[Federal Register: June 13, 2000 (Volume 65, Number 114)]
[Rules and Regulations]
[Page 37233-37240]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jn00-33]
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Part IV
Office of Personnel Management
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5 CFR Part 630
Sick Leave for Family Care Purposes; Final Rule
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630
RIN 3206-AI76
Sick Leave for Family Care Purposes
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management is issuing final
regulations to expand the use of sick leave for family care purposes.
Under the final regulations, an employee may use a total of up to 12
weeks of accrued sick leave each year to care for a family member with
a serious health condition. This benefit broadens the options available
for employees to meet their family responsibilities.
EFFECTIVE DATE: June 20, 2000.
FOR FURTHER INFORMATION CONTACT: Sharon Herzberg, (202) 606-2858, FAX
(202) 606-0824, or email to payleave@opm.gov.
SUPPLEMENTARY INFORMATION: On May 24, 1999, President Clinton issued a
memorandum directing the Office of Personnel Management (OPM) to expand
the use of paid sick leave for family care purposes. On February 9,
2000, OPM issued proposed regulations consistent with the President's
goal of eliminating ``a significant barrier to caring for a family
member with a serious health condition.'' The regulations proposed to
permit full-time employees to use a total of up to 12 administrative
workweeks of accrued sick leave each leave year to care for a family
member with a serious health condition. The definition of ``family
member'' includes the following relatives of the employee: (a) Spouse
and parents thereof; (b) children, including adopted children, and
spouses thereof; (c) parents; (d) brothers and sisters, and spouses
thereof; and (e) any individual related by blood or affinity whose
close association with the employee is the equivalent of a family
relationship. ``Serious health condition'' has the same meaning as
found in OPM?s regulations at 5 CFR 630.1202 for administering the
Family and Medical Leave Act of 1993 (FMLA).
The 45-day comment period ended on March 27, 2000. OPM received 151
comments, 134 from individuals, 14 from agencies, 2 from employee
associations, and 1 from a labor organization. The comments were
overwhelmingly positive. The labor organization stated that these
changes were long awaited and quite welcome. Many of the commenters who
supported the adoption of the new regulations mentioned a previous
experience dealing with a family member with a long-term or terminal
illness and expressed gratitude that other employees would now have an
opportunity to use their accrued sick leave in similar situations.
Others mentioned current family medical situations that have caused
them to exhaust their annual leave and the currently available 13 days
of sick leave for family care. One commenter stated that if the
employee were the one who was sick or injured, using up to 12 weeks of
sick leave would be a non-issue and that the use of sick leave should
remain a non-issue when an employee's family member requires the
employee's care for an extended period.
One commenter stated that the proposed change would reassure
employees that efforts to conserve sick leave are beneficial. Another
individual noted that employees with sufficient amounts of sick leave
to make use of the new program obviously have not been abusing their
sick leave and are dedicated employees. One commenter pointed out that
since family health crises occur only a few times in our lives, this
time off would not adversely affect an agency's long-term goals. An
employee association commented that employees and family members
stationed overseas often must be evacuated for medical conditions and
that the new regulations would allow an employee to accompany a family
member for what may turn out to be a protracted course of treatment.
Nine commenters opposed the concept of allowing Federal employees
to use additional sick leave for family care purposes. Two agencies
expressed concern that the regulations as proposed would give employees
more flexibility in the use of sick leave than a literal reading of the
President's memorandum of May 24, 1999, would indicate.
The President intended to make the expanded use of sick leave
available to employees to use to care for all family members with a
serious health condition. Limiting this benefit to caring for a spouse,
son or daughter, or parent with a serious health condition would impose
a significant hardship on employees who need to care for additional,
but equally important, loved ones in their time of need. For example,
the expanded use of sick leave would permit an employee to care for a
grandchild who is suffering from leukemia or to care for an adult child
receiving kidney dialysis or in the final stages of a terminal disease.
Seven agencies were concerned that the proposed regulations would
permit an employee to use 12 weeks of sick leave each year to care for
a family member with a serious health condition and then use an
additional 12 weeks of leave without pay under the FMLA to care for a
spouse, son or daughter, or parent with a serious health condition. The
agencies stated that 24 weeks of leave would be a tremendous hardship
on a manager's ability to manage the work of the organization. One
agency expressed the belief that the current sick leave provisions and
FMLA entitlements provide sufficient flexibility to employees. Another
agency concluded that while being able to meet the mission of the
agency while balancing work and family needs of employees is of utmost
importance, managers have expressed concern that this expanded
entitlement to time off may diminish an organization's ability to
efficiently and effectively accomplish the mission of the agency.
