Family and Medical Leave

SUMMARY: The Office of Personnel Management is issuing final

regulations on family and medical leave consistent with Title II of

Family and Medical Leave Act of 1993. The final regulations provide

covered Federal employees a total of 12 administrative workweeks of

unpaid leave during any 12-month period for certain family and medical

needs. The employee may continue health benefits while he or she is on

leave and is entitled to be returned to the same position or to an

equivalent position with equivalent benefits, pay, status, and other

terms and conditions of employment.

EFFECTIVE DATE: January 6, 1997.

FOR FURTHER INFORMATION CONTACT: For information on the Family and

Medical Leave Act of 1993, contact Jo Ann Perrini (202) 606-2858, or

FAX (202) 606-0824. For information on the Federal Employees Health

Benefits Program, contact Margaret Sears, (202) 606-0004.

SUPPLEMENTARY INFORMATION: On July 23, 1993, the Office of Personnel

Management (OPM) published interim regulations (58 FR 39596) to

implement the requirements set forth in sections 6381 through 6387 of

title 5, United States Code, as added by Title II of the Family and

Medical Leave Act of 1993 (FMLA) (Public Law 103-3, February 5, 1993).

The FMLA became effective on August 5, 1993. The FMLA provides eligible

Federal employees a total of 12 administrative workweeks of unpaid

leave during any 12-month period for (a) the birth of a son or daughter

and care of the newborn; (b) the placement of a child with the employee

for adoption or foster care; (c) the care of the employee's spouse,

son, daughter, or parent with a serious health condition; or (d) a

serious health condition of the employee that makes the employee unable

to perform the essential functions of his or her position. OPM's

regulations implementing the FMLA are found in subpart L of part 630 of

title 5, Code of Federal Regulations.

Title I of the FMLA covers non-Federal employees and certain

Federal employees not covered by Title II. The Secretary of Labor

issued final regulations implementing Title I of the FMLA in 29 CFR

part 825 (60 FR 2180, January 6, 1995). The Department of Labor's final

regulations became effective on April 6, 1995. OPM's final regulations,

as set forth below, are, to the extent appropriate, consistent with the

final regulations issued by the Department of Labor (DOL), as required

by 5 U.S.C. 6387. In the discussion that follows, we have noted those

provisions that were revised to be consistent with DOL's final

regulations.

The House Committee Report for Titles I and II of the Family and

Medical Leave Act of 1993 (Rept. No. 103-8, 103d Cong., 1st Sess.,

Parts 1 and 2, February 2, 1993) (hereinafter referred to as the

``legislative history'') provides additional information on the intent

of Congress in enacting the FMLA. In some cases where the language of

the FMLA is not determinative, we have drawn from the legislative

history for guidance in developing the regulations.

During the comment period, OPM received comments from 14 Federal

agencies, 4 labor organizations, 2 professional associations, and 3

individuals, for a total of 23 comments. A summary of the comments

received and a description of the revisions made in the regulations as

a result of the comments are presented below.

Employees Covered

Three agencies commented on the scope of employees covered by OPM's

regulations. In the interim regulations, OPM delegated responsibility

for issuing regulations to implement sections 6381 through 6387 of

title 5, United States Code, to the Secretary of Veterans Affairs for

physicians, dentists, and nurses in the Veterans Health Administration

appointed under section 7401(1) of title 28, United States Code. The

Department of Veterans Affairs noted that the scope of 38 U.S.C.

7401(1) has been expanded to cover other occupations in addition to

those currently listed in Secs. 630.1201(b)(1)(ii)(B) and

630.1201(b)(3)(i). The agency requested that the regulations be

modified to include all employees in the Veterans Health Administration

of the Department of Veterans Affairs who are appointed under 38 U.S.C.

7401(1). OPM agrees and has revised the regulations to be consistent

with 38 U.S.C. 7401(1).

In addition, since employees of the Library of Congress are covered

under 5 U.S.C. 6301(2) and Title II of the FMLA, DOL has revised its

regulations in 29 CFR 825.109 to exclude employees of the Library of

Congress from coverage under Title I of the FMLA. However, effective 1

year after transmission to the Congress of a study required under

Public Law 104-1, Section 230, dated January 23, 1995, the coverage of

the employees of the Library of Congress for purposes of FMLA leave

will be made in accordance with Public Law 104-1, section 202.

An agency recommended that temporary and intermittent service

should be deemed creditable toward the 12-month service requirement for

coverage under Title II of the FMLA if the employee later receives a

permanent appointment. However, under 5 U.S.C. 6381(1)(B), temporary

and intermittent service is specifically excluded as creditable service

for determining the 12-month service requirement. Therefore, the

recommendation cannot be adopted.

Definitions

The following definitions were revised, deleted, or added in the

final regulations:

Continuing treatment by a health care provider. The term was

deleted as a separate definition because it was incorporated in the

expanded definition of ``serious health condition'' in the final

regulations. This is consistent with DOL's final regulations.

Essential functions. The Equal Employment Opportunity Commission

recommended that the citation used in defining essential functions be

revised to reference only the applicable provisions--i.e., 29 CFR

1630(n), rather

[[Page 64442]]

than the whole section--i.e., 29 CFR 1630. We agree. In addition, the

revised definition states that if an employee must be absent from work

to receive medical treatment for a serious health condition, the

employee is considered to be unable to perform the essential functions

of the position during the absence for treatment. This is consistent

with DOL's regulations.

Foster care. This term was clarified by adding a statement that

removal of a child from parental custody must be the result of State

action even if the placement for foster care is with relatives. This is

consistent with DOL's regulations.

Health Care Provider. Several commenters recommended revising the

definition to include health care providers who are recognized by the

Federal Employees Health Benefits Program or health care providers who

are licensed by a State. OPM agrees and has revised the regulations to

include health care providers who are recognized by the Federal

Employees Health Benefits Program or who are licensed or certified

under Federal or State law to provide the service in question.

Two agencies recommended that the definition of ``health care

provider'' be broadened to include traditional healing practitioners--

i.e., healer, shaman, or medicine man--who are recognized by Native

American traditional religious leaders to perform traditional healing

methods. The agencies were concerned that denial of leave under the

FMLA for purposes of traditional healing could give rise to complaints

of discrimination based on race or religion or litigation based on a

perceived violation of the Native American Religious Freedom Act. The

Act states that it ``shall be the policy of the United States to

protect and preserve for American Indians their inherent right of

freedom to believe, express, and exercise the[ir] traditional religions

. . . , including but not limited to access to sites, use and

possession of sacred objects, and the freedom to worship through

ceremonials and traditional rights.''

Under 5 U.S.C. 6381(2)(B), OPM is authorized to designate any other

health care provider who is determined by OPM to be capable of

providing health care services. In response to these comments, OPM has

revised the definition of ``health care provider'' to include a Native

American, including an Eskimo, Aleut, and Native Hawaiian, who is

recognized as a traditional healing practitioner by native traditional

religious leaders and who practices traditional healing methods as

believed, expressed, and exercised and in Indian religions of the

American Indian, Eskimo, Aleut, and Native Hawaiians, consistent with

the Native American Religious Freedom Act.

In addition, the definition of ``health care provider'' has been

expanded to include health care providers who practice in a country

other than the United States. This change ensures coverage under the

FMLA for an employee or his or her spouse, son, daughter, or parent who

becomes eligible for leave under the FMLA while abroad or residing in a

foreign country. This is consistent with DOL's final regulations.

One commenter suggested that the definition of ``health care

provider'' should provide more specificity as to who is an acceptable

health care provider. We believe that the broad scope of the revised

definition of ``health care provider'' should minimize the need for an

exhaustive listing of health care providers.

Incapacity. A definition of ``incapacity'' was added because the

term is used within the expanded definition of ``serious health

condition'' in the final regulations. ``Incapacity'' means the

inability to work, attend school, or perform other regular daily

activities because of a serious health condition or treatment for or

recovery from a serious health condition.

Intermittent leave or reduced leave schedule. An agency noted that

the interim regulations state that intermittent leave may include time

periods of less than 1 hour. The agency stated that this would obligate

agencies to grant leave in increments of less than 1 hour, even though

the agency's policy for granting all other leave is in increments of

full hours. The regulations have been revised to permit agencies to

grant leave under the FMLA in the same increments as all other leave is

granted. Leave under the FMLA may be taken for a period of less than 1

hour if agency policy provides for a minimum charge for leave of less

than 1 hour.

Parent, Son or Daughter, and Spouse. Four commenters stated that

the definition of ``family'' in OPM's interim regulations is too narrow

and does not reflect the reality of today's family arrangements. The

commenters recommended that the definition of ``family'' be broadened

to include individuals in other than traditional nuclear families. One

commenter suggested adopting the definition of ``family member'' used

in the Voluntary Leave Transfer Program.

Under 5 U.S.C. 6382 and in the legislative history, Congress

specifically defined ``family'' to include only a spouse, son or

daughter, and parent. Accordingly, the recommendation to broaden the

definition of ``family'' cannot be adopted. This is consistent with

DOL's final regulations.

An agency requested that the citation used in defining

``disability'' in the definition of ``son or daughter'' be changed to

29 CFR 1630.2(h), instead of 29 CFR 1630.2(g). The agency stated that

paragraph (g), ``disability,'' includes individuals who have ``a record

of such an impairment'', but who may not be affected currently by the

impairment. Paragraph (h), ``physical or mental impairment,'' limits

the coverage to those individuals with actual disabilities and omits

individuals who have a record of or are regarded as individuals with

disabilities. The citation has been revised as suggested to restrict

coverage to individuals with actual disabilities who require assistance

or supervision to provide daily self-care. This is consistent with

DOL's final regulations.

