Federal Executive Agencies: Hiring Flexibilities for Emergency Situations

Federal Executive Agencies: Hiring Flexibilities for Emergency Situations

March 19, 2020
Federal Executive Agencies: Hiring Flexibilities for Emergency
Situations
On January 31, 2020, Secretary of Health and Human
The regulations also provide that OPM may decide
Services Alex Azar declared a public health emergency for
independently that a severe shortage exists or that there is a
the United States in response to Coronavirus Disease 2019
critical hiring need or may make a decision about granting
(COVID-19). To assist the federal government in
DHA in response to an agency’s written request. An agency
responding to the emergency, Congress passed legislation
with delegated examining authority may request DHA for a
that provides Direct-Hire Authority (DHA) to the
position or group of positions in the competitive service at
Department of Health and Human Services (HHS). The
pay grade GS-15 (or equivalent) and below. OPM
U.S. Office of Personnel Management (OPM) has also
determines the length of the authority. The regulations
reiterated long-standing guidance on flexibilities for hiring
specify the evidence that must support an agency’s request.
in executive agencies that are codified in Title 5 of the
Periodically, OPM reviews DHAs and may extend them if
United States Code and Title 5 of the Code of Federal
the conditions justifying their use are continuing. DHAs
Regulations.
may be terminated or modified when changes occur in the
justifying conditions or when an agency does not use them
Direct-Hire Authority
properly. An agency must also report to OPM when there
Section 302 of P.L. 116-123 (H.R. 6074), the Coronavirus
are adequate numbers of qualified candidates for positions
Preparedness and Response Supplemental Appropriations
filled by direct hire. (5 C.F.R. Part 337, Subpart B)
Act, 2020, as enacted on March 6, 2020, provides the HHS
Secretary with DHA to appoint individuals to positions that
OPM maintains a webpage with information on DHA,
perform critical work related to coronavirus. The law states
including templates for submitting direct-hire requests
that appointments may be made without regard to Title 5,
based on a severe shortage of candidates and critical hiring
Sections 3309-3319, of the U.S. Code, which prescribe
need.
veterans’ preference requirements, requirements for rating
and ranking applicants, and category rating procedures that
Guidance on Hiring Flexibilities
increase the number of eligible candidates a selecting
On February 7, 2020, OPM issued guidance on human
official may choose from. Still, public notice of positions
resources flexibilities for COVID-19 that included policies
the department seeks to fill would need to be given. And,
related to hiring. With regard to DHA authorities, OPM
the Secretary would need to determine that a public health
reminded agencies that direct hire is authorized
threat exists.
government-wide for certain positions, including the
following:
Under Section 3304(a)(3), OPM may also authorize an
agency to appoint candidates directly to positions without
 Medical officers, nurses, diagnostic radiologic
regard to Sections 3309-3318. The statute provides that
technicians, and pharmacists for all grade levels and
public notice must be given for positions the agency seeks
locations;
to fill. OPM would need to determine that there exists a
severe shortage of candidates (for the Department of
 Information technology management (information
Veterans Affairs, there must be a severe shortage of highly
security) for GS-9 and above at all locations;
qualified candidates) or that there is a critical hiring need.
OPM regulations indicate that there is a severe shortage of
 Veterinary medical officers for GS-11 through GS-15
candidates when “an agency is having difficulty identifying
nationwide, including overseas territories and
candidates possessing the competencies or the knowledge,
commonwealths, indefinitely, until terminated;
skills, and abilities required to perform the job requirements
despite extensive recruitment, extended announcement
 Scientific, technical, engineering and mathematics for
periods, and the use, as applicable, of hiring flexibilities
GS-11 through GS-15 nationwide through October 10,
such as recruitment or relocation incentives or special
2023; and
salary rates.” A critical hiring need occurs when “an agency
has a need to fill the position(s) to meet mission
 Cybersecurity-related positions for GS-12 through GS-
requirements brought about by circumstances such as, but
15 nationwide, indefinitely, until terminated.
not limited to, a national emergency, threat, potential threat,
environmental disaster, or unanticipated or unusual event or
Individuals in the positions listed above may be appointed
mission requirement, or to conform to the requirements of
as competitive service career, career-conditional, term, or
law, a Presidential directive or Administration initiative.”
temporary employees. The guidance advised an agency to
contact OPM “if it believes it has one or more occupations
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Federal Executive Agencies: Hiring Flexibilities for Emergency Situations
for which an agency-specific direct hire authority may be
service firms to quickly provide specific services (but not
appropriate in support of relief and recovery efforts.”
for SES, managerial, or supervisory positions). A contract
may be extended for an additional 120 workdays.
Competitive service positions are civil service positions in
Individuals provided by temporary help service firms are
the executive branch that are not specifically excepted from
not considered or treated as federal employees for any