OPM believes only a small number of employees would have a need
and/or be able to use significant amounts of paid and unpaid leave to
care for a family member with a serious health condition. Based on our
experience with the current sick leave program, we believe less than
0.5 percent of the Federal workforce with 5 or more years of Federal
service would actually use the maximum 12 weeks of sick leave. Federal
employees accrue 13 days of sick leave each year. Although it is
possible for an employee not to use any sick leave for 5 years so that
he or she would accumulate 65 days (more than 12 weeks) of sick leave
to use for family care purposes, this is highly unlikely. It is
possible that an employee could be entitled to a maximum of 12 weeks of
sick leave for family care and 12 weeks of unpaid leave under the FMLA
to care for a spouse, son or daughter, or parent with a serious health
condition. However, we believe it is highly unlikely that many
employees would take more than 12 weeks off for family care purposes.
In OPM's June 1997 ``Report to Congress on the Family Friendly Leave
Act,'' we found that less than one-half of one percent of the Federal
workforce used even the full 13 days of sick leave that was available
for family care purposes at that time. In addition, the purpose for
which the sick leave may be used--i.e., a serious health condition--
will limit the circumstances in which employees can use sick leave
under the new policy. We believe this expanded entitlement will provide
the greatest benefit to employees who would otherwise be forced to use
leave
[[Page 37235]]
without pay under the FMLA to care for their family members. The
expanded use of sick leave will permit these and other employees facing
similar situations to maintain an income for part or all of the time
they must be absent from work.
In addition, the expanded use of sick leave for family care
purposes will provide many benefits. Agencies will retain valuable
employees and benefit from reduced costs (including training costs) to
replace employees forced to separate from Federal service because of
family responsibilities. Employees will have greater incentive to
conserve their sick leave, which will be available for future personal
and family medical needs. There will be less need for employees to
obtain donated leave through the voluntary leave transfer and leave
bank programs, since a potential leave recipient faced with a family
medical emergency will be required to use up to 12 weeks of his or her
own sick leave before receiving any donated annual leave from other
Federal employees.
Entitlement to Sick Leave
Two commenters questioned whether the granting of sick leave to
care for a family member with a serious health condition would be done
at the discretion of the agency. An employee is entitled to sick leave
for family care, just as he or she is entitled to sick leave for his or
her own incapacitation. If the employee complies with the agency's
notification and medical evidence/certification requirements, the
agency must grant sick leave.
The labor organization requested clarification of an employee's
appeal rights if his or her request for sick leave is denied. If an
employee believes he or she has been unjustly denied the use of sick
leave for family care purposes, he or she may file a grievance under
applicable agency administrative procedures or negotiated grievance
procedures. Agency personnel offices can provide information to
employees concerning the administration of the grievance procedures. In
addition, OPM has authority to settle claims involving Federal
employees' compensation and leave. OPM's regulations at 5 CFR part 178
provide procedures for filing written claims. However, 5 CFR 178.101(b)
states that OPM's authority does not apply to claims concerning matters
that are subject to negotiated grievance procedures under collective
bargaining agreements.
One commenter was concerned that part-time employees might not be
included in this new initiative. However, the regulations make clear
that both part-time employees and employees on uncommon tours of duty
are entitled to pro-rated amounts of sick leave for family care
purposes based on the number of hours in their regularly scheduled
workweek. A Federal firefighter questioned whether leave accrual and
use was truly proportional for employees on uncommon tours. Employees
on uncommon tours earn and use leave in direct proportion to the leave-
earning rate of a full-time employee who accrues and uses leave on the
basis of an 80-hour biweekly tour of duty. An agency must charge one
hour (or appropriate fraction thereof) of leave for each hour (or
appropriate fraction thereof) of absence from the uncommon tour of
duty.
Another individual questioned whether an employee is entitled to
sick leave when ``caring'' for a family member who is hospitalized. OPM
has always maintained that care of a family member includes
psychological comfort as well as physical care, including being with
the family member during a hospital stay or while being examined in a
doctor's office. In response to this comment and frequent questions we
have received on this subject, we are revising Sec. 630.401 of the
final regulations to make clear that an employee may use sick leave to
attend to a family member who is receiving medical, dental, or optical
examination or treatment. In addition, we have added a new paragraph
(c) to Sec. 630.403 to permit agencies to require a statement from an
employee concerning a family member's need for psychological comfort
and/or physical care. The statement from the health care provider must
certify that (1) the family member requires psychological comfort and/
or physical care, (2) the family member would benefit from the
employee's care or presence, and (3) the employee is needed to care for
the family member for a specified period of time.
Three commenters felt that 12 weeks was too long a time for
employees to be away from their jobs. In contrast, one commenter felt
that 12 weeks was not enough time and that an employee should be
entitled to use all of his or her sick leave for family care purposes.
We do not believe allowing employees to use more than 13 days of their
own sick leave each year for family care purposes will greatly increase
absenteeism. Many employees who must care for family members currently
do so by using leave without pay under the FMLA. The final regulations
will allow these employees to maintain an income and better balance
their work and family responsibilities. We also believe the entitlement
to use 12 weeks of sick leave to care for a family member with a
serious health condition will meet the needs of most employees.
