Absence and Leave; Sick Leave for Adoption

SUMMARY: The Office of Personnel Management is issuing final

regulations to permit employees to use sick leave for purposes related

to adoption of a child.

EFFECTIVE DATE: June 21, 1995.

FOR FURTHER INFORMATION CONTACT:

Sharon Herzberg, (202) 606-2858.

SUPPLEMENTARY INFORMATION: On December 2, 1994, the Office of Personnel

Management (OPM) published interim regulations (59 FR 62272)

implementing section 629(b) of Public Law 103-329, the Treasury, Postal

Service and General Government Appropriations Act for fiscal year 1995,

September 30, 1994. Section 629(b) amended 5 U.S.C. 6307 to permit

employees to use sick leave for purposes related to the adoption of a

child. Section 629(b) also directed OPM to prescribe regulations to

allow an employee to substitute sick leave retroactively for all or any

portion of annual leave used by an employee for adoption-related

purposes between September 30, 1991, and September 30, 1994.

The 60-day comment period ended on January 31, 1995. OPM received

comments from six individuals and two organizations that supported

adoptive families. Following is a summary of the comments.

Use of Sick Leave for Bonding With the Child

All commenters supported the use of sick leave for adoption-related

purposes. One commenter applauded OPM's philosophy of not attempting to

specify all of the circumstances in which the use of sick leave for

adoption-related activities would be appropriate and opposed any

greater specificity in the final rule. However, many other commenters

were concerned about the limitations on using sick leave for bonding

with the adopted child. The commenters believed that adoptive parents

should be provided the same maternity benefits as those accorded birth

parents.

Three commenters noted that it is important to the health and well-

being of an adoptive child to allow adoptive parents a period of

absence from work after the child arrives in the home to assist the

adopted child in acclimating to new surroundings and adjusting to new

family members. The commenters believe this is particularly important

when the adopted child is not a newborn, has not previously bonded with

an adult, and is going through a period of tremendous confusion and

upheaval.

One commenter stated that by permitting sick leave to be used only

for 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 sends a message to adoptive parents and their

children that they are different and should be accorded disparate

treatment. An organization stated that adoption agencies are turning

away from requiring an adoptive parent to be home to care for a newly

adopted child, recognizing that this imposes a hardship on the family

and restricts the pool of eligible families for children waiting for

adoption. However, the organization further stated that although

adoption agencies recognize that it may be impossible to require new

adoptive parents to stay home, they encourage them to do so.

Some of the commenters believe adoptive mothers are treated in a

discriminatory manner because they are not entitled to maternity leave

as are biological mothers. One commenter stated that it is routine

practice for the birth mother to be granted weeks or months of

``maternity'' sick leave without requiring strict medical

justification. The commenter noted that requiring an adoptive parent to

justify each court, agency, or social-worker visit imposes a stricter

standard. One commenter suggested that OPM should recognize the reality

of maternity leave for biological mothers--i.e., while sick leave would

appear to be granted for the welfare of the mother, it is in fact used

for the welfare of the child. Another commenter believed the absence of

a provision to afford sick leave to birth fathers, and by extension to

adoptive fathers, for maternity/bonding purposes is discriminatory and

should be corrected.

Contrary to the belief of most of the commenters, Federal

employees, including birth mothers, do not have an automatic

entitlement to ``maternity leave.'' Sick leave is granted to a birth

mother only for the period of incapacitation as a result of physical or

mental illness, injury, pregnancy, childbirth, or medical examinations

or treatments. Agencies may grant sick leave only when supported by

evidence that is administratively acceptable. When determined

necessary, an agency may require medical certification. The birth

mother must use annual leave and/or leave without pay for absences from

work beyond the period of incapacitation--e.g., for care of the

newborn, bonding with the child, and other childcare responsibilities.

