This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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Rules and Regulations Federal Register

75363 

Vol. 75, No. 232 

Friday, December 3, 2010 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 630 

RIN 3206–AL91 

Absence and Leave; Sick Leave 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The U.S. Office of Personnel 

Management is issuing final regulations 

on the use of sick leave and advanced 

sick leave for serious communicable 

diseases, including pandemic influenza 

when appropriate. We are also 

permitting employees to substitute up to 

26 weeks of accrued or accumulated 

sick leave for unpaid Family and 

Medical Leave Act (FMLA) leave to care 

for a seriously injured or ill covered 

servicemember, as authorized under the 

National Defense Authorization Act for 

Fiscal Year 2008, including up to 30 

days of advanced sick leave for this 

purpose. Finally, we are reorganizing 

the existing sick leave regulations to 

enhance reader understanding and 

administration of the program. 

DATES: Effective Date: These regulations 

are effective on January 3, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Doris Rippey by telephone at (202) 606– 

2858; by fax at (202) 606–0824; or by email at pay-performancepolicy@opm.gov. 

SUPPLEMENTARY INFORMATION: The U.S. 

Office of Personnel Management (OPM) 

is issuing final regulations to address: 

(1) The use of sick leave for exposure to 

a communicable disease, (2) the 

purposes for and limitations on the use 

of advanced sick leave, and (3) the 

substitution of up to 26 weeks of sick 

leave for unpaid Family and Medical 

Leave Act (FMLA) leave to care for a 

seriously injured or ill covered 

servicemember. These changes are 

incorporated into 5 CFR part 630, 

subpart D. 

Please note that these final regulations 

are in response to only a portion of 

OPM’s proposed regulations (74 FR 

43064) issued on August 26, 2009, to 

implement section 585(b) of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2008 (Pub. 

L. 110–181, January 28, 2008) that 

amended the FMLA provisions in 5 

U.S.C. 6381–6383 to provide that a 

Federal employee who is the spouse, 

son, daughter, parent, or next of kin of 

a covered servicemember with a serious 

injury or illness is entitled to up to a 

total of 26 administrative workweeks of 

unpaid FMLA leave during a single 12- 

month period to care for the covered 

servicemember. Comments received on 

the portion of the proposed rules at 5 

CFR part 630, subpart L, will be 

addressed in a separate publication. The 

proposed regulations in their entirety 

are available at http:// 

edocket.access.gpo.gov/2009/E9- 

20610.htm. 

Subsequent to the publication of our 

proposed regulations issued on August 

26, 2009, the NDAA for FY 2010 (Pub. 

L. 111–84, October 28, 2009) made 

additional amendments to the FMLA 

provisions in 5 U.S.C. 6381–6383. These 

amendments: (1) Provide a new 

entitlement to qualifying exigency leave 

for Federal employees covered by 

OPM’s FMLA regulations under title II 

of the FMLA parallel to the entitlement 

provided to employees covered by the 

Department of Labor’s (DOL’s) FMLA 

regulations under title I of the FMLA, 

and (2) expand the coverage for the 26- 

week entitlement for family members to 

care for a covered servicemember 

undergoing medical treatment, 

recuperation, or therapy, for a serious 

injury or illness by amending the 

definitions of ‘‘covered servicemember’’ 

and ‘‘serious injury or illness.’’ 

Incorporating these changes into OPM’s 

FMLA regulations requires consultation 

with the Department of Defense and the 

Department of Veterans Affairs. Since 5 

U.S.C. 6387 requires OPM to prescribe 

regulations consistent, to the extent 

appropriate, with the regulations 

prescribed by the Secretary of Labor to 

carry out title I of the FMLA, it will not 

be possible for OPM to issue regulations 

implementing the NDAA for FY 2008 

and 2010 changes until DOL issues its 

final FMLA regulations implementing 

the NDAA for FY 2010 FMLA 

amendments. Therefore, we have 

decided to separate the FMLA portion 

(subpart L) from the sick leave portion 

(subpart D) of the proposed regulations. 

This will allow OPM to expedite the 

final sick leave regulations, providing 

agencies and employees with additional 

flexibilities in planning for serious 

communicable diseases, including 

pandemic influenza when appropriate, 

by permitting the use of sick leave and 

advanced sick leave if the employee or 

his or her family member is exposed to 

a serious communicable disease that 

would jeopardize the health of others. 

The 60-day comment period ended on 

October 26, 2009. A total of 12 

comments were received addressing the 

changes to the sick leave regulations 

under 5 CFR part 630, subpart D, from 

five agencies, three labor organizations, 

two professional organizations, and two 

individuals. The overall comments were 

overwhelmingly positive and support 

the changes recommended to our sick 

leave regulations. The following 

responds to the comments received on 

our proposed regulation. 

Use of Sick Leave for Exposure to a 

Communicable Disease 

In our guidance ‘‘Human Resources 

Flexibilities Available to Assist Federal 

Employees During Emergencies’’ (CPM 

2009–09, May 5, 2009), OPM reminded 

agencies of the policies and procedures 

developed in planning for a pandemic 

influenza and provided references to a 

substantial amount of information and 

advice on human resources (HR) rules 

and flexibilities available on OPM’s 

Web site. See http://www.chcoc.gov/

Transmittals/TransmittalDetails.

aspx?TransmittalID=2248. During a 

pandemic influenza or other emergency 

situation, Federal agencies will be 

expected to achieve two equally 

important goals: (1) Protect the Federal 

workforce, and (2) ensure the continuity 

of operations. OPM’s Web site contains 

significant guidance, developed in 

consultation with the Centers for 

Disease Control and Prevention (CDC), 

on keeping the Federal workforce 

healthy during a pandemic influenza by 

employing social distancing 

interventions (as warranted by the 

severity of the pandemic) such as 

telework, alternative work schedules, 

evacuation, and various leave 

flexibilities. In particular, supervisors 


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should encourage telework and 

alternative work schedules to help 

prevent the spread of flu in their 

workplace during a severe pandemic. 

This will allow employees to continue 

to work or function while limiting 

contact with others, help maintain 

continuity of operations, and help 

employees manage their health and 

their family’s needs. Before approving a 

particular leave option, federal 

supervisors should review applicable 

policies set forth in collective 

bargaining agreements and agencyspecific human resource guidance. See 

http://www.opm.gov/pandemic/. These 

final regulations provide another tool 

for agencies to use for social distancing 

purposes that will help protect the 

Federal workforce. The current sick 

leave regulations allow an employee to 

use sick leave if health authorities or a 

health care provider determine that the 

employee’s presence on the job would 

jeopardize the health of others because 

of exposure to a communicable disease. 

The final regulations allow an employee 

to use sick leave to care for a family 

member who has been similarly 

exposed. 

Two labor organizations, two 

professional organizations, and one 

individual were very supportive of the 

proposed change made to this portion of 

the regulations to allow an employee to 

use sick leave to care for a family 

member who has been exposed to a 

communicable disease when it has been 

determined by the health authorities 

having jurisdiction or by a health care 

provider that the family member’s 

presence in the community would 

jeopardize the health of others because 

of the family member’s exposure to a 

communicable disease. The two 

professional organizations strongly 

approved of the positive steps taken that 

make Federal sick leave as flexible as 

possible to deal with the threat of 

infectious disease. They also supported 

advancing sick leave to employees and 

allowing employees to use sick leave to 

care for family members who have been 

exposed to a communicable disease. A 

labor organization noted that these 

changes will help Federal employees 

protect themselves, their family 

members, and their co-workers from 

contracting and spreading a serious 

communicable disease. 

Definition of Communicable Disease 

The use of sick leave due to exposure 

to a communicable disease would be 

limited to circumstances where 

exposure alone would jeopardize the 

health of others and would only arise in 

cases of serious communicable diseases, 

such as communicable diseases where 

Federal isolation and quarantine are 

authorized. Isolation means the 

separation of persons who have a 

specific infectious illness from those 

who are healthy and the restriction of 

their movement to stop the spread of 

that illness. Quarantine means the 

separation and restriction of movement 

of persons who, while not yet ill, have 

been exposed to an infectious agent and 

therefore may become infectious. As 

mentioned in the supplementary 

information accompanying the proposed 

regulations, the current consolidated list 

of communicable diseases for which 

Federal isolation and quarantine are 

authorized includes (as determined by 

the Secretary of Health and Human 

Services and published in Executive 

order): Cholera, diphtheria, infectious 

tuberculosis, plague, smallpox, yellow 

fever, viral hemorrhagic fevers, Severe 

Acute Respiratory Syndrome (SARS), 

and influenza that causes or has the 

potential to cause a pandemic. (See 

Executive Order 13295, as amended by 

Executive Order 13375, consistent with 

42 U.S.C. 264(b).) This provides an 

illustrative, but not exhaustive, list of 

the types of serious communicable 

diseases where exposure alone would 

jeopardize the health of others, thereby 

allowing the use of sick leave for 

exposure to a communicable disease. 

