OPM Regulation:
5 CFR 630 Subpart L (630.1201-630.1211)

Effective Date:
5 August 93

1. allow employees to balance work and family life,
2. promote stability and economic security of families, and
3. promote the national interest in preserving family integrity.

• Title I covers non-Federal employees & certain Federal employees not covered by Title II. DOL Regulations published in 29 CFR 825.
• Title II covers most Federal employees covered by the annual and sick leave system established under Title 5 USC Chapter 63. OPM Regulations published in 5 CFR 630 Subpart L.
• Title III establishes a Commission on Leave.
• Title IV contains miscellaneous provisions, including rules governing the effect of the Act on more generous leave policies, other laws, existing employment benefits.
• Title V provides entitlement to family medical leave for certain employees of the U.S. Senate and House of Representatives.

Eligible Employees:
Under Title II of the FMLA, Federal employees, as defined by: 5 USC 6301(2),

Exclusions from Title II Coverage:
Employees serving under a temporary appointment with a time limitation of 1 year or less, and intermittent employees as defined in 5 CFR 340.401(c), are covered by Title I of the Act and are subject to DOL regulations.

• Service covered by the annual & sick leave system established under Title 5 USC Chapter 63
• Up to 6 months of LWOP counts toward the 12-month service requirement.

• Employment with the DC Government
• Military Service (other than military duty performed while in a civilian position)
• Positions covered by Title I (Temporary and Intermittent Appointments) or Title V (certain employees of the U.S. Senate & House of Representatives) of the FMLA.

Entitlement:
Full-time and part-time employees who have completed 12 months of Federal service are entitled to FMLA. A total of 12 administrative workweeks will be made available to a full-time employee. A part-time employee is entitled to leave under FMLA calculated on an hourly basis that will equal 12 times the average number of hours in the employee’s regularly scheduled administrative workweek - for example: if the employee works 20 hours per workweek, the employee is entitled to 240 hours of leave under the Family and Medical Leave Act.

• Birth of Child of employee (father and/or mother) and care of such child (entitlement may begin before birth or placement date of child and ends 12 months after birth or placement date)
• Adoption or foster care placement of a child with the employee
• The care of a spouse, son, daughter, or parent of the employee, if such spouse, son, daughter or parent has a serious health condition
• Serious health condition of employee that makes employee unable to perform one or more of the essential functions of employee’s position.

Employee Protections:
The employee's job benefits are protected. The agency must return the employee to the same position, or an equivalent position (defined as a position with equivalent benefits, pay, status, other terms and conditions of employment as the position left, which requires a correspondence between the duties & other terms, conditions, privileges of previous position, encompasses all terms and conditions of employment). FMLA leave does not include intangible or immeasurable aspects and does not protect the employee from RIFs or expired appointments.

Additionally, an employee's request for and or use of leave under the FMLA does not prevent an agency from taking appropriate action under 5 CFR part 432 or 5 CFR part 752. Pending adverse actions or performance-based actions may be taken and made effective even if the employee is taking FMLA leave.

Definitions:

Adoption - Refers to a legal process in which an individual becomes the legal parent of another person’s child.

Foster Care - 24-hour care for children in substitution for, and away from, their parents or guardian. Such placement is made by or with the agreement of the State as a result of a voluntary agreement by the parent or guardian that the child be removed from the home, or pursuant to a judicial determination of the necessity for foster care, and involves agreement between the State and foster family to take the child.

Serious Health Condition - An illness, injury, impairment, or physical or mental condition that involves:

• any period of incapacity or treatment in connection with or consequent to inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility;
• any period of incapacity requiring absence from work, school, or other regular daily activities, of more than 3 consecutive calendar days, that also involves continuing treatment by (or under the supervision of) a health care provider; or
• continuing treatment by (or under the supervision of) a health care provider for a chronic or long-term health condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than 3 consecutive calendar days; or for prenatal care.

