This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

43064 

Vol. 74, No. 164 

Wednesday, August 26, 2009 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 630 

RIN 3206–AL91 

Absence and Leave; Family and 

Medical Leave 

AGENCY: U.S. Office of Personnel 

Management. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Office of Personnel 

Management is issuing proposed 

regulations that would provide an 

eligible employee up to 26 

administrative workweeks of leave 

under the Family and Medical Leave 

Act (FMLA) to care for a member of the 

Armed Forces, including a member of 

the National Guard or Reserves, who is 

injured in the line of duty while on 

active duty. The proposed regulations 

would also amend the rules on 

advancing sick leave, including sick 

leave that may be substituted for FMLA 

unpaid leave to care for a covered 

servicemember and sick leave that may 

be used to provide care for a family 

member and/or for bereavement 

purposes, or in certain other 

circumstances. Finally, we are also 

proposing organizational changes to the 

existing sick leave and FMLA 

regulations to enhance reader 

understanding and administration of 

these programs. 

DATES: Comments must be received on 

or before October 26, 2009. 

ADDRESSES: You may submit comments, 

identified by RIN number ‘‘3206–AL91’’ 

using either of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Mail: Jerome D. Mikowicz, Deputy 

Associate Director, Center for Pay and 

Leave Administration, U.S. Office of 

Personnel Management, Room 7H31, 

1900 E Street, NW., Washington, DC 

20415–8200. 

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 proposed regulations to 

implement section 585(b) of the 

National Defense Authorization Act for 

Fiscal Year 2008 (NDAA) (Pub. L. 110– 

181, January 28, 2008) that amends the 

Family and Medical Leave Act (FMLA) 

provisions in 5 U.S.C. 6381–6383 

(applicable to Federal employees) 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 a total of 26 administrative 

workweeks of leave during a single 12- 

month period to care for the covered 

servicemember. The covered 

servicemember must be a current 

member of the Armed Forces, including 

a member of the National Guard or 

Reserves, who has a serious injury or 

illness incurred in the line of duty on 

active duty for which he or she is 

undergoing medical treatment, 

recuperation, or therapy, is otherwise in 

outpatient status, or is otherwise on the 

temporary disability retired list. The 

proposed regulations would also permit 

an employee to substitute annual or sick 

leave, including advanced annual or 

sick leave, for any part of the 26-week 

period of unpaid FMLA leave to care for 

a covered servicemember. In addition, 

OPM is proposing to update its sick 

leave regulations to support agencies in 

planning for pandemic influenza. We 

are also proposing to clarify our current 

regulations regarding the advancement 

of up to 104 hours of sick leave to 

provide care for a family member and/ 

or for bereavement purposes, and the 

amount of sick leave that may be 

advanced for other conditions specified 

under 5 CFR 630.401(a). We are also 

proposing organizational changes to the 

sick leave and FMLA regulations to 

enhance reader understanding and 

administration of the programs. 

The amendments to the FMLA 

became effective on the date of their 

enactment, January 28, 2008. On 

February 1, 2008, OPM issued a 

Compensation Policy Memorandum 

(CPM 2008–04), outlining the changes 

in Federal employee pay and leave laws 

resulting from the enactment of the 

NDAA, including the changes to the 

FMLA statute. (See http:// 

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

2008-04.asp.) In this memorandum, 

OPM stated that agencies were expected 

to follow the NDAA statutory provisions 

upon the effective date provided in law. 

Agencies are to continue implementing 

the statute to the best of their ability 

until OPM final regulations are issued. 

In accordance with 5 U.S.C. 6387, 

OPM is required to prescribe regulations 

that are consistent, to the extent 

appropriate, with those prescribed by 

the Secretary of Labor to carry out title 

I of the FMLA. The Department of Labor 

(DOL) issued its final regulations on 

November 17, 2008 (73 FR 67934) to 

implement section 585(a) of the NDAA, 

amending title I of the FMLA, and to 

make other substantive changes to the 

DOL FMLA regulations based upon 

stakeholder meetings, rulings of the U.S. 

Supreme Court and other Federal 

courts, DOL’s experience administering 

the law, information from Congressional 

hearings, and public comments filed 

with the Office of Management and 

Budget (OMB) as described by OMB in 

three annual reports to Congress on the 

FMLA’s costs and benefits. In 

developing the NDAA portion of its 

regulations, DOL consulted with the 

Department of Defense (DOD), the 

Department of Veterans Affairs (VA), 

and a number of military service 

organizations to provide regulations that 

reflect the unique circumstances facing 

military families when a servicemember 

is deployed in support of a contingency 

operation and injured in the line of duty 

on active duty. To the extent 

appropriate, OPM is prescribing 

regulations consistent with the DOL 

regulations, as revised to incorporate the 

NDAA amendments. In order to 

expedite the implementation of the 

NDAA provisions for the Federal 

workforce, our regulations are 

addressing only the provisions in 

section 585(b) of the NDAA. After we 

issue final regulations incorporating the 

NDAA provisions in our current FMLA 

regulations, we will further review 

DOL’s final rule to determine whether 

any additional changes are needed in 

our regulations. If changes are 

necessary, we will publish a proposed 

rule. 

We are also considering whether a 

comprehensive review of OPM’s FMLA 

regulations is needed to identify any 

problems or concerns that our 

stakeholders have encountered when 

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reading and applying the provisions of 

subpart L, Family and Medical Leave, in 

part 630 of title 5, Code of Federal 

Regulations. Our FMLA regulations 

were initially published in 1993, and 

agencies have had ample experience in 

administering FMLA provisions. We 

expect it would be relatively easy for 

agencies to provide specific examples 

and feedback on how they believe our 

regulations could be improved. Any 

future OPM review would operate 

within the then-current FMLA statutory 

provisions. We are asking agencies for 

their recommendations on what 

significant changes, if any, are needed 

within the existing OPM FMLA 

regulatory framework. 

We are also proposing to reorganize 

the FMLA regulations in subpart L and 

the sick leave regulations in subpart D 

to enhance the reader’s understanding 

of the regulations and make it easier to 

find relevant topics within the 

regulatory text. 

Subpart D, Sick Leave 

Overview of Sick Leave Changes 

Under 5 U.S.C. 6307(d), an agency 

may, when required by the exigencies of 

the situation, advance up to 30 days of 

sick leave for a serious disability or 

ailment, or for purposes relating to the 

adoption of a child. Under 5 CFR 

630.401(f) in OPM’s current regulations, 

an agency may advance a maximum of 

30 days of sick leave to a full-time 

employee at the beginning of a leave 

year or at any time thereafter when 

required by the exigencies of the 

situation for a serious disability or 

ailment of the employee or a family 

member, or for purposes relating to the 

adoption of a child. OPM is proposing 

to update these regulations to permit an 

agency to advance sick leave to an 

employee to care for a covered 

servicemember, pursuant to the NDAA 

amendments. These proposed 

regulations also support agencies in 

dealing with possible outbreaks of 

pandemic influenza and other serious 

communicable diseases, by permitting 

an agency to grant accrued or 

accumulated sick leave to an employee 

providing care for a family member who 

has been exposed to a serious 

communicable disease, and by 

permitting an agency to advance sick 

leave when an employee or a family 

member has been exposed to a serious 

communicable disease. Further, these 

proposed regulations generally clarify 

the amount of sick leave that may be 

advanced for conditions specified under 

§ 630.401(a). 

Advanced Sick Leave To Care for a 

Covered Servicemember 

The NDAA amended the FMLA to 

authorize Federal employees up to 26 

administrative workweeks (1040 hours 

for a full-time employee) of unpaid 

FMLA leave to care for a covered 

servicemember with a serious injury or 

illness. Once an employee has invoked 

FMLA leave under §§ 630.1203(b) and 

630.1204 of the proposed regulations, 

the NDAA amendments to 5 U.S.C. 

6382(d) allow an employee to substitute 

any accrued or accumulated annual or 

sick leave for any period of leave 

without pay. For a full-time employee, 

the 480-hour (12-week) limitation per 

leave year on the use of sick leave to 

care for a family member with a serious 

health condition under current 

§ 630.401(c) does not apply because the 

employee may substitute accrued or 

accumulated sick leave for any or all of 

the 26 administrative workweeks of 

unpaid leave to care for a covered 

servicemember. We believe it is also 

appropriate to allow the use of 

advanced sick leave for this purpose 

within certain limits, provided the 

employee has invoked FMLA under 

§§ 630.1203(b) and 630.1204. Although 

an employee may use up to 26 

administrative workweeks of accrued 

and accumulated sick leave during a 

single 12-month period if he or she 

invokes FMLA to care for a covered 

servicemember, we provide under 

proposed § 630.402(a)(1)(v) and (b) that 

an agency may advance sick leave only 

to the extent that the employee is not 

indebted for more than 240 hours (30 

days) of advanced sick leave at any 

time. An agency may not advance any 

sick leave to care for a covered 

servicemember under § 630.402(a)(1)(v) 

if the employee has not invoked FMLA 

to care for a covered servicemember 

under §§ 630.1203(b) and 630.1204. 

For example, a relatively new 

employee learns that her husband is 

injured by gunfire in the line of duty on 

active duty. The employee is entitled to 

26 weeks of unpaid leave under the 

FMLA to care for a covered 

servicemember; however, she has a 

combined total of only 160 hours (4 

weeks) of accrued and accumulated 

annual leave and sick leave. The 

employee requests advanced sick leave, 

and the agency approves the maximum 

amount allowable of 240 hours (30 

days). The agency may advise the 

employee that she also can apply for 

donated annual leave under the 

voluntary leave transfer program (5 CFR 

part 630, subpart I) to liquidate the 

advanced sick leave and cover a portion 

of the remaining 26 weeks of unpaid 

leave. 

