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                              HHS Instruction 550-11: Compensatory Time Off for Religious
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HHS Instruction 550-11: Compensatory Time Off for Religious Observances








  
  
    

  
      



Issuance date: December 10, 2020

Material Transmitted:

Department of Health and Human Services (HHS) Instruction 550-11, Compensatory Time Off for Religious Observances, dated December 10, 2020.

Material Superseded:

Department of Health and Human Services Instruction 550-11: Compensatory Time Off for Religious Observances, effective March 13, 1995.

Background:

On April 29, 2019, the Office of Personnel Management (OPM) published revised regulations for authorities affecting the accrual and use of compensatory time for religious observances, found at 5 C.F.R. Part 550, subpart J, which became effective on May 29, 2019. This Instruction provides guidance to the Department’s Operating and Staff Divisions (OpDivs/StaffDivs) on the implementation of these regulations at HHS.

This policy is effective immediately and must be carried out in accordance with applicable laws, regulations, collective bargaining agreements, and other Department policies.

/s/

J. Blair Duncan
Deputy Assistant Secretary for Human Resources
Chief Human Capital Officer

Subject: Compensatory Time Off for Religious Observances

550-11-10 Purpose
550-11-20 Authorities and References
550-11-30 Coverage and Exclusions
550-11-40 Definitions
550-11-50 Responsibilities
550-11-60 Policy
550-11-70 When Employees Transfer to another Federal Agency or Separate from Federal Service
550-11-80 Conflicts with Collective Bargaining Agreements
550-11-90 Documentation and Accountability

550-11-10 Purpose

This Instruction establishes the Department of Health and Human Services’ requirements regarding the accrual and use of compensatory time off for religious observances. Religious compensatory time off (RCTO) is granted to employees whose personal religious beliefs require the abstention from work during certain periods of time. Accordingly, employees may work overtime (see definition of overtime for purposes of RCTO, 550-11-40) and earn a special form of compensatory time off to make up for the time used in meeting personal religious requirements.

When provisions of this policy differ from changes in applicable law or regulation, the changes in law or regulation apply.

550-11-20 Authorities and References

5 U.S.C. § 5550a, Compensatory time off for religious observances
	5 U.S.C. § 2105, Definition of employee
	5 U.S.C. § 105, Definition of agency
	5 C.F.R. part 550, subpart J, Compensatory Time Off for Religious Observances
	84 FR 17931 (Apr. 29, 2019)
	OPM Fact Sheet: Adjustment of Work Schedules for Religious Observances
	EEOC Compliance Manual, Section 12
	B–209327, 62 Comp. Gen. 589 (Jul. 26, 1983)
	B-212486, (Oct. 31, 1983) (Comptroller General decision)
	HHS Delegation of Human Resources Authorities, 2019550-11-30 Coverage and Exclusions

This policy applies to all full-time and part-time HHS employees as defined in 5 U.S.C. §2105,who have a scheduled tour of duty, including prevailing rate employees (WG, WL, WS), members of the Senior Executive Service (SES), experts and consultants appointed under 5 C.F.R. Part 304, and employees in senior-level (SL) and scientific or professional (ST) positions.
	Intermittent employees and officers of the Commissioned Corps are not covered by this Instruction.550-11-40 Definitions

