5 U.S.C. § 6121 — Definitions

Page 795 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 6121 (d) Nothing in this section shall be construed to im- pair or otherwise affect the discretion granted to an employee’s supervisor in making a decision on the re- quest for work schedule flexibilities, in accordance with the agency’s mission-related requirements. SEC. 2. Expanding Access to Workplace Flexibilities. Agency heads shall ensure that the following workplace flexibilities are available to the maximum extent prac- ticable, in accordance with the laws and regulations governing these programs and consistent with mission needs: (a) part-time employment and job sharing, including for temporary periods of time where appropriate; (b) alternative work schedules, including assurance that core hours are limited only to those hours that are necessary; (c) break times for nursing mothers and a private space to express milk; (d) telework; (e) annual leave and sick leave, including the ad- vancement of leave for employee and family care situa- tions; (f) sick leave for family care and bereavement; (g) sick leave to care for a family member with a seri- ous health condition; (h) sick leave for adoption; (i) leave pursuant to the Family and Medical Leave Act (FMLA), including allowing employees to take their FMLA leave intermittently as allowed under the Act, including for childbirth, adoption, and foster care; (j) leave transfer programs, including leave banks; (k) bone marrow and organ donor leave; and (l) leave policies related to domestic violence, sexual assault, and stalking situations. SEC. 3. Expanding Availability and Encouraging Use of Work-Life Programs. Agency heads are encouraged to take steps to increase the availability and use of the following work-life programs to the maximum extent practicable: (a) dependent care programs, including the avail- ability of on-site child care, child care subsidies, emer- gency child care, and elder care; (b) Employee Assistance Programs, including coun- seling, resources, and referrals; (c) support for nursing mothers, including worksite lactation support programs and resources; and (d) worksite health and wellness programs, and op- portunities to utilize those resources. SEC. 4. Helping Agencies Encourage the Use of Work- place Flexibilities and Work-Life Programs. The Director of OPM (Director) shall work with agencies to: (a) provide appropriate education and guidance to all agency employees, including managers and supervisors, on the use of workplace flexibilities and work-life pro- grams as strategic tools to assist with the recruitment and retention of employees, with an emphasis on fur- thering positive outcomes for employees and the agen- cy that result from optimizing their use; (b) support agencies in their efforts to develop train- ing programs that educate employees, managers, and supervisors about the resources that are available to meet work-life needs; (c) support agencies in promoting workplace cultures in which workplace flexibilities and work-life programs are a standard part of operating procedures, and iden- tify any arbitrary, unnecessary, or cultural barriers limiting use; (d) review the Federal Employee Viewpoint Survey data related to supervisor and senior leadership support for work-life, as well as use and satisfaction with alter- native work schedules, telework, and work-life pro- grams; (e) implement the President’s Management Agenda efforts in a manner that improves Senior Executive Service focus on creating inclusive work environments where workplace flexibilities and work-life programs are used effectively; (f) create, annually update, and electronically publish a Workplace Flexibility Index using data from the Fed- eral Employee Viewpoint Survey, reporting required by the Telework Enhancement Act of 2010, and other ap- propriate measures of agencies’ effective use of work- place flexibilities; (g) within 120 days from receipt of the agency reports submitted pursuant to section 5 of this memorandum, prepare a report to the President that includes infor- mation on agency best practices with regard to the use of workplace flexibilities, any barriers to or limitations that may unnecessarily restrict the use of existing workplace flexibilities and work-life programs, rec- ommendations for addressing or eliminating such bar- riers or limitations, proposals for future data report- ing, and metrics for tracking the use and cost-benefit of work-life programs; and (h) review, for the purpose of identifying relevant trends related to workplace flexibility issues, the an- nual report that agencies provide to OPM under the No FEAR Act, which includes the agency’s analysis of vio- lations of antidiscrimination and whistleblower laws, an examination of trends, causal analysis, practical knowledge gained through experience, and any actions planned or taken to improve programs within the agen- cy. SEC. 5. Agency Review of Workplace Flexibilities and Work-Life Policies and Programs. Within 120 days of the date of the issuance of guidance pursuant to section 1(c) of this memorandum, each agency shall review its workplace flexibilities and work-life policies and pro- grams to assess whether they are being effectively used to the maximum extent practicable and submit a re- port to OPM that includes: (a) any best practices the agency has employed to create a culture and work environment that supports the productive and efficient use of workplace flexibili- ties and work-life programs; and (b) any barriers to or limitations that may unneces- sarily restrict the use of existing workplace flexibili- ties and work-life programs and recommendations for addressing or eliminating such barriers or limitations. SEC. 6. General Provisions. (a) Nothing in this memo- randum shall be construed to impair or otherwise af- fect: (i) the authority granted by law or Executive Order to an agency, or the head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This memorandum shall be implemented con- sistent with applicable law and subject to the avail- ability of appropriations. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or proce- dural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. (d) The Director is hereby authorized and directed to publish this memorandum in the Federal Register. BARACK OBAMA. § 6121. Definitions For purposes of this subchapter— (1) ‘‘agency’’ means any Executive agency, any military department, the Government Publishing Office, the Library of Congress, the Architect of the Capitol, and the Botanic Gar- den; (2) ‘‘employee’’ has the meaning given the term in subsection (a) of section 2105 of this title, except that such term also includes an employee described in subsection (c) of that section; (3) ‘‘basic work requirement’’ means the number of hours, excluding overtime hours, which an employee is required to work or is required to account for by leave or otherwise; (4) ‘‘credit hours’’ means any hours, within a flexible schedule established under section 6122 Page 796 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 6122 1 So in original. The word ‘‘section’’ probably should not ap- pear. of this title, which are in excess of an employ- ee’s basic work requirement and which the employee elects to work so as to vary the length of a workweek or a workday; (5) ‘‘compressed schedule’’ means— (A) in the case of a full-time employee, an 80-hour biweekly basic work requirement which is scheduled for less than 10 workdays, and (B) in the case of a part-time employee, a biweekly basic work requirement of less than 80 hours which is scheduled for less than 10 workdays; (6) ‘‘overtime hours’’, when used with re- spect to flexible schedule programs under sec- tions 6122 through 6126 of this title, means all hours in excess of 8 hours in a day or 40 hours in a week which are officially ordered in ad- vance, but does not include credit hours; (7) ‘‘overtime hours’’, when used with re- spect to compressed schedule programs under sections 6127 and 6128 of this title, means any hours in excess of those specified hours which constitute the compressed schedule; and (8) ‘‘collective bargaining’’, ‘‘collective bar- gaining agreement’’, and ‘‘exclusive represent- ative’’ have the same meanings given such terms— (A) by section 7103(a)(12), (8), and (16) of this title, respectively, in the case of any unit covered by chapter 71 of this title; and (B) in the case of any other unit, by the corresponding provisions applicable under the personnel system covering this unit. (Added Pub. L. 97–221, § 2(a)(2), July 23, 1982, 96 Stat. 227; amended Pub. L. 101–163, title III, § 312, Nov. 21, 1989, 103 Stat. 1065; Pub. L. 104–106, div. A, title X, § 1041, Feb. 10, 1996, 110 Stat. 433; Pub. L. 111–68, div. A, title I, § 1302(1), Oct. 1, 2009, 123 Stat. 2034; Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537.) Editorial Notes AMENDMENTS 2009—Par. (1). Pub. L. 111–68 substituted ‘‘the Library of Congress, the Architect of the Capitol, and the Bo- tanic Garden’’ for ‘‘and the Library of Congress’’. 1996—Par. (2). Pub. L. 104–106 amended par. (2) gen- erally. Prior to amendment, par. (2) read as follows: ‘‘ ‘employee’ has the meaning given it by section 2105 of this title;’’. 1989—Par. (1). Pub. L. 101–163 inserted ‘‘the Govern- ment Printing Office,’’ after ‘‘military department,’’. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Government Publishing Office’’ substituted for ‘‘Government Printing Office’’ in par. (1) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents. § 6122. Flexible schedules; agencies authorized to use (a) Notwithstanding section 6101 of this title, each agency may establish, in accordance with this subchapter, programs which allow the use of flexible schedules which include— (1) designated hours and days during which an employee on such a schedule must be present for work; and (2) designated hours during which an em- ployee on such a schedule may elect the time of such employee’s arrival at and departure from work, solely for such purpose or, if and to the extent permitted, for the purpose of accu- mulating credit hours to reduce the length of the workweek or another workday. An election by an employee referred to in para- graph (2) shall be subject to limitations gen- erally prescribed to ensure that the duties and requirements of the employee’s position are ful- filled. (b) Notwithstanding any other provision of this subchapter, but subject to the terms of any written agreement referred to in section 6130(a) of this title, if the head of an agency determines that any organization within the agency which is participating in a program under subsection (a) is being substantially disrupted in carrying out its functions or is incurring additional costs because of such participation, such agency head may— (1) restrict the employees’ choice of arrival and departure time, (2) restrict the use of credit hours, or (3) exclude from such program any employee or group of employees. (Added Pub. L. 97–221, § 2(a)(2), July 23, 1982, 96 Stat. 228.) § 6123. Flexible schedules; computation of pre- mium pay (a) For purposes of determining compensation for overtime hours in the case of an employee participating in a program under section 6122 of this title— (1) the head of an agency may, on request of the employee, grant the employee compen- satory time off in lieu of payment for such overtime hours, whether or not irregular or occasional in nature and notwithstanding the provisions of sections 5542(a), 5543(a)(1) and section 1 5544(a) of this title, section 7453(e) of title 38, section 7 of the Fair Labor Standards Act (29 U.S.C. 207), or any other provision of law; or (2) the employee shall be compensated for such overtime hours in accordance with such provisions, as applicable. (b) Notwithstanding the provisions of law re- ferred to in subsection (a)(1) of this section, an employee shall not be entitled to be com- pensated for credit hours worked except to the extent authorized under section 6126 of this title or to the extent such employee is allowed to have such hours taken into account with respect to the employee’s basic work requirement. (c)(1) Notwithstanding section 5545(a) of this title, premium pay for nightwork will not be paid to an employee otherwise subject to such section solely because the employee elects to work credit hours, or elects a time of arrival or departure, at a time of day for which such pre- mium pay is otherwise authorized, except that— (A) if an employee is on a flexible schedule under which—