UPDATE: No Movement by Chair Gensler on Use or Lose Leave Issue; Employees Must Schedule All Earned Use or Lose by the End of the Year to Avoid Forfeiture


After continuing to receive numerous employee questions about the use or lose leave issue, the union is providing this further update.

Employees must schedule all of their use or lose by the end of the year to avoid forfeiture, because Chair Gensler has continued to refuse to address this issue, despite the following facts:

  • The approximate projected balance of use or lose leave for 2022 for all bargaining unit employees is well over 300,000 hours. Obviously, this will result in a large number of employees being required to take a large amount of leave during the last several months of calendar year 2022. Given increasing workload demands due to new rulemaking, new Enforcement settlement policies, as well accelerating employee attrition of experienced employees at the agency, we can expect shortages of employees for the remainder of the year, damaging the agency’s ability to meet mission requirements and unnecessarily increasing work burdens for employees who are not on leave.
  • Chair Gensler’s agreement with the union this week to extend mandatory return to office from Labor Day to January due to the rapid spread of the highly contagious BA-5 Covid variant and CDC High Community Spread designations for most SEC offices demonstrates that travel at this time is inadvisable for many SEC employees. This is particularly true for older employees who may be at increased risk due to underlying conditions, and who tend to have accumulated more use or lose leave during the pandemic due to their seniority. Thus, the Chairman apparently expects employees to go on extended vacations at a time when he deems it still too dangerous to reopen SEC offices due to the pandemic.
  • The process for scheduling use or lose permits managers to reject the request due to an exigency of the public business (i.e., the need for the employee to perform necessary work), resulting in the leave being reinstated for use by the end of 2024. The management justification process for such denials, including approval of each denial by OHR, will take a considerable amount of time and effort. Managers have reported to the union that they are bracing for this unnecessary bureaucratic burden at the end of the year. It makes little sense to put hundreds and hundreds of employees and their managers through this process, when pandemic-related use or lose leave could simply be carried over, in whole or in part, with the stroke of a pen by the Chair. This makes no sense, particularly given increasing employee workloads and the fact that, due to accelerating employee attrition at the agency, our BU headcount has not increased from the end of Q3 2021 to the end of Q3 2022.

As the union has previously notified employees, if you have use or lose leave and you want to avoid forfeiture, you must timely request and obtain approval or denial for all of that leave for use during the remainder of 2022. Please note that OHR has determined that, if you request leave and it is denied, and there is still time before the end of the year to request it again, you must request it again for it to be denied again and reinstated.

Here is the union’s chart estimating the date by which use or use leave must be scheduled to avoid forfeiture based upon various projected amounts of use or lose leave at the end of 2022. Please consider this chart, which assumes that all of the leave is scheduled at the end of the year:

640 Hours:               9/1/2022     

600 Hours:               9/9/2022  

560 Hours:               9/16/2022

520 Hours:               9/23/2022

480 Hours:               9/30/2022

440 Hours:               10/7/2022

400 Hours:               10/17/2022

360 Hours:               10/24/2022

320 Hours:               10/31/2022

280 Hours:               11/7/2022

240 Hours:               11/15/2022

1 to 200 Hours:       11/19/2022

NB:  This chart is only intended to provide a general sense of the latest date by which an employee will need to apply for and obtain approval for use or lose annual leave. Please do not rely on the chart—while we believe it to be accurate, you should carefully calculate your own projected use or lose balance, and ensure that you request all of that leave well in advance of the dates above to ensure that there is sufficient time remaining in the year to schedule all of your leave and get it approved. Please note that the chart assumes that the President will not give employees a day off around Christmas and that the Chairman will not authorize any early releases around holidays. It is advisable to schedule all of your use or lose leave for the remainder of the year as soon as possible, to reduce the risk of errors and problems that could result in a possible forfeiture of leave that you have earned.