Definition of ``Family Member''
Several commenters were pleased that the regulations use the same
definition of ``family member'' that is used in the current regulations
on sick leave for family care purposes. However, some individuals
requested that OPM be more specific as to who is covered by the phrase
``any individual related by blood or affinity whose close association
with the employee is the equivalent of a family relationship.'' Three
commenters specifically questioned whether grandparents are covered by
the definition, and another requested that stepchildren also be
included. The intent of the regulation is to be family-friendly and to
provide a benefit that goes beyond the traditional nuclear family. We
believe a grandparent or a stepchild clearly is covered by the
definition of ``family member.'' An agency is responsible for
interpreting the definition to ensure that all employees are treated
fairly and consistently.
Definition of ``Serious Health Condition''
Most individuals and agencies supported the use of the definition
of ``serious health condition'' that is found in the FMLA regulations
at Sec. 630.1202. However, one agency expressed the belief that the
term ``catastrophic illness'' implies a level of devastation to health
and finances that would warrant the provisions included in the proposed
regulations, while the term ``serious health condition'' does not. One
commenter expressed appreciation for the regulations and hoped they
would assist parents of ``special needs'' children in meeting their
responsibilities. If the child's condition qualifies as a ``serious
health condition'' under the definition at Sec. 630.1202, a parent
would be entitled to use sick leave on an intermittent basis to care
for the child when other services are not available. However, this new
entitlement does not permit an employee to use sick leave for routine
childcare or to care for children with minor childhood ailments. The
definition of ``serious health condition'' at Sec. 630.1202 includes a
list of what is not considered a serious health condition. An agency
may require certification from a healthcare provider that the child has
a qualifying medical condition before granting sick leave.
An individual urged OPM to include severe mental illness, including
schizophrenia, bi-polar disorder (manic
[[Page 37236]]
depression), and other traumatic mental conditions requiring
hospitalization or constant care as a ``serious health condition.'' The
definition of ``serious health condition'' at Sec. 630.1202 includes a
``mental condition'' that requires inpatient care or continuing
treatment by a health care provider. All of the conditions enumerated
by the commentor are covered by this definition.
Several commenters questioned whether childbirth and its
recuperation would qualify as a ``serious health condition'' under
Sec. 630.1202. Some commenters interpreted the reference to pregnancy
and childbirth in Sec. 630.401(3)(i) to mean that the amount of sick
leave that can be used to care for a family member during and after
childbirth is limited to 13 days. An individual requested that we
consider deleting the reference to childbirth at Sec. 630.401(3)(i) and
specifically include childbirth and recovery in the definition of
``serious health condition'' in Sec. 630.1202. We agree that such a
change would make clear that childbirth and recovery are considered
serious health conditions, since they generally result in a period of
incapacitation that exceeds 13 days. Therefore, we have removed the
specific reference to pregnancy and childbirth from
Sec. 630.401(a)(3)(i). The final regulations provide that an agency
must grant sick leave to an employee who provides care for a family
member who is incapacitated by a medical or mental condition or who
receives medical, dental, or optical examination or treatment. In
addition, we have amended the definition of ``serious health
condition'' in Sec. 630.1202(1)(ii)(B) of the FMLA regulations to
include childbirth as a serious health condition.
Commenters questioned how much sick leave a new mother would be
able to use and whether family members such as her husband or parent
would be entitled to use sick leave to care for her. A new mother will
continue to be entitled to use sick leave for the period of
incapacitation certified by the health care provider following the
birth--generally about 6 weeks. Her husband or parent would be entitled
to use sick leave to care for her during that entire period of
incapacitation. In the case of both the new mother and her caregiver,
the entitlement to use sick leave is limited to the period of
incapacitation of the new mother. We encourage agencies to request
documentation as to the period of incapacitation for any serious health
condition.
Bonding With a Child
We received many comments from individuals who mistakenly believe
new mothers and fathers will be able to use 12 weeks of sick leave
following childbirth for bonding with the newborn child. Other
commenters requested that OPM change the regulations to permit this.
Care for a family member with a ``serious health condition'' does not
include care for a healthy newborn child. Once the new mother's period
of incapacitation ends, there is no further entitlement to use sick
leave to ``care for a family member with a serious health condition.''
Both parents would continue to be entitled to use up to 13 days of
sick leave each year to care for the child when he or she is ill or to
take the child to medical appointments.
Two commenters objected that the regulations do not allow adoptive
parents at least 6 weeks of sick leave for bonding purposes, pointing
to the 6 weeks of sick leave that birth parents will be able to use.
