these variances, and in accordance with all other applicable laws and regulations, employees under the Mayor’s personnel authority who would otherwise forfeit their accrued annual or universal leave at the close of leave year 2021, pursuant to 6-B DCMR §§1009.9 or 1238.1, shall have their forfeited leave restored to a separate leave account for the employees’ use in leave years 2022 and 2023.

The following references were considered in evaluating and issuing this variance:

1. COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU), Johns Hopkins University (as of November 30, 2020)
2. Issuance of Emergency Executive Order, D.C. Official Code § 7-2304(b)(16)(K)
3. Leave, D.C. Official Code § 1-612.03
4. Universal Leave, 6-B DCMR § 1009.9
5. Annual Leave – Maximum Accumulation and Annual Leave – Restoration, 6-B DCMR §§ 1238 and 1239
6. Variances, 6-B DCMR § 104
7. Organization for Personnel Management-Policy, D.C. Official Code § 1-604.01(b)