Congressional Research Service IF11503.1 (Coronavirus Aid, Relief, and Economic Security (CARES) Act (P.L. 116-136): Selected Provisions on Federal Hiring)

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Congressional Research Service product IF11503.1, Coronavirus Aid, Relief, and Economic Security (CARES) Act (P.L. 116-136): Selected Provisions on Federal Hiring, dated April 10, 2020. It describes new hiring authorities the law, enacted March 27, 2020, gives to the Department of Housing and Urban Development (HUD), the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), the Department of Commerce and the Department of Health and Human Services (HHS). Under Section 4010, HUD, the SEC and the CFTC may appoint candidates directly to selected positions without regard to veterans' preference requirements, rating and ranking standards or "rule of three" procedures. Section 18108 gives the Secretary of HHS a similar authority for critical COVID-19 work.

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April 10, 2020
Coronavirus Aid, Relief, and Economic Security (CARES) Act
(P.L. 116-136): Selected Provisions on Federal Hiring
In response to Coronavirus Disease 2019 (COVID-19), Administration after serving continuously for two years.
Congress passed the Coronavirus Aid, Relief, and The individuals are to be appointed in the same manner that
Economic Security (CARES) Act, enacted as P.L. 116-136 competitive service employees with competitive status are
on March 27, 2020. The law establishes new hiring considered for transfer, reassignment, or promotion to such
authorities for several federal executive branch departments positions. They would become career-conditional
and agencies: the Department of Housing and Urban employees unless the requirements for career tenure have
Development (HUD), the Securities and Exchange already been completed.
Commission (SEC), the Commodity Futures Trading
Commission (CFTC), the Department of Commerce, and Competitive status provides an individual with basic
the Department of Health and Human Services (HHS). The eligibility for noncompetitive assignment to a competitive
law also authorizes a Special Inspector General and a position in the Civil Service. It is acquired by a career or
Congressional Oversight Commission and provides career-conditional employee upon satisfactory completion
authorities for establishing those entities with needed of a probationary period.
personnel. For information on federal pay flexibilities, see
CRS In Focus IF11489, Federal Executive Agencies: Department of Health and
Selected Pay Flexibilities for COVID-19 Response. Human Services (HHS)
Division B, Title VIII, Section 18108 of the law authorizes
HUD, SEC, and CFTC the Secretary of HHS to use appropriated funds to appoint
Division A, Title IV, Subtitle A, Section 4010 of the law candidates directly to positions performing critical work
authorizes the Secretary of HUD, the SEC, and the CFTC to related to COVID-19 without regard to existing veterans’
recruit and appoint candidates directly to selected positions preference requirements, standards for rating and ranking
without regard to existing veterans’ preference applicants, “rule of three” procedures, and category rating
requirements, standards for rating and ranking applicants, procedures codified at 5 U.S.C. §3309 through §3319.
and “rule of three” (selection from highest three eligible Category rating allows an appointing official to select any
candidates) procedures codified at 5 U.S.C. §3309 through applicant in the highest quality category or, if fewer than
§3318. This new hiring authority may be used to fill three candidates have been assigned to the highest quality
temporary and term appointments when a determination is category, in a merged category consisting of the highest and
made that the expedited procedures are necessary and the second highest quality categories. Public notice of the
appropriate to enable the agencies to prevent, prepare for, positions the department seeks to fill must be given to use
or respond to COVID-19. The authority became effective this direct hire authority. The Secretary must also have
on the act’s enactment date and will end on either the determined that a public health threat exists.
termination date of the national emergency concerning
COVID-19 or December 31, 2020, whichever is sooner. Section 302 of P.L. 116-123, the Coronavirus Preparedness
and Response Supplemental Appropriations Act, 2020, as
The authority provided by Section 4010 is a direct-hire enacted on March 6, 2020, provides a similar authority to
authority that expedites hiring. Using direct-hire, an agency the HHS Secretary.
may hire any qualified applicant without regard to 5 U.S.C.
§3309 through §3318. Public notice must be given for Special Inspector General
positions an agency seeks to fill. U.S. Office of Personnel Division A, Title IV, Subtitle A, Section 4018 of P.L. 116-
Management (OPM) regulations that are prescribed at Part 136 establishes a new Office of the Special Inspector
337, Subpart B of Title 5 of the Code of Federal General (IG) for Pandemic Recovery. The IG is authorized
Regulations (C.F.R.) provide the requirements related to to “select, appoint, and employ such officers and employees
direct-hire. For additional information on these as may be necessary” to carry out the IG’s duties under
requirements, see CRS In Focus IF11468, Federal existing 5 U.S.C. procedures for competitive service
Executive Agencies: Hiring Flexibilities for Emergency appointments, position classification (5 U.S.C. Chapter 51)
Situations. and General Schedule (GS) pay (5 U.S.C. Chapter 53,
Subchapter III). The competitive service appointment
Department of Commerce, Economic process may consist of a written test, an evaluation of an
Development Administration individual’s education and experience, and an evaluation of
Division B, Title II of P.L. 116-136 authorizes the Secretary other attributes necessary for successful performance of a
of Commerce to appoint such temporary personnel as may position. In addition, the IG may obtain the services of
be necessary to implement specified requirements of the experts and consultants, in accordance with 5 U.S.C. §3109,
law to positions in the Economic Development
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Coronavirus Aid, Relief, and Economic Security (CARES) Act (P.L. 116-136): Selected Provisions on Federal Hiring

