20 C.F.R. Subpart C—Continuation of Pay
Title 20 - Employees' Benefits
(a) For most employees who sustain a traumatic injury, the FECA provides that the employer must continue the employee's regular pay during any periods of resulting disability, up to a maximum of 45 calendar days. This is called continuation of pay, or COP. The employer, not OWCP, pays COP. Unlike wage loss benefits, COP is subject to taxes and all other payroll deductions that are made from regular income. (b) The employer must continue the pay of an employee who is eligible for COP, and may not require the employee to use his or her own sick or annual leave, unless the provisions of §§10.200(c), 10.220, or §10.222 apply. However, while continuing the employee's pay, the employer may controvert the employee's COP entitlement pending a final determination by OWCP. OWCP has the exclusive authority to determine questions of entitlement and all other issues relating to COP. (c) The FECA excludes certain persons from eligibility for COP. COP cannot be authorized for members of these excluded groups, which include but are not limited to: persons rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay; volunteers (for instance, in the Civil Air Patrol and Peace Corps); Job Corps and Youth Conservation Corps enrollees; individuals in work-study programs, and grand or petit jurors (unless otherwise Federal employees). (a) To be eligible for COP, a person must: (1) Have a “traumatic injury” as defined at §10.5(ee) which is job-related and the cause of the disability, and/or the cause of lost time due to the need for medical examination and treatment; (2) File Form CA–1 within 30 days of the date of the injury (but if that form is not available, using another form would not alone preclude receipt); and (3) Begin losing time from work due to the traumatic injury within 45 days of the injury. (b) OWCP may find that the employee is not entitled to COP for other reasons consistent with the statute (see §10.220). On Form CA–1, an employee may elect to use accumulated sick or annual leave, or leave advanced by the agency, instead of electing COP. The employee can change the election between leave and COP for prospective periods at any point while eligibility for COP remains. The employee may also change the election for past periods and request COP in lieu of leave already taken for the same period. In either situation, the following provisions apply: (a) The request must be made to the employer within one year of the date the leave was used or the date of the written approval of the claim by OWCP (if written approval is issued), whichever is later. (b) Where the employee is otherwise eligible, the agency shall restore leave taken in lieu of any of the 45 COP days. Where any of the 45 COP days remain unused, the agency shall continue pay prospectively. (c) The use of leave may not be used to delay or extend the 45-day COP period or to otherwise affect the time limitation as provided by 5 U.S.C. 8117. Therefore, any leave used during the period of eligibility counts towards the 45-day maximum entitlement to COP. If the employee recovers from disability and returns to work, then becomes disabled again and stops work, the employer shall pay any of the 45 days of entitlement to COP not used during the initial period of disability where: (a) The employee completes Form CA–2a and elects to receive regular pay; (b) OWCP did not deny the original claim for disability; (c) The disability recurs and the employee stops work within 45 days of the time the employee first returned to work following the initial period of disability; and (d) Pay has not been continued for the entire 45 days.
Title 20: Employees' Benefits
PART 10—CLAIMS FOR COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED
Subpart C—Continuation of Pay
§ 10.200 What is continuation of pay?
Eligibility for COP
§ 10.205 What conditions must be met to receive COP?
§ 10.206 May an employee who uses leave after an injury later decide to use COP instead?
§ 10.207 May an employee who returns to work, then stops work again due to the effects of the injury, receive COP?
Responsibilities
§ 10.210 What are the employee's responsibilities in COP cases?
An employee who sustains a traumatic injury which he or she considers disabling, or someone authorized to act on his or her behalf, must take the following actions to ensure continuing eligibility for COP. The employee must:
(a) Complete and submit Form CA–1 to the employing agency as soon as possible, but no later than 30 days from the date the traumatic injury occurred.
(b) Ensure that medical evidence supporting disability resulting from the claimed traumatic injury, including a statement as to when the employee can return to his or her date of injury job, is provided to the employer within 10 calendar days after filing the claim for COP.