Sick Leave for Pandemic Influenza and 

Other Serious Communicable Diseases 

OPM also is proposing to update its 

sick leave regulations to support 

agencies’ planning for pandemic 

influenza and other serious 

communicable diseases. The current 

sick leave regulations at § 630.401(a)(5) 

entitle an employee to use accrued or 

accumulated sick leave when it has 

been determined by the health 

authorities having jurisdiction or by a 

health care provider that the employee’s 

presence on the job would jeopardize 

the health of others because of the 

employee’s exposure to a communicable 

disease (e.g., Federal or State quarantine 

or isolation order). 

We propose to amend § 630.401(a)(3) 

to entitle an employee to use accrued or 

accumulated sick leave to provide care 

for a family member 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, whether or not 

the family member has actually 

contracted the communicable disease. 

In general, this situation would only 

arise for serious communicable diseases, 

such as communicable diseases where 

federal isolation and quarantine are 

authorized under Executive Order 

13295, as amended by Executive Order 

13375, consistent with 42 U.S.C. 264(b). 

The current consolidated list of 

communicable diseases for which 

federal isolation and quarantine are 

authorized includes: 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. This list 

provides types of diseases that result in 

Federal quarantine and may be revised 

by the President as the need arises. As 

a result, this list of diseases is 

illustrative and not exhaustive. We 

request comment on whether additional 

changes to the regulatory text would 

help clarify the limited cases in which 

the situation would meet this threshold. 

In order to use sick leave in this 

situation, the relevant health authorities 

or a health care provider must first make 

a determination 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. 

Secondly, the employee must actively 

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be providing care for the family 

member. For example, a minor child of 

an employee could have been exposed 

to a communicable disease such as 

smallpox, and 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 other 

children. The employee could use sick 

leave to provide care for that child at 

home until it is determined whether or 

not the child has contracted the disease. 

The proposed amendment to 

§ 630.401(b) would limit the amount of 

accrued or accumulated sick leave 

available for this purpose to 104 hours 

per leave year, unless the family 

member contracts the communicable 

disease. Upon determination by health 

care officials that the family member has 

contracted the disease, the employee is 

entitled to use up to 12 weeks of sick 

leave in a leave year to care for a family 

member with a serious health condition 

under § 630.401(c). 

Based on comments received from 

agencies related to OPM’s existing 

pandemic guidance, we are also 

proposing to change our regulations 

under § 630.402(a)(1)(iii) to permit 

agencies to advance a maximum of 240 

hours (30 days) of sick leave to an 

employee if it has been determined by 

the health authorities having 

jurisdiction or by a health care provider 

that the employee’s presence on the job 

would jeopardize the health of others 

because of exposure to a communicable 

disease. Similarly, we propose under 

§ 630.402(a)(2)(iii) an advancement of a 

maximum of 104 hours (13 days) of sick 

leave in a leave year to an employee 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. 

We believe these proposed regulatory 

changes are consistent with the intent of 

Federal sick leave laws and would 

benefit agencies and employees, 

especially in the event of a health crisis 

resulting in an outbreak of pandemic 

influenza or another communicable 

disease. 

Proposed Regulations on Advanced Sick 

Leave 

OPM is also proposing to insert a new 

section at § 630.402 that reinstates a 

longstanding practice that is not in our 

current regulations regarding the 

advancement of up to 104 hours (13 

days) of sick leave to provide general 

care for a family member and/or for 

bereavement purposes. In this section, 

we are also proposing to specify the 

amount of sick leave that may be 

advanced for other conditions listed 

under § 630.401(a). 

OPM’s proposed regulations at 

§ 630.402(a)(1) would permit an agency 

to advance up to 240 hours (30 days) of 

sick leave to a full-time employee (1) 

who is incapacitated for the 

performance of his or her duties by 

physical or mental illness, injury, 

pregnancy, or childbirth; (2) for a 

serious health condition of the 

employee or a family member; (3) 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; (4) 

for purposes relating to the adoption of 

a child; or (5) for the care of a covered 

servicemember with a serious injury or 

illness, provided the employee has 

invoked FMLA in accordance with 

§§ 630.1203(b) and 630.1204. We are 

also proposing under § 630.402(a)(2) 

that an agency may advance up to 104 

hours (13 days) of sick leave to a fulltime employee when he or she (1) 

receives medical, dental, or optical 

examination or treatment; (2) provides 

care for a family member who is 

incapacitated by a medical or mental 

condition or attends to a family member 

receiving medical, dental, or optical 

examination or treatment; (3) provides 

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 (4) makes 

arrangements necessitated by the death 

of a family member or attends the 

funeral of a family member. 

Under proposed § 630.402(a), the 

maximum amount of sick leave that may 

be advanced is 240 hours (30 days). 

Under proposed § 630.402(b), an 

employee may not be indebted for more 

than 240 hours (30 days) at any point in 

time. For a part-time employee (or an 

employee on an uncommon tour of 

duty), the maximum amount of sick 

leave an agency may advance, and for 

which an employee may be indebted, 

must be prorated according to the 

number of hours in the employee’s 

regularly scheduled administrative 

workweek. 

Substitution of Sick Leave for Unpaid 

FMLA Leave To Care for a Covered 

Servicemember 

The NDAA also amended 5 U.S.C. 

6382(d) to provide that an employee 

may elect to 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. We 

are proposing a new § 630.403 in the 

sick leave regulations to implement this 

change, which provides that the amount 

of sick leave that an employee may 

substitute for unpaid FMLA leave when 

taking FMLA 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, a prorated 

amount of sick leave equal to 26 times 

the average number of hours in his or 

her scheduled tour of duty each week. 

Subpart L, Family and Medical Leave 

Definitions 

In § 630.1202 of the proposed 

regulations, we added definitions for 

active duty, contingency operation, 

covered servicemember, next of kin of a 

covered servicemember, outpatient 

status, parent of a covered 

servicemember, serious injury or illness, 

single 12-month period, and son or 

daughter of a covered servicemember— 

all of which are new terms applicable 

only to taking FMLA leave to care for a 

covered servicemember. 

Active duty is defined in law (5 U.S.C. 

6381(7)) to mean duty under a call or 

order to active duty under a provision 

of law referred to in § 101(a)(13)(B) of 

title 10. OPM’s proposed regulations 

provide an expanded version of this 

definition for clarity and to enhance the 

reader’s understanding. 

Contingency operation is defined in 

law at 10 U.S.C. 101(a)(13). We are 

proposing to adopt this statutory 

definition in our regulations to mean a 

military operation that is designated by 

the Secretary of Defense as an operation 

in which members of the Armed Forces 

are or may become involved in military 

actions, operations, or hostilities against 

an enemy of the United States or against 

an opposing military force; or results in 

the call or order to, or retention on, 

active duty of members of the 

uniformed services under section 688, 

12301(a), 12302, 12304, 12305, or 12406 

of title 10 of the United States Code, 

chapter 15 of title 10 of the United 

States Code, or any other provision of 

law during a war or during a national 

emergency declared by the President or 

Congress. 

Covered servicemember is defined in 

law (5 U.S.C. 6381(8)) to mean a 

member of the Armed Forces who is 

undergoing medical treatment, 

recuperation, or therapy as an 

outpatient, or is otherwise on the 

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temporary disability retired list, for a 

serious injury or illness. 

For the reasons outlined in our 

discussion of ‘‘Who Is a Covered 

Servicemember,’’ we have altered the 

statutory definition slightly to clarify 

that a covered servicemember must be a 

current member of the Armed Forces, or 

a member on the temporary disability 

retired list, but may not be a former 

member of the Armed Forces, National 

Guard, or Reserve, or a member on the 

permanent disability retired list. The 

proposed definition therefore reads: 

‘‘Covered servicemember means a 

current member of the Armed Forces, 

including a member of the National 

Guard or Reserves, who is undergoing 

medical treatment, recuperation, or 

therapy, is otherwise in outpatient 

status, or is otherwise on the temporary 

disability retired list, for a serious injury 

or illness incurred in the line of duty on 

active duty, but does not include former 

members of the Armed Forces, former 

members of the National Guard and 

Reserves, and members on the 

permanent disability retired list.’’ 

Next of kin of a covered 

servicemember. The NDAA 

amendments provide that a covered 

servicemember’s ‘‘next of kin’’ is 

eligible to take FMLA leave to care for 

the covered servicemember and defines 

the term next of kin as the ‘‘nearest 

blood relative’’ of a covered 

servicemember (5 U.S.C. 6381(10)). 

After consultation with appropriate 

stakeholders, DOL expanded the 

definition of next of kin of a covered 

servicemember. We are adopting the 

DOL definition with modifications to 

the appropriate citations to our 

regulations. 

Outpatient status is defined in law (5 

U.S.C. 6381(9)), with respect to a 

covered servicemember, to mean ‘‘the 

status of a member of the Armed Forces 

assigned to (A) a military medical 

treatment facility as an outpatient; or (B) 

a unit established for the purpose of 

providing command and control of 

members of the Armed Forces receiving 

medical care as outpatients.’’ We are 

adopting this statutory definition of 

outpatient status in our proposed 

regulations. 

Parent of a covered servicemember. 

Under FMLA, the terms ‘‘parent’’ and 

‘‘parent of a covered servicemember’’ 

refer to different circumstances for 

purposes of FMLA leave eligibility. 