at “daily rates not to exceed the equivalent rate prescribed • To perform managerial or supervisory work
for grade GS–15.” (although an expert may act as team leader or
director of the specific project for which he/she is
Appointments Under 5 U.S.C. §3109, hired), to make final decisions on substantive
as Referenced in Section 4018 policies, or to otherwise function in the agency
5 U.S.C. §3109 permits an agency head to procure the chain of command (e.g., to approve financial
services of experts and consultants on a temporary (not to transactions, personnel actions).
exceed one year) or intermittent (without a regularly
scheduled tour of duty) basis when authorized by an • To do work performed by the agency’s regular
appropriation or other statute. The section requires an employees.
agency retaining such individuals to report annually to
• To fill in during staff shortages.
OPM on the number of days each expert or consultant was
employed and the total amount paid to each for work • Solely in anticipation of giving that individual a
performed. career appointment.

OPM regulations identify who are to be considered (5 C.F.R. §304.103(b))
“experts” and “consultants.” The agency’s regulations also The following factors are to be considered in setting an
define the terms “consultant position” and “expert expert’s or consultant’s initial basic pay rate: the level and
position.” difficulty of the work to be performed; the individual’s
qualifications; pay rates of comparable individuals
A “consultant” is a person who can provide performing similar work in the federal or nonfederal
valuable and pertinent advice generally drawn from sectors; and the availability of qualified candidates (5
a high degree of broad administrative, professional, C.F.R. §304.104(b)). Unless specifically authorized by an
or technical knowledge or experience. appropriation or other statute, an expert or consultant shall
A “consultant position” is one that requires not be paid for any biweekly pay period an aggregate
amount of pay (including basic pay, locality pay, and
providing advice, views, opinions, alternatives, or
premium pay) in excess of the biweekly rate of pay for GS-
recommendations on a temporary and/or
15, step 10 (excluding locality pay or any other additional
intermittent basis on issues, problems, or questions pay). The biweekly rate is computed by dividing the annual
presented by a Federal official. GS-15, step 10, rate by 2,087 hours to find the hourly rate
An “expert” is a person who is specially qualified of pay and by multiplying the hourly rate of pay by 80
by education and experience to perform difficult hours (5 C.F.R. §304.105(b)).
and challenging tasks in a particular field beyond
the usual range of achievement of competent Congressional Oversight Commission
persons in that field. An expert is regarded by other Division A, Title IV, Subtitle A, Section 4020 of the law
persons in the field as an authority or practitioner of establishes a new Congressional Oversight Commission in
the legislative branch. The commission is intended to
unusual competence and skill in a professional,
conduct oversight of the work of the Department of the
scientific, technical or other activity.
Treasury and the Federal Reserve System Board of
An “expert position” is one that requires the Governors to provide economic stability as a result of
services of a specialist with skills superior to those COVID-19. It is authorized to appoint and fix the pay of
of others in the same profession, occupation, or personnel needed to conduct its work, including experts and
activity to perform work on a temporary and/or consultants to perform temporary and intermittent services
intermittent basis assigned by a Federal official. under 5 U.S.C. §3109(b). In addition, upon the
commission’s request, a federal agency head may detail, on
(5 C.F.R. §304.102(b)-(e)). a reimbursable basis, personnel to assist the commission
The authority provided by 5 U.S.C. §3109 may not be used with its work.
to appoint an expert or consultant in the following
situations: Barbara L. Schwemle, Analyst in American National
Government
• To a position requiring presidential appointment.
IF11503
• To a Senior Executive Service (SES) position.

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Coronavirus Aid, Relief, and Economic Security (CARES) Act (P.L. 116-136): Selected Provisions on Federal Hiring

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