April 10, 2020
Coronavirus Aid, Relief, and Economic Security (CARES) Act
(P.L. 116-136): Selected Provisions on Federal Hiring
In response to Coronavirus Disease 2019 (COVID-19),
Administration after serving continuously for two years.
Congress passed the Coronavirus Aid, Relief, and
The individuals are to be appointed in the same manner that
Economic Security (CARES) Act, enacted as P.L. 116-136
competitive service employees with competitive status are
on March 27, 2020. The law establishes new hiring
considered for transfer, reassignment, or promotion to such
authorities for several federal executive branch departments
positions. They would become career-conditional
and agencies: the Department of Housing and Urban
employees unless the requirements for career tenure have
Development (HUD), the Securities and Exchange
already been completed.
Commission (SEC), the Commodity Futures Trading
Commission (CFTC), the Department of Commerce, and
Competitive status provides an individual with basic
the Department of Health and Human Services (HHS). The
eligibility for noncompetitive assignment to a competitive
law also authorizes a Special Inspector General and a
position in the Civil Service. It is acquired by a career or
Congressional Oversight Commission and provides
career-conditional employee upon satisfactory completion
authorities for establishing those entities with needed
of a probationary period.
personnel. For information on federal pay flexibilities, see
CRS In Focus IF11489, Federal Executive Agencies:
Department of Health and
Selected Pay Flexibilities for COVID-19 Response.
Human Services (HHS)
Division B, Title VIII, Section 18108 of the law authorizes
HUD, SEC, and CFTC
the Secretary of HHS to use appropriated funds to appoint
Division A, Title IV, Subtitle A, Section 4010 of the law
candidates directly to positions performing critical work
authorizes the Secretary of HUD, the SEC, and the CFTC to
related to COVID-19 without regard to existing veterans’
recruit and appoint candidates directly to selected positions
preference requirements, standards for rating and ranking
without regard to existing veterans’ preference
applicants, “rule of three” procedures, and category rating
requirements, standards for rating and ranking applicants,
procedures codified at 5 U.S.C. §3309 through §3319.
and “rule of three” (selection from highest three eligible
Category rating allows an appointing official to select any
candidates) procedures codified at 5 U.S.C. §3309 through
applicant in the highest quality category or, if fewer than
§3318. This new hiring authority may be used to fill
three candidates have been assigned to the highest quality
temporary and term appointments when a determination is
category, in a merged category consisting of the highest and
made that the expedited procedures are necessary and
the second highest quality categories. Public notice of the
appropriate to enable the agencies to prevent, prepare for,
positions the department seeks to fill must be given to use
or respond to COVID-19. The authority became effective
this direct hire authority. The Secretary must also have
on the act’s enactment date and will end on either the
determined that a public health threat exists.
termination date of the national emergency concerning
COVID-19 or December 31, 2020, whichever is sooner.
Section 302 of P.L. 116-123, the Coronavirus Preparedness
and Response Supplemental Appropriations Act, 2020, as
The authority provided by Section 4010 is a direct-hire
enacted on March 6, 2020, provides a similar authority to
authority that expedites hiring. Using direct-hire, an agency
the HHS Secretary.
may hire any qualified applicant without regard to 5 U.S.C.
§3309 through §3318. Public notice must be given for
Special Inspector General
positions an agency seeks to fill. U.S. Office of Personnel
Division A, Title IV, Subtitle A, Section 4018 of P.L. 116-
Management (OPM) regulations that are prescribed at Part
136 establishes a new Office of the Special Inspector
337, Subpart B of Title 5 of the Code of Federal
General (IG) for Pandemic Recovery. The IG is authorized
Regulations (C.F.R.) provide the requirements related to
to “select, appoint, and employ such officers and employees
direct-hire. For additional information on these
as may be necessary” to carry out the IG’s duties under
requirements, see CRS In Focus IF11468, Federal
existing 5 U.S.C. procedures for competitive service
Executive Agencies: Hiring Flexibilities for Emergency
appointments, position classification (5 U.S.C. Chapter 51)
Situations.
and General Schedule (GS) pay (5 U.S.C. Chapter 53,
Subchapter III). The competitive service appointment
Department of Commerce, Economic
process may consist of a written test, an evaluation of an
Development Administration
individual’s education and experience, and an evaluation of
Division B, Title II of P.L. 116-136 authorizes the Secretary
other attributes necessary for successful performance of a
