FLYER

**051-249**

**May 18, 2000**

# TO: Chief, HRMS

**SUBJ: Final Regulations**

### The Office of Personnel Management (OPM) has issued final regulations on the Family and Medical Leave Act of 1993, effective on June 7, 2000. The regulations are published in the Federal Register dated May 8, 2000, Vol.65, No. 89, pp. 26483-26487, and may be downloaded from OPM's web site @ <http://www.opm.gov/fedregis/2000/65-26483-a.pdf>. Changes have been made in the regulations to clarify questions pertaining to the following:

-   **Invoking Entitlement to Family and Medical Leave (FMLA)**

> ***[5 CFR 630.1203(b)]{.underline}*** has been changed to allow
> employees to retroactively invoke their entitlement to family and
> medical leave based upon the following qualifiers;

1.  The employee must make the request within two (2) workdays after
    returning to duty;

2.  Written medical certification must be provided from a health care
    provider showing that the employee was mentally or physically
    incapable of invoking his or her entitlement during the entire
    period of absence from work for an FMLA-qualifying purpose; and

3.  The employee must provide documentation acceptable to the agency
    explaining the inability of his/her personal representative to
    contact the agency and invoke the employee's entitlement to FMLA
    leave during the entire period he or she was absent from work for an
    FMLA-qualifying purpose.

> If the need for leave is foreseeable, employees are required by 5
> U.S.C. 6382(e) to provide 30 days' notice of their intent to use FMLA
> leave. For leave that needs to begin in less than 30 days, the
> employee shall provide such notice as is practicable. While no
> substantive change is made in the notification period, **[5 CFR
> 630.1206 (a), (c) and (d) have been modified to clarify that "days"
> refer to "calendar days."]{.underline}** However, if an employee is
> not able comply with the 30-calendar day notice period, FMLA leave
> should not be denied or delayed. (See 5 CFR 630.1207(g) and 1208(1) as
> revised below).

Employees are responsible for invoking their FMLA leave entitlements,
and may choose whether to substitute paid leave, as appropriate. An
agency may not subtract leave from the 12-week FMLA leave entitlement
unless confirmation has been obtained from the employee of his or her
intent to invoke entitlement to FMLA leave.

-   **Medical Certification:**

***[5 CFR 630.1207(g)]{.underline}*** has been revised to require
employees to provide medical certification of a serious health condition
no later than 15 calendar days after the date the agency requests the
medical certification. Language has been added to cover situations in
which flexibility may be needed. In circumstances where it may not be
practicable to provide medical certification within the required time
frame, despite the employee's diligent, good faith efforts, the
documentation then must be provided within a reasonable period of time,
but no later than 30 calendar days after the date of request. If the
employee does not provide the requested medical certification within 30
calendar days, the period of absence in question may be charged as
absence without leave (AWOL); or the employee may be allowed to request
annual leave, sick leave, or leave without pay, as appropriate.

-   **Insufficient Notification and Medical Certification**

> ***[5 CFR 630.1208(1)]{.underline}*** has been revised to indicate
> that employees who do not comply with the notification requirements in
> 5 CFR 630.1206; and who do not provide medical certification signed by
> the health care provider that includes all the information required by
> law and regulations in 5 CFR 630.1207(b), is not entitled to FMLA
> leave.

-   **Holidays**

> Based upon 5 U.S.C. 6302(a), days of leave are days on which an
> employee would otherwise work and receive pay and are exclusive of
> holidays and non workdays established by Federal statute, Executive,
> or administrative order. In light of this provision, OPM has
> determined that FMLA may be charged only on days on which an employee
> is scheduled to be in a duty status. Therefore, ***[5 CFR
> 630.1203(e)]{.underline}*** has been revised to provide that
> ***[holidays]{.underline}*** and non-workdays occurring within a
> period of FMLA leave, ***[should not be counted toward]{.underline}***
> the 12-week entitlement to family and medical leave.

-   **"Stacking " of Leave**

FMLA entitlements are in addition to any annual leave; sick leave; other
paid leave; or compensatory time off available to the employee. An
employee may also choose to use FMLA leave in combination with any other
available leave. Questions and concerns are often raised about the
amount of time employees will be absent from duty when they first use
all of their accrued leave options (including donated leave when
applicable), and then invoke their full FMLA entitlements. The use of
leave in such a manner by employees is referred to as **"stacking" the
use of leave** in order to extend the amount of time of absence from
duty in connection with a personal or other family medical situation.

OPM advises that the best way to ***manage the '"stacking" of leave is
to encourage communication between supervisors and employees.***
Supervisors must appropriately inform employees about their FMLA
entitlements and responsibilities. When employees request leave for a
personal or family medical situation, supervisors may want to *ask
employees up front* whether they are invoking their FMLA leave
entitlements. Although a supervisor generally cannot deny sick leave if
the employee provides medical certification, annual leave or
discretionary leave without pay, however, may be denied if there is a
need for the employee to be at work. While the taking of annual leave is
a right of an employee, it is subject to the right of the supervisor to
schedule the time at which annual leave may be taken.

If an employee requests leave for any of the FMLA qualifying purposes,
the supervisor may ask the employee whether he or she is invoking his or
her entitlement to FMLA leave. If the employee invokes entitlement to
FMLA leave, he or she may choose to substitute accrued annual leave, or
sick leave as appropriate (Refer to use of sick leave - 40/80 hours
limitation -- for family friendly purposes). When employees are
initially advised about their leave options, responsibilities, and
expectations, then both the supervisor and the employee are successfully
in meeting their needs.

Questions about this flyer should be directed to your geographic area
contact within the Customer Advisory and Consulting Group (see below).

Customer Advisory and Consulting Group (051)

Office of Human Resources Management

VA Headquarters -- Washington, DC

## Team A

## Geographic Area

#### VISNS: 2,3,6,7,10,12,13,14,17,18,20,21

VBA: Eastern and Southern Area

NCS: Atlanta and Philadelphia

Katie McCullough (202) 273-9836

## Team B

### Geographic Area

#### VISNS: 1,4,5,8,9,11,15,16,19,22,29

VBA: Central and Western Areas

#### NCS: Denver Area

Headquarters (HQ) & Other Offices Reporting to HQ

CHAMPVA

Janice Lucas: (202) 273-9819

Linda Settle: (202) 273-9838