[Federal Register Volume 75, Number 232 (Friday, December 3, 2010)]
[Rules and Regulations]
[Pages 75363-75373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30371]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 /
Rules and Regulations
[[Page 75363]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630
RIN 3206-AL91
Absence and Leave; Sick Leave
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The U.S. Office of Personnel Management is issuing final
regulations on the use of sick leave and advanced sick leave for
serious communicable diseases, including pandemic influenza when
appropriate. We are also permitting employees to substitute up to 26
weeks of accrued or accumulated sick leave for unpaid Family and
Medical Leave Act (FMLA) leave to care for a seriously injured or ill
covered servicemember, as authorized under the National Defense
Authorization Act for Fiscal Year 2008, including up to 30 days of
advanced sick leave for this purpose. Finally, we are reorganizing the
existing sick leave regulations to enhance reader understanding and
administration of the program.
DATES: Effective Date: These regulations are effective on January 3,
2011.
FOR FURTHER INFORMATION CONTACT: Doris Rippey by telephone at (202)
606-2858; by fax at (202) 606-0824; or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management
(OPM) is issuing final regulations to address: (1) The use of sick
leave for exposure to a communicable disease, (2) the purposes for and
limitations on the use of advanced sick leave, and (3) the substitution
of up to 26 weeks of sick leave for unpaid Family and Medical Leave Act
(FMLA) leave to care for a seriously injured or ill covered
servicemember. These changes are incorporated into 5 CFR part 630,
subpart D.
Please note that these final regulations are in response to only a
portion of OPM's proposed regulations (74 FR 43064) issued on August
26, 2009, to implement section 585(b) of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2008 (Pub. L. 110-181,
January 28, 2008) that amended the FMLA provisions in 5 U.S.C. 6381-
6383 to provide that a Federal employee who is the spouse, son,
daughter, parent, or next of kin of a covered servicemember with a
serious injury or illness is entitled to up to a total of 26
administrative workweeks of unpaid FMLA leave during a single 12-month
period to care for the covered servicemember. Comments received on the
portion of the proposed rules at 5 CFR part 630, subpart L, will be
addressed in a separate publication. The proposed regulations in their
entirety are available at http://edocket.access.gpo.gov/2009/E9-20610.htm.
Subsequent to the publication of our proposed regulations issued on
August 26, 2009, the NDAA for FY 2010 (Pub. L. 111-84, October 28,
2009) made additional amendments to the FMLA provisions in 5 U.S.C.
6381-6383. These amendments: (1) Provide a new entitlement to
qualifying exigency leave for Federal employees covered by OPM's FMLA
regulations under title II of the FMLA parallel to the entitlement
provided to employees covered by the Department of Labor's (DOL's) FMLA
regulations under title I of the FMLA, and (2) expand the coverage for
the 26-week entitlement for family members to care for a covered
servicemember undergoing medical treatment, recuperation, or therapy,
for a serious injury or illness by amending the definitions of
``covered servicemember'' and ``serious injury or illness.''
Incorporating these changes into OPM's FMLA regulations requires
consultation with the Department of Defense and the Department of
Veterans Affairs. Since 5 U.S.C. 6387 requires OPM to prescribe
regulations consistent, to the extent appropriate, with the regulations
prescribed by the Secretary of Labor to carry out title I of the FMLA,
it will not be possible for OPM to issue regulations implementing the
NDAA for FY 2008 and 2010 changes until DOL issues its final FMLA
regulations implementing the NDAA for FY 2010 FMLA amendments.
Therefore, we have decided to separate the FMLA portion (subpart L)
from the sick leave portion (subpart D) of the proposed regulations.
This will allow OPM to expedite the final sick leave regulations,
providing agencies and employees with additional flexibilities in
planning for serious communicable diseases, including pandemic
influenza when appropriate, by permitting the use of sick leave and
advanced sick leave if the employee or his or her family member is
exposed to a serious communicable disease that would jeopardize the
health of others.
The 60-day comment period ended on October 26, 2009. A total of 12
comments were received addressing the changes to the sick leave
regulations under 5 CFR part 630, subpart D, from five agencies, three
labor organizations, two professional organizations, and two
individuals. The overall comments were overwhelmingly positive and
support the changes recommended to our sick leave regulations. The
following responds to the comments received on our proposed regulation.
Use of Sick Leave for Exposure to a Communicable Disease
In our guidance ``Human Resources Flexibilities Available to Assist
Federal Employees During Emergencies'' (CPM 2009-09, May 5, 2009), OPM
reminded agencies of the policies and procedures developed in planning
for a pandemic influenza and provided references to a substantial
amount of information and advice on human resources (HR) rules and
flexibilities available on OPM's Web site. See http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2248. During a
pandemic influenza or other emergency situation, Federal agencies will
be expected to achieve two equally important goals: (1) Protect the
Federal workforce, and (2) ensure the continuity of operations. OPM's
Web site contains significant guidance, developed in consultation with
the Centers for Disease Control and Prevention (CDC), on keeping the
Federal workforce healthy during a pandemic influenza by employing
social distancing interventions (as warranted by the severity of the
pandemic) such as telework, alternative work schedules, evacuation, and
various leave flexibilities. In particular, supervisors
[[Page 75364]]
should encourage telework and alternative work schedules to help
prevent the spread of flu in their workplace during a severe pandemic.
This will allow employees to continue to work or function while
limiting contact with others, help maintain continuity of operations,
and help employees manage their health and their family's needs. Before
approving a particular leave option, federal supervisors should review
applicable policies set forth in collective bargaining agreements and
agency-specific human resource guidance. See http://www.opm.gov/pandemic/. These final regulations provide another tool for agencies to
use for social distancing purposes that will help protect the Federal
workforce. The current sick leave regulations allow an employee to use
sick leave if health authorities or a health care provider determine
that the employee's presence on the job would jeopardize the health of
others because of exposure to a communicable disease. The final
regulations allow an employee to use sick leave to care for a family
member who has been similarly exposed.
Two labor organizations, two professional organizations, and one
individual were very supportive of the proposed change made to this
portion of the regulations to allow an employee to use sick leave to
care for a family member who has been exposed to a communicable disease
when it has been determined by the health authorities having
jurisdiction or by a health care provider that the family member's
presence in the community would jeopardize the health of others because
of the family member's exposure to a communicable disease. The two
professional organizations strongly approved of the positive steps
taken that make Federal sick leave as flexible as possible to deal with
the threat of infectious disease. They also supported advancing sick
leave to employees and allowing employees to use sick leave to care for
family members who have been exposed to a communicable disease. A labor
organization noted that these changes will help Federal employees
protect themselves, their family members, and their co-workers from
contracting and spreading a serious communicable disease.