***Agency.***An Executive department, a government corporation, or an independent establishment.
	***Employee*****.**See 5 U.S.C. § 2105. (Note: The definition of employee used in 5 U.S.C. § 5541(c), affecting premium pay, does not apply for purposes of compensatory time off for religious observances.)
	***Overtime work*****.**Work performed by an employee outside of his or her scheduled tour of duty for the purpose of making up time used for meeting personal religious requirements, as such term is explained in the definition of “religious compensatory time off” in this Instruction.  Overtime work also includes work performed by a part-time employee outside of his or her scheduled tour of duty, even if that work is below applicable overtime thresholds (e.g., below 40 hours in a week), and work an employee performs during (legal) holiday hours (within the employee’s scheduled tour of duty) during which the employee would otherwise be excused from duty.
	***Rate of basic pay***. The rate of pay fixed by law or administrative action for the position held by an employee, including any special rate under 5 C.F.R. part 530, subpart C; locality rate under 5 C.F.R. part 531, subpart F; retained rate under 5 C.F.R. part 536; or similar rate under other legal authority before any deductions and excluding additional pay of any other kind. For example, a rate of basic pay does not include additional pay such as night shift differentials under 5 U.S.C. § 5343(f) or environmental differentials under 5 U.S.C. § 5343(c)(4).
	***Religious compensatory time off*****.**Compensatory time off, as authorized by 5 U.S.C. 5550a, under which an employee whose personal religious beliefs require the abstention from work during certain periods of time may elect to perform overtime work in order to make up for time the employee takes off to meet those personal religious requirements. The religious requirements need not be officially mandated by a religious organization to which the employee belongs. It is sufficient that the employee’s personal religious beliefs cause the employee to feel an obligation that he or she should be absent from work for a religious purpose. An employee approved to perform overtime work under this subpart will be granted an equal amount of compensatory time off from his or her scheduled tour of duty (in lieu of overtime pay or other pay otherwise payable) to meet his or her personal religious obligations. For example, an employee who worked two hours of overtime to earn time off for personal religious obligations now has two hours that he or she can use for a past or future personal religious obligation (i.e., time for time basis.)
	***Scheduled tour of duty*.** The regular work hours in an established full-time or part-time work schedule during which the employee is charged leave or time off when absent.550-11-50 Responsibilities

**Assistant Secretary for Administration/Office of Human Resources (ASA/OHR)**

	Develops Department-wide policy and guidance regarding pay consistent with HHS and OPM policy and guidance, and all applicable federal laws and regulations;
		Periodically reviews OpDiv/StaffDiv pay procedures and actions to assure conformance with HHS and OPM policy and guidance, and all applicable federal laws and regulations.
	**Operating Divisions and Staff Divisions (OpDivs/StaffDivs)**
	Provide oversight when determining whether an employee meets the statutory, regulatory, and policy requirements for earning and using religious compensatory time off.
		Ensure employees who use or request RCTO have an opportunity to earn religious compensatory time off by performing overtime work.
		Ensure that employees’ requests for time off are documented as set forth in this Instruction.
		Ensure that all denials of an employee’s request are in writing and provided promptly to the employee.
		Initiate debt collection when employees with a negative RCTO balance leave federal service or transfer to another federal agency.
		Ensure that the religious compensatory time off authority is implemented in accordance with merit system principles.
		Ensure that all required records related to the implementation and use of the religious compensatory time off authority are maintained in a manner conducive to audit.
	**Employees should be advised to:**
	Notify their supervisor of intent to use RCTO.
		Submit a request for RCTO in advance of the religious observance to accommodate necessary scheduling changes without interfering with the organization’s ability to efficiently carry out its mission.
		Provide the supervisor (or designee) with the following information at the time the religious compensatory time off is requested:
		The name and/or description of the religious observance that is the basis of the employee's request to be absent from work in order to meet the employee's personal religious requirements;
			The date(s) and time(s) the employee plans to be absent to participate in the religious observances; and
			The date(s) and time(s) the employee plans to perform overtime work to earn religious compensatory time off to make up for the absence.
		Submit a revised schedule to the supervisor (or designee) to reflect changes in the event an adjustment to the dates and times of planned overtime work is required due to unforeseen circumstances.
		Submit a written request to the supervisor (or designee) as soon as practical after an oral request is approved.550-11-60 Policy

