Family and Medical Leave

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AI35

Family and Medical Leave

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Office of Personnel Management is issuing proposed

regulations on the Family and Medical Leave Act of 1993 to ensure that

both employees' and agencies' rights are protected and their

responsibilities fulfilled.

DATES: Comments must be received on or before October 13, 1998.

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

Assistant Director for Compensation Administration, Office of Personnel

Management, Room 7H31, 1900 E Street NW., Washington, DC 20415; FAX

(202) 606-0824; or email to [email protected].

FOR FURTHER INFORMATION CONTACT: Jo Ann Perrini, (202) 606-2858, FAX

(202) 606-0824, or email to [email protected].

SUPPLEMENTARY INFORMATION: On December 5, 1996, the Office of Personnel

Management (OPM) published final regulations (61 FR 64441) 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

final regulations became effective on January 6, 1997. The FMLA

provides eligible Federal employees with 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.

Questions and concerns continue to be received by OPM on an

employee's obligation to notify the agency of his or her intent to use

family and medical leave and provide required medical certification of

the serious health condition. We are issuing these proposed regulations

to ensure that both employees and agencies are complying with the

requirements of the Act.

We believe it is Congress' intent to provide Federal employees with

an entitlement to FMLA leave in a fair and equitable manner while

minimizing the impact of such leave on an employing agency. Although

individual situations may require some flexibility in meeting the

notification and medical certification requirements of the Act,

employees remain responsible for meeting their obligations under the

FMLA.

Invoking Entitlement to Family and Medical Leave

There is a major difference between Title I and Title II of the

FMLA in terms of the responsibility of an employer versus an employee

to invoke entitlement to FMLA leave. Under section 102(c)(2) of Title I

of the FMLA, which covers non-Federal employees, an employee may elect,

or an employer may require the employee to substitute paid leave for

unpaid leave under the FMLA, except that nothing in that section would

require an employer to provide paid sick leave in any situation in

which the employing agency would not normally provide sick leave. The

Department of Labor's (DOL's) regulations implementing Title I of the

FMLA therefore require the employer to designate leave, paid or unpaid,

as FMLA leave and to give notice of such designation to the employee.

In addition, if an employee does not initially request substitution of

paid leave for unpaid leave under the FMLA, DOL's regulations permit

the employer to require the employee to substitute appropriate paid

leave for unpaid leave.

In contrast, 5 U.S.C. 6382 (as added by section 201 of Title II of

the FMLA) states that an employee may elect to substitute any of the

employee's accrued or accumulated annual or sick leave for unpaid leave

under the FMLA, except that nothing in section 201 would require an

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

employing agency would not normally provide sick leave. OPM's

regulations implementing Title II of the FMLA for Federal employees

therefore require employees to take responsibility for invoking their

entitlement to FMLA leave. In addition, an employee may elect to

substitute paid leave, as appropriate, for leave without pay under the

FMLA. An agency may not designate leave, paid or unpaid, as FMLA leave

unless it has obtained confirmation from an employee of his or her

intent to use FMLA leave and the employee chooses to substitute

appropriate paid leave for FMLA leave. The requirement that the

employee must initiate action to take FMLA leave is consistent with all

other Federal leave policies and programs in that the employee is

responsible for requesting leave or other time off from work. The 12

workweeks of unpaid leave under the FMLA are in addition to any annual

leave, sick leave, or other leave or compensatory time off available to

an employee, and an employee may choose to take FMLA leave in

combination with any other available leave.

In most cases, an employee must provide the employing agency with

not less than 30 days notice of his or her intention to take FMLA

leave. An employee is responsible for giving adequate notice of his or

her intent to use FMLA leave so that agencies may (1) determine that

the employee's need for leave is consistent with the purposes for which

FMLA leave may be used and (2) provide guidance concerning an

employee's rights and obligations under the FMLA. If an employee seeks

to invoke his or her entitlement to FMLA leave retroactively, an agency

may be severely hampered in fulfilling its statutory responsibilities

for administering the FMLA. Therefore, we propose to add a sentence to

Sec. 630.1203(b) to state that an employee may not retroactively invoke

his or her entitlement to leave under the FMLA.

Additional Evidence

Agencies have asked whether they may request additional evidence to

support a claim that an employee used

[[Page 43326]]

FMLA leave to care for a spouse, son, daughter, or parent. For example,

an agency may wish to request that an employee obtain and provide to

the agency his or her child's school attendance records coinciding with

the period during which the employee used FMLA leave. Currently, OPM's

regulations in Sec. 630.1206(f) permit agencies to require that a

request for FMLA leave for birth or adoption or foster care be

supported by evidence that is administratively acceptable to the

agency. We believe the law permits an agency to establish a policy that

requires an employee to submit administratively acceptable evidence

that would support the use of FMLA leave for any of the cited purposes.

Therefore, we propose to revise Sec. 630.1206(f) to permit agencies to

require that a request for FMLA leave be supported by evidence that is

administratively acceptable to the agency. Such a policy must be

nondiscriminatory and made known to all employees.

Medical Certification

In its final regulations, OPM did not establish a time limit for

submitting the medical certification of a serious health condition.

However, after careful reconsideration, we believe a Governmentwide

time limit for submitting medical certification for FMLA leave is

necessary to ensure that the entitlements provided under the FMLA are

provided to all Federal employees in a fair and consistent manner.