Definition of Communicable Disease
The use of sick leave due to exposure to a communicable disease
would be limited to circumstances where exposure alone would jeopardize
the health of others and would only arise in cases of serious
communicable diseases, such as communicable diseases where Federal
isolation and quarantine are authorized. Isolation means the separation
of persons who have a specific infectious illness from those who are
healthy and the restriction of their movement to stop the spread of
that illness. Quarantine means the separation and restriction of
movement of persons who, while not yet ill, have been exposed to an
infectious agent and therefore may become infectious. As mentioned in
the supplementary information accompanying the proposed regulations,
the current consolidated list of communicable diseases for which
Federal isolation and quarantine are authorized includes (as determined
by the Secretary of Health and Human Services and published in
Executive order): Cholera, diphtheria, infectious tuberculosis, plague,
smallpox, yellow fever, viral hemorrhagic fevers, Severe Acute
Respiratory Syndrome (SARS), and influenza that causes or has the
potential to cause a pandemic. (See Executive Order 13295, as amended
by Executive Order 13375, consistent with 42 U.S.C. 264(b).) This
provides an illustrative, but not exhaustive, list of the types of
serious communicable diseases where exposure alone would jeopardize the
health of others, thereby allowing the use of sick leave for exposure
to a communicable disease.
While the list of serious communicable diseases was not included in
the text of the proposed regulations, OPM requested comments on whether
additional changes to the regulatory text would help clarify the
limited cases in which the situation would meet the threshold of
communicable disease. We received responses from three agencies and two
professional organizations. Generally, agencies requested that the list
of communicable diseases provided in the supplementary information
accompanying the proposed regulations be included in the regulations
themselves. In contrast however, one labor organization and one
professional organization did not believe additional regulatory
language was necessary since the narrowness of the term communicable
disease is evident from the determination that must be made by the
health authorities or a health care provider that the employee or
family member could jeopardize the health of others because of his or
her exposure to a communicable disease. They believe we should maintain
flexibility for new and emerging infectious diseases which may not yet
be on the current list for which Federal isolation and quarantine are
authorized. The labor organization stated that the proposed language
would preserve the necessary flexibility to adapt rapidly if new
communicable diseases emerge.
While we understand the agencies' request for more information in
the regulatory text, the CDC list of communicable diseases where
Federal isolation and quarantine are authorized may be updated as
vaccinations are developed or when influenza mutates into new strains
that have the potential to cause a pandemic. The Administrative
Procedures Act establishes rules for the regulatory process, which
would mean that, if the list were included in the regulations, OPM
would not be able to update the list of communicable diseases in a
timeframe that is useful to our customers. For the reasons listed
above, OPM is not adding this list to its regulations. As a result,
when reviewing a request for sick leave for exposure to a communicable
disease, we strongly encourage agencies to refer to CDC's Web site for
the current list of communicable diseases for which Federal isolation
and quarantine are authorized.
Determinations of Communicable Disease--Pandemic Influenza
Determinations of communicable disease are made by the CDC. While
influenza that causes or has the potential to cause a pandemic may be
on the list of serious communicable diseases for which Federal
isolation and quarantine are authorized, influenza will not
automatically meet the criteria of a communicable disease for sick
leave purposes. Influenza that has the potential to cause a pandemic is
very broad and can encompass many variations of the flu. However, to
highlight the limited circumstances in which this new sick leave
provision would apply, pandemic influenza would not meet the threshold
of a serious communicable disease until the CDC has declared that
exposure alone is enough to jeopardize the health of others. During a
potential pandemic influenza, the CDC will assess the risk factors of
the influenza, provide guidance to health authorities and health care
providers on pandemic status, and recommend appropriate guidelines to
prevent the spread of the influenza. OPM will work with the CDC to
provide agencies and employees with ongoing information regarding the
impact of the pandemic influenza on the health of the Federal workforce
and the appropriate use of HR flexibilities to keep employees safe.
While agencies have the discretion to administer their sick leave
programs, they should await specific guidance from the appropriate
[[Page 75365]]
officials (e.g., CDC, OPM) to determine whether the use of sick leave
is appropriate for exposure to a communicable disease. The use of sick
leave for exposure to a communicable disease should be used only in
very limited circumstances, and agencies should not grant sick leave
for this purpose until they receive guidance from the appropriate
officials.
For example, for the 2009-2010 H1N1 influenza season, the CDC has
provided ongoing guidance designed to prevent the spread of the
influenza in the workplace. Because there was no determination that
exposure alone would jeopardize the health of others, the CDC advised
that an employee could continue to go to work if a member of the
employee's household had contracted 2009-2010 H1N1 influenza. OPM also
issued workplace guidance entitled ``Pandemic Influenza 2009:
Additional Guidance'' (CPM 2009-14, July 31, 2009) and collaborated
with the CDC in issuing ``Preparing for the Flu--A Communication
Toolkit for the Federal Workforce.'' See documents at http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2452
and http://www.flu.gov/professional/federal/workplace/federal
toolkit.pdf, respectively. Following CDC guidance that exposure to
2009-2010 H1N1 influenza would not jeopardize the health of others,
agencies should not have granted any employee exposed to H1N1 influenza
sick leave for exposure to communicable disease. Should an influenza
become more serious and require quarantine of exposed individuals, the
CDC would issue guidance on the procedures to be followed. Based on
that information, OPM would issue appropriate guidance to keep Federal
employees safe while maintaining continuity of operations.
Determinations of Communicable Disease--Non-Pandemic
For examples of non-pandemic diseases that automatically meet the
criteria of a serious communicable disease for sick leave purposes,
agencies should refer to the CDC list of communicable diseases for
which Federal isolation and quarantine are authorized. Excluding
influenza that causes or has the potential to cause pandemic, for the
reasons cited previously, the CDC has already determined that an
individual's exposure to any of the other listed diseases would
jeopardize the health of others. A health authority or health care
provider can then advise that an employee or his or her family member
has been exposed to a communicable disease that would jeopardize the
health of others. If the disease is not on the CDC list of communicable
diseases for which Federal isolation and quarantine are authorized, and
a health authority or health care provider has concerns that an
employee's or employee's family member has been exposed to a
communicable disease that could jeopardize the health of others at the
workplace or in the community, the health authority or health care
provider should contact CDC for evaluation of the risk factors and
further recommendations.
Health Authority or Health Care Provider
One agency asked OPM to emphasize that a relevant health authority
or health care provider must make a determination that the family
member's presence in the community could put others' health at risk. We
believe the proposed regulations at 5 CFR 630.401(a)(3)(iii) stating
that sick leave is authorized when an employee ``provides care for a
family member * * * (iii) who would, as determined by the health
authorities having jurisdiction or by a health care provider,
jeopardize the health of others by that family member's presence in the
community because of exposure to a communicable disease'' already
addressed this issue. Therefore, we are making no changes in the final
regulations.
Another agency asked for a definition of ``health authorities.'' We
do not believe adding a definition of health authorities to the
regulations would be helpful. Communicable diseases can cover
widespread geographic areas, but may also be localized in scattered
outbreaks. The health authorities having jurisdiction may be different,
depending on the area affected by the communicable disease. Guidance on
a widespread communicable disease would be issued by the CDC. Scattered
outbreaks of a communicable disease would be handled by Federal, State
or local health authorities.
Requirement for Medical Documentation
One agency and one professional organization questioned the type of
medical certification required to support a request for sick leave due
to exposure to communicable disease, if any. Another agency asked if
exposure to a communicable disease is to be treated as a serious health
condition for purposes of medical documentation requirements. Another
agency asked whether ``one's personal physician stating the person is
contagious'' is all that is required to grant sick leave to care for a
family member who has been exposed to a communicable disease.
