HHS Instruction 590-2: Title 38 Variable Work Schedule for Physicians as the full title.

Material Transmitted:

Department of Health and Human Services (HHS) Instruction 590-2, Title 38 Variable Work Schedule for Physicians, dated December 13, 2023.

Material Superseded:

None.

Background:

This Instruction is established to provide HHS-wide policy on permitting Title 38 full-time physicians (occupation series 0602) to work more or less than 80 hours in a bi-weekly pay period in accordance with the Office of Personnel Management and Health and Human Services Title 38 Delegation Agreement.

This policy is effective immediately and must be carried out by HHS Operating and Staff Division HR Centers in accordance with applicable laws, regulations, bargaining agreements, and Departmental policy.

/s/

W. Robert Leavitt
Deputy Assistant Secretary for Human Resources
Chief Human Capital Officer

590-2-00: Sections

590-2-10 Purpose
590-2-20 Coverage and Exclusions
590-2-30 References
590-2-40 Definitions
590-2-50 Responsibilities
590-2-60 Policy
590-2-70 Documentation and Accountability
 

590-2-10: Purpose

This Instruction implements the Department of Health and Human Service (HHS) guidance permitting full-time Title 38 physicians (occupation series 0602) to work more or less than 80 hours in a bi-weekly pay period in accordance with the Office of Personnel Management and HHS’s Title 38 Delegation Agreement.

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

590-2-20: Coverage and Exclusions

1. Coverage.
   
   The provisions of this Instruction apply to Title 38 civilian physicians in occupation series 0602, and at GS-15 and below who work a full-time schedule and are compensated under Title 38 in accordance with the Department’s Title 38 Delegation Agreement with the U.S. Office of Personnel Management (OPM). Implementation of this Instruction is at the discretion of the OpDiv/StaffDiv.
2. Exclusions.
   
   All employees who do not meet the criteria for Coverage in paragraph A of this section, including health care professionals who are working a part-time or intermittent schedule; health care professionals who do not hold a physician position in occupation series 0602 (e.g., nurses, pharmacists, optometrists, and other allied health staff), even if these individuals are compensated under a Title 38 authority and receive market pay.
3. The provisions of this Instruction pertaining to conditions of employment of bargaining unit employees are fully negotiable in accordance with 5 U.S.C. Chapter 71, and such actions require notification to labor organizations when impacted employees are bargaining unit employees. When the provisions of this Instruction differ from the requirements contained in applicable collective bargaining agreement(s), the collective bargaining agreement takes precedence for bargaining unit employees.

590-2-30: References

1. Public Law (P.L.) 114-315, Title VI, § 614 (2016)
2. 38 U.S.C. § 7423, “Personnel Administration full-time employees”
3. 5 U.S.C. § 5371, Health care positions
4. 5 U.S.C. § 2105, Employee defined
5. U.S. Office of Personnel Management and U.S. Department of Health and Human Services Title 38 Delegation Agreement

590-2-40: Definitions

1. Core Hours. Designated hours and days during the biweekly pay period when an employee on a variable schedule must be present for work.
2. Employee. As defined in 5 U.S.C. § 2105.
3. Hours of Employment. Includes performance of work, use of leave, or other paid time off. For leave years with 26 pay periods, the hours of employment are 2,080 hours; for leave years with 27 pay periods, the hours of employment are 2,160 hours.
4. Leave Year. Begins on the first day of the first full biweekly pay period in a calendar year. A leave year ends on the day immediately before the first day of the first full biweekly pay period in the following calendar year. Note: The standard leave year has 26 biweekly pay periods. Some leave years, however, will have 27 biweekly pay periods. The calendar year for the purpose of this Instruction, will be based on the leave year.
5. Subsidiary Timesheet. Timesheet physician is required to maintain on a daily basis. This is the official timesheet for recording hours of work. If the physician fails to maintain their subsidiary timesheet, their Variable Work Schedule will be terminated.
6. Variable Work Schedule. An irregular work schedule only available to full-time physicians in which a full-time physician has a basic work requirement of more or less than 80 hours each biweekly pay period, but for the purpose of determining pay and leave benefits, such a physician shall receive 80 hours of pay for each biweekly pay period.

