5 U.S.C. § 3373 — Assignment of employees to State or local

Page 430 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3373 stitution of higher education, and an employee so assigned, shall be treated in the same way as an assignment of an employee of a Federal agency to a State or local government, and an employee so assigned, is treated under the pro- visions of this subchapter governing an assign- ment of an employee of a Federal agency to a State or local government, except that the rate of pay of an employee assigned to a feder- ally funded research and development center may not exceed the rate of pay that such em- ployee would be paid for continued service in the position in the Federal agency from which assigned; and (2) an assignment of an employee of an other organization or an institution of higher edu- cation to a Federal agency, and an employee so assigned, shall be treated in the same way as an assignment of an employee of a State or local government to a Federal agency, and an employee so assigned, is treated under the pro- visions of this subchapter governing an assign- ment of an employee of a State or local gov- ernment to a Federal agency. (Added Pub. L. 91–648, title IV, § 402(a), Jan. 5, 1971, 84 Stat. 1921; amended Pub. L. 93–638, title I, § 104(k), (l), as added Pub. L. 100–472, title II, § 203(f), Oct. 5, 1988, 102 Stat. 2290; Pub. L. 95–454, title VI, § 603(b), (c), Oct. 13, 1978, 92 Stat. 1190; Pub. L. 98–146, title II, Nov. 4, 1983, 97 Stat. 946; Pub. L. 103–89, § 3(b)(1)(A), Sept. 30, 1993, 107 Stat. 981; Pub. L. 103–337, div. A, title X, § 1068(b), Oct. 5, 1994, 108 Stat. 2852.) Editorial Notes AMENDMENTS 1994—Subsec. (e). Pub. L. 103–337 added subsec. (e). 1993—Subsec. (d). Pub. L. 103–89 substituted ‘‘and ad- ditional step-increases, as defined in chapter 53’’ for ‘‘additional step-increases, merit pay, and cash awards, as defined in chapters 53 and 54’’. 1988—Subsecs. (a), (d). Pub. L. 100–472 added Pub. L. 93–638, § 104(k), (l). See 1975 Amendment note below. 1983—Subsec. (a). Pub. L. 98–146 inserted sentence pro- viding that, in the case of assignments made to Indian tribes or tribal organizations as defined in section 3371(2)(C) of this title, the head of an executive agency may extend the period of assignment for any period of time where it is determined that this will continue to benefit both the executive agency and the Indian tribe or tribal organization. 1978—Subsec. (a). Pub. L. 95–454, § 603(b), (c)(1), sub- stituted ‘‘a Federal’’ for ‘‘an executive’’ wherever ap- pearing, and in cl. (1) inserted provisions relating to a noncareer appointee, limited term appointee, or lim- ited emergency appointee, and an employee excepted from the competitive service. Subsec. (b). Pub. L. 95–454, § 603(b), (c)(2)–(4), in cls. (1) and (2) substituted ‘‘a Federal’’ for ‘‘an executive’’, and added cls. (3) and (4). Subsec. (c). Pub. L. 95–454, § 603(c)(5), added subsec. (c). 1975—Subsec. (a). Pub. L. 93–638, § 104(k), as added by Pub. L. 100–472, inserted at end ‘‘If the assigned em- ployee fails to complete the period of assignment and there is another employee willing and available to do so, the Secretary may assign the employee to complete the period of assignment and may execute an agree- ment with the tribal organization with respect to the replacement employee. That agreement may provide for a different period of assignment as may be agreed to by the Secretary and the tribal organization.’’ Subsec. (d). Pub. L. 93–638, § 104(l), as added by Pub. L. 100–472, added subsec. (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1993 AMENDMENT Pub. L. 103–89, § 3(c), Sept. 30, 1993, 107 Stat. 983, pro- vided that: ‘‘The amendments made by this section [amending this section and sections 4501, 4502, 5302, 5332, 5334 to 5336, 5361 to 5363, 5948, and 8473 of this title, sec- tions 1602, 1732, and 1733 of Title 10, Armed Forces, and section 731 of Title 31, Money and Finance, repealing sections 4302a and 5401 to 5410 of this title, and amend- ing provisions set out as a note under section 5304 of this title] shall take effect as of November 1, 1993.’’ EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title. EFFECTIVE DATE Section effective sixty days after Jan. 5, 1971, see sec- tion 404 of Pub. L. 91–648, set out as a note under sec- tion 3371 of this title. § 3373. Assignment of employees to State or local governments (a) An employee of a Federal agency assigned to a State or local government under this sub- chapter is deemed, during the assignment, to be either— (1) on detail to a regular work assignment in his agency; or (2) on leave without pay from his position in the agency. An employee assigned either on detail or on leave without pay remains an employee of his agency. The Federal Tort Claims Act and any other Federal tort liability statute apply to an employee so assigned. The supervision of the du- ties of an employee on detail may be governed by agreement between the Federal agency and the State or local government concerned. (b) The assignment of an employee of a Fed- eral agency either on detail or on leave without pay to a State or local government under this subchapter may be made with or without reim- bursement by the State or local government for the travel and transportation expenses to or from the place of assignment and for the pay, or supplemental pay, or a part thereof, of the em- ployee during assignment. Any reimbursements shall be credited to the appropriation of the Federal agency used for paying the travel and transportation expenses or pay. (c) For any employee so assigned and on leave without pay— (1) if the rate of pay for his employment by the State or local government is less than the rate of pay he would have received had he con- tinued in his regular assignment in the agen- cy, he is entitled to receive supplemental pay from the agency in an amount equal to the dif- ference between the State or local government rate and the agency rate; (2) he is entitled to annual and sick leave to the same extent as if he had continued in his regular assignment in the agency; and (3) he is entitled, notwithstanding other statutes— (A) to continuation of his insurance under chapter 87 of this title, and coverage under chapter 89 of this title or other applicable authority, so long as he pays currently into Page 431 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3373 the Employee’s Life Insurance Fund and the Employee’s Health Benefits Fund or other applicable health benefits system (through his employing agency) the amount of the employee contributions; (B) to credit the period of his assignment under this subchapter toward periodic step- increases, retention, and leave accrual pur- poses, and, on payment into the Civil Serv- ice Retirement and Disability Fund or other applicable retirement system of the percent- age of his State or local government pay, and of his supplemental pay, if any, that would have been deducted from a like agen- cy pay for the period of the assignment and payment by the Federal agency into the fund or system of the amount that would have been payable by the agency during the period of the assignment with respect to a like agency pay, to treat his service during that period as service of the type performed in the agency immediately before his assign- ment; and (C) for the purpose of subchapter I of chap- ter 85 of this title, to credit the service per- formed during the period of his assignment under this subchapter as Federal service, and to consider his State or local govern- ment pay (and his supplemental pay, if any) as Federal wages. To the extent that the service could also be the basis for entitle- ment to unemployment compensation under a State law, the employee may elect to claim unemployment compensation on the basis of the service under either the State law or subchapter I of chapter 85 of this title. However, an employee or his beneficiary may not receive benefits referred to in subparagraphs (A) and (B) of this paragraph (3), based on serv- ice during an assignment under this subchapter for which the employee or, if he dies without making such an election, his beneficiary elects to receive benefits, under any State or local gov- ernment retirement or insurance law or pro- gram, which the Office of Personnel Manage- ment determines to be similar. The Federal agency shall deposit currently in the Employ- ee’s Life Insurance Fund, the Employee’s Health Benefits Fund or other applicable health bene- fits system, respectively, the amount of the Government’s contributions on account of serv- ice with respect to which employee contribu- tions are collected as provided in subparagraphs (A) and (B) of this paragraph (3). (d)(1) An employee so assigned and on leave without pay who dies or suffers disability as a result of personal injury sustained while in the performance of his duty during an assignment under this subchapter shall be treated, for the purpose of subchapter I of chapter 81 of this title, as though he were an employee as defined by section 8101 of this title who had sustained the injury in the performance of duty. When an employee (or his dependents in case of death) en- titled by reason of injury or death to benefits under subchapter I of chapter 81 of