While the list of serious 

communicable diseases was not 

included in the text of the proposed 

regulations, OPM requested comments 

on whether additional changes to the 

regulatory text would help clarify the 

limited cases in which the situation 

would meet the threshold of 

communicable disease. We received 

responses from three agencies and two 

professional organizations. Generally, 

agencies requested that the list of 

communicable diseases provided in the 

supplementary information 

accompanying the proposed regulations 

be included in the regulations 

themselves. In contrast however, one 

labor organization and one professional 

organization did not believe additional 

regulatory language was necessary since 

the narrowness of the term 

communicable disease is evident from 

the determination that must be made by 

the health authorities or a health care 

provider that the employee or family 

member could jeopardize the health of 

others because of his or her exposure to 

a communicable disease. They believe 

we should maintain flexibility for new 

and emerging infectious diseases which 

may not yet be on the current list for 

which Federal isolation and quarantine 

are authorized. The labor organization 

stated that the proposed language would 

preserve the necessary flexibility to 

adapt rapidly if new communicable 

diseases emerge. 

While we understand the agencies’ 

request for more information in the 

regulatory text, the CDC list of 

communicable diseases where Federal 

isolation and quarantine are authorized 

may be updated as vaccinations are 

developed or when influenza mutates 

into new strains that have the potential 

to cause a pandemic. The 

Administrative Procedures Act 

establishes rules for the regulatory 

process, which would mean that, if the 

list were included in the regulations, 

OPM would not be able to update the 

list of communicable diseases in a 

timeframe that is useful to our 

customers. For the reasons listed above, 

OPM is not adding this list to its 

regulations. As a result, when reviewing 

a request for sick leave for exposure to 

a communicable disease, we strongly 

encourage agencies to refer to CDC’s 

Web site for the current list of 

communicable diseases for which 

Federal isolation and quarantine are 

authorized. 

Determinations of Communicable 

Disease—Pandemic Influenza 

Determinations of communicable 

disease are made by the CDC. While 

influenza that causes or has the 

potential to cause a pandemic may be 

on the list of serious communicable 

diseases for which Federal isolation and 

quarantine are authorized, influenza 

will not automatically meet the criteria 

of a communicable disease for sick leave 

purposes. Influenza that has the 

potential to cause a pandemic is very 

broad and can encompass many 

variations of the flu. However, to 

highlight the limited circumstances in 

which this new sick leave provision 

would apply, pandemic influenza 

would not meet the threshold of a 

serious communicable disease until the 

CDC has declared that exposure alone is 

enough to jeopardize the health of 

others. During a potential pandemic 

influenza, the CDC will assess the risk 

factors of the influenza, provide 

guidance to health authorities and 

health care providers on pandemic 

status, and recommend appropriate 

guidelines to prevent the spread of the 

influenza. OPM will work with the CDC 

to provide agencies and employees with 

ongoing information regarding the 

impact of the pandemic influenza on the 

health of the Federal workforce and the 

appropriate use of HR flexibilities to 

keep employees safe. While agencies 

have the discretion to administer their 

sick leave programs, they should await 

specific guidance from the appropriate 


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officials (e.g., CDC, OPM) to determine 

whether the use of sick leave is 

appropriate for exposure to a 

communicable disease. The use of sick 

leave for exposure to a communicable 

disease should be used only in very 

limited circumstances, and agencies 

should not grant sick leave for this 

purpose until they receive guidance 

from the appropriate officials. 

For example, for the 2009–2010 H1N1 

influenza season, the CDC has provided 

ongoing guidance designed to prevent 

the spread of the influenza in the 

workplace. Because there was no 

determination that exposure alone 

would jeopardize the health of others, 

the CDC advised that an employee could 

continue to go to work if a member of 

the employee’s household had 

contracted 2009–2010 H1N1 influenza. 

OPM also issued workplace guidance 

entitled ‘‘Pandemic Influenza 2009: 

Additional Guidance’’ (CPM 2009–14, 

July 31, 2009) and collaborated with the 

CDC in issuing ‘‘Preparing for the Flu— 

A Communication Toolkit for the 

Federal Workforce.’’ See documents at 

http://www.chcoc.gov/Transmittals/

TransmittalDetails.aspx?

TransmittalID=2452 and http:// 

www.flu.gov/professional/federal/

workplace/federal toolkit.pdf, 

respectively. Following CDC guidance 

that exposure to 2009–2010 H1N1 

influenza would not jeopardize the 

health of others, agencies should not 

have granted any employee exposed to 

H1N1 influenza sick leave for exposure 

to communicable disease. Should an 

influenza become more serious and 

require quarantine of exposed 

individuals, the CDC would issue 

guidance on the procedures to be 

followed. Based on that information, 

OPM would issue appropriate guidance 

to keep Federal employees safe while 

maintaining continuity of operations. 

Determinations of Communicable 

Disease—Non-Pandemic 

For examples of non-pandemic 

diseases that automatically meet the 

criteria of a serious communicable 

disease for sick leave purposes, agencies 

should refer to the CDC list of 

communicable diseases for which 

Federal isolation and quarantine are 

authorized. Excluding influenza that 

causes or has the potential to cause 

pandemic, for the reasons cited 

previously, the CDC has already 

determined that an individual’s 

exposure to any of the other listed 

diseases would jeopardize the health of 

others. A health authority or health care 

provider can then advise that an 

employee or his or her family member 

has been exposed to a communicable 

disease that would jeopardize the health 

of others. If the disease is not on the 

CDC list of communicable diseases for 

which Federal isolation and quarantine 

are authorized, and a health authority or 

health care provider has concerns that 

an employee’s or employee’s family 

member has been exposed to a 

communicable disease that could 

jeopardize the health of others at the 

workplace or in the community, the 

health authority or health care provider 

should contact CDC for evaluation of the 

risk factors and further 

recommendations. 

Health Authority or Health Care 

Provider 

One agency asked OPM to emphasize 

that a relevant health authority or health 

care provider must make a 

determination that the family member’s 

presence in the community could put 

others’ health at risk. We believe the 

proposed regulations at 5 CFR 

630.401(a)(3)(iii) stating that sick leave 

is authorized when an employee 

‘‘provides care for a family member 

* * * (iii) who would, as determined by 

the health authorities having 

jurisdiction or by a health care provider, 

jeopardize the health of others by that 

family member’s presence in the 

community because of exposure to a 

communicable disease’’ already 

addressed this issue. Therefore, we are 

making no changes in the final 

regulations. 

Another agency asked for a definition 

of ‘‘health authorities.’’ We do not 

believe adding a definition of health 

authorities to the regulations would be 

helpful. Communicable diseases can 

cover widespread geographic areas, but 

may also be localized in scattered 

outbreaks. The health authorities having 

jurisdiction may be different, depending 

on the area affected by the 

communicable disease. Guidance on a 

widespread communicable disease 

would be issued by the CDC. Scattered 

outbreaks of a communicable disease 

would be handled by Federal, State or 

local health authorities. 

Requirement for Medical 

Documentation 

One agency and one professional 

organization questioned the type of 

medical certification required to support 

a request for sick leave due to exposure 

to communicable disease, if any. 

Another agency asked if exposure to a 

communicable disease is to be treated as 

a serious health condition for purposes 

of medical documentation requirements. 

Another agency asked whether ‘‘one’s 

personal physician stating the person is 

contagious’’ is all that is required to 

grant sick leave to care for a family 

member who has been exposed to a 

communicable disease. 

In a memorandum to Chief Human 

Capital Officers on January 29, 2010, 

(CPM–2010–02) at http:// 

www.chcoc.gov/Transmittals/

TransmittalDetails.aspx?