In a memorandum to Chief Human Capital Officers on January 29,
2010, (CPM-2010-02) at http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalId=2831, OPM noted that if influenza
becomes widespread in a given geographic area, the demands on medical
providers and facilities would be great, and employees may have
difficulty obtaining timely documentation to support their requests for
use of sick leave. If that occurs, agencies should consider relaxing
sick leave documentation requirements. OPM's regulations do not require
medical certification when granting sick leave. See Sec. 630.403 of
the current regulations (redesignated as Sec. 630.405 in these final
regulations). Agencies have both the flexibility and the specific
authority to administer their programs as circumstances dictate.
Accordingly, OPM recommends relaxing any agency-imposed medical
certification requirements for sickness or exposure to influenza during
a pandemic influenza, and an employee should not be required to seek
medical examination for the purpose of obtaining medical documentation
for sick leave--agencies should monitor official announcements by
Federal, State, or local public health authorities, and/or tribal
governments related to exposure to pandemic influenza. OPM does
recognize, however, that medical certification may remain necessary for
employees on leave restriction. For exposure to a communicable disease
other than pandemic influenza, agencies may follow their established
sick leave policies.
One professional organization recommended that, during an outbreak
of pandemic influenza or other communicable disease, agencies should be
able to verify employees' conditions through call centers or other
contingent operations that may be developed during a severe pandemic.
OPM would consider this an acceptable form of communication that could
be adopted by agencies.
Requirement To Actively Provide Care for Family Member
One labor organization questioned OPM's intent in specifying that
an employee must be actively providing care for a family member when
taking sick leave to care for a family member who has been exposed to a
communicable disease. The organization wanted to know whether OPM
intended to require that an
[[Page 75366]]
employee be the sole provider of care. In the example we cited in the
Supplementary Information that accompanied the proposed regulations,
the employee is providing care for a minor child who is not exhibiting
any symptoms, but a determination has been made by the relevant health
authorities or the health care provider that the child's presence at
daycare or at school could jeopardize the health of others because of
the child's exposure to that communicable disease. Since the employee
would not be providing care for a sick family member, but one who is
asymptomatic, the employee may request sick leave only if the exposed
family member could not otherwise care for himself or herself (e.g., a
minor child, or elderly relative). Although the employee does not need
to be the sole provider of care, the employee must be providing care
actively to the family member in order to invoke sick leave to care for
the family member exposed to a communicable disease. In contrast, it
would not be appropriate for the employee to invoke sick leave to care
for an able-bodied spouse who has been exposed to a communicable
disease, but is not exhibiting any symptoms, since the employee would
not need to provide care actively to the spouse. If the exposed family
member contracts the communicable disease and becomes ill, the employee
is entitled to use up to 13 days of sick leave for general family care
or up to 12 weeks for care of a family member with a serious health
condition, depending on the severity of the illness.
Definition of Family Member
OPM received two requests to expand the definition of family member
used for sick leave purposes. One labor organization mentioned that
family units have evolved in modern times. A professional organization
requested the inclusion of a primary guardian. Although these requests
are outside the scope of these regulatory changes, we note that since
the publication of these proposed regulations, the definition of family
member for sick leave purposes found at Sec. 630.201 has been
expanded. On June 14, 2010, OPM issued final regulations (75 FR 33491)
amending the definition of family member for sick leave purposes to now
cover grandparents and grandchildren, same-sex and opposite domestic
partners, step parents, step children, foster, guardianship, and other
relationships. The final regulations are available at http://www.gpo.gov/fdsys/pkg/FR-2010-06-14/pdf/2010-14252.pdf.
Employee's Return to Work
One agency asked if an employee who has been exposed to a
communicable disease will have to provide a release from a health care
provider declaring the employee is healthy enough to return to work.
Agencies cannot require a medical release form from the employee's
physician unless the employee's position has specific medical standards
or physical requirements, or unless it is covered by a medical
evaluation program under Sec. 339.301(b)(3). Most positions do not
have established physical or medical requirements. If the employee's
position requires a medical examination and the employee refuses the
exam, he or she may be disciplined, up to and including removal from
Federal service. However, since the current regulations at Sec.
630.403(a) (redesignated as Sec. 630.405(a) in these final
regulations) provide that an agency may request administratively
acceptable documentation to support an employee's request for sick
leave, even for an employee whose position does not have an established
physical or medical requirement, an agency could ask that the
documentation include a date on which the employee's presence on the
job would no longer jeopardize the health of others, i.e., the date on
which the employee would be considered no longer contagious. Similar
documentation could be required to support an employee's use of sick
leave to care for a family member who has been exposed to a
communicable disease showing the date on which the family member's
presence in the community would no longer jeopardize the health of
others.
Request for Additional Sick Leave for Communicable Disease
One individual, who supports the new rule, would like the Federal
Government to provide up to 40 hours of additional paid sick leave to
employees with ``serious infectious illnesses.'' The commenter argues
this new category of sick leave would be particularly helpful to
employees who have no sick leave due to prior serious illness or
maternity leave. This request is outside the scope of OPM's regulatory
authority. A statutory change would be required to create such a new
entitlement. However, under current authorities, employees without sick
leave may invoke their FMLA entitlement (a serious infectious illness
would likely qualify as a serious health condition) and may be granted
annual leave, advanced sick leave, advanced annual leave, or leave
without pay. If they have exhausted their available paid leave, they
could request donated leave under the voluntary leave transfer and/or
leave bank programs.
Federal Contractors
Two professional organizations would like OPM to require that all
Federal contractors be provided sick leave during public health
emergencies. One of the organizations noted that OPM's proposed rules
are intended to protect Federal workers, maintain continuity of
operations, and minimize the cost and risk from an infectious disease
outbreak, and that the same goals are true for contractors assigned to
work in Federal agencies. The other stated that the public health and
the health of Federal workers will not be protected by the proposed
regulatory changes if the contract worker in the cubicle next to the
Federal employee lacks paid sick time and is either forced to come to
work sick or is forced to send a sick child to school. The professional
organization further stated that, since the Federal Government
contracts with outside businesses to run daycare centers in Federal
Government buildings, workers at these centers should have access to
paid sick time as Federal employees do--otherwise the health of the
children in these centers may suffer. Dictating pay and leave policies
for Federal contractors is outside the scope of OPM's authority. As
contractors are increasingly relied upon to perform many essential
functions of some agencies, agencies are encouraged to contact their
acquisition professionals for advice and guidance on dealing with human
resources management issues associated with contractors and contract
workers.
Privacy Concerns
One labor organization requested that OPM consider the privacy of
employees and the role of confidentiality in medical procedures for
H1N1 influenza. OPM has always held that agencies must maintain strict
privacy controls in handling medical certification for H1N1 influenza
or any other sick leave request. Requirements for confidentiality of
medical records are addressed through the Health Insurance Portability
and Accountability Act of 1996 (HIPAA) Privacy Rule, at 45 CFR part 160
and subparts A and E of part 164, and are not addressed in the sick
leave regulations.