Adoptive parents may request sick leave for adoption-related purposes,
including, but not limited to, appointments with adoption agencies,
social workers, and attorneys; court proceedings; required travel; and
for any periods during which an adoptive parent is ordered or required
by the adoption agency or by a court to be absent from work to care for
the adopted child. There is no limitation on the amount of sick leave
that may be used for these purposes. Agencies may require employees to
provide evidence that is administratively acceptable to the agency in
support of a request for sick leave for adoption-related purposes. In
addition, adoptive parents are entitled to use up to 13 days of sick
leave each year to care for the child when he or she is ill or to take
the child to medical appointments.
As stated above, sick leave is granted to birth parents only for
the period of the mother's incapacitation. The birth parents must use
annual leave and/or leave without pay for absences from work beyond the
mother's period of incapacitation--e.g., for care of the newborn,
bonding with the child, and other child care responsibilities. There is
no provision in law or regulation that permits the use of sick leave by
birth parents or adoptive parents who voluntarily choose to be absent
from work to bond with a birth or adopted child.
Interaction With Current Use of Sick Leave for Family Care Purposes
Several commenters asked how the new entitlement to 480 hours of
sick leave to care for a family member with a serious health condition
interacts with the current entitlement to use 13 days of sick leave
each year for general family care and bereavement purposes. One agency
urged OPM to consider making these two separate entitlements and
permitting employees to use both 13 days of sick leave for general
family care and bereavement purposes and 12 weeks (480 hours) of sick
leave to care for a family member with a serious health condition each
year. The agency felt this approach would simplify administration and
reduce confusion about the two entitlements. The agency also felt that
tracking sick leave in more than one category is burdensome to the
manager and confusing to the employee. Similarly, an individual
suggested that there be two entitlements, but that the use of sick
leave to care for a family member with a serious health condition be
limited to 10 weeks. Another agency recommended that OPM extend the
amount of sick leave an employee may use for all family care purposes,
instead of introducing a new entitlement.
The intent of the expanded sick leave regulations is to permit
employees who are faced with caring for a family member with a serious
health condition to use more than 13 days of sick leave. If an employee
has previously used 13 days of sick leave in a leave year for family
care purposes, the 13 days must be subtracted from the 12-week
entitlement. If an employee has previously used 12 weeks of sick leave
in a leave year to care for a family member with a serous health
condition, he or she would not be entitled to an additional 13 days of
sick leave for family care or bereavement purposes. We have revised
Sec. 630.401 to make clear that an employee is entitled to a maximum of
12 weeks of sick leave for all family care purposes.
Interaction With Family and Medical Leave
Several commenters questioned how the broadened use of sick leave
for family care purposes would work with the use of leave without pay
under the Family and Medical Leave Act (FMLA). One commenter expressed
the belief that an employee already has an entitlement to use 12 weeks
of sick leave under the FMLA to care for a spouse, son or daughter, or
parent with a serious health condition. An individual was concerned
that 12 weeks of sick leave for family care plus 12 weeks of leave
without pay under the FMLA would result in an employee being absent
from work for up to 6 months.
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The FMLA provides most employees with an entitlement to use a total
of up to 12 weeks of leave without pay during any 12-month period for
certain family and medical needs. An employee may choose to substitute
sick leave for FMLA leave without pay consistent with current law and
regulations for using sick leave. (See Sec. 630.1205(b)(1).) Until now,
employees who invoked their entitlement to FMLA leave were limited to
substituting up to 13 days of sick leave for FMLA leave without pay
each year to care for a spouse, son or daughter, or parent with a
serious health condition. Under the final regulations, an employee is
entitled to substitute up to 12 weeks of sick leave each year for FMLA
leave without pay if he or she is caring for a spouse, son or daughter,
or parent with a serious health condition. Or, an employee may use up
to 12 weeks of sick leave each year to care for a family member with a
serious health condition and then invoke his or her entitlement to 12
weeks of FMLA leave without pay to care for his or her spouse, son or
daughter, or parent with a serious health condition.
Another individual suggested that the regulations limit an employee
to 12 weeks of sick leave in any 12-month period, similar to the
requirements under the FMLA. However, the new entitlement is a
broadening of the current regulations, not a change in the entitlements
under the FMLA. Limiting the use of sick leave for family care by leave
year is consistent with the current sick leave regulations and will
provide for simpler administration of the current sick leave program.
Interaction With the Leave Transfer and Leave Bank Programs
One commenter asked how the expanded use of sick leave for family
care will affect an employee's opportunity to receive donated annual
leave from the agency's leave transfer and/or leave bank program. The
commenter expressed the belief that an employee who has a substantial
sick leave balance, but has used all the sick leave he or she is
entitled to use for family care purposes, would be disqualified from
the leave transfer program because he or she still had available paid
sick leave. An employee may receive donated annual leave from other
Federal employees if he or she is affected by a personal or family
medical emergency and has exhausted his or her available paid annual
and sick leave. Once an employee has exhausted his or her entitlement
to 12 weeks of sick leave for family care purposes, the employee has
exhausted all of his or her available paid sick leave.