Health Care Provider -

1. A licensed Doctor of Medicine or Doctor of Osteopathy or a physician who is serving on active duty in the uniformed services and is designated by the uniformed service to conduct examinations under this subpart;

2. Any health care provider recognized by the Federal Employees Health Benefits Program or who is licensed or certified under Federal or State law to provide the service in question;

3. A health care provider as defined in paragraph (2) of this definition who practices in a country other than the United States, who is authorized to practice in accordance with the laws of that country, and who is performing within the scope of his or her practice as defined under such law;

4. A Christian Science practitioner listed with the First Church of Christ, Scientist, in Boston, Massachusetts; or

5. A Native American, including an Eskimo, Aleut, and Native Hawaiian, who is recognized as a traditional healing practitioner by native traditional religious leaders who practice traditional healing methods as believed, expressed, and exercised in Indian religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, consistent with Public Law 95-314, August 11, 1978 (92 Stat. 469), as amended by Public Law 103-344, October 6, 1994 (108 Stat. 3125).

Continuing Treatment - One or more of the following situations where the employee or family member:

1. is treated 2 or more times by a health care provider, under the direct supervision of the affected individual’s health care provider, or by a provider of health care services under orders of, or on referral by, a health care provider; or
2. is treated by a health care provider at least 1 time which results in a regiment of continuing treatments under the supervision of the health care provider (for example, a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition;

• An employee must invoke entitlement to FMLA. When the need for leave is foreseeable, the employee must provide notice to the agency not less than 30 calendar days before the leave commences. An employee may not retroactively invoke his or her entitlement to family and medical leave.
  However, if an employee and his or her personal representative are physically or mentally incapable of invoking the employee’s entitlement to FMLA leave during the entire period in which the employee is absent from work for an FMLA qualifying purpose, the employee may retroactively invoke his or her entitlement to FMLA leave within 2 workdays after returning to work. Upon returning to work, the employee must submit a written medical certification from health care provider and documentation explaining the inability of her or her personal representative to contact the agency to invoke the employee’s entitlement to FMLA leave during the entire period in which the employee was absent from work for an FMLA-qualifying purpose.
• Must meet criteria and comply with requirements/obligations under FMLA.
• May elect to substitute paid time off for LWOP under FMLA, but may not retroactively substitute paid time off for LWOP under FMLA. (Exception: Donated annual leave may be substituted retroactively for LWOP under FMLA.)
• Must obtain approval and/or meet statutory requirements to take additional leave or other periods of paid time off.
• An employee must provide notice of his or her intent to take family and medical leave not less than 30 days before leave is to begin or, in emergencies, as soon as it is practicable.
• An employee must provide written medical certification signed by a health care provider no later than 15 calendar days after the date requested by agency.
• If it is not practicable under the particular circumstances to provide the requested medical certification signed by a health care provider within 15 days after the date requested by the agency, the employee must provide the medical certification within a reasonable period of time under the circum-stances involved, but no later than 30 calendar days after the date the agency requests such medical certification.
• Please note: If an employee does not comply with the notification requirements in 5 CFR 630.1206, and does not provide medical certification signed by a health care provider that includes all the information required in 5 CFR 630.1207(b) then the employee is not entitled to FMLA.

• Must advise employees of FMLA rights and obligations.
• May not require employee to invoke entitlement to FMLA leave.
• May not deny FMLA leave if employee meets criteria and has complied with requirements/obligations.
• Must confirm the employee is invoking entitlement to FMLA leave before subtracting any hours of leave from the employee's entitlement to 12 administrative workweeks of FMLA leave.
• Once an employee has invoked his or her entitlement to FMLA leave and has provided all the necessary notifications and certifications for agency approval, an agency may not deny an employee' request to substitute annual leave. Likewise, an agency may not deny the employee's request to substitute sick leave if the use of sick leave is consistent with current law and regulations.
• An agency may require that a request for leave as a result of the birth of a son or daughter and care of such child or the placement of a son or daughter with the employee for adoption or foster care, be supported by evidence that is administratively acceptable to the agency.
• An agency many require that a request for leave to care for a spouse, son, daughter, or parent of the employee suffering from a serious health condition or if the employee is suffering from a serious health condition(s) that make the employee unable to perform the functions of his or her position, be supported by written medical certification issued by the health care provider.
• With the employee's permission, a health care provider representing the agency may contact the health care provider of the employee to clarify medical information pertaining to the condition. The information of the medical certification must relate only to the serious health condition for which the current need for family and medical leave exists.
• The law provides for action to be taken if an agency doubts the validity of the certification by permitting agencies to request a second and third opinion. The opinion of the third health care provider is deemed binding.
• FMLA be supported by written medical evidence. Must maintain information on:

1. employee's rate of basic pay defined in 5 CFR 550.103(j),
2. occupational series of the employee's position,
3. number of hours of FMLA leave taken, and
4. purpose for taking FMLA leave; i.e., family leave or medical leave.

• LWOP under FMLA is in addition to annual, sick, advanced annual or sick, other LWOP, leave made available to an employee under the voluntary leave sharing programs, and compensatory time off or credit hours available to an employee. The employee may elect to substitute annual or sick leave for the LWOP. However, such substitution must be consistent with current law and regulations governing the granting and use of annual or sick leave. Advanced annual or sick leave may also be granted under the same terms and conditions that apply to any other agency employee who requests advanced annual or sick leave. The agency may not require an employee to substitute paid leave for LWOP.
• Any holidays authorized under 5 U.S.C. 6103 or by Executive order and nonworkdays established by Federal statute, Executive order, or administrative order that occur during the period in which the employee is on FMLA may not be counted toward the 12-week entitlement to FMLA.
• An agency may not put an employee on FMLA and may not subtract leave from an employee’s entitlement to FMLA unless the agency has obtained confirmation from employee of his or her intent to invoke FMLA.
• An agency may require at its own expense subsequent medical recertification on a periodic basis, but not more than once every 30 calendar days for leave taken for purposes relating to pregnancy, chronic conditions, or long-term conditions as defined in the definition of serious health condition in 5 CFR Sec.630.1202.
• Advanced annual leave, advanced sick leave, donated leave under the Voluntary Leave Transfer Program, earned compensatory time, and credit hours accrued under a flexible work schedule may be substituted for all or part of the 12-week entitlement to unpaid leave.

FEHB Entitlement:
Coverage can be provided while in LWOP status:

• LWOP is less than or equal to 365: pay on current basis or debit account
• LWOP is greater than 365: pay on current basis

Coverage is terminated for nonpayment, however, employee may reenroll upon returning to pay and duty status. (See Benefits Administration Letter 96-207 regarding procedures for payment of health benefits premiums during periods of LWOP.)

Expanded FMLA:

President Bill Clinton's memorandum dated 4/11/97 requested and encouraged federal agencies to use a partnership approach with their employees and their representatives in developing an effective family friendly leave program that helps employees meet their needs at both work and home. Using current existing administrative authorities federal agencies are encouraged to ensure that employees may schedule and be granted up to 24 hours of leave without pay for three purposes:

1. to participate in school activities directly related to the educational advancement of a child;
2. to accompany their children to routine medical or dental appointments, such as annual checkups and vaccinations; and
3. to accompany their elderly relative to routine medical or dental appointments or other professional services related to the care of the elderly relative, such as making arrangements for housing, meals, telephones, banking services, and other similar activities.

In addition, the President asked agencies to support employees' requests to schedule paid time off, such as annual leave, sick leave, compensatory time off, and credit hours under flexible work schedules for these family activities when these options are available to the employee. However, supervisors continue to have discretion to grant employees time off. Each request for leave should continue to be evaluated in terms of whether the employee's services are required or can be spared during the time period covered by the leave request. The intent is to grant employees leave, for purposes mentioned above, unless circumstance exist that would severely limit an agency's ability to accomplish its mission. Agencies currently have discretionary authority to establish time frames within which employee must schedule and request leave. Agencies may continue to use these same policies for scheduling and requesting leave or other time off.

REF: See above