Under 5 U.S.C. 6382(a)(1)(C), an 

employee is entitled to ‘‘basic’’ FMLA 

leave to care for his or her parent if the 

parent has a serious health condition. 

However, under 5 U.S.C. 6382(a)(3), in 

the context of leave to care for a covered 

servicemember, the parent is the 

employee who has the entitlement to 

take FMLA leave to care for a son or 

daughter. Since the entitlement to leave 

is expressed differently in the two 

statutory provisions, the definition of 

parent in the current regulations (which 

is—‘‘parent means a biological parent or 

an individual who stands or stood in 

loco parentis to an employee when the 

employee was a son or daughter. This 

term does not include parents ‘in law’ ’’) 

does not accurately describe the 

meaning of parent as it is used in the 

context of leave to care for a covered 

servicemember. Accordingly, in 

§ 630.1202, we propose a separate 

definition of parent of a covered 

servicemember to mean a ‘‘covered 

servicemember’s biological, adoptive, 

step or foster father or mother, or any 

other individual who stands or stood in 

loco parentis to the covered 

servicemember. This term does not 

include parents-in-law.’’ 

Based on the new definition of parent 

of a covered servicemember, we also 

made a conforming change to the 

definition of in loco parentis to add a 

reference to covered servicemembers so 

that the definition now reads: ‘‘In loco 

parentis refers to the situation of an 

individual who has day-to-day 

responsibility for the care and financial 

support of a child or, in the case of an 

employee or a covered servicemember, 

who had such responsibility for the 

employee or the covered servicemember 

when either was a child. A biological or 

legal relationship is not necessary.’’ 

Serious injury or illness is defined in 

law (5 U.S.C. 6381(11)), in the case of 

a member of the Armed Forces, to mean 

an injury or illness incurred by the 

member in the line of duty on active 

duty in the Armed Forces that may 

render the member medically unfit to 

perform the duties of the member’s 

office, grade, rank, or rating. Consistent 

with the approach taken by DOL in its 

final rule, we are changing the statutory 

definition of serious injury or illness 

slightly in our proposed regulations to 

use the term ‘‘covered servicemember,’’ 

so the definition in the proposed 

regulations reads: ‘‘Serious injury or 

illness means an injury or illness 

incurred by a covered servicemember in 

the line of duty on active duty that may 

render the servicemember medically 

unfit to perform the duties of the 

servicemember’s office, grade, rank, or 

rating.’’ 

Single 12-month period is described 

in DOL’s final rule to mean the period 

that ‘‘begins on the first day the eligible 

employee takes FMLA leave to care for 

a covered servicemember and ends 12 

months after that date.’’ 29 CFR 

825.127(c)(1). We are proposing a new 

definition: ‘‘Single 12-month period 

means the period beginning on the first 

day the employee takes FMLA leave to 

care for a covered servicemember with 

a serious injury or illness and ending 12 

months after that date in accordance 

with section 630.1205(b) and (c)’’. 

Son or daughter of a covered 

servicemember. With respect to who 

may take leave to care for a covered 

servicemember, the NDAA amends 5 

U.S.C. 6382(a)(3) to provide that such 

leave is available to an employee who 

is the ‘‘spouse, son, daughter, parent, or 

next of kin of a covered 

servicemember.’’ Under the existing 

FMLA definition of son or daughter (5 

U.S.C. 6381(6)), a son or daughter must 

either be (A) under 18 years of age, or 

(B) 18 years of age or older and 

incapable of self-care because of a 

mental or physical disability. Applying 

this definition to the leave to care for a 

covered servicemember entitlement 

would mean that most, if not all, adult 

children would not be permitted to use 

this entitlement to take leave to care for 

a parent who is a covered 

servicemember. This is so even though 

the same adult child could take ‘‘basic’’ 

FMLA leave (i.e., leave under 5 U.S.C. 

6382(a)(1)(C) and § 630.1203(a)(3)) to 

care for his or her parent who is a 

covered servicemember if the parent’s 

serious injury or illness also qualified as 

a serious health condition under the 

FMLA. Since applying the current 

definition of son or daughter for 

purposes of leave to care for a covered 

servicemember would severely 

undermine the clear intent of the NDAA 

provisions, DOL created a new term, son 

or daughter of a covered servicemember, 

for purposes of FMLA leave taken to 

care for a covered servicemember. We 

concur with DOL’s opinion that such a 

result was not intended, and 

accordingly, § 630.1201 of the proposed 

rule establishes a separate definition of 

son or daughter of a covered 

servicemember for the purpose of leave 

to care for a covered servicemember, 

which is ‘‘a covered servicemember’s 

biological, adopted, or foster child, 

stepchild, legal ward, or a child for 

whom the covered servicemember stood 

in loco parentis, and who is of any age.’’ 

Entitlement to Leave To Care for a 

Covered Servicemember 

Under the NDAA, section 6382(a) of 

title 5, U.S. Code, was amended by 

adding a new section to entitle an 

employee who is the spouse, son, 

daughter, parent, or next of kin of a 

covered servicemember to a total of 26 

administrative workweeks of leave 

during a 12-month period to care for the 

covered servicemember. This leave is 

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43068 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Proposed Rules 

available only during a single 12-month 

period. 

We added proposed § 630.1203(b) to 

describe an employee’s entitlement to 

use a total of 26 administrative 

workweeks of unpaid leave during a 

single 12-month period to care for a 

covered servicemember with a serious 

injury or illness if the employee is the 

spouse, son, daughter, parent, or next of 

kin of a covered servicemember. 

Consistent with DOL regulations, OPM 

is applying this entitlement on a percovered servicemember, per-serious 

injury or illness basis, such that an 

employee may be entitled to take more 

than one period of up to 26 

administrative workweeks of leave if the 

leave is to care for different covered 

servicemembers or to care for the same 

covered servicemember with a 

subsequent serious injury or illness, as 

long as no more than 26 administrative 

workweeks of leave is taken within any 

single 12-month period as described in 

proposed § 630.1205(b). 

Per covered servicemember. An 

employee who has previously invoked 

FMLA leave to care for a covered 

servicemember in a single 12-month 

period may subsequently invoke FMLA 

leave in order to care for a different 

covered servicemember in a different 

single 12-month period. If the single 12- 

month periods applicable to the 

different covered servicemembers do 

not overlap, the employee may take up 

to 26 administrative workweeks of leave 

during each single 12-month period. If 

the single 12-month periods applicable 

to the different covered servicemembers 

do overlap, the employee may take no 

more than 26 administrative workweeks 

of leave during any single 12-month 

period. However, in no case may an 

employee take more than 26 

administrative workweeks of leave 

during any single 12-month period as 

described in proposed § 630.1205(b) and 

(c). 

For example, on February 4, 2008, an 

employee invokes FMLA leave to care 

for a covered servicemember (her son) 

who was injured in the line of duty 

while on active duty. Since she first 

uses the leave on February 4, 2008, the 

single 12-month period for her son’s 

care begins on February 4, 2008, and 

ends on February 3, 2009. She uses a 

total of 17 weeks out of the 26 week 

entitlement, between February 4 and 

May 30, 2008. On June 18, 2008, the 

employee’s husband is seriously injured 

in the line of duty while on active duty 

and qualifies as a covered 

servicemember for FMLA purposes. The 

employee invokes her FMLA 

entitlement to care for her husband but 

she is limited to no more than 9 weeks 

of FMLA leave to care for her husband 

between June 18, 2008, and February 3, 

2009, because of the limit of 26 weeks 

of leave in any single 12-month period. 

If her husband continues to need care 

after the single 12-month period ends 

for her son (February 3, 2009), the 

employee may use an additional 17 

weeks to care for her husband until the 

single 12-month period entitlement for 

her husband expires on June 17, 2009. 

Per serious injury or illness. An 

employee may take more than one 

single 12-month period of up to 26 

administrative workweeks of leave to 

care for a covered servicemember with 

more than one serious injury or illness 

only when the serious injury or illness 

is a subsequent serious injury or illness, 

including a manifestation of a second 

serious injury or illness at a later time. 

An employee may not take a subsequent 

period of leave to care for a covered 

servicemember who experiences an 

aggravation or complication of an earlier 

serious injury or illness. If the different 

single 12-month periods applicable to 

the different serious injuries or illnesses 

do not overlap, the employee may take 

up to 26 administrative workweeks of 

leave during each single 12-month 

period. If the single 12-month periods 

applicable to the different serious 

injuries or illnesses do overlap, the 

employee may take no more than 26 

administrative workweeks of leave 

during any single 12-month period. In 

no case may an employee take more 

than 26 administrative workweeks of 

leave within any single 12-month period 

as described in proposed § 630.1205(b) 

and (c). 

For example, on June 23, 2008, an 

employee has a daughter who is 

seriously injured in the line of duty 

while on active duty by a road-side 

bomb. The employee is entitled to use 

26 weeks of FMLA leave to care for his 

daughter, a covered servicemember. The 

single 12-month period for the 

daughter’s care begins on June 24, 2008, 

when the employee first uses the leave, 

and ends on June 23, 2009. The 

employee takes 16 weeks of FMLA leave 

to care for his daughter, and the 

daughter recovers and returns to active 

duty before the end of the single 12- 

month period. However, in July, 2009, 

the daughter is injured in the line of 

duty while on active duty by a sniper. 

The employee is entitled to use another 

26 weeks of FMLA leave to care for his 

daughter because the subsequent injury 

provides the employee with a new 26- 

week entitlement, and the previous 

single 12-month period has expired. 