of Commerce to appoint such temporary personnel as may
position. In addition, the IG may obtain the services of
be necessary to implement specified requirements of the
experts and consultants, in accordance with 5 U.S.C. §3109,
law to positions in the Economic Development
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Coronavirus Aid, Relief, and Economic Security (CARES) Act (P.L. 116-136): Selected Provisions on Federal Hiring
at “daily rates not to exceed the equivalent rate prescribed
• To perform managerial or supervisory work
for grade GS–15.”
(although an expert may act as team leader or
director of the specific project for which he/she is
Appointments Under 5 U.S.C. §3109,
hired), to make final decisions on substantive
as Referenced in Section 4018
policies, or to otherwise function in the agency
5 U.S.C. §3109 permits an agency head to procure the
chain of command (e.g., to approve financial
services of experts and consultants on a temporary (not to
transactions, personnel actions).
exceed one year) or intermittent (without a regularly
scheduled tour of duty) basis when authorized by an
• To do work performed by the agency’s regular
appropriation or other statute. The section requires an
employees.
agency retaining such individuals to report annually to
• To fill in during staff shortages.
OPM on the number of days each expert or consultant was
employed and the total amount paid to each for work
• Solely in anticipation of giving that individual a
performed.
career appointment.
OPM regulations identify who are to be considered
(5 C.F.R. §304.103(b))
“experts” and “consultants.” The agency’s regulations also
The following factors are to be considered in setting an
define the terms “consultant position” and “expert
expert’s or consultant’s initial basic pay rate: the level and
position.”
difficulty of the work to be performed; the individual’s
qualifications; pay rates of comparable individuals
A “consultant” is a person who can provide
performing similar work in the federal or nonfederal
valuable and pertinent advice generally drawn from
sectors; and the availability of qualified candidates (5
a high degree of broad administrative, professional,
C.F.R. §304.104(b)). Unless specifically authorized by an
or technical knowledge or experience.
appropriation or other statute, an expert or consultant shall
not be paid for any biweekly pay period an aggregate
A “consultant position” is one that requires
amount of pay (including basic pay, locality pay, and
providing advice, views, opinions, alternatives, or
premium pay) in excess of the biweekly rate of pay for GS-
recommendations
on
a
temporary
and/or
15, step 10 (excluding locality pay or any other additional
intermittent basis on issues, problems, or questions
pay). The biweekly rate is computed by dividing the annual
presented by a Federal official.
GS-15, step 10, rate by 2,087 hours to find the hourly rate
An “expert” is a person who is specially qualified
of pay and by multiplying the hourly rate of pay by 80
by education and experience to perform difficult
hours (5 C.F.R. §304.105(b)).
and challenging tasks in a particular field beyond
Congressional Oversight Commission
the usual range of achievement of competent
persons in that field. An expert is regarded by other
Division A, Title IV, Subtitle A, Section 4020 of the law
establishes a new Congressional Oversight Commission in
persons in the field as an authority or practitioner of
the legislative branch. The commission is intended to
unusual competence and skill in a professional,
conduct oversight of the work of the Department of the
scientific, technical or other activity.
Treasury and the Federal Reserve System Board of
An “expert position” is one that requires the
Governors to provide economic stability as a result of
services of a specialist with skills superior to those
COVID-19. It is authorized to appoint and fix the pay of
of others in the same profession, occupation, or
personnel needed to conduct its work, including experts and
activity to perform work on a temporary and/or
consultants to perform temporary and intermittent services
intermittent basis assigned by a Federal official.
under 5 U.S.C. §3109(b). In addition, upon the
commission’s request, a federal agency head may detail, on
(5 C.F.R. §304.102(b)-(e)).
a reimbursable basis, personnel to assist the commission
with its work.
The authority provided by 5 U.S.C. §3109 may not be used
to appoint an expert or consultant in the following
situations:
Barbara L. Schwemle, Analyst in American National
Government
• To a position requiring presidential appointment.
IF11503
• To a Senior Executive Service (SES) position.


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Coronavirus Aid, Relief, and Economic Security (CARES) Act (P.L. 116-136): Selected Provisions on Federal Hiring


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https://crsreports.congress.gov | IF11503 · VERSION 1 · NEW

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