**General Provisions**

	OpDivs/StaffDivs must afford employees time off from work for personal religious observances provided the requesting employee meets the requirements for requesting such time off as discussed in this Instruction. Although this policy provides for compensatory time off for religious observances, it does not preempt an employee from using other workplace flexibilities (i.e., annual leave, advanced annual leave, regular compensatory time off, alternative work schedule, and leave without pay (LWOP)) to accommodate their need to abstain from work due to a personal religious observance. A manager, supervisor, or other Department official may not coerce or require that an employee use these other workplace flexibilities in lieu of compensatory time off for religious observances.
		Religious compensatory time off is distinct from other forms of compensatory time off because its exclusive purpose is to adjust the employee’s work schedule to accommodate a personal religious observance.
		Religious compensatory time off for work performed is credited on a time-for-time basis. An employee earns religious compensatory time off when he or she works an equal amount of overtime prior or subsequent to being absent from his or her scheduled tour of duty in order to meet a personal religious requirement.
		OpDivs/StaffDivs must approve an employee’s request for religious compensatory time off unless an appropriate official within the division has determined that approval would interfere with the employing component’s ability to carry out its mission efficiently. Supervisors (or their designees) may not make judgments as to the credibility of the employee’s religious beliefs or call into question the employee’s religious affiliation.
		If an employee’s request to earn or use RCTO is denied, an appropriate official within the employing component must provide a written explanation for denying the request. All denials must be in writing whether or not the employee’s request is in writing or oral, and a copy of the denial given to the employee. Approvals and disapproval of employees’ requests should comport with merit system principles.
	**Relationship to Premium Pay and Overtime**
	Hours worked to earn RCTO provide a time off credit in lieu of any pay that would otherwise be payable for that work. As such, the premium pay provisions of 5 C.F.R. part 550, subpart A and section 7 of the Fair Labor Standards Act (see 5 C.F.R. part 551) do not apply to the overtime worked in exchanged for religious compensatory time off. Accordingly, employees have no entitlement to premium pay for the overtime worked in exchange.
		RCTO should not be considered when applying the premium pay limitations of 5 C.F.R. § 550.105, Bi-weekly maximum earnings limitation; § 550.106, Annual maximum earnings limitation; and § 550.107, Premium payments capped on a bi- weekly basis when an annual limitation otherwise applies.
	**Employee Requests for Time Off**
	An employee seeking to use religious compensatory time off must submit to his or her immediate supervisor (or designee) a written request in advance of the requested period of absence. The request must include the information contained in § 5-11- 50(C)(3) of this Instruction.
		To allow for appropriate scheduling of the employing component’s work, all written requests must be submitted to the appropriate official no later than the first day of the pay period immediately preceding the pay period in which the employee’s absence will occur.
		The request may be in the form of a letter, memorandum, email addressed to the supervisor or designee, or any other documentable form prescribed by the OpDiv/StaffDiv. Although employees may initially make an oral request for the time off, a written request, as set forth by this Instruction, must be submitted as soon as practical after an oral request is approved.
		In the event a change to the date(s) and or time(s) of planned period of overtime work is necessary due to an unforeseen circumstances, the employee must submit for approval a revised schedule to reflect the changes as soon as practicable.
	**Division Review and Decision on Requests**
	It is the Department’s policy to grant employee religious compensatory time off unless the adjustment to work schedules unduly interferes with the employing unit’s ability to efficiently accomplish its mission.
		The supervisor (or designee) will not determine whether an employee’s belief is a discernible or correct interpretation of a religious creed. It is sufficient that the employee’s sincerely held personal religious beliefs cause the individual to feel an obligation that he or she should be absent from work for a religious observance.
		Supervisors (or designees) should endeavor to provide the employee with an opportunity to work the overtime hours that will be exchanged for religious compensatory time off before or after the time is taken. The employee must simultaneously schedule his or her request for RCTO and the time he or she plans to work overtime to make up the approved RCTO. Furthermore, in light of the recovery procedures discussed in § 550-11-60 (E), supervisors (or designees) must make reasonable efforts to allow an employee to work overtime before the specified deadline (i.e., up to 13 pay periods before the religious observance) to cover advanced religious compensatory time off.
	**Accrual and Use of Time Off**
	While there is no limit on the number of hours an employee may earn and use for RCTO, employees may not accumulate more time off than is needed to accommodate an approved request for religious compensatory time off. An employee may only accumulate the amount of overtime necessary to cover the specific date(s) and time(s) for which he or she has submitted a request for religious compensatory time off.
		If an employee does not use his or her earned religious compensatory time off as scheduled:
		The unused time may be redirected towards a future religious observance that has been approved, even if the future observance is more than 13 pay periods after the compensatory time off was originally earned, regardless of any time limitations discussed below.
			The employee may not earn any additional religious compensatory time off until the unused time is used or unless the need for additional time is established and documented.
		As a general rule, religious compensatory time off may be earned up to 13 pay periods in advance of using the time off or within 13 pay periods following the use of RCTO. If a religious compensatory time off is used before earning it, then the 13 pay period time frame begins on the first day of the following pay period. For example, an employee used advanced religious compensatory time off in pay period 2. As such, the employee has 13 pay periods to earn the religious compensatory time off beginning pay period 3. If the employee’s absence spans more than one pay period, the pay period in which the last day of absence occurred is used to determine the first day of the pay period by which the employee must start working the overtime hours to recover the time owed.
		When an employee, who was granted advanced religious compensatory time off (i.e., used, but not yet earned), fails to work the required overtime prior to the 14th pay period, the supervisor (or designee) should take immediate corrective action to recover the time owed. The supervisor (or designee) must charge the following paid time off accounts to recover the time in this order:
		Compensatory time off in lieu of regular overtime
			Time off awards
			Compensatory time off for travel
			Annual leave
			Credit hours
		To recover the time owed, each account must be fully exhausted before charging the next available account. Under no circumstances should the time owed be allocated among multiple accounts unless doing so is necessary because an account is fully exhausted.
		If a negative balance results after charging the employee’s accounts as described above, the supervisor (or designee) must charge the employee leave without pay to resolve the deficit. Thereafter, the employee will be indebted for the monetary equivalent of the balance and the OpDiv/StaffDiv must initiate debt collection.
		Unused time-off hours are not forfeited, but remain to the employee’s credit until used or the employee separates from federal service or transfers to another federal agency. Unused RCTO cannot be paid as overtime premium pay, provided as compensatory time off in lieu of overtime pay, or converted to any other forms of time off.
	**Documentation and Records Retention**
	The employee must simultaneously schedule his or her request for RCTO and the time he or she plans to work overtime to make up the approved RCTO. This requirement provides a clear record of the employee’s adjusted work schedule. For each employee, the supervisor (or designee) must maintain records of the:
		Name and/or description of religious observances for which time off is granted in accordance with this Instruction.
			Dates and times requested for RCTO.
			Dates and amount of RCTO earned and used.
		RCTO records must be maintained for three (3) years from date of approval, see also Section 550-11-90, Documentation and Accountability.550-11-70 When Employees Transfer to another Federal Agency or Separate from Federal Service