TransmittalId=2831, OPM noted that if 

influenza becomes widespread in a 

given geographic area, the demands on 

medical providers and facilities would 

be great, and employees may have 

difficulty obtaining timely 

documentation to support their requests 

for use of sick leave. If that occurs, 

agencies should consider relaxing sick 

leave documentation requirements. 

OPM’s regulations do not require 

medical certification when granting sick 

leave. See § 630.403 of the current 

regulations (redesignated as § 630.405 in 

these final regulations). Agencies have 

both the flexibility and the specific 

authority to administer their programs 

as circumstances dictate. Accordingly, 

OPM recommends relaxing any agencyimposed medical certification 

requirements for sickness or exposure to 

influenza during a pandemic influenza, 

and an employee should not be required 

to seek medical examination for the 

purpose of obtaining medical 

documentation for sick leave—agencies 

should monitor official announcements 

by Federal, State, or local public health 

authorities, and/or tribal governments 

related to exposure to pandemic 

influenza. OPM does recognize, 

however, that medical certification may 

remain necessary for employees on 

leave restriction. For exposure to a 

communicable disease other than 

pandemic influenza, agencies may 

follow their established sick leave 

policies. 

One professional organization 

recommended that, during an outbreak 

of pandemic influenza or other 

communicable disease, agencies should 

be able to verify employees’ conditions 

through call centers or other contingent 

operations that may be developed 

during a severe pandemic. OPM would 

consider this an acceptable form of 

communication that could be adopted 

by agencies. 

Requirement To Actively Provide Care 

for Family Member 

One labor organization questioned 

OPM’s intent in specifying that an 

employee must be actively providing 

care for a family member when taking 

sick leave to care for a family member 

who has been exposed to a 

communicable disease. The 

organization wanted to know whether 

OPM intended to require that an 


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employee be the sole provider of care. 

In the example we cited in the 

Supplementary Information that 

accompanied the proposed regulations, 

the employee is providing care for a 

minor child who is not exhibiting any 

symptoms, but a determination has been 

made by the relevant health authorities 

or the health care provider that the 

child’s presence at daycare or at school 

could jeopardize the health of others 

because of the child’s exposure to that 

communicable disease. Since the 

employee would not be providing care 

for a sick family member, but one who 

is asymptomatic, the employee may 

request sick leave only if the exposed 

family member could not otherwise care 

for himself or herself (e.g., a minor 

child, or elderly relative). Although the 

employee does not need to be the sole 

provider of care, the employee must be 

providing care actively to the family 

member in order to invoke sick leave to 

care for the family member exposed to 

a communicable disease. In contrast, it 

would not be appropriate for the 

employee to invoke sick leave to care for 

an able-bodied spouse who has been 

exposed to a communicable disease, but 

is not exhibiting any symptoms, since 

the employee would not need to provide 

care actively to the spouse. If the 

exposed family member contracts the 

communicable disease and becomes ill, 

the employee is entitled to use up to 13 

days of sick leave for general family care 

or up to 12 weeks for care of a family 

member with a serious health condition, 

depending on the severity of the illness. 

Definition of Family Member 

OPM received two requests to expand 

the definition of family member used for 

sick leave purposes. One labor 

organization mentioned that family 

units have evolved in modern times. A 

professional organization requested the 

inclusion of a primary guardian. 

Although these requests are outside the 

scope of these regulatory changes, we 

note that since the publication of these 

proposed regulations, the definition of 

family member for sick leave purposes 

found at § 630.201 has been expanded. 

On June 14, 2010, OPM issued final 

regulations (75 FR 33491) amending the 

definition of family member for sick 

leave purposes to now cover 

grandparents and grandchildren, samesex and opposite domestic partners, step 

parents, step children, foster, 

guardianship, and other relationships. 

The final regulations are available at 

http://www.gpo.gov/fdsys/pkg/FR-2010- 

06-14/pdf/2010-14252.pdf. 

Employee’s Return to Work 

One agency asked if an employee who 

has been exposed to a communicable 

disease will have to provide a release 

from a health care provider declaring 

the employee is healthy enough to 

return to work. Agencies cannot require 

a medical release form from the 

employee’s physician unless the 

employee’s position has specific 

medical standards or physical 

requirements, or unless it is covered by 

a medical evaluation program under 

§ 339.301(b)(3). Most positions do not 

have established physical or medical 

requirements. If the employee’s position 

requires a medical examination and the 

employee refuses the exam, he or she 

may be disciplined, up to and including 

removal from Federal service. However, 

since the current regulations at 

§ 630.403(a) (redesignated as 

§ 630.405(a) in these final regulations) 

provide that an agency may request 

administratively acceptable 

documentation to support an 

employee’s request for sick leave, even 

for an employee whose position does 

not have an established physical or 

medical requirement, an agency could 

ask that the documentation include a 

date on which the employee’s presence 

on the job would no longer jeopardize 

the health of others, i.e., the date on 

which the employee would be 

considered no longer contagious. 

Similar documentation could be 

required to support an employee’s use 

of sick leave to care for a family member 

who has been exposed to a 

communicable disease showing the date 

on which the family member’s presence 

in the community would no longer 

jeopardize the health of others. 

Request for Additional Sick Leave for 

Communicable Disease 

One individual, who supports the 

new rule, would like the Federal 

Government to provide up to 40 hours 

of additional paid sick leave to 

employees with ‘‘serious infectious 

illnesses.’’ The commenter argues this 

new category of sick leave would be 

particularly helpful to employees who 

have no sick leave due to prior serious 

illness or maternity leave. This request 

is outside the scope of OPM’s regulatory 

authority. A statutory change would be 

required to create such a new 

entitlement. However, under current 

authorities, employees without sick 

leave may invoke their FMLA 

entitlement (a serious infectious illness 

would likely qualify as a serious health 

condition) and may be granted annual 

leave, advanced sick leave, advanced 

annual leave, or leave without pay. If 

they have exhausted their available paid 

leave, they could request donated leave 

under the voluntary leave transfer and/ 

or leave bank programs. 

Federal Contractors 

Two professional organizations would 

like OPM to require that all Federal 

contractors be provided sick leave 

during public health emergencies. One 

of the organizations noted that OPM’s 

proposed rules are intended to protect 

Federal workers, maintain continuity of 

operations, and minimize the cost and 

risk from an infectious disease outbreak, 

and that the same goals are true for 

contractors assigned to work in Federal 

agencies. The other stated that the 

public health and the health of Federal 

workers will not be protected by the 

proposed regulatory changes if the 

contract worker in the cubicle next to 

the Federal employee lacks paid sick 

time and is either forced to come to 

work sick or is forced to send a sick 

child to school. The professional 

organization further stated that, since 

the Federal Government contracts with 

outside businesses to run daycare 

centers in Federal Government 

buildings, workers at these centers 

should have access to paid sick time as 

Federal employees do—otherwise the 

health of the children in these centers 

may suffer. Dictating pay and leave 

policies for Federal contractors is 

outside the scope of OPM’s authority. 

As contractors are increasingly relied 

upon to perform many essential 

functions of some agencies, agencies are 

encouraged to contact their acquisition 

professionals for advice and guidance 

on dealing with human resources 

management issues associated with 

contractors and contract workers. 

Privacy Concerns 

One labor organization requested that 

OPM consider the privacy of employees 

and the role of confidentiality in 

medical procedures for H1N1 influenza. 

OPM has always held that agencies 

must maintain strict privacy controls in 

handling medical certification for H1N1 

influenza or any other sick leave 

request. Requirements for 

confidentiality of medical records are 

addressed through the Health Insurance 

Portability and Accountability Act of 

1996 (HIPAA) Privacy Rule, at 45 CFR 

part 160 and subparts A and E of part 

164, and are not addressed in the sick 

leave regulations. 

School Closures 

One professional organization would 

like to allow the use of accrued or 

advanced sick leave by an employee 

whose child’s school is closed due to 


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Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 75367 

communicable disease even when the 

child has not been exposed to the 

disease. OPM disagrees. There is no 

authority that would permit an 

employee to use sick leave to care for a 

child who is healthy or is kept at home 

to prevent exposure to a communicable 

disease. Leave requests due to school 

closures should be handled the way 

they would in non-pandemic influenza 

situations. 