In this same example, however, if the 

daughter’s second injury by sniper 

attack occurred in January of 2009 and 

the employee first took leave to care for 

his daughter for that injury on January 

7, 2009, (i.e., the single 12-month 

periods overlapped) the employee is 

limited to no more than 10 weeks of 

FMLA leave to care for his daughter 

between January 7, 2009, and June 23, 

2009, because of the limit of 26 weeks 

of FMLA leave in any single 12-month 

period. An overlapping single 12-month 

period begins with the employee’s use 

of leave as of January 7, 2009, and runs 

until January 6, 2010. If the employee 

uses 10 weeks of leave to care for his 

daughter between January 7, 2009, and 

June 23, 2009, he would then be able to 

use an additional 16 weeks of leave as 

of June 24, 2009, until the expiration of 

the second single 12-month period on 

January 6, 2010. 

As DOL has expressed in its final 

regulations, applying this entitlement 

on a per-injury, per-covered 

servicemember basis acknowledges the 

reality that servicemembers are injured 

and treated and then re-injured again on 

active duty. We would add that some 

employees have multiple family 

members who are in the military and, 

therefore, may have more than one 

family member who is injured in the 

line of duty on active duty. Also, we 

believe there will be relatively few 

instances in which an employee will 

have more than one covered 

servicemember for whom he or she 

needs to provide care, or a covered 

servicemember with a subsequent 

serious illness or injury. However, if an 

employee is faced with such 

circumstances, he or she should have 

access to FMLA leave to care for a 

covered servicemember. 

Who Is a Covered Servicemember 

In order for an employee to be entitled 

to take FMLA leave to care for a 

servicemember, the NDAA amendments 

require that the servicemember be a 

‘‘covered servicemember’’ who is 

undergoing medical treatment, 

recuperation, or therapy, otherwise in 

outpatient status, or on the temporary 

disability retired list for a ‘‘serious 

injury or illness’’ that ‘‘may render the 

member medically unfit to perform the 

duties of the member’s office, grade, 

rank, or rating.’’ See definitions of 

covered servicemember at 5 U.S.C. 

6381(8), serious injury or illness at 5 

U.S.C. 6381(11), and outpatient status at 

5 U.S.C. 6381(9). 

In light of the NDAA’s focus on a 

covered servicemember’s ability to 

perform his or her military duties when 

determining whether the servicemember 

has a ‘‘serious injury or illness’’ (i.e., a 

determination must be made that the 

injury or illness ‘‘may render the 

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member medically unfit to perform the 

duties of the member’s office, grade, 

rank, or rating’’), DOL regulations 

specifically exclude a serious injury or 

illness that manifests itself after the 

servicemember has left military service. 

Consistent with DOL’s regulations, we 

added proposed § 630.1203(b)(3) to 

provide that an employee may not take 

leave under this paragraph to care for 

former members of the Armed Forces, 

former members of the National Guard 

and Reserves, and members on the 

permanent disability retired list. 

Invoking FMLA Entitlement 

We are proposing to reorganize the 

FMLA regulations in title 5 to create a 

new § 630.1204 describing the process 

for invoking the FMLA entitlements, in 

which we are adding language to 

account for amendments made by the 

NDAA. There are certain conditions that 

would provide an employee an 

entitlement to both ‘‘basic’’ FMLA leave 

to care for a family member with a 

serious health condition under 

§ 630.1203(a)(3) and FMLA leave to care 

for a covered servicemember under 

§ 630.1203(b). This would be the case, 

for example, if an employee had a 

spouse or parent who was a covered 

servicemember, because the serious 

injury or illness of the covered 

servicemember would also fit the 

definition of serious health condition. 

We address this situation in proposed 

§ 630.1204, to which we are adding a 

new paragraph (c) to clarify that when 

an employee invokes his or her 

entitlement to FMLA leave for a 

circumstance that could qualify under 

§ 630.1203(a)(3) (i.e. ‘‘basic’’ FMLA 

leave to care for a family member with 

a serious health condition) or 

§ 630.1203(b) (i.e., FMLA leave to care 

for a covered servicemember), the 

FMLA leave must be designated as 

being taken under § 630.1203(b). The 

higher 26-week entitlement applies in 

this case. Leave to care for a covered 

servicemember is to be applied on a percovered servicemember, per-serious 

injury or illness basis. If, after the single 

12-month period for leave to care for a 

covered servicemember is exhausted, 

the covered servicemember is still in 

need of care, the employee may take 

FMLA leave for any necessary 

subsequent care as ‘‘basic’’ FMLA leave 

to care for a family member with a 

serious health condition under 

§ 630.1203(a)(3), subject to all 

requirements relating to use of such 

leave. 

Application of the 12-Month FMLA 

Periods 

With the creation of the new 

entitlement for leave to care for a 

covered servicemember, there are now 

two distinct 12-month periods during 

which FMLA leave may be used. The 

12-month period referred to in 

§ 630.1203(a) begins on the date the 

employee first takes leave for a family 

or medical need specified in 

§ 630.1203(a) and provides an 

entitlement to 12 administrative 

workweeks of unpaid leave in a 12- 

month period. The ‘‘single 12-month 

period’’ referred to in proposed 

§ 630.1203(b) begins on the first day the 

employee takes FMLA leave to care for 

a covered servicemember and provides 

up to 26 administrative workweeks of 

unpaid leave during a 12-month period. 

Proposed § 630.1205 is being added to 

explain the application of the two 12- 

month periods and how they interact 

with each other. 

Consistent with DOL regulations, we 

clarify in § 630.1205(b)(1) that any leave 

used under an employee’s 12-week 

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 for the birth of her child. 

She is in her 8th week of FMLA leave 

(April 17, 2008) when she receives word 

that her husband was seriously hurt in 

the line of duty while on active duty. 

On April 18, 2008, the employee 

invokes the 26-week FMLA leave 

entitlement to care for her husband. She 

is entitled to use up to 26 weeks of 

FMLA leave from April 18, 2008, to 

April 17, 2009, for this purpose. The 

time period during which she used 

basic FMLA leave does not count 

toward the 26-week entitlement during 

a single 12-month period. We note that 

the employee is not required to invoke 

the 26-week leave entitlement 

immediately. She may delay invoking 

the 26-week entitlement until such time 

as she is needed to provide care for her 

husband. Once the employee invokes 

her 26-week leave entitlement and 

begins to care for her husband, the 

single 12-month period begins. In this 

example, the employee may choose to 

exhaust her full 12-week basic FMLA 

entitlement for the birth of a child first, 

and then invoke the 26-week FMLA 

entitlement after her husband is 

released from the hospital and returns 

home. 

In another example, the employee’s 

first use of FMLA leave is on April 18, 

2008, when she invokes the 26-week 

FMLA leave entitlement to care for her 

husband who was seriously injured in 

the line of duty while on active duty. 

She is entitled to use up to 26 weeks of 

FMLA leave during the single 12-month 

period from April 18, 2008, to April 17, 

2009. On November 25, 2008, the 

employee’s daughter is diagnosed with 

leukemia which entitles the employee to 

12 weeks of ‘‘basic’’ FMLA leave under 

current 5 CFR 630.1203(a)(3), and she 

invokes her entitlement on this date. At 

this point, the employee has used a total 

of 23 weeks of FMLA leave to care for 

a covered servicemember in order to 

care for her husband and has 3 weeks 

of FMLA leave to care for her husband 

or daughter between November 25, 

2008, and April 17, 2009. On April 18, 

2009, the employee can use the 

remaining 9 weeks of ‘‘basic’’ FMLA 

leave to care for her daughter for 

additional care related to the leukemia. 

We state in paragraph (b)(2) that if an 

employee does not take all of his or her 

26 administrative workweeks of leave 

entitlement to care for a covered 

servicemember during this single 12- 

month period, the remaining part of his 

or her 26 administrative workweeks of 

leave entitlement to care for the covered 

servicemember is forfeited. In paragraph 

(b)(3), we explain that when an 

employee takes leave to care for more 

than one covered servicemember or for 

a subsequent serious injury or illness of 

the same covered servicemember, and 

the ‘‘single 12-month periods’’ 

corresponding to the different leave 

entitlements to care for a covered 

servicemember overlap, the employee is 

limited to taking no more than 26 

administrative workweeks of leave in 

each single 12-month period. 

Certification for Leave Taken To Care 

for a Covered Servicemember 

Specific Requirements 

The NDAA amended the FMLA 

certification requirements (5 U.S.C. 