The birth father is allowed up to 13 days of sick leave each leave

year to provide care for a family member under OPM's final sick leave

regulations published in Federal Register on December 2, 1994 (59 FR

62266). OPM's regulations are consistent with the Federal Employees

Family Friendly Leave Act (Public Law 103-388, October 22, 1994). The

birth father may use sick leave to care for the birth mother during

pregnancy and recovery from childbirth. This may include accompanying

the birth mother to doctor's appointments, attending to the birth

mother in the hospital or other health care facility, or caring for the

birth mother during the period of incapacitation. Again, the agency may

grant sick leave only when supported by evidence that is

administratively acceptable, including medical certification when

required.

Adoptive parents may request sick leave for adoption-related

purposes including, but not limited to, [[Page 26978]] appointments

with adoption agencies, social workers, and attorneys; court

proceedings; required travel; and for any periods during which an

adoptive parent is ordered or required by the adoption agency or by a

court to be absent from work to care for the adopted child. Agencies

may require employees to provide evidence that is administratively

acceptable to the agency in support of a request for sick leave for

adoption-related purposes.

There is no provision in law or regulation to permit the use of

sick leave by birth parents or adoptive parents who voluntarily choose

to be absent from work to bond with a birth or adopted child. In

addition, we believe granting sick leave to an adoptive mother for

bonding purposes for a period of the time equal to that received by a

birth mother for incapacitation as a result of childbirth would

discriminate against adoptive fathers. The adoptive mother would

receive a greater entitlement to use sick leave for bonding purposes

than would an adoptive father. We believe the administration of the

sick leave program in no way discriminates against either birth or

adoptive parents. The Equal Employment Opportunity Commission found

OPM's interim regulations on sick leave for adoption to be ``consistent

with Federal equal employment opportunity law and policy.''

Another commenter declared that OPM's interim rule is inconsistent

with the intent of the Family and Medical Leave Act of 1993 (FMLA). The

commenter believes the FMLA intends for adoption and childbirth to be

treated in the same manner and that employees should receive the same

amount of leave for these purposes.

The FMLA provides an employee with a total of up to 12 workweeks of

unpaid leave during any 12-month period for the birth of a son or

daughter; the adoption/foster care of a son or daughter; or the serious

health condition of the employee or his or her spouse, son, daughter,

or parent. By law, an employee may elect to substitute paid leave for

unpaid leave under the FMLA, but such substitution must be consistent

with current laws and regulations. OPM believes the regulations are

consistent with the FMLA in that employees are entitled to 12 weeks of

unpaid leave for either the birth or adoption of a child. If the

employee chooses to substitute paid sick leave for unpaid leave under

the FMLA, he or she may do so, but only in those situations where the

use of sick leave would otherwise be permitted by law or regulation.

A commenter maintained that since the law (5 U.S.C. 6307) permits

agencies to advance a maximum of 30 days of sick leave for purposes

relating to the adoption of a child, Congress intended adoptive parents

to have entitlement to 6 weeks (30 days) of sick leave for adoption and

bonding. However, the legislative history of the 1-year experimental

program created by Public Law 101-509 to test the feasibility of

granting sick leave for adoption-related purposes does not support the

contention that Congress intended an entitlement to sick leave for

bonding purposes. Congress did recognize the time-consuming aspects of

adoption and wished to make sick leave available for adoption-related

purposes. Representative Frank Wolf, sponsor of the program, spoke of

eliminating ``an impediment to adoption faced by Federal workers--the

fact that current Federal leave policies require adoptive parents to

take annual leave, their vacation time, when arranging an adoption.

This measure would simply put adoptive parents in the Federal work

force on an equal footing with biological parents, who are currently

allowed to take sick leave for prenatal doctor visits.'' (See

Congressional Record, Extension of Remarks, May 24, 1990, page E1757.)

There is no indication that Congress intended to entitle adoptive

parents to more paid leave than is available to birth parents.