Employees who leave HHS, either to depart federal service or transfer to another federal agency, must be compensated for unused religious compensatory time off. The OpDiv/StaffDiv must use the hourly rate of the employee’s basic pay at the time the overtime was earned to compute the value of unused time and amount owed to the employee. Divide the employee’s annual rate of basic pay by 2,087 hours (2,756 hours for firefighters) to compute the employee’s hourly rate of basic pay.
	Refer to § 550-11-60(E) for information on processing employees who leave HHS with a negative RCTO balance. Note: The debt collection process is different for employees separating from federal service. As such, the OpDiv/StaffDiv must ensure that deficits for separating employees are resolved prior to the employee’s last day with HHS.550-11-80 Conflicts with Collective Bargaining Agreements

To the extent that existing collective bargaining agreements (CBA) contain provisions that are inconsistent with the either 5 U.S.C. §5550a or the provisions of the new OPM regulations (5 C.F.R. Part 550, subpart J), then those regulations supersede the conflicting provisions in the CBA as a matter of law. In these cases, those provisions of the CBA should be renegotiated and coordinated with the Assistant Secretary for Administration’s National Labor Relations division.
	For a CBA that takes effect on or after the date the religious compensatory time regulations are published, regulatory provisions will supersede conflicting provisions in the CBA during any period of time following the applicable regulatory implementation date (i.e., May 29, 2019.)
	CBA provisions that are consistent with the regulations remain in effect until the CBA provisions expire or are renegotiated.
	OpDivs/StaffDivs are advised to consult with the National Labor Relations division for CBA impact determination.550-11-90 Documentation and Accountability

Records should be retained to allow for third-party reconstruction. Records associated with personnel actions, including all documentation sufficient for third party reconstruction purposes, must be retained according to the record disposition schedule. Generally, all records created in a given year must be retained for a total of three (3) full years. Records involved in litigation and grievance processes may be destroyed only after official notification is received from OPM, Department of Justice, courts, the Office of the General Counsel, etc. that the matter has been fully litigated, or resolved, and closed.
	HHS OHR will conduct periodic accountability reviews to analyze compliance with this Instruction, HHS and OPM policy and guidance, and all applicable federal laws and regulations.

                    
  


Content created by Office of Human Resources (OHR) Content last reviewed December 14, 2020 Back to top
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