Absence and Leave; Sick Leave for Adoption

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AG 43

Absence and Leave; Sick Leave for Adoption

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management is issuing interim

regulations to permit employees to use sick leave for purposes related

to the adoption of a child.

DATES: The interim rules are effective on December 2, 1994. Comments

must be submitted on or before January 31, 1995.

ADDRESSES: Comments may be sent or delivered to Donald J. Winstead,

Acting Assistant Director for Compensation Policy, Personnel Systems

and Oversight Group, U.S. Office of Personnel Management, Room 6H31,

1900 E Street NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Jo Ann Perrini or Sharon Herzberg, (202) 606-2858.

SUPPLEMENTARY INFORMATION: Section 629 of Public Law 103-329, The

Treasury, Postal Service and General Government Appropriations Act for

fiscal year 1995, September 30, 1994, made two significant changes in

leave entitlements for Federal employees. Section 629(a) added section

6327 to title 5, United States Code, to provide employees with an

entitlement to 7 days of paid leave each calendar year (in addition to

annual and sick leave) to serve as a bone-marrow or organ donor. The

law provides that an employee is entitled to use this leave without

loss of or reduction in pay, leave to which otherwise entitled, credit

for time or service, or performance or efficiency rating. The Office of

Personnel Management (OPM) does not believe regulations are needed to

administer section 6327. Agencies are responsible for notifying

employees of this new entitlement to paid leave.

The length of absence for such purposes will vary depending upon

the medical circumstances of each case. For medical procedures and

recuperation requiring absences longer than 7 days, agencies are

encouraged to continue to accommodate employees by granting additional

time off in the form of excused absence, accrued sick leave and/or

annual leave, as appropriate; leave without pay; and advanced sick and/

or annual leave.

Section 629(b) amended 5 U.S.C. 6307 to permit an employee to use

sick leave for purposes related to the adoption of a child. (Conforming

technical changes were also made in 5 U.S.C. 6129.) This change was

recommended in the Report of the National Performance Review on

September 7, 1993. Section 629(b) also directs OPM to prescribe

regulations to allow an employee to substitute sick leave retroactively

for all or any portion of any annual leave used by an employee for

adoption-related purposes between September 30, 1991, and September 30,

1994. (September 30, 1991, was the ending date of the former 1-year

experimental program created by Public Law 101-509 to test the

feasibility of granting sick leave for adoption-related purposes.) If

an employee elects to make this substitution, the employing agency must

adjust the employee's leave accounts to reflect the amount of annual

leave and sick leave, respectively, that would remain had sick leave

been used instead of all or any portion of the annual leave actually

used, as designated by the employee.

Sick Leave for Adoption

OPM's sick leave regulations at 5 CFR 630.401 have been amended to

permit employees to use accrued or accumulated sick leave for purposes

relating to the adoption of a child. In addition, Sec. 630.402 has been

revised to require employees to request, to the extent possible,

advance approval to use sick leave for adoption-related purposes. This

is consistent with current requirements related to the advance approval

of sick leave for medical, dental, and optical examination or treatment

and to provide care for a family member. When required by the

exigencies of the situation, an agency may advance up to 30 days of

sick leave for adoption-related purposes under 5 U.S.C. 6307(c).

The purposes of which an adoptive parent may request sick leave

include appointments with adoption agencies, social workers, and

attorneys; court proceedings; required travel; and any other activities

necessary to allow the adoption to proceed. Since adoption procedures

and requirements differ among jurisdictions and adoption agencies, the

interim regulations do not attempt to specify all of the circumstances

in which the use of sick leave would be appropriate. For example, sick

leave may be granted 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. Agencies are reminded that

this new entitlement to use sick leave for purposes relating to the

adoption of a child is in addition to an employee's entitlement to

unpaid leave for the placement of a child with an employee for adoption

under the Family and Medical Leave Act of 1993 (FMLA) (Pub. L. 103-3,

February 5, 1993). (See 5 CFR 630.1203.)

The same limitations apply in the case of adopted children as in

the case of biological children with regard to the use of sick leave

for the purpose of providing care for an adopted child as a result of

physical or mental illness, injury, impairment, pregnancy, or

childbirth. These limitations are set forth in Sec. 630.401 (b) through

(d).

Under Sec. 630.403, agencies may require employees to provide

evidence that is administratively acceptable to the agency in support

of an employee's request for sick leave for adoption-related purposes.