this title is also entitled to benefits from a State or local government for the same injury or death, he (or his dependents in case of death) shall elect which benefits he will receive. The election shall be made within one year after the injury or death, or such further time as the Secretary of Labor may allow for reasonable cause shown. When made, the election is irrevocable unless otherwise provided by law. (2) An employee who elects to receive benefits from a State or local government may not re- ceive an annuity under subchapter III of chapter 83 of this title and benefits from the State or local government for injury or disability to him- self covering the same period of time. This pro- vision does not— (A) bar the right of a claimant to the greater benefit conferred by either the State or local government or subchapter III of chapter 83 of this title for any part of the same period of time; (B) deny to an employee an annuity accruing to him under subchapter III of chapter 83 of this title on account of service performed by him; or (C) deny any concurrent benefit to him from the State or local government on account of the death of another individual. (Added Pub. L. 91–648, title IV, § 402(a), Jan. 5, 1971, 84 Stat. 1921; amended Pub. L. 95–454, title VI, § 603(b), title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1190, 1224; Pub. L. 102–378, § 2(14), Oct. 2, 1992, 106 Stat. 1347.) Editorial Notes REFERENCES IN TEXT The Federal Tort Claims Act, referred to in subsec. (a), is title IV of act Aug. 2, 1946, ch. 753, 60 Stat. 842, which was classified principally to chapter 20 (§§ 921, 922, 931–934, 941–946) of former Title 28, Judicial Code and Judiciary. Title IV of act Aug. 2, 1946, was substan- tially repealed and reenacted as sections 1346(b) and 2671 et seq. of Title 28, Judiciary and Judicial Proce- dure, by act June 25, 1948, ch. 646, 62 Stat. 992, the first section of which enacted Title 28. The Federal Tort Claims Act is also commonly used to refer to chapter 171 of Title 28, Judiciary and Judicial Procedure. For complete classification of title IV to the Code, see Ta- bles. For distribution of former sections of Title 28 into the revised Title 28, see Table at the beginning of Title 28. AMENDMENTS 1992—Pub. L. 102–378 substituted ‘‘or local’’ for ‘‘and local’’ in section catchline. 1978—Subsecs. (a), (b). Pub. L. 95–454, § 603(b), sub- stituted ‘‘a Federal’’ for ‘‘an executive’’ and ‘‘Federal agency’’ for ‘‘executive agency’’. Subsec. (c). Pub. L. 95–454, §§ 603(b), 906(a)(2), sub- stituted ‘‘Federal agency’’ for ‘‘executive agency’’ wherever appearing, and ‘‘Office of Personnel Manage- ment’’ for ‘‘Civil Service Commission’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title. EFFECTIVE DATE Section effective sixty days after Jan. 5, 1971, see sec- tion 404 of Pub. L. 91–648, set out as a note under sec- tion 3371 of this title. Page 432 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3374 § 3374. Assignments of employees from State or local governments (a) An employee of a State or local govern- ment who is assigned to a Federal agency under an arrangement under this subchapter may— (1) be appointed in the Federal agency with- out regard to the provisions of this title gov- erning appointment in the competitive service for the agreed period of the assignment; or (2) be deemed on detail to the Federal agen- cy. (b) An employee given an appointment is enti- tled to pay in accordance with chapter 51 and subchapter III of chapter 53 of this title or other applicable law, and is deemed an employee of the Federal agency for all purposes except— (1) subchapter III of chapter 83 of this title or other applicable retirement system; (2) chapter 87 of this title; and (3) chapter 89 of this title or other applicable health benefits system unless his appointment results in the loss of coverage in a group health benefits plan the premium of which has been paid in whole or in part by a State or local government contribution. The above exceptions shall not apply to non- Federal employees who are covered by chapters 83, 87, and 89 of this title by virtue of their non- Federal employment immediately before assign- ment and appointment under this section. (c) During the period of assignment, a State or local government employee on detail to a Fed- eral agency— (1) is not entitled to pay from the agency, except to the extent that the pay received from the State or local government is less than the appropriate rate of pay which the du- ties would warrant under the applicable pay provisions of this title or other applicable au- thority; (2) is deemed an employee of