We believe the expanded use of sick leave for family care purposes
will reduce the need for obtaining donated annual leave through the
leave transfer and leave bank programs. Currently, an employee who is
caring for a family member with a medical emergency may have
significant amounts of accumulated sick leave that he or she cannot use
because the employee has already used his or her entitlement to 13 days
of sick leave for family care purposes. As a result, such employees are
using other employees' annual leave even though they have substantial
amounts of sick leave available in their own sick leave accounts. We
believe it makes sense to require employees to use their own annual and
sick leave before receiving donated annual leave. In addition, we
revised Sec. 630.405(c) to require an employee who is using donated
annual leave on the effective date of these regulations to use the sick
leave available under Sec. 630.401(a)(3) for family care purposes
before he or she can continue to use donated annual leave.
Requirement To Maintain a Balance of 80 Hours of Sick Leave
Two commenters questioned the need to require employees to maintain
an 80-hour sick leave balance when using more than 5 days of sick leave
for any family care purpose. Another individual expressed the belief
that the amount of sick leave that must be held in reserve should
increase as the number of hours used for family care purposes
increases--e.g., for each 30-day increment above the basic 13-day
entitlement, an employee should have to maintain an additional 20 hours
of sick leave (above the 80-hour requirement).
The original intent of the 80-hour requirement was to ensure that
Federal employees would have sufficient leave for their own medical
needs at the end of a family member's medical emergency. With the
possibility that an employee will be caring for a family member for an
extended period, it is even more important that he or she have a
reserve of sick leave for his or her own use to cover absences due to a
personal illness. OPM believes 80 hours of sick leave is a sufficient
reserve and that to require larger reserve balances from employees who
seek to use greater amounts of sick leave for family care purposes
would not be equitable.
A commenter was under the mistaken impression that an agency could
advance sick leave if an employee's sick leave balance falls below the
80-hour threshold. Advancing more than the first 5 days (40 hours) of
sick leave circumvents the intent of the regulation. We have had many
questions about the 80-hour required balance and the restriction on the
advance of more than 5 days of sick leave for family care purposes. We
are taking this opportunity to revise Sec. 630.401 to clarify the
requirement for an 80-hour balance and the restriction on advancing
sick leave for family care purposes.
Medical Certification
An agency recommended that the medical certification required by
the FMLA to care for a spouse, son or daughter, or parent with a
serious health condition also be required when an employee requests
sick leave to care for a family member with a serious health condition.
One individual urged that OPM write the regulations so that this
entitlement cannot be used for anything less than a serious health
condition. Another believes that requiring administratively acceptable
evidence of a serious health condition or a doctor's confirmation will
ensure that requests for sick leave are legitimate. A third commenter
warns that unless medical certification is required, the expanded
amounts of sick leave will be used for minor illnesses. Another asked
OPM to make clear that an agency may request medical documentation as
to the incapacitation of the family member, while another commenter
felt that OPM should establish specific amounts of sick leave that may
be used for specific types of serious health conditions. In contrast,
however, one individual expressed the belief that ``administratively
acceptable evidence'' is too broad a term and questioned who will
determine what constitutes acceptable documentation. Another suggests
that a doctor's statement should be required only after 5 days of
absence from work and that a receipt for a doctor's visit should be
sufficient medical documentation.
We urge each agency to request medical certification to document
that a serious health condition exists. In addition, obtaining medical
documentation will ensure that the appropriate amount of sick leave is
granted. We do not believe Governmentwide guidelines can be established
assigning specified amounts of sick leave for certain health
conditions. Individual circumstances differ, and individuals will
require varying amounts of time off for treatment and recuperation. A
certification from the health care provider will determine the length
of the incapacitation for each individual and, therefore, the duration
of the serious health condition. Agencies may
[[Page 37238]]
wish to modify the Department of Labor's Family and Medical Leave
medical certification form to document the existence and probable
duration of a serious health condition, or they may wish to establish
their own medical certification form. Each agency has the authority to
determine what constitutes ``administratively acceptable evidence'' for
any use of sick leave and to request such documentation whenever it
feels necessary.
One agency approved of OPM's proposal to permit agencies to limit
the amount of time given to an employee to produce acceptable
documentation, feeling it would help to ensure that the new entitlement
is used only as intended. We agree and are adopting as final the
revisions at Sec. 630.403(b). We believe agencies should establish time
limits for employees to provide required documentation of a medical or
mental condition. This will ensure that sick leave is being used
properly and will guarantee that all employees receive equal treatment.