(c) Ensure that relevant medical evidence is submitted to OWCP, and cooperate with OWCP in developing the claim.
(d) Ensure that the treating physician specifies work limitations and provides them to the employer and/or representatives of OWCP.
(e) Provide to the treating physician a description of any specific alternative positions offered the employee, and ensure that the treating physician responds promptly to the employer and/or OWCP, with an opinion as to whether and how soon the employee could perform that or any other specific position.
§ 10.211 What are the employer's responsibilities in COP cases?
Once the employer learns of a traumatic injury sustained by an employee, it shall:
(a) Provide a Form CA–1 and Form CA–16 to authorize medical care in accordance with §10.300. Failure to do so may mean that OWCP will not uphold any termination of COP by the employer.
(b) Advise the employee of the right to receive COP, and the need to elect among COP, annual or sick leave or leave without pay, for any period of disability.
(c) Inform the employee of any decision to controvert COP and/or terminate pay, and the basis for doing so.
(d) Complete Form CA–1 and transmit it, along with all other available pertinent information, (including the basis for any controversion), to OWCP within 10 working days after receiving the completed form from the employee.
Calculation of COP
§ 10.215 How does OWCP compute the number of days of COP used?
COP is payable for a maximum of 45 calendar days, and every day used is counted toward this maximum. The following rules apply:
(a) Time lost on the day or shift of the injury does not count toward COP. (Instead, the agency must keep the employee in a pay status for that period);
(b) The first COP day is the first day disability begins following the date of injury (providing it is within the 45 days following the date of injury), except where the injury occurs before the beginning of the work day or shift, in which case the date of injury is charged to COP;
(c) Any part of a day or shift (except for the day of the injury) counts as a full day toward the 45 calendar day total;
(d) Regular days off are included if COP has been used on the regular work days immediately preceding or following the regular day(s) off, and medical evidence supports disability; and
(e) Leave used during a period when COP is otherwise payable is counted toward the 45-day COP maximum as if the employee had been in a COP status.
(f) For employees with part-time or intermittent schedules, all calendar days on which medical evidence indicates disability are counted as COP days, regardless of whether the employee was or would have been scheduled to work on those days. The rate at which COP is paid for these employees is calculated according to §10.216(b).
[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]
§ 10.216 How is the pay rate for COP calculated?
The employer shall calculate COP using the period of time and the weekly pay rate.
(a) The pay rate for COP purposes is equal to the employee's regular “weekly” pay (the average of the weekly pay over the preceding 52 weeks).
(1) The pay rate excludes overtime pay, but includes other applicable extra pay except to the extent prohibited by law.
(2) Changes in pay or salary (for example, promotion, demotion, within-grade increases, termination of a temporary detail, etc.) which would have otherwise occurred during the 45-day period are to be reflected in the weekly pay determination.
(b) The weekly pay for COP purposes is determined according to the following formulas:
(1) For full or part-time workers (permanent or temporary) who work the same number of hours each week of the year (or of the appointment), the weekly pay rate is the hourly pay rate (A) in effect on the date of injury multiplied by (×) the number of hours worked each week (B): A × B = Weekly Pay Rate.
(2) For part-time workers (permanent or temporary) who do not work the same number of hours each week, but who do work each week of the year (or period of appointment), the weekly pay rate is an average of the weekly earnings, established by dividing (÷) the total earnings (excluding overtime) from the year immediately preceding the injury (A) by the number of weeks (or partial weeks) worked in that year (B): A ÷ B = Weekly Pay Rate.
(3) For intermittent and seasonal workers, whether permanent or temporary, who do not work either the same number of hours or every week of the year (or period of appointment), the weekly pay rate is the average weekly earnings established by dividing (÷) the total earnings during the full 12-month period immediately preceding the date of injury (excluding overtime) (A), by the number of weeks (or partial weeks) worked during that year (B) (that is, A ÷ B); or 150 times the average daily wage earned in the employment during the days employed within the full year immediately preceding the date of injury divided by 52 weeks, whichever is greater.