The same agency pointed out that the use of the term ``child'' in

the definition of ``parent'' may be perceived as connoting a lack of

maturity, is not appropriate for individuals over 18 years old who are

disabled, and may reinforce negative stereotypes about individuals with

disabilities. In the final regulations, the definition of ``parent''

has been revised to include the term ``son or daughter.'' This is

consistent with DOL's final regulations.

A commenter requested that the definition of ``parent'' be revised

to allow the claim of in loco parentis only if the individual has

served in this capacity for a major portion of the employee's

childhood. Section 6381(3) of title 5, United States Code, specifically

defines the term ``parent'' to mean ``the biological parent of an

employee or an individual who stood in loco parentis to an employee

when the employee was a son or daughter'' and does not include any such

limitation. Therefore, no change was made in the definition.

The definition of ``spouse'' has been revised to be consistent with

the definition of ``spouse'' in the Defense of Marriage Act (Public Law

104-199, September 21, 1996). The Act defines ``marriage'' as ``a legal

union between one man and one woman as husband and wife'' and

``spouse'' as ``a person of the opposite sex who is a husband or a

wife.''

Serious Health Condition. Three commeters suggested extending the

qualifying period of incapacity from ``more than 3 calendar days'' to 5

days or longer. They contended that 3 days of incapacity is normal for

very minor

[[Page 64443]]

health conditions and that such conditions should be covered under the

rules and remedies related to short-term absences because of illnesses.

One commenter suggested that Congress had very serious health

conditions in mind and that the term ``serious health condition'' was

not intended to cover short-term conditions for which treatment and

recovery are very brief and it is expected that such conditions will

fall within the scope of an agency's normal sick leave policy. Another

commenter noted that the serious nature of the condition should be

stressed by presenting some specific examples, such as cancer treatment

and kidney dialysis. One commenter opposed relying on the provisions in

5 U.S.C. 8117 relating to workers' compensation programs to support the

requirement of ``more than 3 calendar days'' of incapacity because the

rationale and application of these two programs are different.

Conversely, three organizations remarked that although duration may

be a factor in determining whether a condition is a serious health

condition, there cannot be a threshold duration in order to qualify for

leave. The organizations expressed the view that seriousness and

duration do not necessarily correlate, particularly for individuals

with disabilities for whom a health condition may be considered serious

long before a similar health condition would be considered serious for

the average person.

The organizations also stated that although OPM's definition of

``serious health condition'' includes chronic or long-term health

conditions that require treatment to prevent longer-term illness or

injury or a more severe disability, it does not cover acute or episodic

conditions of shorter duration, which also require immediate treatment

to prevent aggravation into a long-term injury or illness.

The legislative history states that the term ``serious health

condition'' is not intended to cover short-term conditions for which

treatment and recovery are very brief. Sick leave policies should

address minor illnesses that last only a few days and surgical

procedures that typically do not involve hospitalization and require

only a brief recovery period. We believe the established duration

period clarifies congressional intent within the regulations. In

addition, DOL has concluded that the ``more than 3 days'' test

continues to be appropriate. However, we have revised the regulations

to specify that ``more than 3 days'' means ``more than 3 consecutive

calendar days.'' This revision is consistent with DOL's final

regulations.

An agency recommended adding a paragraph to the definition stating

that cosmetic or other treatments that are not medically necessary are

not to be covered unless overnight inpatient hospital care is required.

Others recommended that conditions that are not considered serious

health conditions should be specifically included in the regulations.

We agree and have added a paragraph at the end of the definition of

``serious health condition'' to address those treatments and conditions

that are not considered a serious health condition. For example, the

common cold, the flu, earaches, upset stomach, headaches (other than

migraines), routine dental or orthodontia problems, etc., are not

serious health conditions unless complications arise. In addition, a

regimen of continuing treatment involving the taking of over-the-

counter medications, bed-rest, exercises, and other similar activities

that can be initiated without a visit to the health care provider is

not, by itself, sufficient to meet the definition of continuing

treatment for purposes of FMLA leave.

An agency questioned the need for OPM's supplemental guidance on

the treatment of substance abuse. The agency stated that it believes

the guidance is inappropriate, especially in assuming that an

employee's drug abuse problems may affect his or her job performance.

However, OPM believes the guidance is appropriate to acknowledge

concerns expressed by many agencies about the treatment of substance

abuse as a serious health condition, as well as the interplay between

the various rules concerning adverse actions, performance-based

actions, and reasonable accommodation. We restate that the treatment of

substance abuse may be included as a condition covered by the FMLA, but

absence because of the employee's use of the substance, without

treatment, does not qualify for leave under the FMLA. Also, the

exercise of an employee's right to take leave under the FMLA for

treatment of substance abuse does not prevent an agency from taking

action against the employee, provided the agency complies with the

Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), where appropriate.

Consistent with DOL's final regulations, the definition of

``serious health condition'' has been significantly revised. The

criteria used to determine whether a condition may be considered a

serious health condition have been grouped into two major categories--

i.e., inpatient care or continuing treatment by a health care provider.

A major change is the addition of chronic conditions, such as asthma,

diabetes, and epilepsy, that continue over an extended period of time

(i.e., from several months to several years), often without affecting

day-to-day activities, but may cause episodic periods of incapacity of

less than 3 days.

Another change is the addition of serious health conditions that

are not ordinarily incapacitating (at least at the current state of the

patient's condition), but for which multiple treatments are being given

because the condition would likely result in a period of incapacity of

more than 3 consecutive calendar days in the absence of medical

intervention or treatment (e.g., chemotherapy or radiation for cancer

dialysis for kidney disease, physical therapy for severe arthritis, or

multiple treatments for restorative surgery after an accident or other

injury). The definition of long-term, chronic conditions such as

Alzheimer's or a severe stroke has been modified to delete the

reference to the condition being incurable and to require instead that

the condition involve a period of incapacity that is permanent or long-

term and for which treatment may not be effective. Other changes

involve clarifying terms and providing information on the types of

conditions that are not considered serious health conditions.

Leave Entitlement

Section 630.1203(a)(4) of the interim regulations provides that an

employee is entitled to a total of 12 administrative workweeks of

unpaid leave during any 12-month period for a serious health condition

of the employee that makes the employee unable to perform the essential

functions of his or her position. A commenter suggested revising

Sec. 630.1203(a)(4) to extend the determination of whether an employee

is able to perform the essential functions of his or her position to

include whether an employee is able to perform in an available

alternative position or to be detailed to a temporary light duty

assignment. The statute does not provide for placing an employee in an

alternative or light-duty position in lieu of his or her entitlement

under the FMLA. Therefore, the regulations were not revised.

An agency should not confuse an employee's entitlement to leave

under the FMLA with its ongoing obligation to provide reasonable

accommodation under the Rehabilitation Act of 1973. While an agency

cannot require an employee to accept an alternative position offer, an

employee continues to maintain the right to request light duty

[[Page 64444]]

assignment in lieu of unpaid leave under the FMLA.

Section 630.1203(a) has been clarified to state that an employee is

eligible to take FMLA leave because of a serious health condition if he

or she is unable to perform any one or more of the essential functions

of his or her position. This revision is consistent with DOL's final

regulations.

Three organizations objected to requiring an employee to conclude

FMLA leave taken for the birth or placement of a child within 12 months

after the birth or placement. The organizations recommended revising

the regulations to provide that an employee must commence FMLA leave,

but not complete it, within 1 year of the birth or placement. Section

6382(a) states that the entitlement to leave for a birth or placement

for adoption or foster care expires at the end of the 12-month period

beginning on the date of such birth or placement. In addition, the

legislative history states that in cases of birth or placement of a

child, family leave must be taken within 12 months following the event.

DOL, in its final regulations, also upholds that FMLA leave ``must

conclude within one year of the birth or placement.''

In the interim regulations, Sec. 630.1203(c) provides that the 12-

month period of entitlement to FMLA leave begins on the date an

employee first takes FMLA leave and continues for 12 months. In

addition, Sec. 630.1203(d)(1) and (d)(2) provides that an employee may

begin FMLA leave prior to the date of birth or placement for adoption

or foster care and that FMLA leave must be concluded within 12 months

after the date of birth or placement.

An agency commented that these two provisions read together may

imply that a new 12-month period with a new 12-week entitlement cannot

begin until 12 months after the date of the birth or placement, even if

the employee begins FMLA leave prior to the date of birth or placement.

The agency believed this provision could be discriminatory and

potentially in violation of the Pregnancy Discrimination Act (Pub. L.

95-555, October 31, 1978). Another agency believed that the provisions

covering the entitlement to FMLA leave for a birth or placement implied

that the employee may be entitled to more than 12 weeks of unpaid

leave.

The legislative history clearly states that it was not the

committee's intent to require that FMLA leave because of a birth or

placement for adoption or foster care begin on the date of the birth or

placement. Congress recognized that employees may need to begin FMLA

leave prior to a birth or placement. At the same time, 5 U.S.C.

6382(a)(2) states that entitlement to a total of up to 12 workweeks of

FMLA leave based on a birth or placement expires at the end of the 12-

month period beginning on the date of such birth or placement. The

result of combining these provisions is that the time period in which

an employee may use FMLA leave because of a birth or placement for

adoption or foster care may extend into a succeeding 12-month period.