School Closures
One professional organization would like to allow the use of
accrued or advanced sick leave by an employee whose child's school is
closed due to
[[Page 75367]]
communicable disease even when the child has not been exposed to the
disease. OPM disagrees. There is no authority that would permit an
employee to use sick leave to care for a child who is healthy or is
kept at home to prevent exposure to a communicable disease. Leave
requests due to school closures should be handled the way they would in
non-pandemic influenza situations.
The fact that schools have closed due to a pandemic influenza or
other serious communicable disease should not be the sole factor in
determining the type of leave an employee may use. For example, when
the school is closed and--
The child is healthy and has not been exposed to a
communicable disease, the employee may not take sick leave.
The child has been exposed to a communicable disease but
is not sick, the final regulations allow the employee to take up to 13
days of sick leave only if it has been determined that the child's
presence in the community would jeopardize the health of others.
The child is sick, due to a communicable disease or
otherwise, the employee may use up to 13 days of sick leave to care for
that child. If the child's illness rises to the level of a serious
health condition, the employee may use up to 12 weeks of sick leave and
may also invoke FMLA, which would provide up to an additional 12 weeks
of unpaid leave (with substitution of annual or sick leave, according
to the appropriate regulations).
In summary, an employee is not necessarily entitled to use sick
leave just because the child's school has been closed to prevent
exposure to a communicable disease (a commonly-used tool for social
distancing) or for sanitation of the school building. In order for the
employee to qualify to use sick leave to care for that child, there
must be a determination that the child's exposure to the communicable
disease would jeopardize the health of others. The Federal Government
has other workplace flexibilities to assist an employee in situations
where sick leave is not appropriate, including use of annual leave,
telework, alternative work schedules, compensatory time off, advanced
annual leave, or leave without pay.
Contracting a Communicable Disease at Work
One professional organization expressed concern that Federal
employees who acquire a communicable disease during the course of their
work should not be required to use their own leave for their recovery
and requested that OPM provide this flexibility and communicate this to
Federal health care workers. They cited the hypothetical example of an
employee of a Veterans Affairs hospital or of a workplace-based clinic
who might become ill as a result of exposure to a patient or employee
with the H1N1 virus. A new leave flexibility is not appropriate because
a provision already exists for this situation. If an employee believes
his or her illness resulted from a work-related incident, the employee
can file a workers' compensation claim. Workers' compensation claims
are administered by the U.S. Department of Labor, and each claim will
be judged on its own merit.
Opposition to Provision of Additional Leave
One individual stated he was opposed to giving Federal employees
additional leave, thereby expanding their benefits. The individual
believed that, in addition to employees' existing leave benefits, OPM
was proposing to ``pay Federal employees for 30 days of sick time and
also advance them 30 days if they get the flu.'' We can assure the
commenter that these regulations provide no additional paid leave; they
merely explain the circumstances under which employees can use their
own accumulated and accrued sick leave. If an employee is advanced sick
leave for any purpose cited in the regulations, it must be repaid. If
the employee separates from Federal service with a negative leave
balance, he or she will be required to refund the amount of
indebtedness in accordance with Sec. 630.209.
Advanced Sick Leave
Advanced sick leave is not an entitlement, but may be granted at
the agency's discretion. In many cases, it may not have been an
agency's practice to provide advanced sick leave for some of the
purposes stated in the final regulations. These final regulations are
intended to provide consistency throughout agencies as to the purposes
and limitations of advanced sick leave. Overall, many commenters were
supportive of the proposed changes made to this portion of the
regulations that outline the amount of sick leave that may be advanced
for various purposes. One labor organization strongly supported stating
the amount of sick leave that may be advanced for various
circumstances, especially welcoming the use of advanced sick leave to
provide general care for a family member or to make arrangements
necessitated by the death of a family member, or to attend the funeral
of a family member. Another labor organization noted that the proposed
changes would help minimize situations where employees without
available sick leave had to exhaust their annual leave balances or were
forced to choose between coming to work sick or facing economic
uncertainty. One agency approved of the reorganization of the
regulatory text and specifically mentioned that the creation of the new
section on advancing sick leave (redesignated ``Advanced Sick Leave''
in these final regulations) makes it easier to find this information in
the regulations.
OPM did receive a few objections on both sides of the spectrum--
some commenters objected to expanding the purposes for which advanced
sick leave may be used, and some objected to limiting them. Two
agencies opposed allowing any advanced sick leave unless the employee
had a serious disability or ailment as stated in 5 U.S.C. 6307(d). They
also questioned both OPM's interpretation of the law and our
longstanding practice of permitting up to 13 days of advanced sick
leave for general family care and bereavement purposes. The two
agencies do not currently authorize advanced sick leave for these
purposes. Another agency objected to placing any limitation on the
amount of sick leave that may be advanced to an employee for his or her
own medical, dental, or optical examination or treatment.
OPM's Authority To Regulate Advanced Sick Leave
Two agencies opposed allowing advanced sick leave unless the
employee had a serious disability or ailment, and questioned whether
permitting use of up to 13 days of advanced sick leave for general
family care and bereavement purposes is permitted under the law.
Section 6311 gives OPM the authority to prescribe regulations necessary
for the administration of annual and sick leave programs, and OPM has
the authority to regulate and provide guidelines on when it is
appropriate to advance sick leave in accordance with 5 U.S.C. 6311. OPM
has used its regulatory authority to administer the sick leave
provisions on many occasions to define appropriate purposes and
limitations for the use of sick leave (e.g., establishing 12 weeks of
sick leave to care for a family member with a serious health condition,
establishing 13 days of sick leave for general family care and
bereavement, and permitting an agency to advance sick leave for general
family care and bereavement). Enacted in 1994, the
[[Page 75368]]
Federal Employees Family Friendly Leave Act (Pub. L. 103-388, October
22, 1994) (FEFFLA) amended the law to provide for a 3-year trial period
to expand the purposes for which sick leave may be used by an employee,
and these purposes included family care and bereavement. The provisions
of the FEFFLA expired on December 21, 1997. However, OPM used its broad
regulatory authority under 5 U.S.C. 6311 to prescribe regulations
permitting agencies to provide sick leave for the purposes of general
family care and bereavement, and those regulations continued to be in
effect after expiration of the FEFFLA. (See the memorandum to Directors
of Personnel, CPM 97-13, on the ``Use of Sick Leave for Family Care or
Bereavement Purposes'' at http://www.opm.gov/oca/compmemo/1997_1996/cpm97-13.asp). Thus, OPM used its permanent regulatory authority to
issue regulations to permit an employee to use sick leave to make
arrangements for or attend the funeral of a family member. The scope of
OPM's regulatory authority also encompasses advancement of sick leave
for these purposes.
We further note that this authority was also discussed in OPM's
August 17, 2006, final sick leave regulations removing the requirement
that an employee maintain an 80-hour sick leave balance in order to use
the maximum amount of sick leave for general family care and
bereavement purposes. (See 71 FR 47694, August 17, 2006.) In the
supplementary information accompanying that final rule, OPM addressed
an agency's request for information on the amounts of sick leave an
agency may advance to an employee for general family care and
bereavement purposes or to provide care for a family member with a
serious health condition. In response, we added Sec. 630.401(f) to
clarify that an agency may advance a maximum of 30 days of sick leave
when required by the exigencies of the situation for a serious
disability or ailment of the employee or a family member or for
purposes related to the adoption of a child. While our intent to allow
an agency also to advance sick leave for general family care and
bereavement purposes was expressed in the supplementary information
accompanying those final regulations, the change was not reflected in
the regulatory text. We are therefore addressing that oversight in
these regulations.