the competitive service by or under statute, positions to
purpose.
which appointments are made by nomination for
confirmation by the Senate (unless the Senate otherwise
Competitive Service Appointment—Temporary
directs), and positions in the Senior Executive Service
Appointments, 120 Days or Less (5 C.F.R. §330.609(c) and
(SES) (5 U.S.C. §2102(a)). Competitive service positions
5 C.F.R. §330.707(e)). Agencies may make appointments
require applicants to compete against one another in open
of 120 days or less without first selecting a surplus or
competition based on job-related criteria to obtain
displaced employee who is eligible for appointment under
employment (5 C.F.R. Parts 212, 330, and 332).
an Agency Career Transition Assistance Plan (CTAP) or an
Interagency Career Transition Assistance Plan (ICTAP).
Several long-standing hiring flexibilities available to federal
For appointments of longer duration, the CTAP and the
agencies were identified by OPM in reiterating its guidance:
ICTAP may be used to identify well-qualified displaced
federal employees who are available for immediate
Excepted Service Appointment—Temporary Emergency
employment (5 C.F.R. Part 330, Subparts F and G).
Need (5 C.F.R. §213.3102(i)(3)). Agencies may appoint
individuals for 30 days and may extend the appointment for
Reemployment Priority List (RPL) (5 C.F.R. Part 330,
up to an additional 30 days if continued employment is
Subpart B). The RPL is used by agencies to give
essential to the agency’s operations. The same individual
reemployment consideration to their current and former
may not be employed for more than 60 days in a 12-month
competitive service employees who will be, or were,
period. The agency determines the qualification
separated by reduction in force or who are fully recovered
requirements. The authority may be used to fill senior-level
from a compensable injury after more than one year (5
and lower-level positions. Excepted service positions are
C.F.R. §330.201). Agencies may use the RPL as a source of
civil service positions that are not in the competitive service
qualified individuals who are available for temporary
or the SES (5 U.S.C. §2103(a)). Qualification standards and
appointments (generally, one year with up to one additional
requirements for these positions are established by the
year), term appointments (more than one year but not more
individual agencies. The Title 5 rules on appointment
than four years), or permanent appointments in the
(except for veterans’ preference), pay, and classification do
competitive service. An agency may apply an exception to
not apply (5 C.F.R. Parts 213 and 302).
choosing someone from the RPL from the list of exceptions
at Title 5, Section 330.211, of the Code of Federal
SES—Limited Appointments (5 C.F.R. Part 317, Subpart F).
Regulations.
Agencies may appoint career employees to limited term or
limited emergency appointments provided such
Reemployed Annuitants [5 U.S.C. §8344(i), §8468(i)].
appointments are within the space allocations limit
Agencies, without OPM approval, may reemploy retirees
previously authorized by OPM. If an appointment would
without applying the dual compensation salary offset,
not be within that limit, an agency may request a temporary
which prohibits federal retirees from getting the full
space allocation. Agencies may request authority from
combined value of their salary and annuity upon
OPM to appoint non-career employees to limited term or
reemployment. Appointments are for one year or less.
limited emergency appointments. A limited term appointee
Reemployed annuitants may work 520 hours during the first
is an individual appointed under a nonrenewable
six months of retirement, 1,040 hours during any 12-month
appointment for a term of three years or less to an SES
period, and 3,120 total hours during any period.
position the duties of which will expire at the end of such
Authorization for a longer time period requires OPM
term. A limited emergency appointee is an individual
approval. Reemployment may not exceed 2.5% of the full-
appointed under a nonrenewable appointment, not to exceed
time workforce at any time. An agency must explain and
18 months, to an SES position established to meet a bona
justify the reemployment if it exceeds 1% of the full-time
fide, unanticipated, urgent need (5 U.S.C. §3132(a)(5)(6)).
workforce.
SES positions are classified above GS-15 or in level IV or
Reemploying Recipients of Voluntary Separation Incentives
V of the Executive Schedule, or an equivalent position, and
(commonly referred to as buyouts) (5 U.S.C. §5597 note).
are not filled by presidential appointment with the advice
Upon agency request, OPM may authorize agencies to
and consent of the Senate. SES members, among other
rehire federal employees who retired or separated with
duties, direct the work of an organizational unit and
buyouts. Laws authorizing buyouts may have included a
exercise important policymaking, policy-determining, or
requirement that the buyout be repaid upon government
other executive functions (5 U.S.C. §3132(a)(2)).
reemployment. Agencies may request that OPM grant a
waiver of any buyout repayment.
Use of Private Sector Temporary Help Service Firms (5
C.F.R. Part 300, Subpart E). (Conditions for using private
Barbara L. Schwemle, Analyst in American National
sector temporaries are at Title 5, Section 300.503, of the
Government
Code of Federal Regulations.) Agencies may contract for
up to 120 workdays with private sector temporary help
IF11468
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Federal Executive Agencies: Hiring Flexibilities for Emergency Situations

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