For example, if an employee invokes his or her entitlement to FMLA

leave before the birth or placement for adoption or foster care, the

12-month period begins on that date and ends 12 months later (e.g.,

June 2, 1996, through June 1, 1997). In addition, the statutory

entitlement to FMLA leave for 1-year after the actual birth or

placement may permit an employee to use some FMLA leave in a second 12-

month period for the birth or placement (e.g., June 14, 1996, through

June 13, 1997). The second 12-month period begins immediately after the

expiration of the first 12-month period. The employee may use up to a

total of 12 weeks of FMLA leave during the first 12-month period for

the birth or placement. During the second 12-month period, the employee

would be entitled to use FMLA leave for care of the newborn or adopted

child but only for the time period between the end of the first 12-

month period and the expiration of the 12-month period after the date

of birth or placement (e.g., June 2, 1997, through June 13, 1997).

During any 12-month period an employee may use no more than 12 weeks of

FMLA leave. The final regulations have been clarified to state that

leave taken for the birth of a child or placement for adoption or

foster care may begin prior to or on the actual date of birth or

placement.

Four commenters recommended changes that would place limitations on

the rights of an employee under the FMLA. One commenter suggested that

leave without pay not formally requested under the FMLA, but granted

for purposes appropriate under the FMLA, should count against the FMLA

entitlement, especially if the same condition or situation prompted

both the non-FMLA and FMLA leave requests. Another commenter stated

that a limitation should be placed on foster care benefits because

participating in foster care programs may result in individuals

becoming foster care parents for numerous children over the years. The

commenter believes this would permit individuals to invoke FMLA leave

year after year, placing a terrible hardship on the agency, especially

when such individuals are employed in critical positions (e.g., health

care occupations). Finally, a commenter expressed concern that an

agency's missing could be disrupted seriously because the beginning and

ending dates of the 12-month period of entitlement would allow the

``stacking'' of FMLA leave. The agency recommended adopting a provision

that would not allow, or at least minimize, the possibility of stacking

one 12-week period onto a second 12-week period.

The legislative history clearly states that the 12 workweeks of

unpaid leave under the FMLA is a new entitlement in addition to any

annual leave, sick leave, or other leave or compensatory time off

available to an employee. An employee may choose to take FMLA leave in

combination with any other available leave. However, an employee must

obtain approval and/or meet statutory and regulatory requirements to

take additional leave or other periods of paid time off. Under 5 U.S.C.

6382(a)(1)(b), an employee is entitled to FMLA leave for the placement

of a son or daughter with the employee for adoption or foster care.

This entitlement does not limit the number of times an employee may

invoke FMLA leave for foster care.

Another commenter requested that the regulations requiring the

employee to take only the amount of family leave and medical leave that

is necessary to manage the circumstances that prompted the need for

FMLA leave should not apply to a birth or adoption, since these

purposes should not be limited to a subjective definition of what is

necessary. We believe an employee must be responsible for taking only

the amount of family and medical leave that is necessary for any of the

purposes for which FMLA leave may be taken.

We have not adopted any of these recommendations. We believe a

leave program built on open communication between managers and

employees should alleviate many of the concerns that have been

expressed. The regulations acknowledge that the manager and the

employee have responsibilities and obligations in preparing and

planning for FMLA leave, as well as in following procedures for

invoking and taking FMLA leave.

Three of the organizations and two individual commenters were

concerned that many agencies have not fully informed their employees of

their entitlements and responsibilities under the FMLA. In addition, it

is apparent from the numerous telephone inquiries and letters received

by OPM that many employees are not aware of the provisions of the FMLA.

In response, we have clarified Sec. 630.1203(g) to require

[[Page 64445]]

agencies to inform employees of their entitlements and responsibilities

under the FMLA. To meet this requirement, agencies may wish to provide

employees access to the FMLA and OPM's implementing regulations or

agency policies or guidance on implementing the FMLA. Also, agencies

may provide employees access to OPM's fact sheet and brochure,

``Federal Employee Entitlements Under the Family and Medical Leave Act

of 1993'' or ``Family-Friendly Leave Policies for Federal Employees.''

These publications are available on OPM's Mainstreet and PayPerNet

electronic bulletin boards. In addition, these final regulations will

be posted on OPM's World Wide Web site at www.opm.gov in the near

future.

Consistent with all other Federal leave programs and policies, an

employee who chooses to take leave under the FMLA must initiate the

action to take such leave. Therefore, to eliminate misunderstandings

between supervisors and employees, Sec. 630.1203(b) has been clarified

to state that an employee must invoke his or her entitlement to family

and medical leave, subject to the notification and medical

certification requirements in Secs. 630.1206 and 630.1207. An employee

may not retroactively invoke his or her entitlement to leave under the

FMLA for a previous absence from work. The legislative history

establishes an intent to authorize the use of leave ``to be taken''

under the FMLA on a prospective basis. In addition, both the law and

OPM's regulations require that if the need for leave is foreseeable,

the employee must provide the employing agency with not less than 30

days notice, before the date the leave is to begin, of the employee's

intention to take family and medical leave. If the need for leave is

not foreseeable, the employee must provide such notice as is

practicable. We believe the employee remains responsible for providing

his or her agency as much notice as is practicable to allow the agency

ample opportunity to plan the work during the employee's absence.

Intermittent Leave or Reduced Leave Schedule

Section 630.1204(b) states that if an employee takes leave

intermittently or on a reduced leave schedule for planned medical

treatment or recovery, the agency may place the employee in an

available alternative position. A commenter recommended that OPM add

that an alternative position is not required to have duties that are

equivalent to those of the employee's original position. We agree and

have added this statement, consistent with DOL's final regulations.

Section 630.1204(f) has been clarified to state that only the

amount of leave taken intermittently or on a reduced leave schedule, as

these terms are defined in Sec. 630.1202, can be subtracted from the

total of 12 weeks of FMLA leave available to the employee. This will

ensure that FMLA leave is subtracted from the total 12-week entitlement

in the same increments that it is taken, consistent with the revised

definition of ``intermittent leave or reduced leave schedule'' in

Sec. 630.1202.

Another commenter requested that the term ``reduced leave

schedule'' be changed to ``reduced work schedule,'' because the hours

of work are reduced and supplemented by FMLA leave. ``Reduced leave

schedule'' is the term used in the statute, and we do not believe it is

necessary to make this change. ``Reduced leave schedule'' means a work

schedule under which the usual work per workday or workweek of an

employee is reduced. The number of hours by which the daily or weekly

tour of duty is reduced are counted as FMLA leave.

In response to numerous calls, we restate that an employee must

obtain approval from his or her employing agency to take FMLA leave on

an intermittent basis or reduced leave schedule for the birth of a

child or for placement for adoption or foster care.

Substitution of Paid Leave

Section 630.1205(b)(1) states that an employee may elect to

substitute annual or sick leave for unpaid leave under the FMLA,

``consistent with current law and regulations governing the granting

and use of annual and sick leave.'' Three organizations believe the

legislative history of the FMLA shows that Congress intended that

employees would be entitled to substitute their accrued or accumulated

sick leave for any or all of the 12 weeks of unpaid FMLA leave to care

for a family member. Other commenters recommended that unlimited sick

leave be allowed for bonding following childbirth or adoption and for

the care of a family member.

Under 5 U.S.C. 6382(d), an employee may elect to substitute

``accrued or accumulated annual or sick leave'' for unpaid leave under

the FMLA, ``except that nothing in this subchapter shall require an

employing agency to provide paid sick leave in any situation in which

such employing agency would not normally provide any such paid leave.''

On December 2, 1994, OPM issued final regulations on the use of sick

leave for Federal employees (59 FR 62266). The final regulations expand

the use of sick leave by permitting most full-time employees to use a

total of up to 104 hours (13 workdays) of sick leave each leave year to

provide care for a family member as a result of physical or mental

illness; injury; pregnancy; childbirth; or medical, dental, or optical

examination or treatment. In addition, OPM issued interim and final

regulations on the use of sick leave for adoption-related purposes (59

FR 62272 and 60 FR 26977). Under Sec. 630.401(a)(6), sick leave may be

used for purposes relating to the adoption of a child--e.g.,

appointments with adoption agencies, court proceedings, and required

travel. Sick leave may be granted for any period 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. However,

sick leave may not be used either by birth or adoptive parents who

voluntarily choose to be absent from work to bond with a birth or

adopted child.

If an 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. OPM has addressed comments on the issue of unlimited

substitution of sick leave for unpaid leave under the FMLA in its final

sick leave regulations published on December 2, 1994 (59 FR 62266), and

the final regulations on sick leave for adoption published on May 22,

1995 (60 FR 26977). In addition, OPM agrees with DOL's assessment that

the legislative history does not support the idea that Congress

intended unlimited substitution of paid sick leave for unpaid leave

under the FMLA. (Also, see DOL's final regulations published on January

6, 1995 (60 FR 2180).) There is nothing in the FMLA or its legislative

history that would allow agencies to permit the use of paid sick leave

for the care of a family member in any situation in which the agency

would not otherwise permit the use of such paid sick leave.

Several commenters requested additional clarification on the

substitution of paid leave for leave without pay under the FMLA.

Specifically, the commenters questioned whether the substitution of

paid leave can be done retroactively and whether an agency may deny an

employee's request to substitute annual leave for leave without pay.

The substitution of paid leave must be consistent with current law

and regulations for granting and using annual and sick leave. Once an

[[Page 64446]]

employee has invoked his or her entitlement to FMLA leave and has

provided all the necessary notifications and certifications for agency

approval, an agency may not deny an employee's request to substitute

annual leave. However, an employee cannot substitute any more annual

leave than he or she has available. Likewise, an agency may not deny

the employee's request to substitute sick leave if the use of sick

leave is consistent with current law and regulations.

The right to substitute paid leave for leave without pay under the

FMLA applies only to leave that is to be taken in the future. The

legislative history provides an intent to authorize the use of leave

``to be taken'' under the FMLA. Therefore, the substitution of paid

leave for unpaid FMLA leave can be accomplished only on a prospective

basis. Section 630.1205(e) has been clarified to state than an employee

who has invoked his or her entitlement to FMLA leave may not

retroactively substitute paid leave for any leave without pay

previously taken under the FMLA.