One agency believed it is too generous to allow up to 104 hours (13
days) of advanced sick leave for an employee's own medical, dental or
optical examination or treatment; to care for an incapacitated family
member or a family member receiving medical, dental or optical
examination or treatment; to care for a family member exposed to a
communicable disease; or to make arrangements necessitated by the death
of a family member or to attend the funeral of a family member. The
agency challenged OPM's rationale that allowing up to 104 hours of
advanced sick leave for general family care and bereavement purposes
``reinstates a longstanding practice,'' saying this has not been the
practice at that agency. OPM reasserts that the final regulations are
consistent with OPM's broad authority to regulate and provide
guidelines on when it is appropriate to advance sick leave in
accordance with 5 U.S.C. 6311. Within the guidelines established by
OPM, an agency has the discretion to grant advanced sick leave. An
agency is not required to grant advanced sick leave for general family
care and bereavement or any other purpose under Sec. 630.402 of this
final rule, but is provided this flexibility to use for new employees
and employees who have experienced personal hardships.
104-Hour Limitation on Advanced Sick Leave
One agency objected to placing any limitation on the amount of sick
leave that may be advanced to an employee for his or her own medical,
dental, or optical examination or treatment. The agency pointed out
that the current regulations do not limit the amount of sick leave that
an employee may use for his or her own medical, dental, or optical
examination or treatment, and that it has been a longstanding practice
that the amount of sick leave that could be advanced for these purposes
was left to the discretion of the agency. The agency was concerned that
limiting the amount of advanced sick leave for an employee's own
medical, dental, or optical examination or treatment to 104 hours may
have an adverse impact on a new employee, an employee with a chronic
medical condition, or an employee experiencing a medical emergency that
would require ongoing medical treatment.
While we agree that the amount of sick leave an agency may advance
is within the discretion of the agency, we disagree that an agency
should authorize more than 104 hours for an employee's routine medical
care or appointments that are not related to a serious health
condition. A full-time employee accrues 13 days of sick leave (104
hours) during the leave year. We believe that this is a sufficient
amount of leave both for the employee's own medical, dental, or optical
examination or treatment and for providing general care for a family
member. If the employee needs more than 104 hours of advanced sick
leave because a condition requires treatment beyond routine care, the
agency may grant up to a maximum of 240 hours of advanced sick leave
for a serious health condition.
For example, an agency may authorize up to 13 days of advanced sick
leave for an employee to actively provide care for a family member
exposed to a communicable disease that may jeopardize the health of
others. If the family member contracts the communicable disease and the
employee requires more paid time off, the agency has the discretion to
advance additional sick leave (up to 240 hours) for the employee to
care for a family member with a serious health condition. Another
example would be an employee who goes for routine dental examination
and, as a result, is required to undergo extensive dental work that
extends beyond the 13 days authorized for an employee's own dental
examination or treatment. Because the employee experiences
complications beyond routine care, likely rising to the level of a
serious health condition, the agency may provide the employee with
additional advanced sick leave of up to 240 hours because of
incapacitation due to physical illness or because of the employee's own
serious health condition.
Negative Leave Balance at Time of Separation
One agency believed that advanced sick leave would essentially
provide an additional sick leave benefit, without any restrictions or
limits for paying the leave back, other than not exceeding a negative
240-hour leave balance at any given time. To avoid having an employee
separate from Federal service with a negative leave balance,
supervisors must use their judgment in reviewing a request for advanced
sick leave and may deny the request if not supported by
administratively acceptable evidence or if the employee is unlikely to
return to Federal service. Advanced sick leave is not an employee
entitlement and is not a substitute for temporary or permanent
disability retirement. An employee who has a medical emergency and has
exhausted his or her available paid leave can also apply for donated
annual leave under the voluntary leave transfer and/or leave bank
programs. The donated annual leave can help an employee liquidate any
indebtedness of advanced annual or sick leave prior to separation from
Federal service.
[[Page 75369]]
Medical Documentation for Advanced Sick Leave
One agency and one professional organization commented that there
is no mention of medical documentation requirements for advanced sick
leave. A request for advanced sick leave is essentially a request for
sick leave, therefore, the medical documentation standards for granting
of sick leave at current Sec. 630.403 (redesignated as Sec. 630.405
in these final regulations) apply. We are not making changes in the
final regulations.
One labor organization mentioned that the regulations at Sec.
630.401(a)(3)(i) and (ii) provide two circumstances under which
advanced sick leave may be granted to care for a family member who is
sick (the first for a family member incapacitated by a medical or
mental condition, and the second for a family member with a serious
health condition), but the amount of advanced sick leave authorized is
different in the two cases. The organization suggested that the
difference between the two cases should be made clearer and that the
ending phrase should read, ``with a serious health condition as defined
in Sec. 630.1202.'' Such a reference is not necessary, since serious
health condition is already defined at Sec. 630.201 and refers to the
definition in Sec. 630.1202.
Recourse for Denial of Advanced Sick Leave
One professional organization requested an expedited mechanism for
challenging the denial of advanced sick leave to care for a family
member who has been exposed to or has contracted a communicable disease
and that the employee should be allowed to use sick leave pending the
outcome of the review. This process is handled through an agency's
internal grievance procedures and is beyond the scope of our
regulations. It is also important to remember that, although use of
sick leave is an entitlement, by law, the advancement of sick leave is
always at the discretion of the agency.
Substitution of Sick Leave for Unpaid FMLA Leave To Care for a Covered
Servicemember
This portion of the final regulations is in response to the portion
of OPM's proposed regulations (74 FR 43064) issued on August 26, 2009,
to implement section 585(b) of the NDAA for FY 2008 (Pub. L. 110-181,
January 28, 2008). That law permits the substitution of up to 26 weeks
of sick leave during a single 12-month period when an employee invokes
the FMLA to provide care for a spouse, son, daughter, parent, or next
of kin who is a covered servicemember with a serious injury or illness.
See 5 U.S.C. 6382(d). Since the NDAA for FY 2008 went into effect on
the date of enactment, and since nothing in section 565(b) of the NDAA
for FY 2010, which also amends parts of the FMLA for Federal employees,
changes the provisions regarding substitution of annual or sick leave
for unpaid FMLA leave, we believe it is useful for OPM to address this
portion of the NDAA for FY 2008 in these final regulations. Additional
guidance on the NDAAs for FY 2008 and FY 2010 can be found on OPM's Web
site in CPM 2008-04, February 1, 2008, at http://www.opm.gov/oca/compmemo/2008/2008-04.asp, CPM 2009-26, December 29, 2009, at http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2703,
and CPM 2010-06 at http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2884.