6383(f)) to permit an agency to require 

that a request for leave to care for a 

covered servicemember ‘‘be supported 

by a certification issued at such time 

and such manner as the Office of 

Personnel Management may by 

regulation prescribe.’’ The NDAA 

amendments regarding entitlement to 

FMLA leave to care for a covered 

servicemember contain specific 

certification requirements that are 

unique to military servicemembers. The 

certification requirements for a family 

member’s serious health condition 

under current § 630.1207 do not 

adequately address the certification 

requirements unique to military 

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43070 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Proposed Rules 

1TRICARE is the health care program serving 

active duty service members, National Guard and 

Reserve members, retirees, their families, survivors 

and certain former spouses worldwide. As a major 

component of the Military Health System, TRICARE 

brings together the health care resources of the 

uniformed services and supplements them with 

networks of civilian health care professionals, 

institutions, pharmacies, and suppliers to provide 

access to high-quality health care services while 

maintaining the capability to support military 

operations. To be eligible for TRICARE benefits, one 

must be registered in the Defense Enrollment 

Eligibility Reporting System (DEERS). See http:// 

tricare.mil/mybenefit/home/overview/ 

WhatIsTRICARE. The Military Health System is a 

partnership of medical educators, medical 

researchers, and health care providers and their 

support personnel worldwide. This DOD enterprise 

consists of the Office of the Assistant Secretary of 

Defense for Health Affairs; the medical departments 

of the Army, Navy, Marine Corps, Air Force, Coast 

Guard, and Joint Chiefs of Staff; the Combatant 

Command Surgeons; and TRICARE providers 

(including private sector health care providers, 

hospitals, and pharmacies). See http:/mhs.osd.mil/ 

aboutMHS.aspx. 

servicemembers. Specifically, the 

NDAA provision defining covered 

servicemember requires that the 

servicemember be (1) undergoing 

medical treatment, recuperation, or 

therapy; (2) otherwise in outpatient 

status; or (3) on the temporary disability 

retired list because of a serious injury or 

illness. (5 U.S.C. 6381(8)) The NDAA 

provisions further provide that a serious 

injury or illness means an injury or 

illness incurred by the member in the 

line of duty on active duty in the Armed 

Forces that may render the member 

medically unfit to perform the duties of 

the member’s office, grade, rank, or 

rating (5 U.S.C. 6381(11)). Therefore, we 

are proposing to create new § 630.1211 

on medical and other certification for 

leave to care for a covered 

servicemember that sets forth separate 

certification requirements for leave to 

care for a covered servicemember. 

This section provides that an agency 

may require certification that provides 

information specific to the NDAA 

requirements for taking leave to care for 

a covered servicemember, including: (1) 

Whether the covered servicemember has 

incurred a serious injury or illness; (2) 

whether the injury or illness may render 

the covered servicemember medically 

unfit to perform the duties of the 

member’s office, grade, rank, or rating; 

(3) whether the injury or illness was 

incurred by the member in the line of 

duty on active duty; (4) whether the 

covered servicemember is undergoing 

medical treatment, recuperation, or 

therapy, is otherwise on outpatient 

status, or is otherwise on the temporary 

disability retired list; and (5) the family 

relationship of the employee to the 

covered servicemember. 

Besides the information specific to the 

NDAA requirements for taking leave to 

care for a covered servicemember, this 

section also provides that the 

certification for leave to care for a 

covered servicemember should also 

contain certain other information. This 

information includes: (1) The probable 

duration of the injury or illness; (2) 

frequency and duration of leave 

required; and (3) if leave is requested on 

an intermittent or reduced schedule 

basis, an estimate of the frequency and 

duration of such leave. These provisions 

are consistent, as appropriate, with the 

regulations promulgated by DOL in its 

final rule. 

Authorized Health Care Providers 

Section 630.1211(a) of the proposed 

rule lists the health care providers that 

may complete the medical certification 

form. As described in the DOL 

regulations, DOL consulted with DOD 

and VA, and learned that 

servicemembers with a serious injury or 

illness may receive care from a number 

of different health care providers, 

including DOD health care providers, 

VA health care providers, or DOD 

TRICARE military health system 

authorized private health care 

providers.1 Members of the National 

Guard and Reserves and members on 

the temporary disability retired list are 

more likely to receive care from DOD 

TRICARE authorized private health care 

providers, especially if the 

servicemember resides in a rural or 

remote area. Consequently, and 

consistent with the DOL final rule, 

§ 630.1211(a) provides that any one of 

the following health care providers may 

complete the certification: (1) A DOD 

health care provider; (2) a VA health 

care provider; (3) a DOD TRICARE 

network authorized private health care 

provider; or (4) a DOD non-network 

TRICARE authorized private health care 

provider. 

Use of DOL Certification Form (WH– 

385) 

Paragraph (b) of proposed § 630.1211 

provides the information that is 

required from health care providers, and 

paragraph (c) provides the information 

that is required from the employee and/ 

or covered servicemember. DOL has 

developed an optional form (Form WH– 

385) for employees’ use in obtaining 

certification that meets FMLA’s 

certification requirements for leave to 

care for a covered servicemember. This 

form can be found at http:// 

www.dol.gov/esa/whd/forms/WH385.pdf and may be used by Federal 

agencies. The new form includes two 

additional categories of internal DOD 

casualty assistance designations used by 

DOD health care providers ((VSI) Very 

Seriously Ill/Injured and (SI) Seriously 

Ill/Injured) that also meet the standard 

of serious injury or illness.) Consistent 

with past practice, OPM is not 

developing its own form, but encourages 

Federal agencies to use DOL’s Form 

WH–385 to ensure the correct 

information is gathered for FMLA 

approval. (Federal agencies should also 

continue to use DOL’s Form WH–380 

for ‘‘basic’’ FMLA leave certification, 

but not the new DOL Forms WH–380– 

E or WH–380–F. The latter were 

generated by DOL as part of its final 

FMLA regulations and are based on 

changes to DOL’s FMLA regulations 

which do not apply to our proposed 

regulations.) 

Request for Military-Related Information 

In the supplementary information 

accompanying DOL’s final regulations, 

DOL stated that, based on consultation 

with DOD, it was DOL’s understanding 

that every covered servicemember will 

have a DOD representative who can 

serve as a point of contact for health 

care providers should they need 

information regarding the militaryrelated determinations requested in the 

FMLA certification form. For example, 

the most seriously injured or ill covered 

servicemembers (i.e., those 

servicemembers with injuries DOD 

terms catastrophic or severe) will have 

either a ‘‘Federal Recovery Coordinator’’ 

or ‘‘Recovery Care Coordinator’’ 

assigned to assist the covered 

servicemember and his or her family. 

Therefore, proposed § 630.1211(b) 

provides that if the authorized health 

care provider is unable to make certain 

military-related determinations, the 

health care provider may complete the 

certification form by relying on 

determinations from an authorized DOD 

representative, such as a DOD recovery 

care coordinator. 

No Recertification for Leave To Care for 

a Covered Servicemember 

Proposed section 630.1211(d) 

specifies that (as is the case with the 

certification process for leave taken to 

care for a family member with a serious 

health condition) no information may be 

required beyond that specified in this 

certification section. It also states that 

an agency may seek authentication or 

clarification of the certification. Since 

FMLA leave to care for a covered 

servicemember is a per-serious injury or 

illness entitlement limited to a single 

12-month period, we do not believe that 

a recertification process, such as that 

provided for under current 5 CFR 

630.1207(j) for ‘‘basic’’ FMLA leave, is 

necessary for leave to care for a covered 

servicemember. Also, since several of 

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the amendments made by the NDAA 

contain specific requirements that are 

unique to military servicemembers and 

that only the military can determine 

(such as whether the serious injury or 

illness was incurred in the line of duty 

on active duty), we believe that, 

consistent with DOL regulations, it 

would be inappropriate to permit a 

second or third opinion process such as 

that provided for ‘‘basic’’ FMLA leave 

under current § 630.1207(d) and (e). 

Therefore, § 630.1211(d) also states that 

second and third opinions and 

recertifications are not permitted for 

leave to care for a covered 

servicemember. 

Invitational Travel Orders (ITOs) or 

Invitational Travel Authorizations 

(ITAs) 

Proposed section 630.1211(e) 

provides that an agency requiring an 

employee to submit a certification for 

leave to care for a covered 

servicemember must accept the 

submission of ‘‘invitational travel 

orders’’ (‘‘ITOs’’) or ‘‘invitational travel 

authorizations’’ (‘‘ITAs’’) issued for 

medical purposes as sufficient 

certification of the employee’s request 

for leave to care for a covered 

servicemember. 

As described in DOL’s regulations, 

based on consultation with DOD, DOL 

believes, and we concur, that the 

issuance of such orders or 

authorizations qualifies a 

servicemember as a covered 

servicemember for purposes of the 

FMLA provisions governing leave to 

care for a covered servicemember. The 

issuance of an ITO or ITA for medical 

purposes permits the named family 

member of the injured or ill 

servicemember to travel immediately to 

the servicemember’s bedside, at DOD’s 

expense. These ITOs or ITAs for 

medical purposes are not routinely 

issued by DOD, but rather only when 

the servicemember is, at minimum, 

seriously injured or ill. In its 

regulations, DOL further indicated its 

understanding that, in such cases, the 

ITO or ITA is issued to a 

servicemember’s family upon the 

direction of a DOD health care provider 

and will state on its face that the travel 

order or authorization is for ‘‘medical 

purposes.’’ 

We agree that permitting ITOs or ITAs 

to serve as sufficient certification is 

appropriate in light of the fact that DOD 

has determined that the injury or illness 

incurred by the servicemember is 

serious enough to warrant the 

immediate presence of a family member 

at the servicemember’s bedside. 

Moreover, in many circumstances where 

ITOs or ITAs are issued, it may be 

extremely difficult for an employee to 

provide an agency an otherwise timely 

certification that complies with the 

requirements of this section. This 

approach accommodates an agency’s 

right to obtain a sufficient certification 

from an employee in order to verify the 

employee’s entitlement to FMLA leave 

to care for a covered servicemember. 