Several commenters requested an explanation of the relationship

between the FMLA and the voluntary leave transfer and leave bank

programs. We provide the following example:

Example: An employee invokes his entitlement to FMLA leave as a

result of a medical emergency. The employee does not have any paid

leave available and therefore applies for donated leave under his

agency's leave transfer program. Approximately 2-3 weeks later, the

employee is approved as a leave recipient and receives donated

annual leave. Under the voluntary leave transfer and leave bank

programs, the employee may retroactively substitute paid leave for

leave without pay beginning on the date the emergency began,

consistent with Secs. 630.906(d) and 630.1009(d). The 12-month

period and the 12-week entitlement to leave under the FMLA begins on

the date the employee first invoked FMLA leave. The employee

receives the benefits and protections of both the FMLA and the

voluntary leave transfer program simultaneously.

A commenter stated that an agency should be allowed to apply the

same requirements for requesting annual and sick leave to requests for

leave under the FMLA; e.g., agency policy may require medical

certification for sick leave of more than 6 weeks to be used in

connection with a pregnancy. Section 630.1207 already permits an agency

to request a medical certification for the serious health condition of

the employee--e.g., pregnancy or illnesses related to pregnancies.

Therefore, we do not believe additional changes are needed.

In its final regulations, DOL addressed the issue of permitting the

substitution of compensatory time off under the Fair Labor Standards

Act (FLSA) for unpaid leave under the FMLA. DOL stated that the use of

compensatory time off is severely restricted under the FLSA in ways

that are not compatible with the substitution of paid leave provisions

under the FMLA. Compensatory time off is not a form of accrued paid

leave mentioned in the FMLA or legislative history for purposes of

substitution of leave. Rather, it is an alternative form of payment for

overtime hours worked. An agency's right to deny an employee's request

for compensatory time off under the FLSA, if it would be unduly

disruptive to the agency's operations, is inconsistent with the

provision in the FMLA authorizing the employee to elect to substitute

paid leave for unpaid leave under the FMLA. An agency may not

simultaneously charge the FLSA compensatory time hours taken against

the employee's separate FMLA leave entitlement. DOL states that ``to do

so would amount to charging (debiting) two separate entitlements for a

single purpose.''

We believe DOL's argument applies to any compensatory time off

earned under 5 U.S.C. 5543. Similarly, we believe this restriction

should also apply to any credit hours accrued under a flexible work

schedule under 5 U.S.C. 6122. Therefore, Sec. 630.1205 has been revised

to state that only annual leave, sick leave, and advanced annual leave

and sick leave may be substituted for leave without pay under the FMLA.

An employee may continue to use earned compensatory time off and credit

hours in addition to his or her entitlement to leave under the FMLA.

Notice of Leave

Section 630.1206(d) of the interim regulations provides that when

leave is foreseeable, and the employee fails to give 30 days' notice

with no reasonable excuse for the delay of notification, the agency may

delay the taking of FMLA leave until at least 30 days after the date

the employee provides notice of his or her need for FMLA leave. Three

organizations believe an agency should be allowed to penalize an

employee only if the agency has been adversely affected. This is to

guard against employers denying leave on mere technicalities and

penalizing employees for failure to give timely notice.

The legislative history states that an employee who intends to take

leave for the birth or placement of a child shall provide 30 days'

notice, or such notice as is practicable, of his or her intention to

take such leave. If the employee intends to take leave to care for a

family member with a serious health condition, the employee, subject to

the approval of the health care provider, must make a reasonable effort

to schedule treatment so as not to unduly disrupt the operations of the

agency and must provide 30 days notice, or such notice as is

practicable, of his or her intention to take such leave.

Congressional intent clearly indicates that the responsibility to

give notice abides with the employee, and with that, the accountability

for fulfilling the notification requirement. DOL has stated, ``[A]s

this is an affirmative responsibility of the employee it would be

inappropriate to require the employer to show any prejudice resulting

from an employee's failure to provide adequate notice.''

Another organization believes strict interpretation of the

regulation would result in undue hardships for employees in

circumstances where leave must be taken sooner than 30 days after the

date of notification, without regard to whether the need for leave is

foreseeable. The commenter recommended mandatory exceptions from the

waiting requirement in circumstances where leave cannot reasonably be

delayed for 30 days.

We believe the regulations already accommodate situations in which

30 days notice for unforeseen medical emergencies is not possible. In

cases where leave is foreseeable, we believe it is appropriate to

require an employee to provide notice 30 days prior to the date leave

is to begin or such notice as is practicable. Therefore, the

regulations have not been revised.

A commenter requested that employees to required to keep

supervisors informed of their intentions on the kinds and amounts of

leave planned if extended absence is likely either before or after

beginning FMLA leave. The regulations require a 30-day notice of intent

to take FMLA leave and allow an agency to require an employee to report

periodically on his or her status and intention to return to work.

Also, the regulations allow agencies to require periodic

recertification of a serious health condition. We do not believe any

additional requirements are necessary.

Section 630.1206(c) requires that if the need for leave is not

foreseeable and an employee cannot provide 30 days notice, he or she

must provide notice within a reasonable period of time appropriate to

the circumstances involved. One commenter suggested that a time limit

for such notification be established similar to the time limit set by

DOL--i.e., 1 or 2 working days after

[[Page 64447]]

learning of the need for leave. Agencies are responsible for the

administration of the FMLA and may establish such time limitations in

their agency policies. Therefore, the regulations have not been

changed.

An agency requested guidance on the appropriate documentation to

support a request for FMLA leave for a birth, adoption, or foster care.

Section 630.1206(f) has been revised to permit agencies to require an

employee to provide evidence that is administratively acceptable to the

agency in support of his or her intent to use FMLA leave for the birth

of a child or placement of a child for adoption or foster care.

Medical Certification

A commenter asked what information may be submitted for the medical

certification to be considered sufficient to justify leave taken under

the FMLA. Section 6838 of title 5, United States Code, lists what

information is sufficient in determining the appropriateness of the

medical certification. The law also provides for action to be taken if

an agency doubts the validity of the certification by permitting

agencies to request a second and a third opinion. To prevent a

stalemate from happening, the opinion of the third health care provider

is deemed binding. To assist agencies and employees, OPM's regulations

have been revised to permit a health care provider representing the

agency to contact the health care provider of the employee, with the

employee's permission, to clarify medical information pertaining to the

condition. The information on the medical certification must relate

only to the serious health condition for which the current need for

family and medical leave exists. No additional personal or confidential

information may be requested. This is consistent with DOL's

regulations.

An agency objected to OPM's exception in Sec. 630.1207(d), which

permits an agency to designate, for the second opinion, a health care

provider employed or under the administrative oversight of the agency

in areas where access to health care is extremely limited. This

provision is an important and reasonable alternative in rural areas and

overseas locations where it may be extremely difficult to locate a

health care provider that is not employed or under the administrative

oversight of the agency. However, an agency's suggestion that, given

tight budgets, it would be reasonable to permit agencies to use a

health care provider with whom the agency had developed a relationship

cannot be adopted because such a change is prohibited by law.

Permitting an agency to designate for the second opinion a health care

provider employed or under the administrative oversight of the agency

in areas where access to health care is extremely limited is consistent

with DOL's regulations.

Other commenters stated that the guidance presented in OPM's

Supplementary Information on provisional leave was incorrect in stating

that if an employee does not submit the required medical certification,

an agency should charge the employee's appropriate paid leave account.

In the Supplementary Information, OPM was restating guidance from the

legislative history. Section 630.1207(h) specifically states that if an

employee is unable to provide the requested medical certification after

leave has commenced, the agency may charge the employee as absent

without leave (AWOL) or allow the employee to request that the

provisional leave be charged as leave without pay or to the employee's

annual and/or sick leave account, as appropriate.

A commenter questioned the need to provide information to the

health care provider on the essential functions of the employee's

position. Although appropriate in some cases, the commenter stated

that, in many instances, the need for leave will be based on an

employee's need for treatment or continuous medical supervision and not

on his or her inability to perform the essential functions of the

position. We believe the health care provider must first determine that

the condition or illness qualifies as a serious health condition.

Secondly, the health care provider must be aware of the essential

functions of the employee's position in order to make a determination

that if treatment or supervision is not provided, the employee cannot

perform the essential functions of his or her position. If an employee

must be absent from work to receive medical treatment for a serious

health condition, the employee is considered to be unable to perform

the essential functions of the position during the absence for

treatment.

The regulations require that the written medical certification

include the date the serious health condition commenced, the probable

duration of the serious health condition, and the appropriate medical

facts within the knowledge of the health care provider. However, in the

situations described, the dates of treatment and duration are unknown.

In response to these comments, we have revised the regulations to

permit the health care provider to specify that the serious health

condition is a chronic or continuing condition with an unknown

duration. The health care provider must also specify whether the

patient is currently incapacitated and the likely duration and

frequency of episodes of incapacity.

Section 630.1207(i) has been revised to provide that an agency may

waive the requirement for an initial medical certification in a

subsequent 12-month period if leave for a serious health condition is

for the same chronic or continuing condition. Also, the regulations

have been revised to stipulate that for most serious health conditions

(excluding pregnancy, chronic conditions, or permanent or long-term

conditions under the continuing supervision of a health care provider),

if the health care provider has specified on the medical certification

a minimum duration of the period of incapacity, the agency may not

request recertification until that minimum duration has passed. Section

630.1207(i) continues to permit agencies to require more frequent

medical recertification if an employee requests that the original leave

period be extended, the circumstances described in the original medical

certification have changed significantly, or the agency receives

information that casts doubt upon the continuing validity of the

medical certification. These revisions are consistent with DOL's final

regulations.