Therefore, we propose to revise Sec. 630.1207(a) to ensure that

employees are given at least 15 workdays in which to provide written

medical certification of a serious health condition. In addition,

Sec. 630.1207(d) and (e) would be revised to give employees 15 workdays

in which to submit a second or third written medical certification.

If an employee is unable to provide the requested medical

certification before FMLA leave begins, or if the agency requires a

second opinion under Sec. 630.1207(d) and the medical treatment

requires the leave to begin, the agency must grant provisional leave

pending final written certification that must be received by the agency

no later than 15 workdays after the date the FMLA leave began. We

believe it is Congress' intent that in all circumstances, employees be

required to provide complete medical certification, when requested by

an agency, within a reasonable period based on the circumstances

involved.

Insufficient Notification and Medical Certification

The law and regulations require employees to provide notification

and medical certification (if requested by the agency) for FMLA leave.

When an employee requests FMLA leave immediately for a medical

emergency and either cannot provide medical certification or submits

incomplete medical certification, the agency must grant the employee

provisional leave under Sec. 630.1207(g). However, if the employee does

not comply with the agency's requests for sufficient medical

certification, the employee is not entitled to leave under the FMLA. To

reinforce this principle, we propose to add paragraph (l) to

Sec. 630.1208 to state that an employee who does not comply with the

notification requirements in Sec. 630.1206, and who does not provide

medical certification that includes all the information required by law

and OPM's regulations in Sec. 630.1207(b), is not entitled to FMLA

leave. Further, the employee would not receive any of the employment

and benefit protections in Sec. 630.1208.

Agencies are reminded that their FMLA notification and medical

certification requirements may be less stringent than those contained

in an agency's leave restriction policies. However, agencies' policies

or procedures for providing notification of FMLA leave or medical

certification may not be more stringent than the requirements in

Secs. 630.1206 and 630.1207(b).

Miscellaneous

We propose to add a sentence to Sec. 630.1203(e) to state that any

Federal holidays that occur during the period in which an employee is

on FMLA leave will be counted toward the 12-week entitlement to FMLA

leave. In addition, Sec. 630.1201(b)(1)(ii)(B) and (b)(3)(i) would be

revised as requested by the Department of Veterans Affairs to identify

employees of the Veterans Health Administration that are covered by

title II of the FMLA.

Regulatory Flexibility Act

I certify that these regulations would not have a significant

economic impact on a substantial number of small entities because they

would affect only Federal employees and agencies.

List of Subjects in 5 CFR Part 630

Government employees.

Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM proposes to amend part 630 of title 5 of the Code

of Federal Regulations as follows:

PART 630--ABSENCE AND LEAVE

1. The authority citation for part 630 is revised to read as

follows:

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

under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23; and subpart M

also issued under 5 U.S.C. 6391 and Pub. L. 105-18, 111 Stat. 158.

Subpart L--Family and Medical Leave

2. Section 630.1201(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 of the Veterans Health Administration appointed

under title 38, United States Code, in occupations listed in 38 U.S.C.

7401(1);

* * * * *

(3) * * *

(i) An employee of the Veterans Health Administration appointed

under title 38, United States Code, in occupations listed in 38 U.S.C.

7401(1) shall be governed by the terms and conditions of regulations

prescribed by the Secretary of Veterans Affairs;

* * * * *

3. In Sec. 630.1203, a sentence is added at the end of paragraph

(b) and a sentence is added at the end of paragraph (e) to read as

follows:

Sec. 630.1203 Leave entitlement.

* * * * *

(b) * * * An employee may not retroactively invoke his or her

entitlement to family and medical leave.

* * * * *

(e) * * * Any holidays authorized under 5 U.S.C. 6103 or by

Executive order that occur during the period in which the employee is

on family and medical leave shall be counted toward the 12-week

entitlement to family and medical leave.

* * * * *

4. In Sec. 630.1206, paragraph (f) is revised to read as follows:

[[Page 43327]]

Sec. 630.1206 Notice of leave.

* * * * *

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

Sec. 630.1203(a) be supported by evidence that is administratively

acceptable to the agency.

5. In Sec. 630.1207, the second sentence in paragraph (a) is

revised and a sentence is added at the end of paragraphs (d), (e), and

(g) to read as follows:

Sec. 630.1207 Medical certification.

(a) * * * Except as provided in paragraph (g) of this section, an

employee shall provide the written medical certification signed by the

health care provider no later than 15 workdays after the date the

agency requests such medical certification. * * *

* * * * *

(d) * * * Except as provided in paragraph (g) of this section, an

employee shall provide the second written medical certification signed

by the health care provider no later than 15 workdays after the date

the agency requests such medical certification.

(e) * * * Except as provided in paragraph (g) of this section, an

employee shall provide the third written medical certification signed

by the health care provider no later than 15 workdays after the date

the agency requests such medical certification.

* * * * *

(g) * * * The medical certification signed by the health care

provider must be received by the agency no later than 15 workdays after

the date the family and medical leave began.

* * * * *

6. In Sec. 630.1208, paragraph (l) is added to read as follows:

Sec. 630.1208 Protection of employment and benefits.

* * * * *

(l) An employee who does not comply with the notification

requirements in Sec. 630.1206 and does not provide medical

certification signed by the health care provider that includes all of

the information required in Sec. 630.1207(b) is not entitled to family

and medical leave.

[FR Doc. 98-21741 Filed 8-12-98; 8:45 am]

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