Section 630.1211(e) further provides 

that an ITO or ITA issued to any family 

member to join an injured or ill covered 

servicemember at his or her bedside is 

sufficient certification regardless of 

whether the employee is named in the 

ITO or ITA. These provisions are 

consistent with those provided in DOL’s 

final rule. Thus, for example, a covered 

servicemember’s son may submit an ITO 

issued to the covered servicemember’s 

spouse to support the son’s request for 

FMLA leave to care for the covered 

servicemember during the time period 

specified by the ITO. DOD does not 

issue an ITO or ITA to every family 

member of an injured or ill covered 

servicemember who might be eligible to 

take FMLA leave to care for the covered 

servicemember. In some situations, the 

servicemember may have additional 

family members who are eligible to take 

FMLA leave to care for the covered 

servicemember, even if DOD has not 

authorized an ITO for that person. For 

example, an ITO or ITA can be issued 

to the spouse of a servicemember 

without also being issued to a 

servicemember’s parents, children, or 

siblings. We agree with DOL’s 

determination, as indicated in DOL’s 

regulations, that all family members of 

a covered servicemember who are 

eligible to take FMLA leave to care for 

the covered servicemember should be 

able to rely on DOD’s issuance of an ITO 

or ITA as sufficient certification to 

support a request for FMLA leave 

during the period covered by the ITO or 

ITA. 

Given the seriousness of the injuries 

or illness incurred by a covered 

servicemember whose family member 

receives an ITO or ITA, and the 

immediate need for the family member 

at the covered servicemember’s bedside, 

our intention is to remove as many 

certification impediments for the 

employee as possible for the duration of 

the order or authorization. Accordingly, 

§ 630.1211(e)(1) further provides that an 

ITO or ITA is sufficient certification for 

the duration of the time specified in the 

ITO or ITA, and that during this time, 

an employee may take leave to care for 

the covered servicemember in a 

continuous block of time or on an 

intermittent basis. Section 

630.1211(e)(2) states that an employee 

who provides an ITO or ITA to support 

his or her request for leave may not be 

required to provide any additional or 

separate certification that leave taken on 

an intermittent basis during the period 

of time specified in the ITO or ITA is 

medically necessary. 

If an employee needs leave to care for 

a covered servicemember beyond the 

expiration date specified in an ITO or 

ITA, paragraph (e)(3) of § 630.1211 

permits an agency to request that the 

employee have one of the authorized 

health care providers listed under 

§ 630.1211(a) furnish the required 

certification for the remainder of the 

employee’s necessary leave period. This 

is consistent with the approach taken by 

DOL in its final rule. Permitting this 

additional certification, if an agency 

chooses to request it, allows the agency 

to obtain information about the 

employee’s continued need for leave 

once the ITO or ITA expires, including 

specific information regarding the 

covered servicemember’s injury or 

illness and its expected duration, since 

the ITO or ITA will not provide the 

agency with such information initially. 

As DOL stated in its final rule, once an 

ITO or ITA expires, the employee will 

be in a better position to have an 

authorized health care provider furnish 

a complete certification as to the 

servicemember’s medical condition and 

the employee’s continuing need for 

leave. Paragraphs (e)(4) and (e)(5) of 

§ 630.1211 state, respectively, that when 

an employee supports his or her request 

for leave with an ITO or ITA, a health 

care provider of the agency may seek 

authentication and clarification of the 

ITO or ITA, but the agency may not 

require a second and third opinion or 

use a recertification process. 

Further Certification Requirements 

Paragraphs (f)–(i) of proposed 

§ 630.1211 parallel similar provisions in 

the certification requirements for 

‘‘basic’’ FMLA leave. Paragraph (f) 

provides that the agency must grant 

provisional leave pending final written 

certification if the employee cannot 

provide the certification before leave 

begins, or if the agency questions the 

validity of the original certification 

provided by the employee and the 

medical treatment requires the leave to 

begin. Paragraph (g) states that an 

employee must provide certification to 

the requesting agency within 15 

calendar days of the agency’s request, 

unless it is not practicable to do so 

under the particular circumstances, 

despite the employee’s diligent, goodfaith efforts, in which case the employee 

must provide the certification within a 

reasonable period of time, but no later 

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than 30 calendar days after the agency’s 

request. Paragraph (h) states that if the 

employee fails to provide the requested 

certification after the leave has 

commenced, the agency may charge the 

employee as absent without leave 

(AWOL) or allow the employee to 

request that the provisional leave be 

charged as leave without pay or to the 

employee’s annual and/or sick leave 

account. Paragraph (i) addresses the 

security and confidentiality of this 

certification. 

Qualifying Exigency Leave 

The amendments made by the NDAA 

provided DOL with the authority to 

establish ‘‘qualifying exigency leave’’ for 

employees covered by DOL’s 

regulations. See 29 CFR 825.126. This 

type of leave helps families of members 

of the National Guard and Reserves 

manage family affairs when a family 

member is on active duty. Qualifying 

exigencies for which employees can use 

FMLA leave are: (1) Short-notice 

deployment; (2) military events and 

related activities; (3) childcare and 

school activities; (4) financial and legal 

arrangements; (5) counseling; (6) rest 

and recuperation; (7) post-deployment 

activities; and (8) additional activities 

not encompassed in the other categories 

that the employer and employee agree 

qualify as exigencies and agree to the 

timing and duration of the leave. The 

NDAA amendments did not provide this 

benefit to Federal employees; therefore, 

it is not included in OPM’s proposed 

regulations. OPM requests comments on 

whether we should pursue legislation to 

obtain this benefit for the Federal 

workforce. 

OPM is publishing subpart L, Family 

and Medical Leave, in its entirety 

because of the extent of the additions 

and the reorganization of the text. 

E.O. 12866, Regulatory Review 

This rule has been reviewed by the 

Office of Management and Budget in 

accordance with E.O. 12866. 

Regulatory Flexibility Act 

I certify that these regulations will not 

have a significant economic impact on 

a substantial number of small entities 

because they will apply only to Federal 

agencies and employees. 

List of Subjects in 5 CFR 630 

Government employees. 

Office of Personnel Management. 

John Berry, 

Director. 

Accordingly, OPM is proposing to 

amend 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. 

* * * * * 

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). 

* * * * * 

§§ 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, and add new §§ 630.402 

and 630.403 to read as follows: 

§ 630.402 Advancing 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 advance 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 

§§ 630.1203(b) and 630.1204. 

(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. 

§ 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 which an employee 

may substitute for unpaid family and 

medical leave under § 630.1203(b) may 

not exceed a total of 26 administrative 

workweeks in a single 12-month period 

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(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). 

3b. 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, 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. 

* * * * * 

4. Revise subpart L to read as follows: 

Subpart L—Family and Medical Leave 

630.1201 Purpose, applicability, and 

administration. 

630.1202 Definitions. 

630.1203 Leave entitlement. 

630.1204 Invoking FMLA entitlement. 

630.1205 Application of the 12-month 

FMLA periods. 

630.1206 Non-standard workschedules and 

holidays. 

630.1207 Intermittent leave or reduced 

leave schedule. 

630.1208 Substitution of paid leave. 

630.1209 Notice of leave. 

630.1210 Medical certification for basic 

FMLA leave for serious health condition 

of the employee or family member. 

630.1211 Medical and other certification for 

leave to care for a covered 

servicemember. 

630.1212 Protection of employment and 

benefits. 

630.1213 Health benefits. 

630.1214 Greater leave entitlements. 

630.1215 Records and reports. 

§ 630.1201 Purpose, applicability, and 

administration. 

(a) Purpose. This subpart provides 

regulations to implement sections 6381 

through 6387 of title 5, United States 

Code. This subpart must be read 

together with those sections of law. 

Sections 6381 through 6387 of title 5, 

United States Code, provide a standard 

approach to providing family and 

medical leave to Federal employees by 

prescribing an entitlement to a total of 

12 administrative workweeks of unpaid 

leave during any 12-month period for 

certain family and medical needs, as 

specified in § 630.1203(a) of this part, 

and an entitlement to a total of 26 

administrative workweeks of unpaid 

leave during a single 12-month period to 

care for a covered servicemember with 

a serious injury or illness, as specified 

in § 630.1203(b) of this part. 

(b) Applicability. (1) Except as 

otherwise provided in paragraph (b)(2) 

of this section, this subpart applies to 

any employee who— 

(i) Is defined as an ‘‘employee’’ under 

5 U.S.C. 6301(2), excluding employees 

covered under paragraph (b)(2) of this 

section; and 

(ii) Has completed at least 12 months 

of service (not required to be 12 recent 

or consecutive months) as— 

(A) An employee, as defined under 5 

U.S.C. 6301(2), excluding any service as 

an employee under paragraph (b)(2) of 

this section; 

(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); 

(C) A ‘‘teacher’’ or an individual 

holding a ‘‘teaching position,’’ as 

defined in section 901 of title 20, United 

States Code; or 

(D) An employee identified in section 

2105(c) of title 5, United States Code, 

who is paid from nonappropriated 

funds. 

(2) This subpart does not apply to— 

(i) An individual employed by the 

government of the District of Columbia; 

(ii) An employee serving under a 

temporary appointment with a time 

limitation of 1 year or less; 

(iii) An intermittent employee, as 

defined in 5 CFR 340.401(c); or 

(iv) Any employee covered by Title I 

or Title V of the Family and Medical 

Leave Act of 1993 (Pub. L. 103–3, 

February 5, 1993). The Department of 

Labor has issued regulations 

implementing Title I at 29 CFR part 825. 

(3) For the purpose of applying 

sections 6381 through 6387 of title 5, 

United States Code— 

(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) 

is subject to regulations prescribed by 

the Secretary of Veterans Affairs; 

(ii) A ‘‘teacher’’ or an individual 

holding a ‘‘teaching position,’’ as 

defined in section 901 of title 20, United 

States Code, is subject to regulations 

prescribed by the Secretary of Defense; 

and 

(iii) An employee identified in section 

2105(c) of title 5, United States Code, 

who is paid from nonappropriated 

funds is subject to regulations 

prescribed by the Secretary of Defense 

or the Secretary of Transportation, as 

appropriate. 