Interaction Between the Sick Leave and FMLA Entitlements
In the comments received on the proposed regulations, one agency
asked how sick leave which is substituted for unpaid FMLA leave to care
for a covered servicemember will be categorized. The agency asked
whether such leave will be considered regular sick leave or family-
friendly sick leave (13 days of sick leave for general family care and
bereavement or 12 weeks of sick leave for care of a family member with
a serious health condition) and, if considered family-friendly sick
leave, how an employee's use of the 26 administrative workweeks of sick
leave is affected by the limitations on family-friendly sick leave for
general purposes or serious health conditions. The statutes authorizing
the two entitlements are quite complex, and the response below is
accordingly quite detailed in order to give agencies and employees as
much guidance as practicable in administering and using the various
paid and unpaid leave entitlements for treatment of illnesses or
injuries of employees and the individuals for whom they may provide
care.
Sick leave and FMLA leave are authorized under two separate sets of
statutes, each with different entitlements and conditions, such as the
categories of individuals for whom an employee may take leave to care,
number of hours or weeks of leave allowed, and the rules on the
substitution of paid leave for unpaid leave. An employee is entitled to
use 13 days (104 hours) of sick leave for general family care and
bereavement in accordance with Sec. 630.401(a)(3)(i) and (4), and 12
weeks of sick leave to care for a family member with a serious health
condition in accordance with Sec. 630.401(a)(3)(ii). The basic 12-week
FMLA entitlement to care for a family member with a serious health
condition is found at 5 U.S.C. 6382(a)(1)(C) and Sec. 630.1203(a)(3),
and the 26-week FMLA entitlement to care for a covered servicemember is
found at 5 U.S.C. 6382(a)(3).
Table 1 outlines the various sick leave and FMLA flexibilities
available to an employee for purposes of caring for a family member
and/or for a covered servicemember. To know which leave options are
available, an employee must first determine the type of leave to which
he or she is entitled based on the person for whom the leave is being
taken. Table 1 provides useful information to help agencies and/or
employees determine appropriate leave options.
[[Page 75370]]
Table 1--Leave Flexibilities Available To Care for a Family Member and/
or a Covered Servicemember
------------------------------------------------------------------------
Individuals for whom
Entitlement Amount and purpose leave may be taken
------------------------------------------------------------------------
Sick Leave for General 13 days (104 hours) May be taken for a
Family Care and Bereavement to: family member.*
(5 CFR 630.401(a)(3)(i) and Provide ``Family member''
(4)). care for a family means the following
member who is relatives of the
incapacitated by a employee:
medical or mental (1) Spouse, and
condition;. parents thereof;
Attend to a (2) Sons and
family member daughters, and
receiving medical, spouses thereof;
dental, or optical (3) Parents, and
examination or spouses thereof;
treatment; or. (4) Brothers and
Make sisters, and
arrangements spouses thereof;
necessitated by the (5) Grandparents and
death of a family grandchildren, and
member or attend spouses thereof;
the funeral of a (6) Domestic partner
family member.. and parents
thereof, including
domestic partners
of any individual
in paragraphs (2)
through (5) of this
definition; and
(7) Any individual
related by blood or
affinity whose
close association
with the employee
is the equivalent
of a family
relationship.
Sick Leave for Serious 12 weeks (480 hours) * See definition of
Health Condition of Family to care for a family member at 5
Member (5 CFR family member with CFR 630.201(b) in
630.401(a)(3)(ii)). a serious health the final
condition. regulations on
Definitions of
Family Member,
Immediate Relative,
and Related Terms
(75 FR 33491, June
14, 2010), at http://www.gpo.gov/fdsys/pkg/FR-2010-06-14/pdf/2010-14252.pdf).
------------------------------------------------------------------------
Advanced Sick Leave (5 Up to 30 days (240
U.S.C. 6307(d)). hours) of paid sick
leave to care for a
family member with
a serious
disability or
ailment. (Agency
discretion.)
FMLA (Basic) to care for 12 weeks (480 hours) For the care of a
spouse, son, daughter, or of unpaid leave spouse, son,
parent with a serious during any 12-month daughter, or parent
health condition (5 U.S.C. period to care for of the employee, if
6382(a)(1)(C) and 5 CFR a spouse, son, such spouse, son,
630.1203(a)(3)). daughter, or parent daughter, or parent
with a serious has a serious
health condition. health condition.
(Note: Son or
daughter must be
under 18, or over
18 but incapable of
self-care because
of a mental or
physical
disability.)
(See 5 CFR
630.1203(a)(3) and
630.1202).
------------------------------------------------------------------------
FMLA to care for a covered 26 weeks (1,040 Available to an
servicemember (5 U.S.C. hours) of unpaid employee who is the
6382(a)(3)). leave during a spouse, son,
single 12-month daughter, parent,
period to care for or next of kin of a
a covered covered
servicemember with servicemember. Next
a serious injury or of kin means the
illness. nearest blood
relative of that
individual.
------------------------------------------------------------------------
Explanatory Information:
1. Leave To Care for Different Individuals Varies by Entitlement:
An employee may take leave to care for different individuals,
depending on the applicable entitlement. For example, the
definition of family member under the sick leave regulations is
very broad and includes many more categories of individuals than
the nuclear family. In contrast, the FMLA statute and regulations
do not use the term ``family member'' at all; rather they specify
specific individuals for whose care an employee may take FMLA
leave. The individuals for whom an employee may take FMLA leave to
provide care are slightly different depending on whether the leave
is the basic 12-week entitlement for the eligible relatives shown
in the second-to-last entry above, or the 26-week entitlement to
care for a covered servicemember, as shown in the last entry above..
2. Sick Leave:
Under 5 U.S.C. 6307, an employee accrues 4 hours of paid sick leave
per full biweekly pay period that may be accumulated without
limitation. An employee has an entitlement to use his or her
accumulated sick leave for self, family care or bereavement, and
care of a family member with a serious health condition. No more
than a combined total of 12 weeks of sick leave may be used by a
full-time employee on a regular tour of duty for general family
care, bereavement, or care of a family member with a serious health
condition within a leave year. See 5 CFR 630.401(c). Because sick
leave is a separate entitlement, an employee does not need to
invoke FMLA to use the sick leave entitlement for general family
care. Under 5 U.S.C. 6307(d), sick leave may be advanced up to 30
days for a serious disability or ailment, including for care of a
family member with a serious disability or ailment. The advancement
of sick leave is at the agency's sole discretion, based upon the
exigencies of the situation..
3. Basic FMLA Leave (12 Weeks of Unpaid Leave):
[[Page 75371]]
The Family and Medical Leave Act (FMLA) provisions are found at 5
U.S.C. 6381-6387 and provide a total of either 12 or 26 weeks of
unpaid leave, as well as permit an employee to elect to substitute
annual leave and/or sick leave, as appropriate, for the unpaid
leave. Under the 12-week basic FMLA entitlement (for the birth of a
son or daughter of the employee and in order to care for such son
or daughter; for the placement of a son or daughter with the
employee for adoption or foster care; for the employee to care for
his or her spouse, son, daughter, or parent with a serious health
condition; for a serious health condition that makes the employee
unable to perform the functions of his or her position; for a
qualifying exigency arising out of the fact that the spouse, son,
daughter, or parent of the employee is on covered active duty or
has been notified of an impending call or order to covered active
duty in the Armed Forces), an employee can substitute annual or
sick leave consistent with the laws and regulations for using
annual and sick leave. Therefore, the employee can substitute only
as much accumulated and accrued sick leave so that the cumulative
amount of sick leave usage does not exceed 12 weeks of sick leave
in a leave year..