Reporting Requirements
Two individuals questioned what new reporting requirements might be
involved in the administration of this new entitlement. One agency
recommended that OPM require agencies to report back in 1 year on the
extent to which the new sick leave provisions are being used. When OPM
published the original regulations on sick leave for family care
purposes in December 1994, we added Sec. 630.408 to require agencies to
maintain records to provide data to us on the use of sick leave for
family care purposes. We requested the data for OPM's June 1997
``Report to Congress on the `Federal Employees Family Friendly Leave
Act,' Public Law 103-388.'' We no longer believe the reporting
requirements are necessary and plan to propose removal of them from the
regulations later this year. Nevertheless, our regulations continue to
require that agencies maintain internal records on the amount of sick
leave used each leave year for family care or bereavement purposes to
ensure that employees do not exceed the limitations in 5 CFR 630.401(b)
and (c).
Additional Use of Sick Leave
Three individuals suggested that OPM establish programs to pay
employees for unused sick leave. They felt this would encourage
employees to conserve their sick leave, particularly in the case of
employees covered by the Federal Employees Retirement System (FERS),
since they do not receive credit at retirement for unused sick leave.
This proposal would require legislative action. In addition, OPM
believes the ability to use up to 12 weeks of sick leave for family
care purposes will be an additional incentive for employees to conserve
their sick leave for future needs. Since the Government has no short-
term disability insurance program, it is important that employees
conserve sick leave to cover their own periods of illness, as well as
their family care needs.
An individual suggested broadening the leave transfer program to
allow employees to donate their unused sick leave to other employees.
Section 6334(a) of title 5, United States Code, permits Federal
employees to donate or contribute annual leave, but not sick leave, to
another employee who has a personal or family medical emergency.
Therefore, this proposal would require legislative action. In addition,
the ability of employees to use larger amounts of sick leave for family
care purposes should ease the demand for donated leave, making greater
amounts of donated annual leave available to those employees who have
exhausted other available paid leave.
Other Comments
A commenter expressed concern that agencies would look upon
employees who use large amounts of sick leave to care for a family
member as ``leave abusers.'' We believe agencies are aware that the use
of approved sick leave is not leave abuse and is not a basis for an
adverse action. An agency may request medical certification for the use
of sick leave, but if proper certification is provided, the leave must
be approved.
Another commenter argued that the availability of 12 weeks of paid
leave for Federal employees will place the entire burden of family care
on the shoulders of Federal employees. The commenter felt the
Government should pressure private industry to expand its family leave
policies to relieve the burden on Federal employees who are caretakers.
OPM hopes this program will become a model for non-Federal employers by
demonstrating ways to help employees balance their work and family
responsibilities.
A number of agencies and individuals requested that OPM publish a
table or matrix of leave programs that provides a basic overview of
when and under what circumstances employees are entitled to leave under
each of the various leave programs. The labor organization recommended
that a special effort be made to provide training and resources to help
agency personnel offices answer managers' and employees' questions
concerning these regulations and their interactions with various
family-friendly leave programs in the Government. OPM currently offers
leave workshops to assist agencies and employees in understanding and
administering the Government's family-friendly leave programs. Dates
for future workshops are available on OPM's website at www.opm.gov\.\
In addition, we have developed, and will continue to develop, fact
sheets and matrix tables on the various Federal leave programs. These
materials are available on OPM's website at www.opm.gov\loca\leave. In
the near future, we will issue additional guidance and a series of
examples on how to apply the different leave provisions.
Two commenters thought the Government should grant new mothers paid
maternity leave in addition to their accrued sick leave. They pointed
to companies in the private sector that offer this type of paid leave
benefit. Many private sector companies provide employees with a limited
amount of sick leave each year (which may or may not accumulate for use
in succeeding years) and short-term disability insurance that may be
used for maternity purposes. Generally, short-term disability insurance
programs replace only a portion--typically 60 to 70 percent--of an
employee's income while disabled and provide coverage for a maximum of
6 months. Like some of the other ideas raised by other commenters,
legislative action would be required to establish such a program. We
believe the Government's generous sick leave and annual leave system,
in conjunction with advanced sick and annual leave, the leave transfer
and leave bank programs, flexible work schedules, flexiplace, unpaid
leave under the Family and Medical Leave Act of 1993, and compensatory
time off enable the vast majority of Federal employees to meet their
personal and family medical needs.
One agency commented that the leave provisions alone are confusing
in themselves and that the variations and interworkings of these
programs have become even more complicated and cumbersome. Several
agencies recommended that OPM take the initiative to review Federal
leave programs and combine and streamline where possible, including
pursuing legislative change if necessary. In an effort to provide
agencies with more flexibility in the way employees are compensated and
to simplify compensation administration, OPM has embarked on a
strategic compensation initiative. The goal of the initiative is to
develop legislation to improve the Federal compensation system. This
initiative will include recommendations
[[Page 37239]]
for improving and simplifying paid time off programs.