(4) The regulations prescribed by the 

Secretary of Veterans Affairs, Secretary 

of Defense, or Secretary of 

Transportation under paragraph (b)(3) of 

this section must, to the extent 

appropriate, be consistent with the 

regulations prescribed in this subpart 

and the regulations prescribed by the 

Secretary of Labor to carry out Title I of 

the Family and Medical Leave Act of 

1993 at 29 CFR part 825. 

(c) Administration. The head of an 

agency having employees subject to this 

subpart is responsible for the proper 

administration of this subpart. 

§ 630.1202 Definitions. 

In this subpart: 

Accrued leave has the meaning given 

that term in § 630.201 of this part. 

Accumulated leave has the meaning 

given that term in § 630.201 of this part. 

Active duty means duty under a call 

or order to active duty in support of a 

contingency operation pursuant to: 

(1) Section 688 of title 10 of the 

United States Code, which authorizes 

ordering to active duty retired members 

of the Regular Armed Forces and 

members of the Retired Reserve retired 

after 20 years for length of service, and 

members of the Fleet Reserve or Fleet 

Marine Corps Reserve; 

(2) Section 12301(a) of title 10 of the 

United States Code, which authorizes 

ordering all reserve component 

members to active duty in the case of 

war or national emergency declared by 

Congress, or when otherwise authorized 

by law; 

(3) Section 12302 of title 10 of the 

United States Code, which authorizes 

ordering any unit or unassigned member 

of the Ready Reserve to active duty in 

time of national emergency declared by 

the President after January 1, 1953, or 

when otherwise authorized by law; 

(4) Section 12304 of title 10 of the 

United States Code, which authorizes 

ordering any unit or unassigned member 

of the Selected Reserve and certain 

members of the Individual Ready 

Reserve to active duty; 

(5) Section 12305 of title 10 of the 

United States Code, which authorizes 

the suspension of promotion, retirement 

or separation rules for certain Reserve 

components; 

(6) Section 12406 of title 10 of the 

United States Code, which authorizes 

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calling the National Guard into Federal 

service in certain circumstances; 

(7) Chapter 15 of title 10 of the United 

States Code, which authorizes calling 

the National Guard and State militia 

into Federal service in the case of 

insurrections and national emergencies; 

or 

(8) Any other provision of law during 

a war or during a national emergency 

declared by the President or Congress. 

Administrative workweek has the 

meaning given that term in § 610.102 of 

this chapter. 

Adoption refers to a legal process in 

which an individual becomes the legal 

parent of another’s child. The source of 

an adopted child—i.e., whether from a 

licensed placement agency or 

otherwise—is not a factor in 

determining eligibility for leave under 

this subpart. 

Contingency operation means a 

military operation that: 

(1) Is designated by the Secretary of 

Defense as an operation in which 

members of the Armed Forces are or 

may become involved in military 

actions, operations, or hostilities against 

an enemy of the United States or against 

an opposing military force; or 

(2) Results in the call or order to, or 

retention on, active duty of members of 

the uniformed services under section 

688, 12301(a), 12302, 12304, 12305, or 

12406 of title 10 of the United States 

Code, chapter 15 of title 10 of the 

United States Code, or any other 

provision of law during a war or during 

a national emergency declared by the 

President or Congress. 

Covered servicemember means a 

current member of the Armed Forces, 

including a member of the National 

Guard or Reserves, who is undergoing 

medical treatment, recuperation, or 

therapy, is otherwise in outpatient 

status, or is otherwise on the temporary 

disability retired list, for a serious injury 

or illness incurred in the line of duty on 

active duty, but does not include former 

members of the Armed Forces, former 

members of the National Guard and 

Reserves, and members on the 

permanent disability retired list. 

Employee means an individual to 

whom this subpart applies as described 

under § 630.1201(b). 

Essential functions means the 

fundamental job duties of the 

employee’s position, as defined in 29 

CFR 1630.2(n). An employee who must 

be absent from work to receive medical 

treatment for a serious health condition 

is considered to be unable to perform 

the essential functions of the position 

during the absence for treatment. 

Family and medical leave (or FMLA 

leave) means an employee’s entitlement 

to 12 or 26 administrative workweeks of 

unpaid leave for certain family and 

medical needs, as prescribed under 

sections 6381 through 6387 of title 5, 

United States Code. 

Foster care means 24-hour care for 

children in substitution for, and away 

from, their parents or guardian. Such 

placement is made by or with the 

agreement of the State as a result of a 

voluntary agreement by the parent or 

guardian that the child be removed from 

the home, or pursuant to a judicial 

determination of the necessity for foster 

care, and involves agreement between 

the State and foster family to take the 

child. Although foster care may be with 

relatives of the child, State action is 

involved in the removal of the child 

from parental custody. 

Health care provider means, for 

purposes of leave taken under 

§ 630.1203(a)(3) or (4)— 

(1) A licensed Doctor of Medicine or 

Doctor of Osteopathy or a physician 

who is serving on active duty in the 

uniformed services and is designated by 

the uniformed service to conduct 

examinations under this subpart; 

(2) Any health care provider 

recognized by the Federal Employees 

Health Benefits Program or who is 

licensed or certified under Federal or 

State law to provide the service in 

question; 

(3) A health care provider as defined 

in paragraph (2) of this definition who 

practices in a country other than the 

United States, who is authorized to 

practice in accordance with the laws of 

that country, and who is performing 

within the scope of his or her practice 

as defined under such law; 

(4) A Christian Science practitioner 

listed with the First Church of Christ, 

Scientist, in Boston, Massachusetts; or 

(5) A Native American, including an 

Eskimo, Aleut, and Native Hawaiian, 

who is recognized as a traditional 

healing practitioner by native traditional 

religious leaders who practices 

traditional healing methods as believed, 

expressed, and exercised in Indian 

religions of the American Indian, 

Eskimo, Aleut, and Native Hawaiians, 

consistent with Public Law 95–314, 

August 11, 1978 (92 Stat. 469), as 

amended by Public Law 103–344, 

October 6, 1994 (108 Stat. 3125). 

(6) For purposes of leave taken to care 

for a covered servicemember under 

§ 630.1205(b), see the list of authorized 

health care providers at § 630.1211(a)(1) 

through (4). 

In loco parentis refers to the situation 

of an individual who has day-to-day 

responsibility for the care and financial 

support of a child or, in the case of an 

employee or a covered servicemember, 

who had such responsibility for the 

employee or the covered servicemember 

when either was a child. A biological or 

legal relationship is not necessary. 

Incapacity means the inability to 

work, attend school, or perform other 

regular daily activities because of a 

serious health condition or treatment for 

or recovery from a serious health 

condition. 

Intermittent leave or leave taken 

intermittently means leave taken in 

separate blocks of time, rather than for 

one continuous period of time, and may 

include leave periods of 1 hour to 

several weeks. Leave may be taken for 

a period of less than 1 hour if agency 

policy provides for a minimum charge 

for leave of less than 1 hour under 

§ 630.206(a). 

Leave without pay means an absence 

from duty in a nonpay status. Leave 

without pay may be taken only for those 

hours of duty comprising an employee’s 

basic workweek. 

Next of kin of a covered 

servicemember means the nearest blood 

relative other than the covered 

servicemember’s spouse, parent, son, or 

daughter, in the following order of 

priority: 

(1) Blood relatives who have been 

granted legal custody of the covered 

servicemember by court decree or 

statutory provisions; 

(2) Brothers and sisters; 

(3) Grandparents; 

(4) Aunts and uncles; and 

(5) First cousins, unless the covered 

servicemember has specifically 

designated in writing another blood 

relative as his or her nearest blood 

relative for purposes of leave taken 

under § 630.1203(b). When such 

designation has been made, the 

designated individual is deemed to be 

the covered servicemember’s only next 

of kin. When no such designation is 

made, and there are multiple family 

members with the same level of 

relationship to the covered 

servicemember, all such family 

members will be considered the covered 

servicemember’s next of kin and may 

take FMLA leave to provide care to the 

covered servicemember, either 

consecutively or simultaneously. 

Outpatient status means, with respect 

to a covered servicemember, the status 

of a member of the Armed Forces 

assigned to— 

(1) A military medical treatment 

facility as an outpatient; or 

(2) A unit established for the purpose 

of providing command and control of 

members of the Armed Forces receiving 

medical care as outpatients. 

Parent means a biological parent or an 

individual who stands or stood in loco 

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parentis to an employee when the 

employee was a son or daughter. This 

term does not include parents-in-law. 

Parent of a covered servicemember 

means a covered servicemember’s 

biological, adoptive, step or foster father 

or mother, or any other individual who 

stands or stood in loco parentis to the 

covered servicemember. This term does 

not include parents-in-law. 

Reduced leave schedule means a work 

schedule under which the usual number 

of hours of regularly scheduled work 

per workday or workweek of an 

employee is reduced. The number of 

hours by which the daily or weekly tour 

of duty is reduced are counted as leave 

for the purpose of this subpart. 

Regularly scheduled work has the 

meaning given that term in § 610.102 of 

this chapter. 

Regularly scheduled administrative 

workweek has the meaning given that 

term in § 610.102 of this chapter. 

Serious health condition. (1) Serious 

health condition means an illness, 

injury, impairment, or physical or 

mental condition that involves— 

(i) Inpatient care (i.e., an overnight 

stay) in a hospital, hospice, or 

residential medical care facility, 

including any period of incapacity or 

any subsequent treatment in connection 

with such inpatient care; or 

(ii) Continuing treatment by a health 

care provider that includes (but is not 

limited to) examinations to determine if 

there is a serious health condition and 

evaluations of such conditions if the 

examinations or evaluations determine 

that a serious health condition exists. 