The fact that schools have closed due 

to a pandemic influenza or other serious 

communicable disease should not be the 

sole factor in determining the type of 

leave an employee may use. For 

example, when the school is closed 

and— 

• The child is healthy and has not 

been exposed to a communicable 

disease, the employee may not take sick 

leave. 

• The child has been exposed to a 

communicable disease but is not sick, 

the final regulations allow the employee 

to take up to 13 days of sick leave only 

if it has been determined that the child’s 

presence in the community would 

jeopardize the health of others. 

• The child is sick, due to a 

communicable disease or otherwise, the 

employee may use up to 13 days of sick 

leave to care for that child. If the child’s 

illness rises to the level of a serious 

health condition, the employee may use 

up to 12 weeks of sick leave and may 

also invoke FMLA, which would 

provide up to an additional 12 weeks of 

unpaid leave (with substitution of 

annual or sick leave, according to the 

appropriate regulations). 

In summary, an employee is not 

necessarily entitled to use sick leave just 

because the child’s school has been 

closed to prevent exposure to a 

communicable disease (a commonlyused tool for social distancing) or for 

sanitation of the school building. In 

order for the employee to qualify to use 

sick leave to care for that child, there 

must be a determination that the child’s 

exposure to the communicable disease 

would jeopardize the health of others. 

The Federal Government has other 

workplace flexibilities to assist an 

employee in situations where sick leave 

is not appropriate, including use of 

annual leave, telework, alternative work 

schedules, compensatory time off, 

advanced annual leave, or leave without 

pay. 

Contracting a Communicable Disease at 

Work 

One professional organization 

expressed concern that Federal 

employees who acquire a communicable 

disease during the course of their work 

should not be required to use their own 

leave for their recovery and requested 

that OPM provide this flexibility and 

communicate this to Federal health care 

workers. They cited the hypothetical 

example of an employee of a Veterans 

Affairs hospital or of a workplace-based 

clinic who might become ill as a result 

of exposure to a patient or employee 

with the H1N1 virus. A new leave 

flexibility is not appropriate because a 

provision already exists for this 

situation. If an employee believes his or 

her illness resulted from a work-related 

incident, the employee can file a 

workers’ compensation claim. Workers’ 

compensation claims are administered 

by the U.S. Department of Labor, and 

each claim will be judged on its own 

merit. 

Opposition to Provision of Additional 

Leave 

One individual stated he was opposed 

to giving Federal employees additional 

leave, thereby expanding their benefits. 

The individual believed that, in 

addition to employees’ existing leave 

benefits, OPM was proposing to ‘‘pay 

Federal employees for 30 days of sick 

time and also advance them 30 days if 

they get the flu.’’ We can assure the 

commenter that these regulations 

provide no additional paid leave; they 

merely explain the circumstances under 

which employees can use their own 

accumulated and accrued sick leave. If 

an employee is advanced sick leave for 

any purpose cited in the regulations, it 

must be repaid. If the employee 

separates from Federal service with a 

negative leave balance, he or she will be 

required to refund the amount of 

indebtedness in accordance with 

§ 630.209. 

Advanced Sick Leave 

Advanced sick leave is not an 

entitlement, but may be granted at the 

agency’s discretion. In many cases, it 

may not have been an agency’s practice 

to provide advanced sick leave for some 

of the purposes stated in the final 

regulations. These final regulations are 

intended to provide consistency 

throughout agencies as to the purposes 

and limitations of advanced sick leave. 

Overall, many commenters were 

supportive of the proposed changes 

made to this portion of the regulations 

that outline the amount of sick leave 

that may be advanced for various 

purposes. One labor organization 

strongly supported stating the amount of 

sick leave that may be advanced for 

various circumstances, especially 

welcoming the use of advanced sick 

leave to provide general care for a 

family member or to make arrangements 

necessitated by the death of a family 

member, or to attend the funeral of a 

family member. Another labor 

organization noted that the proposed 

changes would help minimize situations 

where employees without available sick 

leave had to exhaust their annual leave 

balances or were forced to choose 

between coming to work sick or facing 

economic uncertainty. One agency 

approved of the reorganization of the 

regulatory text and specifically 

mentioned that the creation of the new 

section on advancing sick leave 

(redesignated ‘‘Advanced Sick Leave’’ in 

these final regulations) makes it easier 

to find this information in the 

regulations. 

OPM did receive a few objections on 

both sides of the spectrum—some 

commenters objected to expanding the 

purposes for which advanced sick leave 

may be used, and some objected to 

limiting them. Two agencies opposed 

allowing any advanced sick leave unless 

the employee had a serious disability or 

ailment as stated in 5 U.S.C. 6307(d). 

They also questioned both OPM’s 

interpretation of the law and our 

longstanding practice of permitting up 

to 13 days of advanced sick leave for 

general family care and bereavement 

purposes. The two agencies do not 

currently authorize advanced sick leave 

for these purposes. Another agency 

objected to placing any limitation on the 

amount of sick leave that may be 

advanced to an employee for his or her 

own medical, dental, or optical 

examination or treatment. 

OPM’s Authority To Regulate Advanced 

Sick Leave 

Two agencies opposed allowing 

advanced sick leave unless the 

employee had a serious disability or 

ailment, and questioned whether 

permitting use of up to 13 days of 

advanced sick leave for general family 

care and bereavement purposes is 

permitted under the law. Section 6311 

gives OPM the authority to prescribe 

regulations necessary for the 

administration of annual and sick leave 

programs, and OPM has the authority to 

regulate and provide guidelines on 

when it is appropriate to advance sick 

leave in accordance with 5 U.S.C. 6311. 

OPM has used its regulatory authority to 

administer the sick leave provisions on 

many occasions to define appropriate 

purposes and limitations for the use of 

sick leave (e.g., establishing 12 weeks of 

sick leave to care for a family member 

with a serious health condition, 

establishing 13 days of sick leave for 

general family care and bereavement, 

and permitting an agency to advance 

sick leave for general family care and 

bereavement). Enacted in 1994, the 


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Federal Employees Family Friendly 

Leave Act (Pub. L. 103–388, October 22, 

1994) (FEFFLA) amended the law to 

provide for a 3-year trial period to 

expand the purposes for which sick 

leave may be used by an employee, and 

these purposes included family care and 

bereavement. The provisions of the 

FEFFLA expired on December 21, 1997. 

However, OPM used its broad regulatory 

authority under 5 U.S.C. 6311 to 

prescribe regulations permitting 

agencies to provide sick leave for the 

purposes of general family care and 

bereavement, and those regulations 

continued to be in effect after expiration 

of the FEFFLA. (See the memorandum 

to Directors of Personnel, CPM 97–13, 

on the ‘‘Use of Sick Leave for Family 

Care or Bereavement Purposes’’ at 

http://www.opm.gov/oca/compmemo/ 

1997_1996/cpm97-13.asp). Thus, OPM 

used its permanent regulatory authority 

to issue regulations to permit an 

employee to use sick leave to make 

arrangements for or attend the funeral of 

a family member. The scope of OPM’s 

regulatory authority also encompasses 

advancement of sick leave for these 

purposes. 

We further note that this authority 

was also discussed in OPM’s August 17, 

2006, final sick leave regulations 

removing the requirement that an 

employee maintain an 80-hour sick 

leave balance in order to use the 

maximum amount of sick leave for 

general family care and bereavement 

purposes. (See 71 FR 47694, August 17, 

2006.) In the supplementary information 

accompanying that final rule, OPM 

addressed an agency’s request for 

information on the amounts of sick 

leave an agency may advance to an 

employee for general family care and 

bereavement purposes or to provide care 

for a family member with a serious 

health condition. In response, we added 

§ 630.401(f) to clarify that an agency 

may advance a maximum of 30 days of 

sick leave when required by the 

exigencies of the situation for a serious 

disability or ailment of the employee or 

a family member or for purposes related 

to the adoption of a child. While our 

intent to allow an agency also to 

advance sick leave for general family 

care and bereavement purposes was 

expressed in the supplementary 

information accompanying those final 

regulations, the change was not 

reflected in the regulatory text. We are 

therefore addressing that oversight in 

these regulations. 