A commenter suggested that OPM incorporate DOL's provision that an

employee must submit a medical certification within the time frame set

by the employer (i.e., allowing at least 15 days for an employee to do

so). We believe the establishment of time limitations is at an agency's

discretion. Therefore, this change was not made.

Four agencies requested that OPM develop a standardized, user-

friendly medical certification form that can be used Governmentwide.

Three organizations recommended that OPM not adopt DOL's medical

certification form because it is unnecessarily detailed and confusing.

In the Supplementary Information accompanying its interim regulations,

OPM suggested that agencies use DOL's medical certification form or

develop their own form for obtaining medical certification from a

health care provider. DOL has extensively revised its medical

certification form. The new form design is easier to use. Agencies have

had experience using DOL's medical certification form or their own

medical certification form for more than 3 years. We do not believe it

would be cost-

[[Page 64448]]

effective to develop a duplicate medical certification form for use by

Federal agencies. We will, however, make the DOL medical certification

form available to agencies on OPM electronic bulletin boards. OPM

Mainstreet may be reached on (202) 606-4800, and PayPerNet may be

reached on (202) 606-2675. The medical certification form will also be

posted on OPM's World Wide Web site at www.opm.gov.

Protection of Employment and Benefits

One commenter recommended that the regulations include a statement

that restoration to an ``equivalent position'' does not extend to

intangible, unmeasurable aspects of the job, such as perceived loss of

potential for future promotional opportunities.'' We agree that an

``equivalent position'' does not extend to intangible, unmeasurable

aspects of the job and have revised Sec. 630.1208(b)(5) to include this

statement. However, additional clarification may be needed. There may

be significant aspects of a previous position that an ``equivalent

position'' must retain--e.g., if the previous position was a

supervisory or team leader position or had an established career

ladder. Although an ``equivalent position'' must have the same career-

ladder promotion potential, an employee returning from FMLA leave

enjoys no greater privileges or protections than other employees and

must still meet the agency's requirements for receiving a promotion.

Several commenters asked for clarification and guidance in dealing

with probationary employees, adverse actions, and performance-based

actions and questioned whether agencies can proceed with such actions

if an employee invokes FMLA leave.

If an employee is in an LWOP status during the probationary period,

the probationary period will be extended by the amount of LWOP in

excess of 22 days. Therefore, depending upon the duration of the LWOP,

the length of an employee's probationary period could be extended by

the FMLA leave. If so, the employee would still be in a probationary

status upon his or her return to work. However, an employee who invokes

his or her entitlement to leave under the FMLA is not protected from

termination during probation if the agency decides to terminate the

individual's employment during probation. For example, if an agency

notified a probationary employee with 10 months of service that he or

she was to be removed due to misconduct, and the employee invoked his

or her FMLA entitlement, the agency would not need to wait until the

FMLA leave was exhausted (and the employee completed probation) before

taking action.

Pending adverse actions or performance-based actions may be taken

and made effective even if the employee is taking FMLA leave. For

example, if an employee was unsuccessful in improving his or her

performance during an opportunity period to improve and invoked his

FMLA entitlement immediately following the opportunity period, the

agency may issue the proposal and decision notices for removal based on

unacceptable performance and effect the action just as if normally

would. There is no obligation to wait until the employee has returned

from FMLA leave in order to proceed with an otherwise valid adverse or

performance-based action. Of course, agencies cannot remove or

otherwise discipline an employee based on his or her use of leave under

the FMLA.

In response to the comments and numerous inquiries on the

appropriate application of the FMLA in these matters, Sec. 630.1208(k)

has been added to state that an employee's request for and/or use of

leave under the FMLA does not prevent an agency from taking appropriate

action under 5 CFR part 432 or 5 part CFR 752. Also it remains the case

that an employee who invokes his or her entitlement to FMLA leave is

not immune from the impact of a reduction in force before, during, or

after the period of FMLA leave.

Medical Certification to Return to Work

OPM received written and telephone comments from several agencies

that advocated requiring medical certification to return to work when

an employee's serious health condition represented a danger to the

employee or coworkers. The commenters strongly objected to OPM's

interim regulations limiting medical certification to return to work

only to those employees who occupy a position that has medical

standards or physical requirements. The agencies believe this

restriction is in conflict with 5 U.S.C. 6384(d). In addition, an

agency commented that in any other situation where there is a question

as to whether an employee's presence at work may present a danger to

the employee or to others, or when an employee appears to be too ill to

work, management has the right to request medical documentation to

ascertain whether it is appropriate to allow the employee to return to

work. The agency does not believe the intent of the FMLA is to relieve

management of this right.

Section 6384(d) of title 5 states, ``As a condition of restoration

* * *, the employing agency may have a uniformly applied practice or

policy that requires each such employee to receive certification from

the health care provider of the employee that the employee is able to

resume work.'' After careful analysis and review of the law and

legislative history, OPM agrees that Congress intended to provide

agencies the authority to establish a uniform policy to require medical

certification to return to work from each employee who invokes FMLA

leave for his or her own serious health condition. Therefore,

Sec. 630.1208(h) has been revised to permit agencies to establish a

uniformly applied practice or policy that covers all similarly-situated

employees (e.g., same occupation, same serious health condition, or

same duration of absence from work) to obtain medical certification

from the health care provider of the employee that the employee is able

to perform the essential functions of his or her position. The

information on the medical certification to return to work must relate

only to the serious health condition for which FMLA leave was taken.

The statute permits an agency to require an employee to provide

medical certification from his or her health care provider that the

employee is able to resume work. In most circumstances, an agency must

return to work an employee who has provided a completed medical

certification. An agency may not require a second or third opinion on

the medical certification to return to work. If an employee submits

medical certification but an agency believes that the employee is not

fully recovered when he or she returns to work, may be a danger to

himself or herself or others, or is a disruptive force in the worksite,

the agency may take action under 5 CFR part 752 or other appropriate

authority. If the agency believes that additional medical documentation

would be helpful in determining appropriate action, the agency may

offer a medical or psychiatric examination under 5 CFR 339.302.

If an employee returns to work without the required documentation,

an agency may delay the return of an employee until acceptable medical

certification is provided. During this period of delay, an agency may

grant the employee's request for appropriate leave. If the employee

refuses to request leave until the medical certification is provided,

or does not provide the required medical certification, the agency may

use the procedures provided under 5 CFR part 752 to place the employee

on enforced leave,

[[Page 64449]]

suspend the employee, or remove the employee, as appropriate.

One commenter disagreed with OPM's requirement that agencies notify

employees before leave commences of the employee's obligation to

provide medical certification to return to work. The agency noted that

this requirement under the FMLA is not appropriate where employees are

already on a standing notice that all absences due to illness of a

certain duration will require a medical certification to return to

work. The statute and legislative history specify the medical

certification that may be required under the FMLA. If an agency's

policy requiring medical certification, including certification to

return to duty, is more stringent than that required under the FMLA,

the agency may not apply its own policy to an employee invoking leave

under the FMLA. However, to accommodate situations in which the need

for leave is not foreseeable--e.g., a medical emergency--

Sec. 630.1208(i) has been revised to state that an agency must notify

an employee of the requirement to provide medical certification to

return to work before the leave commences, or to the extent practicable

in emergency medical situations.

A commenter objected to the requirement that the agency must pay

for the medical certification to return to work. Since the request for

medical certification to return to work is at the discretion and

direction of the agency, the agency assumes the responsibility to pay

for the expenses.

Relationship to Other Entitlements

Nothing in the FMLA modifies or affects any Federal law prohibiting

discrimination on the basis of race, religion, color, national origin,

sex, age, or disability. An agency must comply with whichever statute

provides the greater rights to the employee.

For example, in the case of an employee with a serious health

condition under the FMLA who is also qualified individual with a

disability under the Rehabilitation Act of 1973 (29 U.S.C. 701 et

seq.), the FMLA and the Rehabilitation Act are to be applied

simultaneously and in a manner that assures the most generous

provisions of both Acts for the employee. Satisfying the requirements

under the FMLA by granting 12 weeks of leave and restoring the employee

to the same or equivalent position does not absolve an agency of any

potential responsibilities to that employee under the Rehabilitation

Act.

If an employee is a qualified individual with a disability under

the Rehabilitationn Act, the agency must make reasonable

accommodations, etc., barring undue hardship. The Equal Employment

Opportunity Commission has advised DOL that employers may consider FMLA

leave already taken when deciding whether granting leave in excess of

12 weeks as an accommodation under the Rehabilitation Act poses an

undue hardship. This does not mean, however, that more than 12 weeks of

leave automatically poses an undue hardship under the Rehabilitation

Act. Agencies must apply the full undue hardship analysis under the

Rehabilitation Act to each individual case to determine whether leave

in excess of 12 weeks poses an undue hardship.

An employee's right to be returned to the same or equivalent

position under the FMLA applies to the position held at the time the

employee commences FMLA leave. If an employee is unable to perform the

essential functions of the same or equivalent position because of a

disability, even with reasonable accommodation, the Rehabilitation Act

may require the agency to make a reasonable accommodation when the

employee returns. An agency may not change the essential functions of

an employee's position in order to deny an employee's rights under the

FMLA. However, an employee may voluntarily accept an alternative

position (e.g., ``light-duty'' position) rather than use leave under

FMLA. Additional questions on the Rehabilitation Act should be

addressed to the Equal Employment Opportunity Commission.

