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Extraordinary Federal Leave Days and Contractor Employees

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Extraordinary Federal Leave Days and Contractor Employees:
President Obama recently issued an executive order excusing most Federal executive agency employees from duty the last half of the work day on Christmas Eve, December 24th, 2009. The President and executive agency management also sometimes excuse employees from duty [without loss of pay and without being required to use leave] in other similar circumstances such as weather related closures and delays, security and emergency situations, National days of mourning and inauguration day [D.C. locality only]. Such decisions often leave contractor employees wondering how these executive branch actions will affect them.
The answer varies depending upon a number of things, primarily the contractor’s leave and pay policies.
First, it should be noted that the President’s or executive agency’s actions do not create additional Federal holidays. Federal holidays may only be created by the legislative branch with the President then signing them into law.
Government contract terms and conditions are generally silent on such matters and therefore leave such matters for the contractor to manage.
Contracts for supplies and manufactured goods do not contain requirements for contractor employee holiday and vacation entitlements. Any holiday or paid time-off payments are completely up to the contractor. On the other hand construction contracts subject to the Davis-Bacon Act and service contracts subject to Service Contract Act (SCA) commonly contain wage determinations that apply to the non-exempt workers employed under the contract. The wage determinations do contain requirements for paid holidays, but do not address any “extraordinary days off” such as those mentioned above. Any Federally mandated paid holidays for non-exempt construction or service employees will be explicitly found in the wage determination. The Department of Labor provided guidance for SCA-covered contracts last year which covered a similar executive order issued by President Bush for the day after Christmas, December 26th 2008. The same principles will apply to the Obama Executive Order for Christmas Eve and other similar days when Federal workers are excused from duty:

Holiday Pay for Day After Christmas (December 26, 2008)

For Service Contract Workers

Government contractors subject to the requirements of the McNamara-O’Hara Service Contract Act (SCA) are required to compensate covered employees in accordance with the wages and fringe benefits listed in the applicable wage determination included in the specific contract.

Most SCA wage determinations list the ten Federal holidays as a fringe benefit for which payment is required. In these cases, because the Day after Christmas is not a named holiday contained in the wage determination, paid time off for that day would not be required under the SCA. In these cases, any pay provided for time off on December 26, 2008, will be a matter of discretion for the contractor. Issues regarding contract payments for such time not worked would be a procurement matter within the purview of the contracting agency.  Contractors, however, may allow covered employees to take paid leave benefits for that day off in accordance with the contractor’s standard leave policies.
In certain instances, the SCA wage determination applicable to a contract, (including those based on a collective bargaining agreement under 4(c)), may include a paid holiday provision for any day declared by the U.S. President to be a holiday, such as the Day after Christmas, National Day of Observance, or for any work day where the Federal facility is closed. In these instances, holiday pay would be required under the SCA for December 26, 2008.
Contractor employees, therefore, should look to their management concerning whether they will be relieved from scheduled work days/hours and in particular whether such time will be considered paid time off or not.
If questions arise concerning impact on a Navy/Marine Corps contract, contracting officers should contact the Navy or NAVFAC Labor Advisor for guidance, since it is not possible to provide a standard answer that will apply to all situations.

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