590-2-50: Responsibilities

1. HHS Assistant Secretary for Administration, Office of Human Resources (ASA/OHR): Develops Department-wide human resources Instruction and guidance consistent with HHS and the Office of Personnel Management (OPM) policies, procedures, and all applicable Federal laws and regulations.
2. OpDiv and StaffDiv Human Resources Centers (HR Centers):
   1. Comply with this Instruction, and applicable federal laws and regulations.
   2. Responsible for ensuring OpDivs/StaffDivs are monitoring and reconciling hours of work under this work schedule.
   3. OpDivs have discretion on how the 2080 yearly requirement is met. A recommended target is 520 hours a quarter (540 hours a quarter for leave years with 27 pay periods).
3. Supervisors:
   1. Responsible for assuring that sufficient numbers and kinds of personnel are scheduled to be present to carry out operations in an efficient and economical manner. To meet this responsibility, supervisors may place restrictions on the starting and stopping times of individual employees regarding when an employee begins and ends their workday.
   2. Approve (or disapprove) the employee’s request to work a Variable Work Schedule (VWS); forwarding approved requests to Human Resource Offices.
   3. Provide the timekeeper with an 80-hour schedule for the regular timesheet.
   4. Ensure the employee meets their yearly requirement 2080 hours for leave years with 26 pay periods, and 2160 for years in which 27 pay periods exist.
      1. If the VWS agreement is terminated, the supervisor will forward the termination notice to the timekeeper and local HR office.
   5. Notify timekeepers of matters concerning accurate time and attendance records for the regular timesheet maintained by the timekeeper.
   6. Approve work schedule changes and/or time off leave requests in advance.
   7. Certify the regular and subsidiary timesheets in a timely manner.
   8. Send signed subsidiary timesheet to timekeeper.
   9. Conduct quarterly reconciliation of subsidiary timecard to determine the number of hours worked and provide physician with their status of meeting the 2080 work requirement.
4. Timekeepers:
   1. Maintain the regular timesheet.
   2. Post work and leave time to the regular timesheet.
   3. Submit proxy leave requests at the direction of the supervisor due to the employee being unable to complete their leave request. This should be kept to a minimum.
   4. Maintain completed and signed subsidiary timesheets in a centralized location.
5. Employees:
   1. Maintain their subsidiary timesheet on a daily basis. Submit and certify their subsidiary timesheets at the end of each pay period.
   2. Ensure they meet their yearly required hours (2080 for leave years with 26 pay periods, and 2160 for years in which 27 pay periods exist). Failure to meet the yearly requirement for two separate years of the agreement will result in termination of the agreement.

590-2-60: Policy

1. Discretionary Application. Title 38 variable work schedule for physicians is not an entitlement. Supervisors and employees should work together to ensure that the mission of the respective organization is not impaired by implementation of this authority. Furthermore, supervisors are required to ensure use of VWS is consistent with merit system principles.

2. Approvals. Title 38 VWS for physicians is available only to employees who work a full-time work schedule and are compensated under Title 38 of the U.S. Code. Physicians on a VWS agreement are allowed to work more or fewer than 80 hours within a bi-weekly pay period as long as they account for at least 2,080 hours of employment within the leave year (or 2,160 hours for leave years with 27 pay periods). As used in the previous sentence, hours of employment means performance of work, leave time or other paid time-off.

   Prior to working a variable schedule, each physician must complete and submit the VWS agreement request to their supervisor (Non-written agreements are not effective). Approved agreements must have an effective date no sooner than the beginning date of the next pay period following approvals. OpDiv/StaffDiv may require a covered physician on a variable work schedule to work core hours (designated hours and days during the pay period when the employee on a VWS must be present for work).

   OpDivs have discretion on how the 2080 yearly requirement is met. A recommended target is 520 hours a quarter.

   VWS agreements are not effective outside of the employee’s work OpDiv/StaffDiv. Accordingly, if an employee leaves his or her OpDiv/StaffDiv (by reassignment to another OpDiv/StaffDiv, transfer to another federal agency, detail, or similar personnel action), the agreement will be terminated. Employees may enter into another VWS agreement at the discretion of the new OpDiv/StaffDiv.