Effective Date of Regulations
Three commenters requested that OPM make the final regulations
effective retroactively--on the date of President Clinton's memorandum
(May 24, 1999), at the beginning of this fiscal year (October 1, 1999),
or at the beginning of this calendar year (January 1, 2000). The labor
organization recommended that every effort be made to ensure the
changes are implemented immediately, since employees continue to suffer
under the current limitation of 13 days of sick leave each year for
family care purposes. However, an agency requested delaying the
effective date of the final regulations to permit additional time for
reprogramming its payroll and accounting system to accommodate the
expanded use of sick leave for family care purposes.
Because the implementation of a new sick leave policy requires
changes in OPM's Governmentwide sick leave regulations, we must follow
the procedural requirements of the Administrative Procedure Act (APA).
The APA generally calls for a 30-day delay in the effective date of any
regulatory change following the publication of final regulations. The
issuance of retroactive regulations is neither the preferred nor usual
method for rulemaking. Retroactivity in rulemaking is permissible where
Congress has expressly authorized it in law, but that is not the case
here. To enable employees to use this expanded benefit immediately, we
are modifying the requirement to delay the effective date of the final
regulations so that they can become effective 7 days after the date of
publication in the Federal Register.
Waiver of Delay in Effective Date
Pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists to
make this rule effective in less than 30 days. We continue to receive
inquiries from employees, agency officials, and other interested
parties who are experiencing a family medical emergency and need
additional paid time off. To accommodate the pressing need for this
benefit, we are making these regulations effective 7 days after the
date of publication.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will affect only Federal agencies and employees.
E.O. 12866, Regulatory Review
The Office of Management and Budget has reviewed this rule in
accordance with Executive Order 12866.
Family Assessment Certification
I certify that these regulations would strengthen the stability of
the family, help families meet their responsibilities, and increase the
disposable income of families in accordance with section 654 of the
Treasury and General Government Appropriations Act, 1999, as contained
in section 101(h) of Public Law 105-277, the Omnibus Consolidated and
Emergency Supplemental Appropriations Act, 1999.
List of Subjects in 5 CFR Part 630
Government employees.
Office of Personnel Management.
Janice R. Lachance,
Director.
Accordingly, OPM is amending part 630 of title 5 of the Code of
Federal Regulations as follows:
PART 630--ABSENCE AND LEAVE
1. The authority citation for part 630 continues to read as
follows:
Authority: 5 U.S.C. 6311; Sec. 630.301 also issued under Pub.
L. 103-356, 108 Stat. 3410; Sec. 630.303 also issued under 5 U.S.C.
6133(a); Secs. 630.306 and 630.308 also issued under 5 U.S.C.
6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-337,
108 Stat. 2663; subpart D also issued under Pub. L. 103-329, 108
Stat. 2423; Sec. 630.501 and subpart F also issued under E.O. 11228,
30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5
U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I
also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834,
and Pub. L. 103-103, 107 Stat. 1022; subpart J also issued under 5
U.S.C. 6362, Pub. L. 100-566, and Pub. L. 103-103; subpart K also
issued under Pub. L. 105-18, 111 Stat. 158; subpart L also issued
under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23; and subpart M
also issued under 5 U.S.C. 6391 and Pub. L. 102-25, 105 Stat. 92.
Subpart B--Definitions and General Provisions for Annual and Sick
Leave
2. In Sec. 630.201(b), a new definition of serious health condition
is added in alphabetical order to read as follows:
Sec. 630.201 Definitions.
* * * * *
Serious health condition has the meaning given that term in
Sec. 630.1202.
* * * * *
Subpart D--Sick Leave
3. In Sec. 630.401, the introductory text of paragraph (a) and
paragraphs (a)(3) and (b) are revised; paragraphs (c) through (e) are
redesignated as paragraphs (e) through (g), respectively; in newly
redesignated paragraph (f), ``(c)'' is removed and ``(d)'' is added in
its place wherever it appears; and new paragraphs (c) and (d) are added
to read as follows:
Sec. 630.401 Grant of sick leave.
(a) Subject to paragraphs (b) through (f) of this section, an
agency must grant sick leave to an employee when the employee--
* * * * *
(3)(i) Provides care for a family member who is incapacitated by a
medical or mental condition or attends to a family member receiving
medical, dental, or optical examination or treatment; or
(ii) Provides care for a family member with a serious health
condition.
* * * * *
(b) The amount of sick leave granted to an employee during any
leave year for the purposes described in paragraphs (a)(3)(i) and (4)
of this section may not exceed a total of 104 hours (or, in the case of
a part-time employee or an employee with an uncommon tour of duty, the
number of hours of sick leave normally accrued by that employee during
a leave year).
(c)(1) An employee who is caring for a family member with a serious
health condition under paragraph (a)(3)(ii) of this section may use not
more than a total of up to 480 hours of sick leave (or, in the case of
a part-time employee or an employee with an uncommon tour of duty, an
amount of sick leave equal to 12 times the average number of hours in
his or her scheduled tour of duty each week) during a leave year,
subject to the limitation found in paragraph (c)(2) of this section.