One agency believed it is too generous 

to allow up to 104 hours (13 days) of 

advanced sick leave for an employee’s 

own medical, dental or optical 

examination or treatment; to care for an 

incapacitated family member or a family 

member receiving medical, dental or 

optical examination or treatment; to care 

for a family member exposed to a 

communicable disease; or to make 

arrangements necessitated by the death 

of a family member or to attend the 

funeral of a family member. The agency 

challenged OPM’s rationale that 

allowing up to 104 hours of advanced 

sick leave for general family care and 

bereavement purposes ‘‘reinstates a 

longstanding practice,’’ saying this has 

not been the practice at that agency. 

OPM reasserts that the final regulations 

are consistent with OPM’s broad 

authority to regulate and provide 

guidelines on when it is appropriate to 

advance sick leave in accordance with 

5 U.S.C. 6311. Within the guidelines 

established by OPM, an agency has the 

discretion to grant advanced sick leave. 

An agency is not required to grant 

advanced sick leave for general family 

care and bereavement or any other 

purpose under § 630.402 of this final 

rule, but is provided this flexibility to 

use for new employees and employees 

who have experienced personal 

hardships. 

104-Hour Limitation on Advanced Sick 

Leave 

One agency objected to placing any 

limitation on the amount of sick leave 

that may be advanced to an employee 

for his or her own medical, dental, or 

optical examination or treatment. The 

agency pointed out that the current 

regulations do not limit the amount of 

sick leave that an employee may use for 

his or her own medical, dental, or 

optical examination or treatment, and 

that it has been a longstanding practice 

that the amount of sick leave that could 

be advanced for these purposes was left 

to the discretion of the agency. The 

agency was concerned that limiting the 

amount of advanced sick leave for an 

employee’s own medical, dental, or 

optical examination or treatment to 104 

hours may have an adverse impact on a 

new employee, an employee with a 

chronic medical condition, or an 

employee experiencing a medical 

emergency that would require ongoing 

medical treatment. 

While we agree that the amount of 

sick leave an agency may advance is 

within the discretion of the agency, we 

disagree that an agency should 

authorize more than 104 hours for an 

employee’s routine medical care or 

appointments that are not related to a 

serious health condition. A full-time 

employee accrues 13 days of sick leave 

(104 hours) during the leave year. We 

believe that this is a sufficient amount 

of leave both for the employee’s own 

medical, dental, or optical examination 

or treatment and for providing general 

care for a family member. If the 

employee needs more than 104 hours of 

advanced sick leave because a condition 

requires treatment beyond routine care, 

the agency may grant up to a maximum 

of 240 hours of advanced sick leave for 

a serious health condition. 

For example, an agency may authorize 

up to 13 days of advanced sick leave for 

an employee to actively provide care for 

a family member exposed to a 

communicable disease that may 

jeopardize the health of others. If the 

family member contracts the 

communicable disease and the 

employee requires more paid time off, 

the agency has the discretion to advance 

additional sick leave (up to 240 hours) 

for the employee to care for a family 

member with a serious health condition. 

Another example would be an employee 

who goes for routine dental examination 

and, as a result, is required to undergo 

extensive dental work that extends 

beyond the 13 days authorized for an 

employee’s own dental examination or 

treatment. Because the employee 

experiences complications beyond 

routine care, likely rising to the level of 

a serious health condition, the agency 

may provide the employee with 

additional advanced sick leave of up to 

240 hours because of incapacitation due 

to physical illness or because of the 

employee’s own serious health 

condition. 

Negative Leave Balance at Time of 

Separation 

One agency believed that advanced 

sick leave would essentially provide an 

additional sick leave benefit, without 

any restrictions or limits for paying the 

leave back, other than not exceeding a 

negative 240-hour leave balance at any 

given time. To avoid having an 

employee separate from Federal service 

with a negative leave balance, 

supervisors must use their judgment in 

reviewing a request for advanced sick 

leave and may deny the request if not 

supported by administratively 

acceptable evidence or if the employee 

is unlikely to return to Federal service. 

Advanced sick leave is not an employee 

entitlement and is not a substitute for 

temporary or permanent disability 

retirement. An employee who has a 

medical emergency and has exhausted 

his or her available paid leave can also 

apply for donated annual leave under 

the voluntary leave transfer and/or leave 

bank programs. The donated annual 

leave can help an employee liquidate 

any indebtedness of advanced annual or 

sick leave prior to separation from 

Federal service. 


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Medical Documentation for Advanced 

Sick Leave 

One agency and one professional 

organization commented that there is no 

mention of medical documentation 

requirements for advanced sick leave. A 

request for advanced sick leave is 

essentially a request for sick leave, 

therefore, the medical documentation 

standards for granting of sick leave at 

current § 630.403 (redesignated as 

§ 630.405 in these final regulations) 

apply. We are not making changes in the 

final regulations. 

One labor organization mentioned 

that the regulations at § 630.401(a)(3)(i) 

and (ii) provide two circumstances 

under which advanced sick leave may 

be granted to care for a family member 

who is sick (the first for a family 

member incapacitated by a medical or 

mental condition, and the second for a 

family member with a serious health 

condition), but the amount of advanced 

sick leave authorized is different in the 

two cases. The organization suggested 

that the difference between the two 

cases should be made clearer and that 

the ending phrase should read, ‘‘with a 

serious health condition as defined in 

§ 630.1202.’’ Such a reference is not 

necessary, since serious health 

condition is already defined at § 630.201 

and refers to the definition in 

§ 630.1202. 

Recourse for Denial of Advanced Sick 

Leave 

One professional organization 

requested an expedited mechanism for 

challenging the denial of advanced sick 

leave to care for a family member who 

has been exposed to or has contracted 

a communicable disease and that the 

employee should be allowed to use sick 

leave pending the outcome of the 

review. This process is handled through 

an agency’s internal grievance 

procedures and is beyond the scope of 

our regulations. It is also important to 

remember that, although use of sick 

leave is an entitlement, by law, the 

advancement of sick leave is always at 

the discretion of the agency. 

Substitution of Sick Leave for Unpaid 

FMLA Leave To Care for a Covered 

Servicemember 

This portion of the final regulations is 

in response to the portion of OPM’s 

proposed regulations (74 FR 43064) 

issued on August 26, 2009, to 

implement section 585(b) of the NDAA 

for FY 2008 (Pub. L. 110–181, January 

28, 2008). That law permits the 

substitution of up to 26 weeks of sick 

leave during a single 12-month period 

when an employee invokes the FMLA to 

provide care for a spouse, son, daughter, 

parent, or next of kin who is a covered 

servicemember with a serious injury or 

illness. See 5 U.S.C. 6382(d). Since the 

NDAA for FY 2008 went into effect on 

the date of enactment, and since nothing 

in section 565(b) of the NDAA for FY 

2010, which also amends parts of the 

FMLA for Federal employees, changes 

the provisions regarding substitution of 

annual or sick leave for unpaid FMLA 

leave, we believe it is useful for OPM to 

address this portion of the NDAA for FY 

2008 in these final regulations. 

Additional guidance on the NDAAs for 

FY 2008 and FY 2010 can be found on 

OPM’s Web site in CPM 2008–04, 

February 1, 2008, at http://

www.opm.gov/oca/compmemo/2008/

2008-04.asp, CPM 2009–26, December 

29, 2009, at http://www.chcoc.gov/

Transmittals/TransmittalDetails.aspx?

TransmittalID=2703, and CPM 2010–06 

at http://www.chcoc.gov/Transmittals/

TransmittalDetails.aspx?Transmittal

ID=2884. 

Interaction Between the Sick Leave and 

FMLA Entitlements 

In the comments received on the 

proposed regulations, one agency asked 

how sick leave which is substituted for 

unpaid FMLA leave to care for a 

covered servicemember will be 

categorized. The agency asked whether 

such leave will be considered regular 

sick leave or family-friendly sick leave 

(13 days of sick leave for general family 

care and bereavement or 12 weeks of 

sick leave for care of a family member 

with a serious health condition) and, if 

considered family-friendly sick leave, 

how an employee’s use of the 26 

administrative workweeks of sick leave 

is affected by the limitations on familyfriendly sick leave for general purposes 

or serious health conditions. The 

statutes authorizing the two 

entitlements are quite complex, and the 

response below is accordingly quite 

detailed in order to give agencies and 

employees as much guidance as 

practicable in administering and using 

the various paid and unpaid leave 

entitlements for treatment of illnesses or 

injuries of employees and the 

individuals for whom they may provide 

care. 