4. FMLA Leave To Care for a Covered Servicemember (26 Weeks of Unpaid
Leave):
In contrast to basic FMLA leave, there are no limitations on the
amount of sick leave that may be substituted for unpaid FMLA leave
to care for a covered servicemember, since the FMLA statute at 5
U.S.C. 6382(d) states that an employee may substitute ``any of the
employee's accrued or accumulated annual or sick leave'' for any
part of the 26-week period of unpaid FMLA leave. Since the statute
provides the authority to substitute any of the employee's accrued
or accumulated sick leave for any part of the 26-week period of
unpaid FMLA leave, there are no limits to the amount of sick leave
that can be substituted for unpaid FMLA leave to care for a covered
servicemember..
------------------------------------------------------------------------
Examples of the Interaction Between Sick Leave and FMLA Leave
Example I: Interaction of 13 Days of Sick Leave for General Family
Care and 12 Weeks of Sick Leave for a Serious Health Condition. Under
the authority for sick leave in Sec. Sec. 630.401(a)(3)(i),
630.401(a)(4), and 630.401(b), an employee can use 13 days of sick
leave each leave year for general family care or bereavement. Under
Sec. 630.401(a)(3)(ii) and (c), most Federal employees may use a total
of up to 12 administrative workweeks of sick leave each leave year to
care for a family member with a serious health condition. Under Sec.
630.401(d), if an employee previously has used any portion of the 13
days of sick leave for general family care or bereavement purposes in a
leave year, that amount must be subtracted from the 12-week
entitlement. If an employee has already used 12 weeks of sick leave to
care for a family member with a serious health condition, he or she
cannot use an additional 13 days in the same leave year for general
family care or bereavement.
Example II: Interaction of Sick Leave With Basic FMLA Leave. As
referenced above, sick leave and FMLA are two separate entitlements. An
employee has an entitlement to use his or her accrued and accumulated
sick leave in addition to invoking FMLA. For example, if an employee
takes 12 weeks of sick leave to care for a parent with a serious health
condition and then invokes FMLA, the employee has exhausted his
entitlement to sick leave to care for a family member with a serious
health condition and cannot substitute any sick leave (but may
substitute annual leave) for the 12 weeks of unpaid leave under FMLA.
In summary, the employee providing care for a family member is eligible
to use a total of 12 weeks of sick leave and then 12 weeks of unpaid
leave under FMLA, and may substitute any annual leave for the unpaid
FMLA leave.
Example III: Interaction of Sick Leave With FMLA Leave To Care for
a Covered Servicemember. In contrast to the amount of sick leave which
may be substituted for unpaid FMLA leave for the 12-week basic FMLA
entitlement, the legislation that authorized the 26 weeks of FMLA leave
to care for a covered servicemember includes different provisions
regarding the amount of paid leave which can be substituted for unpaid
FMLA leave. Under 5 U.S.C. 6382(d), an employee may substitute any of
the employee's accrued or accumulated annual or sick leave for any part
of the 26-week period of unpaid FMLA leave to care for a covered
servicemember. There are no limitations on the substitution of sick
leave as there are for basic FMLA leave. For example, an employee can
use 12 weeks of sick leave to care for her son who has been injured in
combat and then invoke FMLA leave to care for a covered servicemember
and substitute another 26 weeks of sick leave for unpaid FMLA leave.
The employee may also substitute annual leave, or request donated
annual leave, advanced sick leave or advanced annual leave. In summary,
an eligible employee who has the accumulated leave and meets the
entitlement requirements for sick leave and FMLA leave to care for the
covered servicemember can potentially take leave for up to 38 weeks (12
weeks of sick leave to care for a family member with a serious health
condition and 26 weeks of leave to care for a covered servicemember).
Example IV: Interaction of Basic FMLA Leave and FMLA Leave To Care
for a Covered Servicemember. In our proposed changes to 5 CFR part 630,
subpart L (74 FR at 43069, August 26, 2009), we clarified in proposed
Sec. 630.1205(b)(1), consistent with DOL regulations, that any leave
used under an employee's 12-week basic FMLA entitlement prior to the
first use of leave to care for a covered servicemember does not count
towards the ``single 12-month period'' under Sec. 630.1203(b). For
example, on February 25, 2008, an employee invokes her entitlement to
basic FMLA leave for the birth of her child. On April 17, 2008, in her
8th week of FMLA leave, she receives word that her husband was
seriously injured in the line of duty while on active duty. On April
18, 2008, the employee invokes her entitlement to 26 weeks of FMLA
leave to care for a covered servicemember to care for her husband. She
is entitled to use up to 26 weeks of FMLA leave during a single 12-
month period for this purpose, from April 18, 2008, to April 17, 2009.
The time period during which she used basic FMLA leave, from February
25, 2008, to April 17, 2008, does not count toward her 26-week FMLA
entitlement to care for a covered servicemember. We note that the
employee is not required to invoke her 26-week FMLA leave entitlement
immediately. She may delay invoking the 26-week FMLA entitlement until
such time as she is needed to provide care for her husband. Once the
employee invokes her 26-week FMLA entitlement and begins to care for
her husband, the single 12-month period begins. In this example, the
employee may choose to first exhaust her full 12-week basic FMLA
entitlement for the
[[Page 75372]]
birth of a child, and then invoke the 26-week FMLA entitlement to care
for a covered servicemember after her husband is released from the
hospital and returns home.
Example V: Importance of the Employee's Relationship With the
``Person for Whom Leave May Be Taken.'' Since an employee may take
leave to care for different individuals depending on the applicable
entitlement, it is important to pay close attention to the person for
whom the employee is taking leave to care. If the person for whom the
employee wishes to care does not meet the criteria set out in statute
and regulation, the employee will not have the option of using this
type of leave. For example, an employee's fianc[eacute] is seriously
injured by a roadside bomb. The employing agency may decide, at its
discretion, that the fianc[eacute] meets the definition of family
member for sick leave purposes (based on the clause ``any individual
related by blood or affinity whose close association with the employee
is the equivalent of a family relationship''); therefore, the employee
is eligible to use up to 12 weeks of sick leave to care for her
fianc[eacute] who has a serious health condition. However, this
employee does not meet the FMLA definition of an individual who can use
the 26-week entitlement to care for a covered servicemember, because
coverage is limited to an employee who is the spouse, son, daughter,
parent, or next of kin of the covered servicemember. In contrast, if
the employee were married to the covered servicemember, she would be
entitled to both sick leave and FMLA leave to care for a covered
servicemember, as shown in table 1.
Employee Must Invoke FMLA Leave To Care for a Covered Servicemember To
Use the Maximum Amount of Sick Leave
An agency wanted to know why, under proposed Sec.
