The fifty-nine-minute rule: white Christmas, gray area?

Army Lawyer, March, 2006 by Mike Litak

The fifty-nine-minute rule purportedly emanates from a provision in the Code of Federal Regulations (CFR) that gives agencies the discretion to forgive brief absences when employees otherwise would have to be overcharged leave in minimum increments. (44) The OPM has provided federal agencies two distinct ways to avoid the inequity of a leave overcharge. First, they could prescribe a minimum leave charge shorter than OPM's one-hour minimum charge. (45) Second, they could excuse an employee who is "unavoidably or necessarily" absent for less than one hour or tardy for "any adequate reason." (46)

This OPM rule provides authority to forgive an employee's unplanned failure to report to work on time (the first use of the fifty-nine-minute rule), but that situation obviously differs from a management-initiated, group release of employees who have already reported to work (the second use of the fifty-nine-minute rule). Indeed, either use of the fifty-nine-minute rule may seem so removed from its ostensible origins that one would do well to identify some other authority behind it. After all, the current minimum leave charge for agencies within the DOD can be as low as six minutes. (47) For the Army, the minimum leave charge normally is fifteen minutes. (48) The fact that a fifty-nine-minute rule survives within the DOD, in spite of reduced minimum leave charges, suggests that it encompasses purposes other than the avoidance of a leave overcharge. (49) And, it is important to remember that the OPM does not preempt agency and departmental discretion in this area. (50)

It is the broad agency discretion to authorize brief excused absences that probably best explains the current use of the fifty-nine-minute rule. In fact, Comptroller General decisions recognize the use of such discretion in granting excused absences for brief periods, so long as it does not violate a statute or regulation. (51) While agencies are largely free to grant excused absences within those parameters, their internal authority to invoke the rule depends upon authorized instances and proper approval levels. (52)

Granting Fifty-Nine-Minute Excused Absences to Groups of Employees

Agency regulations often provide for excused absences in specific situations that are typically illustrative not exclusive, and that may vary within an agency or department. (53) Thus, a regulation provision that supports early releases under the fifty-nine-minute rule is not critical to the exercise of such releases, but it is also not without precedent. For example, a supplement to the retired Federal Personnel Manual (FPM) authorized excused absences for groups of employees for various purposes, as agencies deemed appropriate. (54) The current DOD CPM has no similar provision, but neither does it limit excused absences strictly to individual employees. Further, the CPM and other DOD publications affirm the authority to excuse brief absences, (55) and some DOD components and offices employ an excusal ground of "tardiness and brief absences of periods less than 1 hour" with no further qualifications or limitations. (56) Thus, the DOD does not foreclose managerial discretion to excuse groups of employees from duty, within this time limit, for most any good reason not covered by other rules.