Sick leave and FMLA leave are 

authorized under two separate sets of 

statutes, each with different 

entitlements and conditions, such as the 

categories of individuals for whom an 

employee may take leave to care, 

number of hours or weeks of leave 

allowed, and the rules on the 

substitution of paid leave for unpaid 

leave. An employee is entitled to use 13 

days (104 hours) of sick leave for 

general family care and bereavement in 

accordance with § 630.401(a)(3)(i) and 

(4), and 12 weeks of sick leave to care 

for a family member with a serious 

health condition in accordance with 

§ 630.401(a)(3)(ii). The basic 12-week 

FMLA entitlement to care for a family 

member with a serious health condition 

is found at 5 U.S.C. 6382(a)(1)(C) and 

§ 630.1203(a)(3), and the 26-week FMLA 

entitlement to care for a covered 

servicemember is found at 5 U.S.C. 

6382(a)(3). 

Table 1 outlines the various sick leave 

and FMLA flexibilities available to an 

employee for purposes of caring for a 

family member and/or for a covered 

servicemember. To know which leave 

options are available, an employee must 

first determine the type of leave to 

which he or she is entitled based on the 

person for whom the leave is being 

taken. Table 1 provides useful 

information to help agencies and/or 

employees determine appropriate leave 

options. 


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TABLE 1—LEAVE FLEXIBILITIES AVAILABLE TO CARE FOR A FAMILY MEMBER AND/OR A COVERED SERVICEMEMBER

Entitlement Amount and purpose Individuals for whom leave may be taken 

Sick Leave for General Family Care and Bereavement (5 CFR 630.401(a)(3)(i) and (4)).13 days (104 hours) to: 

• Provide care for a family member who 

is incapacitated by a medical or mental 

condition; 

• Attend to a family member receiving 

medical, dental, or optical examination 

or treatment; or 

• Make arrangements necessitated by 

the death of a family member or attend 

the funeral of a family member. 

May be taken for a family member.* ‘‘Family 

member’’ means the following relatives of 

the employee: 

(1) Spouse, and parents thereof; 

(2) Sons and daughters, and spouses 

thereof; 

(3) Parents, and spouses thereof; 

(4) Brothers and sisters, and spouses 

thereof; 

(5) Grandparents and grandchildren, and 

spouses thereof; 

(6) Domestic partner and parents thereof, 

including domestic partners of any individual in paragraphs (2) through (5) of 

this definition; and 

(7) Any individual related by blood or affinity whose close association with the 

employee is the equivalent of a family 

relationship. 

Sick Leave for Serious Health Condition of 

Family Member (5 CFR 630.401(a)(3)(ii)).

12 weeks (480 hours) to care for a family 

member with a serious health condition.

* See definition of family member at 5 CFR 

630.201(b) in the final regulations on Definitions of Family Member, Immediate Relative, and Related Terms (75 FR 33491, 

June 14, 2010), at http://www.gpo.gov/

fdsys/pkg/FR-2010-06-14/pdf/2010- 

14252.pdf). 

Advanced Sick Leave (5 U.S.C. 6307(d)) .......... Up to 30 days (240 hours) of paid sick leave 

to care for a family member with a serious 

disability or ailment. (Agency discretion.) 

FMLA (Basic) to care for spouse, son, daughter, or parent with a serious health condition 

(5 U.S.C. 6382(a)(1)(C) and 5 CFR 

630.1203(a)(3)).

12 weeks (480 hours) of unpaid leave during 

any 12-month period to care for a spouse, 

son, daughter, or parent with a serious 

health condition. 

For the care of a SPOUSE, SON, DAUGHTER, OR

PARENT of the employee, if such spouse, 

son, daughter, or parent has a serious 

health condition. 

(Note: Son or daughter must be under 18, or 

over 18 but incapable of self-care because 

of a mental or physical disability.) 

(See 5 CFR 630.1203(a)(3) and 630.1202). 

FMLA to care for a covered servicemember (5 

U.S.C. 6382(a)(3)).

26 weeks (1,040 hours) of unpaid leave during a single 12-month period to care for a 

covered servicemember with a serious injury or illness.

Available to an employee who is the SPOUSE, 

SON, DAUGHTER, PARENT, OR NEXT OF KIN OF

A COVERED SERVICEMEMBER. NEXT OF KIN

MEANS THE NEAREST BLOOD RELATIVE of that 

individual. 

Explanatory Information: 

1. Leave To Care for Different Individuals Varies by Entitlement: 

An employee may take leave to care for different individuals, depending on the applicable entitlement. For example, the definition of family 

member under the sick leave regulations is very broad and includes many more categories of individuals than the nuclear family. In contrast, the FMLA statute and regulations do not use the term ‘‘family member’’ at all; rather they specify specific individuals for whose care 

an employee may take FMLA leave. The individuals for whom an employee may take FMLA leave to provide care are slightly different 

depending on whether the leave is the basic 12-week entitlement for the eligible relatives shown in the second-to-last entry above, or the 

26-week entitlement to care for a covered servicemember, as shown in the last entry above. 

2. Sick Leave: 

Under 5 U.S.C. 6307, an employee accrues 4 hours of paid sick leave per full biweekly pay period that may be accumulated without limitation. An employee has an entitlement to use his or her accumulated sick leave for self, family care or bereavement, and care of a family 

member with a serious health condition. No more than a combined total of 12 weeks of sick leave may be used by a full-time employee 

on a regular tour of duty for general family care, bereavement, or care of a family member with a serious health condition within a leave 

year. See 5 CFR 630.401(c). Because sick leave is a separate entitlement, an employee does not need to invoke FMLA to use the sick 

leave entitlement for general family care. Under 5 U.S.C. 6307(d), sick leave may be advanced up to 30 days for a serious disability or 

ailment, including for care of a family member with a serious disability or ailment. The advancement of sick leave is at the agency’s sole 

discretion, based upon the exigencies of the situation. 

3. Basic FMLA Leave (12 Weeks of Unpaid Leave): 


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Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 75371 

TABLE 1—LEAVE FLEXIBILITIES AVAILABLE TO CARE FOR A FAMILY MEMBER AND/OR A COVERED SERVICEMEMBER— 

Continued 

Entitlement Amount and purpose Individuals for whom leave may be taken 

The Family and Medical Leave Act (FMLA) provisions are found at 5 U.S.C. 6381–6387 and provide a total of either 12 or 26 weeks of unpaid leave, as well as permit an employee to elect to substitute annual leave and/or sick leave, as appropriate, for the unpaid leave. 

Under the 12-week basic FMLA entitlement (for the birth of a son or daughter of the employee and in order to care for such son or 

daughter; for the placement of a son or daughter with the employee for adoption or foster care; for the employee to care for his or her 

spouse, son, daughter, or parent with a serious health condition; for a serious health condition that makes the employee unable to perform the functions of his or her position; for a qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the 

employee is on covered active duty or has been notified of an impending call or order to covered active duty in the Armed Forces), an 

employee can substitute annual or sick leave consistent with the laws and regulations for using annual and sick leave. Therefore, the 

employee can substitute only as much accumulated and accrued sick leave so that the cumulative amount of sick leave usage does not 

exceed 12 weeks of sick leave in a leave year. 

4. FMLA Leave To Care for a Covered Servicemember (26 Weeks of Unpaid Leave): 

In contrast to basic FMLA leave, there are no limitations on the amount of sick leave that may be substituted for unpaid FMLA leave to 

care for a covered servicemember, since the FMLA statute at 5 U.S.C. 6382(d) states that an employee may substitute ‘‘any of the employee’s accrued or accumulated annual or sick leave’’ for any part of the 26-week period of unpaid FMLA leave. Since the statute provides the authority to substitute any of the employee’s accrued or accumulated sick leave for any part of the 26-week period of unpaid 

FMLA leave, there are no limits to the amount of sick leave that can be substituted for unpaid FMLA leave to care for a covered servicemember. 

Examples of the Interaction Between 

Sick Leave and FMLA Leave 

Example I: Interaction of 13 Days of 

Sick Leave for General Family Care and 

12 Weeks of Sick Leave for a Serious 

Health Condition. Under the authority 

for sick leave in §§ 630.401(a)(3)(i), 

630.401(a)(4), and 630.401(b), an 

employee can use 13 days of sick leave 

each leave year for general family care 

or bereavement. Under 

§ 630.401(a)(3)(ii) and (c), most Federal 

employees may use a total of up to 12 

administrative workweeks of sick leave 

each leave year to care for a family 

member with a serious health condition. 