To ensure consistency between the treatment of these employees and

employees who may elect to invoke their entitlement to unpaid leave

under the FMLA for purposes relating to adoption, Sec. 630.1206 has

been revised to allow an agency to require an employee to provide

evidence that is administratively acceptable to the agency in support

of an employee's notification of his or her intent to use FMLA leave

for adoption-related purposes.

Retroactive Substitution of Sick Leave for Annual Leave

Section 629(b)(3) of Public Law 103-329 permits an employee to

substitute his or her accrued and accumulated sick leave for all or any

portion of any annual leave used for purposes relating to the adoption

of a child between September 30, 1991, and September 30, 1994. If an

employee elects to make this substitution, the law requires the

employee to submit a written application to his or her employing agency

to have his or her annual and sick leave accounts adjusted accordingly.

By law, an employee's written application to substitute sick leave

retroactively for annual leave used for adoption-related purposes must

be submitted within 1 year after enactment of section 629 of Public Law

103-329--i.e., September 30, 1995--or such later date as OPM may

prescribe. We believe additional time may be needed to notify affected

employees of this benefit and permit employees to submit a written

application to their employing agencies. Therefore, in Sec. 630.409,

OPM has extended the time period to September 30, 1996, for an employee

to submit a written application to have his or her annual and sick

leave accounts adjusted.

The employee's written request must specify the period(s) and the

amount(s) of annual leave involved and the amount(s) of accrued or

accumulated sick leave to be substituted. The written request must

include copies of available documentation described in the regulations

that specify the period(s) and amount(s) of annual leave that were used

by the employee for adoption-related purposes between September 30,

1991, and September 30, 1994. If an employee is unable to provide a

written request that meets the requirements in the regulations, no

substitution of sick leave may be approved. The law does not permit the

substitution of sick leave for leave without pay. In addition, advanced

sick leave may not be used for this purpose.

After receiving an employee's written request for substitution of

sick leave for annual leave, the employing agency will deduct from the

employee's sick leave account any amount of sick leave the employee

elects to substitute for any annual leave used for adoption-related

purposes after September 30, 1991. The employing agency also will

credit the employee's annual leave account with an amount of annual

leave equal to the amount of sick leave the employee elects to

substitute. If an agency determines that insufficient written

documentation exists to honor the employee's request, the employing

agency must inform the employee of this determination in writing.

The annual leave credited to an employee's annual leave account

shall be available for use by the employee on or after the date the

annual leave is credited in the same manner and for the same purposes

as the employee's current accrued and accumulated annual leave.

The retroactive substitution of sick leave for annual leave will

result in additional amounts of annual leave being credited to an

employee's current annual leave account. If the credit of annual leave

to an employee's current annual leave account occurs just prior to the

end of a leave year, the employee may be at risk of exceeding the

maximum annual leave ceiling established by 5 U.S.C. 6304. Therefore,

OPM encourages agencies to advise employees that any annual leave in

excess of the maximum annual leave carry-over ceiling that results from

such an adjustment may be forfeited under 5 U.S.C. 6304, unless the

annual leave is subject to restoration under the conditions specified

in 5 U.S.C. 6304(d).

Waiver of Notice of Proposed Rule Making and Delay in Effective

Date

Section 629 of Public Law 103-329 became effective on September 30,

1994. The authority to substitute sick leave for all or any portion of

any annual leave taken for purposes relating to the adoption of a child

is retroactive to September 30, 1991. In order to give practical effect

to this legislation, I find good cause exists to waive the general

notice of proposed rulemaking pursuant to 5 U.S.C. 553(b)(3)(B). Also,

I find that good cause exists for making this rule effective in less

than thirty days. The delay in the effective date is being waived to

give affected employees the benefit of these new provisions at the

earliest practical date.

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 that these regulations will not have a significant

economic impact on a substantial number of small entities because they

will affect only Federal employees and agencies.

List of Subjects in 5 CFR Part 630

Government employees.

U.S. Office of Personnel Management.

James B. King,

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 is revised to read as

follows:

Authority: 5. U.S.C. 6311; Sec. 630.303 also issued under 5

U.S.C. 6133(a); 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, June 16, 1965, 3 CFR 1974 Comp., p. 163; subpart

G also issued under 5 U.S.C. 6305; subpart H issued under 5 U.S.C.