   Before permanently separating from an OpDiv/HHS, employees should ensure that they have accounted for hours for which they have already been paid to avoid reduction in pay or incurring a debt with the Department.

3. Renewal. Approved VWS agreements will renew automatically at the beginning of each leave year unless the agreement is terminated by management or the employee.

4. Termination. Management or the employee may unilaterally terminate the VWS agreement. To the maximum extent practicable, an agreement’s end date should coincide with the end date of a pay period.

   Management may terminate a VWS agreement without notice if:

   1. The workload of the work unit is such that it is no longer feasible to accommodate employees on VWS agreements.

   Management must revoke an agreement for cause when the employee:

   1. Is moved by any personnel action to another position for which Title 38 variable work schedule is not available.
   2. Fails to meet the minimum qualification requirements for the 0602 physician occupation series as required by OPM’s qualification standards and the employee’s position description. This includes failure to maintain professional credentials (e.g., medical license, board certification, etc.) when required by the employee’s position description.
   3. If a full-time physician on a variable work schedule fails to meet the requirement to account for 2080 hours of employment for a calendar year agreement period during two separate Variable Work Schedule Agreement periods, the variable work schedule arrangement will be terminated. The physician will not be eligible to participate in the VWS again unless justification is provided by the supervisor to support the physician’s participation and to identify what factors that have changed that will allow the physician to complete the requisite 2080 hour requirement. The justification must be made in writing and approved by an official of the agency who is at least one level higher than the employee's supervisor, unless there is no official at a higher level in the agency. Copies of the supporting documentation must be retained.
   4. An employee fails to obtain at least a summary rating of fully satisfactory or equivalent on their annual performance review or is being placed on a performance improvement plan.
   5. Falsifies or otherwise knowingly misrepresents information on any document used to implement the VWS agreement, including but not limited to subsidiary timesheets.

5. Timekeeping. Both regular and subsidiary timecards are required for a Physician Variable Work Schedule. The supervisor will provide the timekeeper with an 80 hour schedule for the regular timesheet. Physicians are required to maintain accurate records of minimum applicable hours (2,080 or 2,160) during the leave year. Partial years will be prorated on 80 hours per pay period times the number of pay periods. Employees’ tour of duty should include only whole hours for the total time worked during the tour, e.g., 8:00 a.m. – 4:30 p.m., which accounts for eight hours of employment and a 30-minute mealtime.

   In addition to their regular timesheet, employees shall maintain a subsidiary timesheet showing actual hours worked during the pay period. At the end of each day during a pay period, the employee must log these hours on his or her subsidiary timesheet. Supervisors must approve the employee’s signed subsidiary timesheet at the end of each administrative pay period in addition to the employee’s regular timesheet. Supervisors are required to submit the subsidiary timesheets to their timekeepers who shall maintain these timesheets in a centralized location for audit purposes.

   Although the subsidiary timesheets may show more or fewer than 80 hours of employment during a pay period, regular timesheets will retain their 80-hour schedule for pay purposes. Regular timesheets are maintained by the employee’s timekeeper. The regular timesheet must equal 80 hours each pay period and will encompass regular hours, paid leave, and/or non-paid leave where applicable.

   Employees may not account for more than 80-hours of absence (e.g., annual or sick leave, or leave without pay) during a pay period.

   When practical, supervisors should approve the employee’s work schedule prior to the beginning of the administrative pay period, taking into account that the work schedules of 0602 series employees who work in clinical settings change frequently. Time-off for leave should be approved in advance whenever possible.

   Physicians compensated under the Department’s Title 38 authority are not eligible to receive premium pay. Accordingly, they do not receive pay beyond their basic rate of pay (i.e., GS base pay + market pay) for duty hours on a legal holiday, on Saturday or Sunday, at night, on overtime, for on-call duty or hours worked that exceed the applicable minimum hours of 2,080 or 2,160 hours for the leave year.

6. Credit Hours. The variable work schedule is a form of alternative work schedules. Employees may work only one alternative work schedule. Physicians who have a VWS agreement may not earn or otherwise accrue credit hours (which is available for flexible AWS). Employees must use any accrued credit hours prior to the VWS agreement’s effective date, otherwise the credit hours are forfeited.