Under § 630.401(d), if an employee 

previously has used any portion of the 

13 days of sick leave for general family 

care or bereavement purposes in a leave 

year, that amount must be subtracted 

from the 12-week entitlement. If an 

employee has already used 12 weeks of 

sick leave to care for a family member 

with a serious health condition, he or 

she cannot use an additional 13 days in 

the same leave year for general family 

care or bereavement. 

Example II: Interaction of Sick Leave 

With Basic FMLA Leave. As referenced 

above, sick leave and FMLA are two 

separate entitlements. An employee has 

an entitlement to use his or her accrued 

and accumulated sick leave in addition 

to invoking FMLA. For example, if an 

employee takes 12 weeks of sick leave 

to care for a parent with a serious health 

condition and then invokes FMLA, the 

employee has exhausted his entitlement 

to sick leave to care for a family member 

with a serious health condition and 

cannot substitute any sick leave (but 

may substitute annual leave) for the 12 

weeks of unpaid leave under FMLA. In 

summary, the employee providing care 

for a family member is eligible to use a 

total of 12 weeks of sick leave and then 

12 weeks of unpaid leave under FMLA, 

and may substitute any annual leave for 

the unpaid FMLA leave. 

Example III: Interaction of Sick Leave 

With FMLA Leave To Care for a Covered 

Servicemember. In contrast to the 

amount of sick leave which may be 

substituted for unpaid FMLA leave for 

the 12-week basic FMLA entitlement, 

the legislation that authorized the 26 

weeks of FMLA leave to care for a 

covered servicemember includes 

different provisions regarding the 

amount of paid leave which can be 

substituted for unpaid FMLA leave. 

Under 5 U.S.C. 6382(d), an employee 

may substitute any of the employee’s 

accrued or accumulated annual or sick 

leave for any part of the 26-week period 

of unpaid FMLA leave to care for a 

covered servicemember. There are no 

limitations on the substitution of sick 

leave as there are for basic FMLA leave. 

For example, an employee can use 12 

weeks of sick leave to care for her son 

who has been injured in combat and 

then invoke FMLA leave to care for a 

covered servicemember and substitute 

another 26 weeks of sick leave for 

unpaid FMLA leave. The employee may 

also substitute annual leave, or request 

donated annual leave, advanced sick 

leave or advanced annual leave. In 

summary, an eligible employee who has 

the accumulated leave and meets the 

entitlement requirements for sick leave 

and FMLA leave to care for the covered 

servicemember can potentially take 

leave for up to 38 weeks (12 weeks of 

sick leave to care for a family member 

with a serious health condition and 26 

weeks of leave to care for a covered 

servicemember). 

Example IV: Interaction of Basic 

FMLA Leave and FMLA Leave To Care 

for a Covered Servicemember. In our 

proposed changes to 5 CFR part 630, 

subpart L (74 FR at 43069, August 26, 

2009), we clarified in proposed 

§ 630.1205(b)(1), consistent with DOL 

regulations, that any leave used under 

an employee’s 12-week basic FMLA 

entitlement prior to the first use of leave 

to care for a covered servicemember 

does not count towards the ‘‘single 12- 

month period’’ under § 630.1203(b). For 

example, on February 25, 2008, an 

employee invokes her entitlement to 

basic FMLA leave for the birth of her 

child. On April 17, 2008, in her 8th 

week of FMLA leave, she receives word 

that her husband was seriously injured 

in the line of duty while on active duty. 

On April 18, 2008, the employee 

invokes her entitlement to 26 weeks of 

FMLA leave to care for a covered 

servicemember to care for her husband. 

She is entitled to use up to 26 weeks of 

FMLA leave during a single 12-month 

period for this purpose, from April 18, 

2008, to April 17, 2009. The time period 

during which she used basic FMLA 

leave, from February 25, 2008, to April 

17, 2008, does not count toward her 26- 

week FMLA entitlement to care for a 

covered servicemember. We note that 

the employee is not required to invoke 

her 26-week FMLA leave entitlement 

immediately. She may delay invoking 

the 26-week FMLA entitlement until 

such time as she is needed to provide 

care for her husband. Once the 

employee invokes her 26-week FMLA 

entitlement and begins to care for her 

husband, the single 12-month period 

begins. In this example, the employee 

may choose to first exhaust her full 12- 

week basic FMLA entitlement for the 


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75372 Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 

birth of a child, and then invoke the 26- 

week FMLA entitlement to care for a 

covered servicemember after her 

husband is released from the hospital 

and returns home. 

Example V: Importance of the 

Employee’s Relationship With the 

‘‘Person for Whom Leave May Be 

Taken.’’ Since an employee may take 

leave to care for different individuals 

depending on the applicable 

entitlement, it is important to pay close 

attention to the person for whom the 

employee is taking leave to care. If the 

person for whom the employee wishes 

to care does not meet the criteria set out 

in statute and regulation, the employee 

will not have the option of using this 

type of leave. For example, an 

employee’s fiance ́ is seriously injured 

by a roadside bomb. The employing 

agency may decide, at its discretion, 

that the fiance ́ meets the definition of 

family member for sick leave purposes 

(based on the clause ‘‘any individual 

related by blood or affinity whose close 

association with the employee is the 

equivalent of a family relationship’’); 

therefore, the employee is eligible to use 

up to 12 weeks of sick leave to care for 

her fiance ́ who has a serious health 

condition. However, this employee does 

not meet the FMLA definition of an 

individual who can use the 26-week 

entitlement to care for a covered 

servicemember, because coverage is 

limited to an employee who is the 

spouse, son, daughter, parent, or next of 

kin of the covered servicemember. In 

contrast, if the employee were married 

to the covered servicemember, she 

would be entitled to both sick leave and 

FMLA leave to care for a covered 

servicemember, as shown in table 1. 

Employee Must Invoke FMLA Leave To 

Care for a Covered Servicemember To 

Use the Maximum Amount of Sick 

Leave 

An agency wanted to know why, 

under proposed § 630.402(a)(1)(v), 

agencies may not advance sick leave to 

care for a covered service member 

unless the employee has invoked his or 

her FMLA entitlement to leave to care 

for a covered servicemember. The 

agency pointed out that an employee is 

not required to invoke his or her FMLA 

entitlement before using sick leave to 

care for a family member with a serious 

health condition, and it questioned why 

an employee is required to invoke his or 

her FMLA entitlement to care for a 

covered servicemember. 

The proposed regulations do not 

require an employee to invoke the 

FMLA entitlement to be advanced sick 

leave. The proposed regulations at 

§ 630.402(a)(1)(i)–(v) provide that an 

agency may grant advanced sick leave in 

the amount of up to 240 hours to a fulltime employee (i) who is incapacitated 

for the performance of his or her duties 

by physical or mental illness, injury, 

pregnancy, or childbirth; (ii) for a 

serious health condition of the 

employee or a family member; (iii) 

when the employee would, as 

determined by the health authorities 

having jurisdiction or by a health care 

provider, jeopardize the health of others 

by his or her presence on the job 

because of exposure to a communicable 

disease; (iv) for purposes relating to the 

adoption of a child; or (v) for the care 

of a covered servicemember with a 

serious injury or illness, provided the 

employee is exercising his or her 

entitlement under 5 U.S.C. 6382(a)(3). 

Although the care of a covered 

servicemember is only one circumstance 

that qualifies for the advancement of 

sick leave, it is the authority that will 

provide the greatest benefit to the 

employee. 

As referenced in the leave flexibilities 

table, sick leave is limited to 12 weeks 

for an employee to care for a family 

member with a serious health condition. 

In order for the employee to use 

additional sick leave, he or she must 

invoke FMLA to care for a covered 

servicemember. For example, an 

employee uses 12 weeks of sick leave to 

care for her son who has been injured 

in the line of duty while on active duty 

and requests additional sick leave to 

continue to care for her son. At this 

point, the employee must invoke her 

FMLA entitlement to care for a covered 

servicemember to use additional sick 

leave. By invoking the entitlement, the 

employee may substitute up to 26 

additional weeks of sick leave for 

unpaid leave under FMLA. If the 

employee has accumulated and accrued 

sick leave to cover only a part of the 26- 

week period, because she has invoked 

her FMLA entitlement to care for a 

covered servicemember, she can request 

advanced sick leave for up to 30 days. 