(2) If, at the time an employee uses sick leave to care for a
family member with a serious health condition under paragraph (c)(1) of
this section, he or she has used any portion of the sick leave
authorized under paragraph (b) of this section during that leave year,
the agency must subtract that amount from the maximum number of hours
authorized under paragraph (c)(1) of this section to determine the
total amount of sick leave that may be used during the remainder of the
leave year to care for a family member with a serious health condition.
If the employee previously has used the maximum amount of sick leave
permitted under paragraph (c)(1) of this section in a leave year, he or
she is not entitled to use additional sick leave under paragraph (b).
(3) A full-time employee may use not more than a total of 480 hours
of sick
[[Page 37240]]
leave (or, in the case of a part-time employee or an employee with an
uncommon tour of duty, an amount of sick leave equal to 12 times the
average number of hours in his or her scheduled tour of duty each week)
for all family care purposes under paragraphs (a)(3) and (4) of this
section.
(d) For family care purposes as described in paragraphs (a)(3) and
(4) of this section--
(1) A full-time employee may use a total of up to 40 hours (or, in
the case of a part-time employee or an employee with an uncommon tour
of duty, the average number of hours in his or her regularly scheduled
administrative workweek) of accrued and accumulated sick leave without
further regard to his or her sick leave balance.
(2) A full-time employee may use more than 40 hours of his or her
accrued and accumulated sick leave up to the maximum provided by
paragraphs (b) and (c)(1) of this section only if he or she maintains a
sick leave balance of at least 80 hours (or, in the case of a part-time
employee or an employee with an uncommon tour of duty, two times the
average number of hours in his or her regularly scheduled
administrative workweek). An employee must maintain this balance during
any period of time during which the employee is using more than his or
her basic entitlement to sick leave under paragraph (d)(1) of this
section.
(3) An agency may advance only the initial 40 hours of sick leave
under paragraph (d)(1) of this section, or a proportional amount for an
employee with a part-time or uncommon tour of duty. An agency may not
advance sick leave for the purpose of meeting the requirement to retain
a minimum sick leave balance under paragraph (d)(2) of this section or,
if the employee has the required minimum sick leave balance, for using
additional sick leave as provided in paragraphs (b) and (c) of this
section.
* * * * *
4. Section Sec. 630.403 is revised to read as follows:
Sec. 630.403 Supporting Evidence.
(a) An agency may grant sick leave only when supported by
administratively acceptable evidence. Regardless of the duration of the
absence, an agency may consider an employee's certification as to the
reason for his or her absence as administratively acceptable evidence.
For an absence in excess of 3 workdays, or for a lesser period when
determined necessary, the agency may also require a medical certificate
or other administratively acceptable evidence as to the reason for an
absence for any of the purposes described in Sec. 630.401(a).
(b) An agency may establish a uniformly applied policy that
requires employees to provide administratively acceptable evidence or
medical certification for a request for sick leave within a specified
time period. An employee who does not provide the required evidence or
medical certification within the specified time period is not entitled
to sick leave.
(c) An agency may require an employee requesting sick leave to care
for a family member under Sec. 630.401(a)(3)(ii) to provide an
additional written statement from the health care provider concerning
the family member's need for psychological comfort and/or physical
care. The statement must certify that--
(1) The family member requires psychological comfort and/or
physical care;
(2) The family member would benefit from the employee's care or
presence; and
(3) The employee is needed to care for the family member for a
specified period of time.
Sec. 630.405 Use of sick leave during annual leave or to become
eligible for donated leave.
5. In Sec. 630.405, paragraph (a) is amended by removing ``(e)''
and adding in its place ``(f),'' by removing the last sentence in
paragraph (b), and by revising paragraph (c) to read as follows:
* * * * *
(c) In the case of an employee already in a shared leave status
(i.e., using donated annual leave) on June 20, 2000 under the voluntary
leave transfer or leave bank programs established under subchapters III
and IV of chapter 63 of title 5, United States Code, any sick leave
available to care for a family member under Sec. 630.401 must be used
before continuing to use transferred annual leave or annual leave
withdrawn from a leave bank.
Subpart L--Family and Medical Leave
Sec. 630.1202 Definitions.
6. In Sec. 630.1202, paragraph (1)(ii)(B) of the definition of
serious health condition is revised to read as follows:
* * * * *
Serious health condition. (1) * * *
(ii) * * *
(B) Any period of incapacity due to pregnancy or childbirth, or for
prenatal care, even if the affected individual does not receive active
treatment from a health care provider during the period of incapacity
or the period of incapacity does not last more than 3 consecutive
calendar days.
* * * * *
[FR Doc. 00-14857 Filed 6-12-00; 8:45 am]
BILLING CODE 6325-01-P