the agency for the purpose of chapter 73 of this title, chapter 131 of this title, chapter 21 of title 41, sections 203, 205, 207, 208, 209, 602, 603, 606, 607, 643, 654, 1905, and 1913 of title 18, sections 1343, 1344, and 1349(b) of title 31, and the Federal Tort Claims Act and any other Federal tort liability stat- ute; and (3) is subject to such regulations as the President may prescribe. The supervision of the duties of such an em- ployee may be governed by agreement between the Federal agency and the State or local gov- ernment concerned. A detail of a State or local government employee to a Federal agency may be made with or without reimbursement by the Federal agency for the pay, or a part thereof, of the employee during the period of assignment, or for the contribution of the State or local gov- ernment, or a part thereof, to employee benefit systems. (d) A State or local government employee who is given an appointment in a Federal agency for the period of the assignment or who is on detail to a Federal agency and who suffers disability or dies as a result of personal injury sustained while in the performance of his duty during the assignment shall be treated, for the purpose of subchapter I of chapter 81 of this title, as though he were an employee as defined by section 8101 of this title who had sustained the injury in the performance of duty. When an employee (or his dependents in case of death) entitled by reason of injury or death to benefits under subchapter I of chapter 81 of this title is also entitled to benefits from a State or local government for the same injury or death, he (or his dependents in case of death) shall elect which benefits he will receive. The election shall be made within 1 year after the injury or death, or such further time as the Secretary of Labor may allow for reasonable cause shown. When made, the elec- tion is irrevocable unless otherwise provided by law. (e) If a State or local government fails to con- tinue the employer’s contribution to State or local government retirement, life insurance, and health benefit plans for a State or local govern- ment employee who is given an appointment in a Federal agency, the employer’s contributions covering the State or local government employ- ee’s period of assignment, or any part thereof, may be made from the appropriations of the Federal agency concerned. (Added Pub. L. 91–648, title IV, § 402(a), Jan. 5, 1971, 84 Stat. 1923; amended Pub. L. 95–454, title VI, § 603(b), (d), Oct. 13, 1978, 92 Stat. 1190; Pub. L. 97–258, § 3(a)(6), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 107–107, div. A, title XI, § 1117, Dec. 28, 2001, 115 Stat. 1241; Pub. L. 111–350, § 5(a)(5), Jan. 4, 2011, 124 Stat. 3841; Pub. L. 117–286, § 4(c)(6), Dec. 27, 2022, 136 Stat. 4354.) Editorial Notes REFERENCES IN TEXT The Federal Tort Claims Act, referred to in subsec. (c)(2), is title IV of act Aug. 2, 1946, ch. 753, 60 Stat. 842, which was classified principally to chapter 20 (§§ 921, 922, 931–934, 941–946) of former Title 28, Judicial Code and Judiciary. Title IV of act Aug. 2, 1946, was substan- tially repealed and reenacted as sections 1346(b) and 2671 et seq. of Title 28, Judiciary and Judicial Proce- dure, by act June 25, 1948, ch. 646, 62 Stat. 992, the first section of which enacted Title 28. The Federal Tort Claims Act is also commonly used to refer to chapter 171 of Title 28, Judiciary and Judicial Procedure. For complete classification of title IV to the Code, see Ta- bles. For distribution of former sections of Title 28 into the revised Title 28, see Table at the beginning of Title 28. AMENDMENTS 2022—Subsec. (c)(2). Pub. L. 117–286 substituted ‘‘chap- ter 131 of this title,’’ for ‘‘the Ethics in Government Act of 1978,’’. 2011—Subsec. (c)(2). Pub. L. 111–350 substituted ‘‘chap- ter 21 of title 41’’ for ‘‘section 27 of the Office of Federal Procurement Policy Act’’. 2001—Subsec. (c)(2). Pub. L. 107–107 inserted ‘‘the Eth- ics in Government Act of 1978, section 27 of the Office of Federal Procurement Policy Act,’’ after ‘‘chapter 73 of this title,’’. 1982—Subsec. (c)(2). Pub. L. 97–258 substituted ‘‘sec- tions 1343, 1344, and 1349(b)’’ for ‘‘section 638a’’. 1978—Subsec. (a). Pub. L. 95–454, § 603(b), substituted ‘‘a Federal’’ for ‘‘an executive’’, and ‘‘Federal agency’’ for ‘‘executive agency’’ in two places. Subsec. (b). Pub. L. 95–454, § 603(b), (d)(1), inserted pro- visions relating to nonapplicability of exceptions to non-Federal employees, and substituted ‘‘Federal’’ for ‘‘executive’’. Subsec. (c). Pub. L. 95–454, § 603(b), (d)(2), (3), inserted provisions relating to pay received from the State or