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 these regulations would not 

have a significant economic impact on 

a substantial number of small entities 

because they would apply only to 

Federal agencies and employees. 

List of Subjects in 5 CFR Part 630 

Government employees. 

U.S. Office of Personnel Management. 

John Berry, 

Director. 

■ Accordingly, OPM is amending 5 CFR 

part 630 as follows: 

PART 630—ABSENCE AND LEAVE 

■ 1. The authority citation for part 630 

continues to read as follows: 

Authority: 5 U.S.C. 6311; 630.205 also 

issued under Pub. L. 108–411, 118 Stat 2312; 

630.301 also issued under Pub. L. 103–356, 

108 Stat. 3410 and Pub. L. 108–411, 118 Stat 

2312; 630.303 also issued under 5 U.S.C. 

6133(a); 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; 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. 105–18, 

111 Stat. 158; 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. 102–25, 105 Stat. 92. 

Subpart D—Sick Leave 

■ 2. In § 630.401, remove paragraph (f) 

and revise paragraphs (a)(3) and (b) to 

read as follows: 

§ 630.401 Granting sick leave. 

(a) * * * 

(3) Provides care for a family 

member— 

(i) Who is incapacitated by a medical 

or mental condition or attends to a 

family member receiving medical, 

dental, or optical examination or 

treatment; 

(ii) With a serious health condition; or 

(iii) Who would, as determined by the 

health authorities having jurisdiction or 

by a health care provider, jeopardize the 

health of others by that family member’s 

presence in the community because of 

exposure to a communicable disease; 

* * * * * 

(b) The amount of sick leave granted 

to an employee during any leave year 

for the purposes described in 

paragraphs (a)(3)(i), (a)(3)(iii), and (a)(4) 

of this section may not exceed a total of 

104 hours (or, for a part-time employee 

or an employee with an uncommon tour 

of duty, the number of hours of sick 

leave he or she normally accrues during 

a leave year). 

* * * * * 


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Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / Rules and Regulations 75373 

§§ 630.402 through 630.406 [Redesignated 

as §§ 630.404 through 630.408]. 

■ 3a. Redesignate §§ 630.402 through 

630.406 as §§ 630.404 through 630.408, 

respectively. 

■ 3b. Add new § 630.402 to read as 

follows: 

§ 630.402 Advanced sick leave. 

(a) At the beginning of a leave year or 

at any time thereafter when required by 

the exigencies of the situation, an 

agency may grant advanced sick leave in 

the amount of: 

(1) Up to 240 hours to a full-time 

employee— 

(i) Who is incapacitated for the 

performance of his or her duties by 

physical or mental illness, injury, 

pregnancy, or childbirth; 

(ii) For a serious health condition of 

the employee or a family member; 

(iii) When the employee would, as 

determined by the health authorities 

having jurisdiction or by a health care 

provider, jeopardize the health of others 

by his or her presence on the job 

because of exposure to a communicable 

disease; 

(iv) For purposes relating to the 

adoption of a child; or 

(v) For the care of a covered 

servicemember with a serious injury or 

illness, provided the employee is 

exercising his or her entitlement under 

5 U.S.C. 6382(a)(3). 

(2) Up to 104 hours to a full-time 

employee— 

(i) When he or she receives medical, 

dental or optical examination or 

treatment; 

(ii) To provide care for a family 

member who is incapacitated by a 

medical or mental condition or to attend 

to a family member receiving medical, 

dental, or optical examination or 

treatment; 

(iii) To provide care for a family 

member who would, as determined by 

the health authorities having 

jurisdiction or by a health care provider, 

jeopardize the health of others by that 

family member’s presence in the 

community because of exposure to a 

communicable disease; or 

(iv) To make arrangements 

necessitated by the death of a family 

member or to attend the funeral of a 

family member. 

(b) Two hundred forty hours is the 

maximum amount of advanced sick 

leave an employee may have to his or 

her credit at any one time. For a parttime employee (or an employee on an 

uncommon tour of duty), the maximum 

amount of sick leave an agency may 

advance must be prorated according to 

the number of hours in the employee’s 

regularly scheduled administrative 

workweek. 

■ 3c. Add new § 630.403 to read as 

follows: 

§ 630.403 Substitution of sick leave for 

unpaid family and medical leave to care for 

a covered servicemember. 

The amount of accumulated and 

accrued sick leave an employee may 

substitute for unpaid family and 

medical leave under 5 U.S.C. 6382(a)(3) 

for leave to care for a covered 

servicemember may not exceed a total of 

26 administrative workweeks in a single 

12-month period (or, for a part-time 

employee or an employee with an 

uncommon tour of duty, an amount of 

sick leave equal to 26 times the average 

number of hours in his or her scheduled 

tour of duty each week). 

■ 4. Revise paragraphs (b) and (c) of 

§ 630.502 to read as follows: 

§ 630.502 Sick leave recredit. 

* * * * * 

(b) Except as provided in § 630.407 

and in paragraph (c) of this section, an 

employee who has had a break in 

service is entitled to a recredit of sick 

leave (without regard to the date of his 

or her separation), if he or she returns 

to Federal employment on or after 

December 2, 1994, unless the sick leave 

was forfeited upon reemployment in the 

Federal Government before December 2, 

1994. 

(c) Except as provided in § 630.407, 

an employee of the government of the 

District of Columbia who was first 

employed by the government of the 

District of Columbia before October 1, 

1987, and who has had a break in 

service is entitled to a recredit of sick 

leave (without regard to the date of his 

or her separation) if he or she returns to 

Federal employment on or after 

December 2, 1994, unless the sick leave 

was forfeited upon reemployment in the 

Federal Government before December 2, 

1994. 

* * * * * 

[FR Doc. 2010–30371 Filed 12–2–10; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF ENERGY 

10 CFR Part 1010 

RIN 1990–AA31 

Conduct of Employees and Former 

Employees; Exemption From PostEmployment Restrictions for 

Communications Furnishing Scientific 

or Technological Information 

AGENCY: Office of the General Counsel, 

U.S. Department of Energy. 

ACTION: Final rule. 

SUMMARY: The Department of Energy 

(DOE) today publishes a final rule to 

establish procedures under which a 

former employee of the executive 

branch may obtain approval from DOE 

to make communications to DOE solely 

for the purpose of furnishing scientific 

or technological information during the 

period the former employee is subject to 

post-employment restrictions set forth 

in 18 U.S.C. 207(a), (c), and (d). The 

final rule also provides a definition of 

the term ‘‘scientific or technological 

information’’ that is consistent with the 

definition provided by the Office of 

Government Ethics (OGE) in its 

regulations and for which an exemption 

is provided by 18 U.S.C. 207(j)(5). 

DATES: This rule is effective January 3, 

2011. 

FOR FURTHER INFORMATION CONTACT: Sue 

E. Wadel, Deputy Assistant General 

Counsel for General Law, U.S. 

Department of Energy, Office of the 

General Counsel, Mailstop GC–77, 

Room 6A–211, 1000 Independence 

Avenue, SW., Washington, DC 20585; 

(202) 586–1522 or 

Sue.Wadel@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Summary of Rule and Changes to 

Proposed Rule 

III. Regulatory Review 

I. Background 

On December 1, 2008, the Department 

of Energy published for comment a 

proposed rule revising 10 CFR Part 1010 

to establish in a new subpart B 

procedures under which a former 

employee of the executive branch may 

obtain approval to make 

communications to DOE solely for the 

purpose of furnishing scientific or 

technological information during the 

period the former employee is subject to 

post-employment restrictions set forth 

in 18 U.S.C. 207(a), (c), and (d). The 

proposed rule also defined the term 

‘‘scientific or technological information’’ 

used in 18 U.S.C. 207(j)(5) to provide 

former employees with guidance on the 

types of communications that would 

qualify for the exemption from 

otherwise applicable post-employment 

restrictions. See 73 FR 72748–72751 

(December 1, 2008). 

Pursuant to 18 U.S.C. 207(j)(5), former 

employees of the executive branch of 

the United States may make 

communications with an executive 

branch agency ‘‘solely for the purpose of 

furnishing scientific or technological 

information,’’ notwithstanding the postemployment restrictions at 18 U.S.C. 


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