7. Impact of Certain Non-pay Hours. Supervisors may approve an employee’s request for leave without pay (LWOP) if the employee has a VWS agreement. A request for LWOP hours will reduce an employee’s pay for the pay period the hours are posted in. LWOP hours should be reflected on the employee’s subsidiary and regular timesheets. Use of LWOP may count towards the total number of required hours (2,080 or 2,160) an employees must complete in a leave year.

   If a physician does not work the required hours, they will either be required to use retroactive paid leave (e.g., annual leave) or leave without pay (LWOP) to reach the minimum required hours for the year. If an employee retroactively uses leave without pay to account for missed hours, this may cause the physician to incur a debt due to overpayment. Retroactive use of LWOP is not intended to meet the 2080 hour requirement under this policy. LWOP may affect employment areas such as benefits, probationary period, pay administration, retirement, leave accrual.

   Employees should use the following code to record LWOP hours on their subsidiary timesheets:

   • KA – LWOP

   Hours attributable to absence without leave (AWOL), suspension, furlough, military furlough, and workers’ compensation count towards the completion of the agreement hours but cannot be made up. Employees should use the following codes to record these hours on their subsidiary timesheets:

   • KC – absent without leave
   • KB – suspension
   • KE – furlough
   • KG – military furlough
   • KD – workers’ compensation

   These non-pay hours can only be posted to an employee’s regular timesheet by the timekeeper at the supervisor’s request. Because these non-pay hours cannot be made up, they will reduce the employee’s pay for the affected pay period(s).

8. Impact of Holiday Hours. VWS is a type of alternative work schedule. On a holiday, full-time employees under a flexible schedule are credited with 8 hours toward their 80 hour basic work requirement for the pay period. Employees under a flexible schedule are credited with 8 holiday hours even if they are regularly scheduled to work more than 8 hours on a day on which a holiday falls. If the president issues an Executive Order granting holiday hours (e.g., half-day holiday), these hours will be credited to the employee on an hour-for-hour basis.
9. Accounting. Employees and supervisors are required to reconcile their subsidiary timesheets. Supervisors are required to review the employee’s reconciled subsidiary timesheet quarterly and confirm with the employee their status towards meeting the VWS agreement hours of employment requirement. Supervisors in coordination with timekeepers must reconcile the VWS agreement at the end of each year to ensure the employee has met the hourly requirement for the year.
10. Reconciliation Findings.
    1. For agreement hours (worked and paid leave) that are determined to be less than the number of hours already paid to the physician on the regular timesheet for year-end reconciliation (2,080); corrections to the regular timesheets are required to capture and document the discrepancy and thus generate/or require a debt creation for the physician as a result.
    2. For agreement hours that are on target or in excess of the yearly hours’ requirement (2080 or 2160 based on the number of pay periods within the leave year), a notation will be made within the agreement and no further action will be taken; the VWS physician is not entitled to receive compensation for hours in excess of the yearly requirement as clearly defined within the VWS agreement. Excess hours over 2080 or 2160 shall not be carried over into the next year.
    3. Employees who fail to meet the agreement’s requirement may not make up those hours during another leave year. Employee will incur a debt if the physician did not meet 2080/2160 hours (or prorated amount).
    4. Reconciliations shall be kept in a centralized location designated by the OpDiv.

590-2-70: Documentation and Accountability

1. Records associated with personnel actions, including all documentation sufficient for third party reconstruction purposes, must be retained according to the record disposition schedule. Generally, records created in a given year must be retained for a total of six 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.
2. OpDivs/StaffDivs shall maintain employees’ VWS agreements.
3. When applicable, OpDivs/StaffDivs shall maintain notification of termination of VWS agreements.
4. Timekeepers shall maintain copies of certified subsidiary timesheets and reconciliations in a centralized location as designated by their OPDIV as these will be the official T&A record.
5. ASA/OHR may conduct periodic accountability reviews to analyze compliance with this Instruction, HHS and OPM policy and guidance, and applicable federal laws and regulations.