[63 FR 65306, Nov. 25, 1998; 63 FR 71202, Dec. 23, 1998]
§ 10.217 Is COP charged if the employee continues to work, but in a different job that pays less?
If the employee cannot perform the duties of his or her regular position, but instead works in another job with different duties with no loss in pay, then COP is not chargeable. COP must be paid and the days counted against the 45 days authorized by law whenever an actual reduction of pay results from the injury, including a reduction of pay for the employee's normal administrative workweek that results from a change or diminution in his or her duties following an injury. However, this does not include a reduction of pay that is due solely to an employer being prohibited by law from paying extra pay to an employee for work he or she does not actually perform.
Controversion and Termination of COP
§ 10.220 When is an employer not required to pay COP?
An employer shall continue the regular pay of an eligible employee without a break in time for up to 45 calendar days, except when, and only when:
(a) The disability was not caused by a traumatic injury;
(b) The employee is not a citizen of the United States or Canada;
(c) No written claim was filed within 30 days from the date of injury;
(d) The injury was not reported until after employment has been terminated;
(e) The injury occurred off the employing agency's premises and was otherwise not within the performance of official duties;
(f) The injury was caused by the employee's willful misconduct, intent to injure or kill himself or herself or another person, or was proximately caused by intoxication by alcohol or illegal drugs; or
(g) Work did not stop until more than 45 days following the injury.
[63 FR 65306, Nov. 25, 1998; 64 FR 12684, Mar. 12, 1999]
§ 10.221 How is a claim for COP controverted?
When the employer stops an employee's pay for one of the reasons cited in §10.220, the employer must controvert the claim for COP on Form CA–1, explaining in detail the basis for the refusal. The final determination on entitlement to COP always rests with OWCP.
§ 10.222 When may an employer terminate COP which has already begun?
(a) Where the employer has continued the pay of the employee, it may be stopped only when at least one of the following circumstances is present:
(1) Medical evidence which on its face supports disability due to a work-related injury is not received within 10 calendar days after the claim is submitted (unless the employer's own investigation shows disability to exist). Where the medical evidence is later provided, however, COP shall be reinstated retroactive to the date of termination;
(2) The medical evidence from the treating physician shows that the employee is not disabled from his or her regular position;
(3) Medical evidence from the treating physician shows that the employee is not totally disabled, and the employee refuses a written offer of a suitable alternative position which is approved by the attending physician. If OWCP later determines that the position was not suitable, OWCP will direct the employer to grant the employee COP retroactive to the termination date.
(4) The employee returns to work with no loss of pay;
(5) The employee's period of employment expires or employment is otherwise terminated (as established prior to the date of injury);
(6) OWCP directs the employer to stop COP; and/or
(7) COP has been paid for 45 calendar days.
(b) An employer may not interrupt or stop COP to which the employee is otherwise entitled because of a disciplinary action, unless a preliminary notice was issued to the employee before the date of injury and the action becomes final or otherwise takes effect during the COP period.
(c) An employer cannot otherwise stop COP unless it does so for one of the reasons found in this section or §10.220. Where an employer stops COP, it must file a controversion with OWCP, setting forth the basis on which it terminated COP, no later than the effective date of the termination.
§ 10.223 Are there other circumstances under which OWCP will not authorize payment of COP?
When OWCP finds that an employee or his or her representative refuses or obstructs a medical examination required by OWCP, the right to COP is suspended until the refusal or obstruction ceases. COP already paid or payable for the period of suspension is forfeited. If already paid, the COP may be charged to annual or sick leave or considered an overpayment of pay consistent with 5 U.S.C. 5584.
§ 10.224 What happens if OWCP finds that the employee is not entitled to COP after it has been paid?
Where OWCP finds that the employee is not entitled to COP after it has been paid, the employee may chose to have the time charged to annual or sick leave, or considered an overpayment of pay under 5 U.S.C. 5584. The employer must correct any deficiencies in COP as directed by OWCP.
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