We recognize the importance of and need for bonding time for both

birth and adoptive parents and their new children. However, we continue

to believe annual leave and leave without pay are the appropriate means

to secure time with the newborn or newly-adopted child. In addition,

agencies have the authority to advance annual leave to employees. The

new entitlement to use sick leave to fulfill the legal and

administrative requirements for adoption will allow an adoptive parent

to conserve his or her annual leave and ensure the availability of

annual leave for the period of bonding with the child. In addition, the

FMLA provides 12 weeks of leave without pay for childbirth or adoption

and can be used alone or in conjunction with annual and sick leave,

where appropriate, to provide adequate time off for both birth and

adoptive parents. OPM believes no change is necessary in the interim

regulations.

Retroactive Substitution of Sick Leave for Annual Leave

As required by section 629(b) of Public Law 103-329, OPM's interim

regulations permit an employee to substitute sick leave retroactively

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

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

1994. One commenter believed permitting an employee to substitute sick

leave retroactively for annual leave used for purposes of adoption

unfairly penalized birth fathers because birth fathers cannot

substitute sick leave retroactively for annual leave used for the birth

of a child.

The Federal Employees Family Friendly Leave Act and OPM's final

sick leave regulations permit most Federal employees to use a total of

up to 104 hours (13 days) of sick leave each leave year to give care or

otherwise attend to a family member or to make arrangements for or

attend the funeral of a family member. There are no provisions in law

or regulation permitting the retroactive substitution of sick leave for

annual leave used for these purposes. In contrast, the retroactive

substitution of sick leave for annual leave taken for adoption-related

purposes is an entitlement under section 629(b) of Public Law 103-329.

Another commenter suggested that when the substitution of sick

leave for annual leave results in an annual leave balance that exceeds

the maximum annual leave ceiling allowed for carryover into the next

leave year, OPM should allow an employee 3 years to use the excess

annual leave. OPM addressed this issue in the ``Supplementary

Information'' accompanying the interim regulations. The agency and

employee should be aware of an employee's obligation to schedule and

use excess annual leave before the end of the year. Forfeited annual

leave may not be restored unless the employee meets the conditions

specified in 5 U.S.C. 6304(d). We caution employees to apply for the

substitution of sick leave for annual leave used for adoption-related

purposes early enough in the leave year to allow sufficient time to

schedule and use the credited annual leave before the end of the leave

year. We believe no change is necessary in the regulations.

The same commenter recommended that OPM indicate what is a

``reasonable'' period of time for an agency to comply with the

employee's request for substitution. The commenter suggested a period

of 6 weeks. The amount of time needed to comply with an employee's

request for retroactive substitution will vary depending on the number

of applications received and the quality of the documentation/evidence

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

that were used. OPM extended the time period by 1 year, to September

30, 1996, for an [[Page 26979]] employee to submit a written

application to have his or her leave accounts adjusted. We believe this

will make it possible for all affected employees to benefit from this

provision. Therefore, OPM has not revised the regulation in this

regard.

Miscellaneous Leave Administration Amendments

On December 2, 1994, OPM issued final sick leave regulations to

permit most Federal employees to use a total of up to 104 hours of sick

leave each leave year to provide care for a family member or to make

arrangements for or attend the funeral of a family member. An employee

may use up to 40 hours of his or her accrued sick leave for these

purposes without regard to the amount of leave remaining in his or her

sick leave account. An employee may use up to 64 additional hours of

sick leave if he or she maintains a balance of at least 80 hours in his

or her sick leave account.

OPM received many telephone inquiries concerning whether agencies

may advance sick leave for the purpose of satisfying the 80-hour sick

leave balance requirement. Although this matter was addressed briefly

in the ``Supplementary Information'' accompanying the final

regulations, we are using this opportunity to further clarify the

regulation at 5 CFR 630.401(c).

The 40 hours of sick leave that may be used for family care or

bereavement purposes may be advanced. Agencies may not advance sick

leave so that an employee may meet the requirement to maintain a

balance of 80 hours of sick leave in his or her account or to use

additional sick leave for these purposes. The intent of the statutory

80-hour minimum sick leave balance requirement is that an employee

should retain at least 80 hours of accrued sick leave in his or her

account for use in the event of the employee's own incapacitation for

duty--i.e., without the necessity of requesting advanced leave or

shared leave. To advance an additional amount of sick leave (beyond the

40 hours every employee is entitled to use for family care or

bereavement purposes) would circumvent the intent of the law.