An employee may receive workers' compensation and be absent from

work due to an on-the-job illness or injury that also qualifies as a

serious health condition under the FMLA. The absence on workers'

compensation and FMLA leave may run concurrently. At some point, the

health care provider managing care pursuant to the workers'

compensation injury may certify that the employee is able to return to

work in a ``light duty'' position. If the agency offers such a

position, the employee is permitted, but not required, to accept the

position. If the employee refuses the offer, the employee may no longer

qualify for payments under the workers' compensation program, but the

employee is entitled to continue on unpaid FMLA leave up to a total of

12 administrative workweeks as long as the employee is affected by a

serious health condition that makes the employee unable to perform the

essential functions of his or her position. If the employee returning

from the workers' compensation injury is a qualified individual with a

disability, he or she has certain rights under the Rehabilitation Act.

For additional information on workers' compensation benefits, agencies

are encouraged to contact the Office of Workers' Compensation,

Department of Labor.

Federal Employees Health Benefits Program

On July 22, 1996, OPM issued interim regulations in the Federal

Register (61 FR 37807) that reorganized 5 CFR 890.502 (Employee

withholdings and contributions) and made conforming changes in the

paragraph on direct payment of premiums during periods of LWOP status

in excess of 365 days. The conforming changes were based on policy

changes previously published in the Federal Register. On December 27,

1994, OPM issued final regulations in the Federal Register that

delegated from OPM to Federal agencies the authority to reconsider

disputes about coverage and enrollment issues. On June 1, 1995, OPM

issued final regulations in the Federal Register that eliminated the

requirement for the use of certified mail, return receipt requested,

when notifying certain enrollees that their enrollment will be

terminated because of nonpayment of premiums unless the payments is

received within 15 days. The interim regulations published on July 22,

1996, reflected both of these policy changes, and the pertinent

paragraph is reproduced in these final regulations.

Greater Leave Entitlement

Some commenters asked about the effect of FMLA on current agency

leave policies and collective bargaining agreements--e.g., whether

leave under the FMLA is considered to be the minimum within the labor-

management agreement or is in addition to an existing contract

provision already available through the labor-management agreement.

Agencies must observe any employment policies or collective bargaining

agreements that provide greater family or medical leave rights to

employees than those established under the FMLA. Conversely, the rights

established by the Act may not be diminished by any agency leave

policies or collective bargaining agreement. However, nothing in the

FMLA prevents an agency from amending existing leave and entitlement

benefit programs, provided the changes comply with the FMLA. We have

revised Sec. 630.1210(a) to clarify this point.

One commenter suggested adding references to ``reasonable

accommodation'' and ``offers of assignment'' to Sec. 630.1210(d). Since

the intent of Sec. 630.1210(d) is to cover all possible discriminatory

acts, we believe

[[Page 64450]]

a broad statement is required, such as is currently provided in

Sec. 630.1210(d)--i.e., ``any Federal law prohibiting discrimination.''

Nonetheless, the FMLA is not intended to modify or affect the

Rehabilitation Act of 1973, as amended.

Other Changes

On December 29, 1995, OPM issued final regulations to revise the

format of certain regulatory provisions in title 5, United States Code,

relating to Federal employees' compensation so that all definitions of

terms are listed in alphabetical order, consistent with the format

preferred by the Office of the Federal Register. In these regulations,

the designation for paragraph (a) of Sec. 630.201 was removed, and the

paragraph was erroneously placed within the alphabetical listing. We

have reinstated paragraph (a) and in paragraph (b) listed the

definitions that pertain to subparts B through G of part 630.

Section 630.401(3) has been revised to permit the use of sick leave

by an employee to provide care for a family member who is incapacitated

as the result of physical or mental illness, injury, pregnancy, or

childbirth or who receives medical, dental, or optical examination or

treatment. The purpose of this change is to clarify the circumstances

in which an employee is entitled to use sick leave.

In addition, we are adding Sec. 630.911(h) and Sec. 630.1010(d) to

the Voluntary Leave Transfer and Voluntary Leave Bank regulations to

make it clear that when a leave recipient elects to buy back annual

leave as a result of a claim for an employment-related injury approved

by the Office of Workers' Compensation Programs (OWCP), and the annual

leave was leave donated under the voluntary leave transfer or leave

bank programs, the amount of annual leave brought back by the leave

recipient must be restored to the leave donor or returned to the leave

bank as provided in Sec. 630.911 and Sec. 630.1010. We are also using

this opportunity to make a clarifying amendment to Sec. 630.1210(c) and

correct typographical and grammatical errors in Sec. 630.905 and

Sec. 630.907(d)(2) respectively.

Reports and Records

We received many requests from agencies to revise the SF-71,

Application for Leave, and the SF-1150, Record of Leave Data. As a

result, OPM has established an interagency working group that has

volunteered to assist in revising the leave forms. This work is in

progress. We will provide agencies information on the availability of

any revised leave forms through OPM's electronic bulletin boards and

OPM's World Wide Web site at www.opm.gov.

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 this regulation will not have a significant economic

impact on a substantial number of small entities, since it applies only

to Federal employees and agencies.

List of Subjects

5 CFR Part 630

Government employees.

5 CFR 890

Administrative practice and procedure, Government employees, Health

facilities, Health insurance, Health professions, Hostages, Iraq,

Kuwait, Lebanon, Reporting and recordkeeping requirements, Retirement.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, the interim rule amending parts 630 and 890 of title 5

of the Code of Federal Regulations, which was published at 58 FR 39596,

is adopted as a final rule with the following changes:

PART 630--ABSENCE AND LEAVE

1. The authority citation for part 630 continues to read as

follows:

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

103-356, 108 Stat. 3410; Sec. 630.303 also issued under 5 U.S.C.

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

6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-337,

108 Stat. 2663; subpart D also issued under Pub. L. 103-329, 108

Stat. 2423; Sec. 630.501 and subpart F also issued under E.O. 11228,

30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5

U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I

also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834,

and Pub. L. 103-103, 107 Stat. 1022; subpart J also issued under 5

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

issued under Pub. L. 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 B--Definitions and General Provisions for Annual and Sick

Leave

2. Section 630.201 is revised to read as follows:

Sec. 630.201 Definitions.

(a) In section 6301(2)(iii) of title 5, United States Code, the

term temporary employee engaged in construction work at an hourly rate

means an employee hired on a temporary basis solely for the purpose of

work on a specific construction project and paid on an hourly rate.

(b) In subparts B through G of this part:

Accrued leave means the leave earned by an employee during the

current leave year that is unused at any given time in that year.

Accumulated leave means the unused leave remaining to the credit of

an employee at the beginning of the leave year.

Employee means an employee to whom subchapter I of chapter 63 of

title 5, United States Code, applies.

Family member means the following relatives of the employee:

(1) Spouse, and parents thereof;

(2) Children, including adopted children and spouses thereof;

(3) Parents;

(4) Brothers and sisters, and spouses thereof; and

(5) Any individual related by blood or affinity whose close

association with the employee is the equivalent of a family

relationship.

Health care provider has the meaning given that term in

Sec. 630.1202.

Leave year means the period beginning with the first day of the

first complete pay period in a calendar year and ending with the day

immediately before the first day of the first complete pay period in

the following calendar year.

Medical certificate means a written statement signed by a

registered practicing physician or other practitioner certifying to the

incapacitation, examination, or treatment, or to the period of

disability while the patient was receiving professional treatment.

Uncommon tour of duty means a tour of duty that exceeds 80 hours of

work in a biweekly pay period, including hours of actual work plus

hours in a standby status for which the employee is compensated by

annual premium pay under 5 U.S.C. 5545(c)(1) and part 550 of this

chapter.

United States means the several States and the District of

Columbia.

Subpart D--Sick Leave

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

Sec. 630.401 Grant of sick leave.

(a) * * *

[[Page 64451]]

(3) Provides care for a family member who is incapacitated as the

result of physical or mental illness, injury, pregnancy, or childbirth

or who receives medical, dental or optical examination or treatment;

* * * * *

Subpart I--Voluntary Leave Transfer Program

Sec. 630.905 [Amended]

4. In Sec. 630.905, paragraph (c) is amended by removing the term

party-time and inserting in its place part-time.

5. In Sec. 630.907, paragraph (d)(2) is revised to read as follows:

Sec. 630.907 Accrual of annual and sick leave.

* * * * *

(d)* * *

(2) The employee shall continue to accrue annual leave while in a

shared leave status to the extent necessary for the purpose of reducing

any indebtedness caused by the use of annual leave advanced at the

beginning of the leave year.

* * * * *

6. In Sec. 630.911, paragraph (h) is added to read as follows:

Sec. 630.911 Restoration of transferred annual leave.

* * * * *

(h) If a leave recipient elects to buy back annual leave as a

result of claim for an employment-related injury approved by the Office

of Workers' Compensation Programs under 20 CFR 10.202 and 10.310, and

the annual leave was leave transferred under Sec. 630.906, the amount

of annual leave bought back by the leave recipient shall be restored to

the leave donor(s).

Subpart J--Voluntary Leave Bank Program

7. In Sec. 630.1010, paragraph (d) is added to read as follows:

Sec. 630.1010 Termination of medical emergency.

* * * * *

(d) If a leave recipient elects to buy back annual leave as a

result of a claim for an employment-related injury approved by the

Office of Workers' Compensation Programs under 20 CFR 10.202 and

10.310, the amount of annual leave withdrawn from the leave bank that

is bought back by the leave recipient shall be restored to the leave

bank.

Subpart L--Family and Medical Leave

8. In Sec. 630.1201, paragraphs (b)(1)(ii)(B) and (b)(3)(i) are

revised to read as follows:

Sec. 630.1201 Purpose, applicability, and administration.