630.402(a)(1)(v), agencies may not advance sick leave to care for a
covered service member unless the employee has invoked his or her FMLA
entitlement to leave to care for a covered servicemember. The agency
pointed out that an employee is not required to invoke his or her FMLA
entitlement before using sick leave to care for a family member with a
serious health condition, and it questioned why an employee is required
to invoke his or her FMLA entitlement to care for a covered
servicemember.
The proposed regulations do not require an employee to invoke the
FMLA entitlement to be advanced sick leave. The proposed regulations at
Sec. 630.402(a)(1)(i)-(v) provide that an agency may grant advanced
sick leave in the amount of up to 240 hours to a full-time employee (i)
who is incapacitated for the performance of his or her duties by
physical or mental illness, injury, pregnancy, or childbirth; (ii) for
a serious health condition of the employee or a family member; (iii)
when the employee would, as determined by the health authorities having
jurisdiction or by a health care provider, jeopardize the health of
others by his or her presence on the job because of exposure to a
communicable disease; (iv) for purposes relating to the adoption of a
child; or (v) for the care of a covered servicemember with a serious
injury or illness, provided the employee is exercising his or her
entitlement under 5 U.S.C. 6382(a)(3). Although the care of a covered
servicemember is only one circumstance that qualifies for the
advancement of sick leave, it is the authority that will provide the
greatest benefit to the employee.
As referenced in the leave flexibilities table, sick leave is
limited to 12 weeks for an employee to care for a family member with a
serious health condition. In order for the employee to use additional
sick leave, he or she must invoke FMLA to care for a covered
servicemember. For example, an employee uses 12 weeks of sick leave to
care for her son who has been injured in the line of duty while on
active duty and requests additional sick leave to continue to care for
her son. At this point, the employee must invoke her FMLA entitlement
to care for a covered servicemember to use additional sick leave. By
invoking the entitlement, the employee may substitute up to 26
additional weeks of sick leave for unpaid leave under FMLA. If the
employee has accumulated and accrued sick leave to cover only a part of
the 26-week period, because she has invoked her FMLA entitlement to
care for a covered servicemember, she can request advanced sick leave
for up to 30 days.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify these regulations would not have a significant economic
impact on a substantial number of small entities because they would
apply only to Federal agencies and employees.
List of Subjects in 5 CFR Part 630
Government employees.
U.S. Office of Personnel Management.
John Berry,
Director.
0
Accordingly, OPM is amending 5 CFR part 630 as follows:
PART 630--ABSENCE AND LEAVE
0
1. The authority citation for part 630 continues to read as follows:
Authority: 5 U.S.C. 6311; 630.205 also issued under Pub. L. 108-
411, 118 Stat 2312; 630.301 also issued under Pub. L. 103-356, 108
Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; 630.303 also issued
under 5 U.S.C. 6133(a); 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; 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 D--Sick Leave
0
2. In Sec. 630.401, remove paragraph (f) and revise paragraphs (a)(3)
and (b) to read as follows:
Sec. 630.401 Granting sick leave.
(a) * * *
(3) Provides care for a family member--
(i) Who is incapacitated by a medical or mental condition or
attends to a family member receiving medical, dental, or optical
examination or treatment;
(ii) With a serious health condition; or
(iii) Who would, as determined by the health authorities having
jurisdiction or by a health care provider, jeopardize the health of
others by that family member's presence in the community because of
exposure to a communicable disease;
* * * * *
(b) The amount of sick leave granted to an employee during any
leave year for the purposes described in paragraphs (a)(3)(i),
(a)(3)(iii), and (a)(4) of this section may not exceed a total of 104
hours (or, for a part-time employee or an employee with an uncommon
tour of duty, the number of hours of sick leave he or she normally
accrues during a leave year).
* * * * *
[[Page 75373]]
Sec. Sec. 630.402 through 630.406 [Redesignated as Sec. Sec. 630.404
through 630.408].
0
3a. Redesignate Sec. Sec. 630.402 through 630.406 as Sec. Sec.
630.404 through 630.408, respectively.
0
3b. Add new Sec. 630.402 to read as follows:
Sec. 630.402 Advanced sick leave.
(a) At the beginning of a leave year or at any time thereafter when
required by the exigencies of the situation, an agency may grant
advanced sick leave in the amount of:
(1) Up to 240 hours to a full-time employee--
(i) Who is incapacitated for the performance of his or her duties
by physical or mental illness, injury, pregnancy, or childbirth;
(ii) For a serious health condition of the employee or a family
member;
(iii) When the employee would, as determined by the health
authorities having jurisdiction or by a health care provider,
jeopardize the health of others by his or her presence on the job
because of exposure to a communicable disease;
(iv) For purposes relating to the adoption of a child; or
(v) For the care of a covered servicemember with a serious injury
or illness, provided the employee is exercising his or her entitlement
under 5 U.S.C. 6382(a)(3).
(2) Up to 104 hours to a full-time employee--
(i) When he or she receives medical, dental or optical examination
or treatment;
(ii) To provide care for a family member who is incapacitated by a
medical or mental condition or to attend to a family member receiving
medical, dental, or optical examination or treatment;
(iii) To provide care for a family member who would, as determined
by the health authorities having jurisdiction or by a health care
provider, jeopardize the health of others by that family member's
presence in the community because of exposure to a communicable
disease; or
(iv) To make arrangements necessitated by the death of a family
member or to attend the funeral of a family member.
(b) Two hundred forty hours is the maximum amount of advanced sick
leave an employee may have to his or her credit at any one time. For a
part-time employee (or an employee on an uncommon tour of duty), the
maximum amount of sick leave an agency may advance must be prorated
according to the number of hours in the employee's regularly scheduled
administrative workweek.
0
3c. Add new Sec. 630.403 to read as follows:
Sec. 630.403 Substitution of sick leave for unpaid family and medical
leave to care for a covered servicemember.
The amount of accumulated and accrued sick leave an employee may
substitute for unpaid family and medical leave under 5 U.S.C.
6382(a)(3) for leave to care for a covered servicemember may not exceed
a total of 26 administrative workweeks in a single 12-month period (or,
for a part-time employee or an employee with an uncommon tour of duty,
an amount of sick leave equal to 26 times the average number of hours
in his or her scheduled tour of duty each week).
0
4. Revise paragraphs (b) and (c) of Sec. 630.502 to read as follows:
Sec. 630.502 Sick leave recredit.
* * * * *
(b) Except as provided in Sec. 630.407 and in paragraph (c) of
this section, an employee who has had a break in service is entitled to
a recredit of sick leave (without regard to the date of his or her
separation), if he or she returns to Federal employment on or after
December 2, 1994, unless the sick leave was forfeited upon reemployment
in the Federal Government before December 2, 1994.
(c) Except as provided in Sec. 630.407, an employee of the
government of the District of Columbia who was first employed by the
government of the District of Columbia before October 1, 1987, and who
has had a break in service is entitled to a recredit of sick leave
(without regard to the date of his or her separation) if he or she
returns to Federal employment on or after December 2, 1994, unless the
sick leave was forfeited upon reemployment in the Federal Government
before December 2, 1994.
* * * * *
[FR Doc. 2010-30371 Filed 12-2-10; 8:45 am]
BILLING CODE 6325-39-P