Therefore, we are amending section 630.401(c) to state that leave may

not be advanced for the purpose of meeting the requirement to retain a

minimum sick leave balance or using additional sick leave for family

care or bereavement purposes.

OPM is also using this opportunity to make a technical correction

in 5 CFR 630.201, Definitions. In the interim regulations to

incorporate certain incentive awards and pay and leave administration

rules contained in the provisionally retained Federal Personnel Manual

material published in the Federal Register on December 28, 1994 (59 FR

66629), the numbering of paragraphs (7) through (9) of 5 CFR 630.201(b)

was incorrect. The numbering of paragraphs (7) through (9) has been

corrected as follows: (7) Medical certificate; (8) Uncommon tour of

duty; and (9) United States.

Regulatory FlexibilityAct

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 continues to read as

follows:

Authority: 5 U.S.C. 6311; Sec. 630.301 also issued under Public

Law 103-356 (108 Stat. 3410); Sec. 630.303 also issued under 5

U.S.C. 6133(a); Secs. 630.306 and 630.308 also issued under 5 U.S.C.

6403(d)(3), Public Law 103-337 (108 Stat. 2663); subpart D also

issued under Public Law 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 Public Laws 100-566 (102 Stat. 2834) and 103-103

(107 Stat. 1022); subpart J also issued under 5 U.S.C. 6362 and

Public Laws 100-566 and 103-103; subpart K also issued under Public

Law 102-25 (105 Stat. 92); and subpart L also issued under 5 U.S.C.

6387 and Public Laws 103-3 (107 Stat. 23).

Subpart D--Sick Leave

Sec. 630.201 [Amended]

2. Section 630.201 is amended by redesignating the first paragraph

(b)(8) as paragraph (b)(9), paragraph (b)(7) as new paragraph (b)(8),

and the existing second paragraph (b)(8) as paragraph (b)(7).

3. In Sec. 630.401, paragraph (c) is revised to read as follows:

Sec. 630.401 Grant of sick leave.

* * * * *

(c) To be granted any sick leave for the purposes described in

paragraphs (a) (3) or (4) of this section during any leave year in an

amount exceeding a total of 40 hours (or, in the case of a part-time

employee or an employee with an uncommon tour of duty, the average

number of hours in the employee's scheduled tour of duty each week),

the employee concerned shall retain in his or her sick leave account a

balance of at least 80 hours (or, in the case of a part-time employee

or an employee with an uncommon tour of duty, an amount equal to twice

the average number of hours in the employee's scheduled tour of duty

each week). No sick leave may be advanced under 5 U.S.C. 6307(d) for

the purpose of meeting the requirement to retain a minimum sick leave

balance or for using additional sick leave for the purposes described

in paragraphs (a) (3) and (4) of this section when such use would

otherwise cause the employee's sick leave balance to fall below the

minimum required.

* * * * *

Subpart I--Voluntary Leave Transfer Program

Sec. 630.907 [Amended]

3. In Sec. 630.907 paragraph (c) introductory text, remove the

words ``of chapter I''; in paragraph (d)(2), remove the second

occurrence of the word ``by'' and add in its place the word ``to''.

Subpart J--Voluntary Leave Bank Program

Sec. 630.1101 [Amended]

4. In Sec. 630.1011 paragraph (b)(2), remove the word ``affect''

and add in its place the word ``effect''.

5. In addition to the amendments set forth above, in 5 CFR part

630, subparts I and J, remove the words ``or work'' in the following

places:

Secs. 630.905, 630.907, 630.1007, 630.1008 [Amended]

(a) Section 630.905 (b) and (c);

(b) Section 630.907(a)(1), (a)(2), and (d)(1);

(c) Section 630.1007 (b) and (c); and

(d) Section 630.1008(a)(1), (a)(2), and (d)(1).

[FR Doc. 95-12411 Filed 5-19-95; 8:45 am]

BILLING CODE 6325-01-M