6326; subpart I also issued under 5 U.S.C. 6332 and Pub. L. 100-566

(102 Stat. 2834) and 103-103 (107 Stat. 1022); subpart J also issued

under 5 U.S.C. 6362 and Pub. L. 100-566 and 103-103; subpart K also

issued under Pub. L. 102-25 (105 Stat. 92); and subpart L also

issued under 5 U.S.C. 6387 and Pub. L. 103-3 (107 Stat. 23).

Subpart D--Sick Leave

2. In Sec. 630.401, at the end of paragraph (a)(4), the word ``or''

is removed; at the end of paragraph (a)(5), the period is removed and

in its place a semicolon and the word ``or'' are added; and paragraph

(a)(6) is added to read as follows:

Sec. 630.401 Grant of sick leave.

(a) * * *

(6) Must be absent from duty for purposes relating to the adoption

of a child, including appointments with adoption agencies, social

workers, and attorneys; court proceedings; required travel; and any

other activities necessary to allow the adoption to proceed.

* * * * *

3. Section Sec. 630.402 is revised to read as follows:

Sec. 630.402 Application for sick leave.

An employee shall file a written application for sick leave within

such time limits as the agency may require. An employee shall request

advance approval for sick leave for the purposes of receiving medical,

dental, or optical examination or treatment and, to the extent

possible, for the purposes described in Sec. 630.401(a) (3), (4), and

(6).

4. Section 630.409 is added to read as follows:

Sec. 630.409 Substitution of sick leave for annual leave for adoption-

related purposes.

(a) Upon the written request of an employee under the procedures

set forth in paragraph (b) of this section, an individual who is

employed by the Federal Government on September 30, 1994, or who is

reemployed by the Federal Government on or after September 30, 1994, in

a position covered by subchapter I of chapter 63 of title 5, United

States Code, may elect to substitute his or her accrued and accumulated

sick leave for all or any portion of any annual leave used for purposes

relating to the adoption of a child between September 30, 1991, and

September 30, 1994.

(b) An employee's written request under paragraph (a) of this

section to substitute any accrued and accumulated sick leave for annual

leave used for adoption-related purposes must be submitted to his or

her employing agency by September 30, 1996. The employee's written

request shall--

(1) Specify the period(s) and amount(s) of annual leave involved;

(2) Include copies of any available contemporaneous earnings and

leave statement(s) or other contemporaneous documentation acceptable to

the agency that specifies the period(s) and amount(s) of annual leave

used by the employee for purposes relating to the adoption of a child

between September 30, 1991, and September 30, 1994;

(3) Specify the amount(s) of accrued and accumulated sick leave to

be substituted under paragraph (b)(1) of this section; and

(4) Include evidence of the adoption that is administratively

acceptable to the employing agency.

(c) In the absence of a written request by the employee that meets

the requirements of paragraph (b) of this section, no substitution of

sick leave may be approved under this section.

(d) Within a reasonable period of time after receiving an

employee's written request that meets the requirements set forth in

paragraph (b) of this section, the employing agency shall--

(1) Deduct from the employee's sick leave account any amount(s) of

accrued and accumulated sick leave the employee elects to substitute

for annual leave used for adoption-related purposes between September

30, 1991, and September 30, 1994, that is supported by written

documentation acceptable to the employing agency; and

(2) Credit the employee's annual leave account with an amount of

annual leave equal to the amount of sick leave the employee elects to

substitute under paragraphs (a) and (b) of this section.

(e) If the agency determines that insufficient written

documentation exists to honor the employee's request, the employing

agency shall inform the employee of this determination in writing.

(f) Any annual leave credited to an employee's current annual leave

account under paragraph (d)(2) of this section shall be available for

use by the employee on or after the date the annual leave is credited

in the same manner and for the same purposes as the employee's current

accrued and accumulated annual leave. The annual leave credited to an

employee under this section may not be substituted for any period of

otherwise paid leave or leave without pay used prior to the date the

annual leave is credited to the employee's annual leave account under

paragraph (d)(2) of this section.

5. In Sec. 630.1206, paragraph (f) is added to read as follows:

Subpart L--Family and Medical Leave

Sec. 630.1206 Notice of leave.

* * * * *

(f) An agency may require that a request for leave under

Sec. 630.1203(a)(2) of this part be supported by evidence that is

administratively acceptable to the agency.

[FR Doc. 94-29821 Filed 12-1-94; 8:45 am]

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