* * * * *

(b)* * *

(1)* * *

(ii)* * *

(B) An employee in the Veterans Health Administration of the

Department of Veterans Affairs who is appointed under section 7401(1)

of title 38, United States Code.

* * * * *

(3)* * *

(i) An employee in the Veterans Health Administration of the

Department of Veterans Affairs who is appointed under section 7401(1)

of title 38, United States Code, shall be governed by the terms and

conditions of regulations prescribed by the Secretary of Veterans

Affairs;

* * * * *

9. In Sec. 630.1202, the definition of Continuing treatment by a

health care provider is removed; the definition of Incapacity is added

in alphabetical order, and the definitions of Essential functions,

Foster care, Health care provider, Intermittent leave or leave taken

intermittently, Parent, Serious health condition, Son or daughter, and

Spouse are revised to read as follows:

Sec. 630.1202 Definitions.

* * * * *

Essential functions means the fundamental job duties of the

employee's position, as defined in 29 CFR 1630.2(n). An employee who

must be absent from work to receive medical treatment for a serious

health condition is considered to be unable to perform the essential

functions of the position during the absence for treatment.

* * * * *

Foster care means 24-hour care for children in substitution for,

and away from, their parents or guardian. Such placement is made by or

with the agreement of the State as a result of a voluntary agreement by

the parent or guardian that the child be removed from the home, or

pursuant to a judicial determination of the necessity for foster care,

and involves agreement between the State and foster family to take the

child. Although foster care may be with relatives of the child, State

action is involved in the removal of the child from parental custody.

Health care provider means--

(1) A licensed Doctor of Medicine or Doctor of Osteopathy or a

physician who is serving on active duty in the uniformed services and

is designated by the uniformed service to conduct examinations under

this subpart;

(2) Any health care provider recognized by the Federal Employees

Health Benefits Program or who is licensed or certified under Federal

or State law to provide the service in question;

(3) A health care provider as defined in paragraph (2) of this

definition who practices in a country other than the United States, who

is authorized to practice in accordance with the laws of that country,

and who is performing within the scope of his or her practice as

defined under such law;

(4) A Christian Science practitioner listed with the First Church

of Christ, Scientist, in Boston, Massachusetts; or

(5) A Native American, including an Eskimo, Aleut, and Native

Hawaiian, who is recognized as a traditional healing practitioner by

native traditional religious leaders who practices traditional healing

methods as believed, expressed, and exercised in Indian religions of

the American Indian, Eskimo, Aleut, and Native Hawaiians, consistent

with Public Law 95-314, August 11, 1978 (92 Stat. 469), as amended by

Public Law 103-344, October 6, 1994 (108 Stat. 3125).

* * * * *

Incapacity means the inability to work, attend school, or perform

other regular daily activities because of a serious health condition or

treatment for or recovery from a serious health condition.

Intermittent leave or leave taken intermittently means leave taken

in separate blocks of time, rather than for one continuous period of

time, and may include leave periods of 1 hour to several weeks. Leave

may be taken for a period of less than 1 hour if agency policy provides

for a minimum charge for leave of less than 1 hour under

Sec. 630.206(a).

* * * * *

Parent means a biological parent or an individual who stands or

stood in loco parentis to an employee when the employee was a son or

daughter. This term does not include parents ``in law.''

* * * * *

Serious health condition. (1) Serious health condition means an

illness, injury, impairment, or physical or mental condition that

involves--

(i) Inpatient care (i.e., an overnight stay) in a hospital,

hospice, or residential medical care facility, including any period of

incapacity or any subsequent treatment in connection with such

inpatient care; or

[[Page 64452]]

(ii) Continuing treatment by a health care provider that includes

(but is not limited to) examinations to determine if there is a serious

health condition and evaluations of such conditions if the examinations

or evaluations determine that a serious health condition exists.

Continuing treatment by a health care provider may include one or more

of the following--

(A) A period of incapacity of more than 3 consecutive calendar

days, including any subsequent treatment or period of incapacity

relating to the same condition, that also involves--

(1) Treatment two or more times by a health care provider, by a

health care provider under the direct supervision of the affected

individual's health care provider, or by a provider of health care

services under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion

which results in a regimen of continuing treatment under the

supervision of the health care provider (e.g., a course of prescription

medication or therapy requiring special equipment to resolve or

alleviate the health condition).

(B) Any period of incapacity due to pregnancy, or for prenatal

care, even if the affected individual does not receive active treatment

from a health care provider during the period of incapacity or the

period of incapacity does not last more than 3 consecutive calendar

days.

(C) Any period of incapacity or treatment for such incapacity due

to a chronic serious health condition that--

(1) Requires periodic visits for treatment by a health care

provider or by a health care provider under the direct supervision of

the affected individual's health care provider,

(2) Continues over an extended period of time (including recurring

episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of

incapacity (e.g., asthma, diabetes, epilepsy, etc.). The condition is

covered even if the affected individual does not receive active

treatment from a health care provider during the period of incapacity

or the period of incapacity does not last more than 3 consecutive

calendar days.

(D) A period of incapacity which is permanent or long-term due to a

condition for which treatment may not be effective. The affected

individual must be under the continuing supervision of, but need not be

receiving active treatment by, a health care provider (e.g.,

Alzheimer's, severe stroke, or terminal stages of a disease).

(E) Any period of absence to receive multiple treatments (including

any period of recovery) by a health care provider or by a provider of

health care services under orders of, or on referral by, a health care

provider, either for restorative surgery after an accident or other

injury or for a condition that would likely result in a period of

incapacity or more than 3 consecutive calendar days in the absence of

medical intervention or treatment (e.g., chemotherapy/radiation for

cancer, physical therapy for severe arthritis, dialysis for kidney

disease).

(2) (Serious health condition does not include routine physical,

eye, or dental examinations; a regimen of continuing treatment that

includes the taking of over-the-counter medications, bed-rest,

exercise, and other similar activities that can be initiated without a

visit to the health care provider; a condition for which cosmetic

treatments are administered, unless inpatient hospital care is required

or unless complications develop; or an absence because of an employee's

use of an illegal substance, unless the employee is receiving treatment

for substance abuse by a health care provider or by a provider of

health care services on referral by a health care provider. Ordinarily,

unless complications arise, the common cold, the flu, earaches, upset

stomach, minor ulcers, headaches (other than migraines), routine dental

or orthodontia problems, and periodontal disease are not serious health

conditions. Allergies, restorative dental or plastic surgery after an

injury, removal of cancerous growth, or mental illness resulting from

stress may be serious health conditions only if such conditions require

inpatient care or continuing treatment by a health care provider.)

Son or daughter means a biological, adopted, or foster child; a

step child; a legal ward; or a child of a person standing in loco

parentis who is--

(1) Under 18 years of age; or

(2) 18 years of age or older and incapable of self-care because of

a mental or physical disability. A son or daughter incapable of self-

care requires active assistance or supervision to provide daily self-

care in three or more of the ``activities of daily living'' (ADL's) or

``instrumental activities of daily living'' (IADL's). Activities of

daily living include adaptive activities such as caring appropriately

for one's grooming and hygiene, bathing, dressing, and eating.

Instrumental activities of daily living include cooking, cleaning,

shopping, taking public transportation, paying bills, maintaining a

residence, using the telephones and directories, using a post office,

etc. A ``physical or mental disability'' refers to a physical or mental

impairment that substantially limits one or more of the major life

activities of an individual as defined in 29 CFR 1630.2 (h), (i) and

(j).

Spouse means an individual who is a husband or wife pursuant to a

marriage that is a legal union between one man and one woman, including

common law marriage between one man and one woman in States where it is

recognized.

* * * * *

10. In Sec. 630.1203, paragraphs (a)(4), (b), (c), (d), (g), and

(h) are revised to read as follows:

Sec. 630.1203 Leave entitlement.

(a) * * *

(4) A serious health condition of the employee that makes the

employee unable to perform any one or more of the essential functions

of his or her position.

(b) An employee shall invoke his or her entitlement to family or

medical leave under paragraph (a) of this section, subject to the

notification and medical certification requirements in Secs. 630.1206

and 630.1207. An employee may take only the amount of family and

medical leave that is necessary to manage the circumstances that

prompted the need for leave under paragraph (a) of this section.

(c) The 12-month period referred to in paragraph (a) of this

section begins on the date an employee first takes leave for a family

or medical need specified in paragraph (a) of this section and

continues for 12 months. An employee is not entitled to 12 additional

workweeks of leave until the previous 12-month period ends and an event

or situation occurs that entitles the employee to another period of

family or medical leave. (This may include a continuation of a previous

situation or circumstance.)

(d) The entitlement to leave under paragraphs (a) (1) and (2) of

this section shall expire at the end of the 12-month period beginning

on the date of birth or placement. Leave for a birth or placement must

be concluded within this 12-month period. Leave taken under paragraphs

(a) (1) and (2) of this section, may begin prior to or on the actual

date of birth or placement for adoption or foster care, and the 12-

month period, referred to in paragraph (a) of this section begins on

that date.

* * * * *

(g) Each agency shall inform its employees of their entitlements

and responsibilities under this subpart, including the requirements and

obligations of employees.

(h) An agency may not subtract leave from an employee's entitlement

to leave

[[Page 64453]]

under paragraph (a) of this section unless the agency has obtained

confirmation from the employee of his or her intent to invoke

entitlement to leave under paragraph (b) of this section. An employee's

notice of his or her intent to take leave under Sec. 630.1206 may

suffice as the employee's confirmation.

11. In Sec. 630.1204, paragraphs (d) introductory text and (f) are

revised to read as follows:

Sec. 630.1204 Intermittent leave or reduced leave schedule.

* * * * *

(d) For the purpose of applying paragraph (c) of this section, an

alternative position need not consist of equivalent duties, but must be

in the same commuting area and must provide--

* * * * *

(f) Only the amount of leave taken intermittently or on a reduced

leave schedule, as these terms are defined in Sec. 630.1202, shall be

subtracted from the total amount of leave available to the employee

under Sec. 630.1203 (e) and (f).

12. In Sec. 630.1205, paragraph (b) is amended by revising the

introductory text, removing paragraphs (b)(4) and (b)(5), adding the

word ``and'' to paragraph (b)(2) after the semicolon and removing the

semicolon after the word ``chapter'' in paragraph (b)(3) and adding a

period in its place; and paragraphs (c), (d), (e) are revised to read

as follows:

Sec. 630.1205 Substitution of paid leave.

* * * * *

(b) An employee may elect to substitute the following paid leave

for any or all of the period of leave without pay to be taken under

Sec. 630.1203(a)--

* * * * *

(c) An agency may not deny an employee's right to substitute paid

leave under paragraph (b) of this section for any or all of the period

of leave without pay to be taken under Sec. 630.1203(a), consistent

with current law and regulations.

(d) An agency may not require an employee to substitute paid leave

under paragraph (b) of this section for any or all of the period of

leave without pay to be taken under Sec. 630.1203(a).

(e) An employee shall notify the agency of his or her intent to

substitute paid leave under paragraph (b) of this section for the

period of leave without pay to be taken under Sec. 630.1203(a) prior to

the date such paid leave commences. An employee may not retroactively

substitute paid leave for leave without pay previously taken under

Sec. 630.1203(a)

13. In Sec. 630.1206, paragraph (f) is revised to read as follows:

Sec. 630.1206 Notice of leave.

* * * * *

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

Sec. 630.1203(a) (1) and (2) be supported by evidence that is

administratively acceptable to the agency.

14. In Sec. 630.1207, paragraphs (a), (b)(2), (b)(5), (b)(6), (c),

and (i) are revised to read as follows:

Sec. 630.1207 Medical certification.

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

Sec. 630.1203(a) (3) or (4) be supported by written medical

certification issued by the health care provider of the employee or the

health care provider of the spouse, son, daughter, or parent of the

employee, as appropriate. An employee shall provide the written medical

certification to the agency in a timely manner. An agency may waive the

requirement for an initial medical certificate in a subsequent 12-month

period if the leave under Sec. 630.1203(a) (3) or (4) is for the same

chronic or continuing condition.

(b) * * *

(2) The probable duration of the serious health condition or

specify that the serious health condition is a chronic or continuing

condition with an unknown duration and whether the patient is presently

incapacitated and the likely duration and frequency of episodes of

incapacity;

* * * * *

(5) For the purpose of leave taken under Sec. 630.1203(a)(4), a

statement that the employee is unable to perform one or more of the

essential functions of his or her position or requires medical

treatment for a serious health condition, based on written information

provided by the agency on the essential functions of the employee's

position or, if not provided, discussion with the employee about the

essential functions of his or her position; and

(6) In the case of certification for intermittent leave or leave on

a reduced leave schedule under Sec. 630.1203(a) (3) or (4) for planned

medical treatment, the dates (actual or estimates) on which such

treatment is expected to be given, the duration of such treatment, and

the period of recovery, if any, or specify that the serious health

condition is a chronic or continuing condition with an unknown duration

and whether the patient is presently incapacitated and the likely

duration and frequency of episodes of incapacity.

(c) The information on the medical certification shall relate only

to the serious health condition for which the current need for family

and medical leave exists. The agency may not require any personal or

confidential information in the written medical certification other

than that required by paragraph (b) of this section. If an employee

submits a completed medical certification signed by the health care

provider, the agency may not request new information from the health

care provider. However, a health care provider representing the agency,

including a health care provider employed by the agency or under

administrative oversight of the agency, may contact the health care

provider who completed the medical certification, with the employee's

permission, for purposes of clarifying the medical certification.

* * * * *

(i) For leave taken for the purposes of pregnancy, chronic

conditions, or long-term conditions under the continuing supervision of

a health care provider, as these terms are defined in Sec. 630.1202 in

the definition of ``serious health condition'' under paragraphs

(2)(ii), (iii), and (iv), the agency may require, at the agency's

expense, subsequent medical recertification from the health care

provider on a periodic basis, but not more than every 30 calendar days.

For leave taken for all other serious health conditions and including

leave taken on an intermittent or reduced leave schedule, if the health

care provider has specified on the medical certification a minimum

duration of the period of incapacity, the agency may not request

recertification until that period has passed. An agency may require

subsequent medical recertification more frequently than every 30

calendar days, or more frequently than the minimum duration of the

period of incapacity specified on the medical certification, if the

employee requests that the original leave period be extended, the

circumstances described in the original medical certification have

changed significantly, or the agency receives information that casts

doubt upon the continuing validity of the medical certification.

* * * * *

15. In Sec. 630.1208, paragraphs (b)(5), (h), and (i) are revised,

and paragraph (k) is added to read as follows:

Sec. 630.1208 Protection of employment and benefits.

* * * * *

(b) * * *

(5) The same or equivalent opportunity for a within-grade increase,

performance award, incentive award, or other similar discretionary and

non-discretionary payments, consistent with

[[Page 64454]]

applicable laws and regulations; however, the entitlement to be

returned to an equivalent position does not extend to intangible or

unmeasurable aspects of the job;

* * * * *

(h) As a condition to returning an employee who takes leave under

Sec. 630.1203(a)(4), an agency may establish a uniformly applied

practice or policy that requires all similarly-situated employees

(i.e., same occupation, same serious health condition) to obtain

written medical certification from the health care provider of the

employee that the employee is able to perform the essential functions

of his or her position. An agency may delay the return of an employee

until the medical certification is provided. The same conditions for

verifying the adequacy of a medical certification in Sec. 630.1207(c)

shall apply to the medical certification to return to work. No second

or third opinion on the medical certification to return to work may be

required. An agency may not require a medical certification to return

to work during the period the employee takes leave intermittently or

under a reduced leave schedule under Sec. 630.1204.

(i) If an agency requires an employee to obtain written medical

certification under paragraph (h) of this section before he or she

returns to work, the agency shall notify the employee of this

requirement before leave commences, or to the extent practicable in

emergency medical situations, and pay the expenses for obtaining the

written medical certification. An employee's refusal or failure to

provide written medical certification under paragraph (h) of this

section may be grounds for appropriate disciplinary or adverse action,

as provided in part 752 of this chapter.

* * * * *

(k) An employee's decision to invoke FMLA leave under

Sec. 630.1203(a) does not prohibit an agency from proceeding with

appropriate actions under part 432 or part 752 of this chapter.

16. Sec. 630.1210, paragraphs (a) and (c) are revised to read as

follows:

Sec. 630.1210 Greater leave entitlement.

(a) An agency shall comply with any collective bargaining agreement

or any agency employment benefit program or plan that provides greater

family or medical leave entitlements to employees than those provided

under this subpart. Nothing in this subpart prevents an agency from

amending such policies, provided the policies comply with the

requirements of this subpart.

* * * * *

(c) An agency may adopt leave policies more generous than those

provided in this subpart, except that such policies may not provide

entitlement to paid time off in an amount greater than that otherwise

authorized by law or provide sick leaved in any situation in which sick

leave would not normally be allowed by law or regulation.

* * * * *

17. In Sec. 630.1211, paragraph (b)(3) is revised to read as

follows:

Sec. 630.1211 Records and reports.

* * * * *

(b) * * *

(3) The number of hours of leave taken under Sec. 630.1203(a),

including any paid leave substituted for leave without pay under

Sec. 630.1205(b); and

* * * * *

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

18. The authority citation for part 890 continues to read as

follows:

Authority: 5 U.S.C. 8913, Sec. 890.803 also issued under 50

U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued

under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended.

19. In Sec. 890.502, paragraph (e) is revised to read as follows:

Sec. 890.502 Employee withholdings and contributions.

* * * * *

(e) Direct payment of premiums during periods of LWOP status in

excess of 365 days.

(1) An employee who is granted leave without pay under subpart L of

part 630 of this chapter which exceeds the 365 of continued coverage

under section 890.303(e) must pay the employee contributions directly

to the employing office on a current basis.

(2) Payment must be made after the pay period in which the employee

is covered in accordance with a schedule established by the employing

office. If the employing office does not receive the payment by the

date due, the employing office must notify the employee in writing that

continuation of coverage depends upon payment being made within 15 days

(45 days for employees residing overseas) after receipt of the notice.

If no subsequent payments are made, the employing office terminates the

enrollment 60 days (90 days for enrollees residing overseas) after the

date of the notice.

(3) If the enrollee was prevented by circumstances beyond his or

her control from making payment within the timeframe specified in

paragraph (e)(2) of this section he or she may request reinstatement of

the coverage by writing to the employing office. The employee must file

the request within 30 calendar days from the date of termination and

must include supporting documentation.

(4) The employing office determines whether the employee is

eligible for reinstatement of coverage. If the determination is

affirmative, the employing office reinstates the coverage of the

employee retroactive to the date of termination. If the determination

is negative, the employee may request a review of the decision from the

employing agency as provided under Sec. 890.104.

(5) An employee whose coverage is terminated under paragraph (e)(2)

of this section may register to enroll upon his or her return to duty

in a pay status in a position in which the employee is eligible for

coverage under this part.

* * * * *

[FR Doc. 96-30810 Filed 12-4-96; 8:45 am]

BILLING CODE 6325-01-M