Continuing treatment by a health care 

provider may include one or more of the 

following— 

(A) A period of incapacity of more 

than 3 consecutive calendar days, 

including any subsequent treatment or 

period of incapacity relating to the same 

condition, that also involves— 

(1) Treatment two or more times by a 

health care provider, by a health care 

provider under the direct supervision of 

the affected individual’s health care 

provider, or by a provider of health care 

services under orders of, or on referral 

by, a health care provider; or 

(2) Treatment by a health care 

provider on at least one occasion that 

results in a regimen of continuing 

treatment under the supervision of the 

health care provider (e.g., a course of 

prescription medication or therapy 

requiring special equipment to resolve 

or alleviate the health condition). 

(B) Any period of incapacity due to 

pregnancy or childbirth, or for prenatal 

care, even if the affected individual does 

not receive active treatment from a 

health care provider during the period 

of incapacity or the period of incapacity 

does not last more than 3 consecutive 

calendar days. 

(C) Any period of incapacity or 

treatment for such incapacity due to a 

chronic serious health condition that— 

(1) Requires periodic visits for 

treatment by a health care provider or 

by a health care provider under the 

direct supervision of the affected 

individual’s health care provider, 

(2) Continues over an extended period 

of time (including recurring episodes of 

a single underlying condition); and 

(3) May cause episodic rather than a 

continuing period of incapacity (e.g., 

asthma, diabetes, epilepsy, etc.). The 

condition is covered even if the affected 

individual does not receive active 

treatment from a health care provider 

during the period of incapacity or the 

period of incapacity does not last more 

than 3 consecutive calendar days. 

(D) A period of incapacity that is 

permanent or long-term due to a 

condition for which treatment may not 

be effective. The affected individual 

must be under the continuing 

supervision of, but need not be 

receiving active treatment by, a health 

care provider (e.g., Alzheimer’s, severe 

stroke, or terminal stages of a disease). 

(E) Any period of absence to receive 

multiple treatments (including any 

period of recovery) by a health care 

provider or by a provider of health care 

services under orders of, or on referral 

by, a health care provider, either for 

restorative surgery after an accident or 

other injury or for a condition that 

would likely result in a period of 

incapacity of more than 3 consecutive 

calendar days in the absence of medical 

intervention or treatment (e.g., 

chemotherapy/radiation for cancer, 

physical therapy for severe arthritis, 

dialysis for kidney disease). 

(2) Serious health condition does not 

include routine physical, eye, or dental 

examinations; a regimen of continuing 

treatment that includes the taking of 

over-the-counter medications, bed-rest, 

exercise, and other similar activities that 

can be initiated without a visit to the 

health care provider; a condition for 

which cosmetic treatments are 

administered, unless inpatient hospital 

care is required or unless complications 

develop; or an absence because of an 

employee’s use of an illegal substance, 

unless the employee is receiving 

treatment for substance abuse by a 

health care provider or by a provider of 

health care services on referral by a 

health care provider. Ordinarily, unless 

complications arise, the common cold, 

the flu, earaches, upset stomach, minor 

ulcers, headaches (other than 

migraines), routine dental or 

orthodontia problems, and periodontal 

disease are not serious health 

conditions. Allergies, restorative dental 

or plastic surgery after an injury, 

removal of a cancerous growth, or 

mental illness resulting from stress may 

be serious health conditions only if such 

conditions require inpatient care or 

continuing treatment by a health care 

provider. 

Serious injury or illness means an 

injury or illness incurred by a covered 

servicemember in the line of duty on 

active duty that may render the 

servicemember medically unfit to 

perform the duties of the 

servicemember’s office, grade, rank, or 

rating. 

Single 12-month period means the 

period beginning on the first day the 

employee takes FMLA leave to care for 

a covered servicemember with a serious 

injury or illness and ending 12 months 

after that date in accordance with 

section 630.1205(b) and (c). 

Son or daughter means a biological, 

adopted, or foster child; a step child; a 

legal ward; or a child of a person 

standing in loco parentis who is— 

(1) Under 18 years of age; or 

(2) 18 years of age or older and 

incapable of self-care because of a 

mental or physical disability. A son or 

daughter incapable of self-care requires 

active assistance or supervision to 

provide daily self-care in three or more 

of the ‘‘activities of daily living’’ (ADLs) 

or ‘‘instrumental activities of daily 

living’’ (IADLs). Activities of daily 

living include adaptive activities such 

as caring appropriately for one’s 

grooming and hygiene, bathing, 

dressing, and eating. Instrumental 

activities of daily living include 

cooking, cleaning, shopping, taking 

public transportation, paying bills, 

maintaining a residence, using the 

telephones and directories, using a post 

office, etc. A ‘‘physical or mental 

disability’’ refers to a physical or mental 

impairment that substantially limits one 

or more of the major life activities of an 

individual as defined in 29 CFR 1630.2 

(h), (i) and (j). 

Son or daughter of a covered 

servicemember means a covered 

servicemember’s biological, adopted, or 

foster child, stepchild, legal ward, or a 

child for whom the covered 

servicemember stood in loco parentis, 

and who is of any age. 

Spouse means an individual who is a 

husband or wife pursuant to a marriage 

that is a legal union between one man 

and one woman, including common law 

marriage between one man and one 

woman in States where it is recognized. 

Tour of duty has the meaning given 

that term in § 610.102 of this chapter. 

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43076 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Proposed Rules 

§ 630.1203 Leave entitlement. 

(a) 12-week entitlement for basic 

FMLA leave. An employee is entitled to 

a total of 12 administrative workweeks 

of unpaid leave during any 12-month 

period for one or more of the following 

reasons: 

(1) The birth of a son or daughter of 

the employee and the care of such son 

or daughter; 

(2) The placement of a son or 

daughter with the employee for 

adoption or foster care; 

(3) The care of a spouse, son, 

daughter, or parent of the employee, if 

such spouse, son, daughter, or parent 

has a serious health condition; or 

(4) A serious health condition of the 

employee that makes the employee 

unable to perform any one or more of 

the essential functions of his or her 

position. 

(b) 26-week entitlement for FMLA 

leave to care for a covered 

servicemember. (1) An employee is 

entitled to a total of 26 administrative 

workweeks of unpaid leave during a 

single 12-month period to care for a 

covered servicemember with a serious 

injury or illness if the employee is the 

spouse, son, daughter, parent, or next of 

kin of a covered servicemember as 

defined in § 630.1202. 

(2) The leave entitlement described in 

this section is to be applied on a percovered servicemember, per-serious 

injury or illness basis such that an 

employee may be entitled to take more 

than one period of up to 26 

administrative workweeks of leave if the 

leave is to care for different covered 

servicemembers or to care for the same 

covered servicemember with a 

subsequent serious injury or illness, 

except that no more than 26 

administrative workweeks of leave may 

be taken within any single 12-month 

period as described in § 630.1205(b). 

(i) Per covered servicemember. 

Subject to § 630.1205(b) and the 

conditions in paragraphs (b)(2)(i)(A) 

through (C) of this section, an employee 

may take more than one period of up to 

26 administrative workweeks of FMLA 

leave to care for more than one covered 

servicemember. 

(A) An employee who has previously 

invoked FMLA leave to care for a 

covered servicemember in a single 12- 

month period may subsequently invoke 

FMLA leave to care for a different 

covered servicemember in a different 

single 12-month period. 

(B) If the single 12-month periods 

applicable to the different covered 

servicemembers do not overlap, the 

employee may take up to 26 

administrative workweeks of leave 

during each single 12-month period. If 

the single 12-month periods applicable 

to the different covered servicemembers 

do overlap, the employee may take no 

more than 26 administrative workweeks 

of leave during any single 12-month 

period. In no case may an employee take 

more than 26 administrative workweeks 

of leave during any single 12-month 

period, as described in § 630.1205(b) 

and (c). 

(C) For purposes of applying 

paragraphs (b)(2)(i)(A) and (B) of this 

section, the beginning of each period of 

leave to care for each covered 

servicemember begins a new single 12- 

month period. 

(ii) Per serious injury or illness. 

Subject to § 630.1205(b) and the 

conditions in paragraphs (b)(2)(ii)(A) 

through (C) of this section, an employee 

may take more than one single 12- 

month period of up to 26 administrative 

workweeks of leave to care for a covered 

servicemember with more than one 

serious injury or illness only when the 

serious injury or illness is a subsequent 

serious injury or illness, including a 

manifestation of a second serious injury 

or illness at a later time. An employee 

may not take a subsequent period of 

leave to care for a covered 

servicemember who experiences an 

aggravation or complication of an earlier 

serious injury or illness. 

(A) An employee who has previously 

invoked FMLA leave to care for a 

covered servicemember in a single 12- 

month period may subsequently invoke 

FMLA leave to care for the same 

covered servicemember in a different 

single 12-month period for a different 

serious injury or illness. 

(B) If the different single 12-month 

periods applicable to the different 

serious injuries or illnesses do not 

overlap, the employee may take up to 26 

administrative workweeks of leave 

during each single 12-month period. If 

the different single 12-month periods 

applicable to the different serious 

injuries or illnesses do overlap, the 

employee may take no more than 26 

administrative workweeks of leave 

during any single 12-month period. In 

no case may an employee take more 

than 26 administrative workweeks of 

leave within any single 12-month 

period, as described in § 630.1205(b) 

and (c). 

(C) For purposes of applying 

paragraphs (b)(2)(ii)(A) and (B) of this 

section, the beginning of each period of 

leave to care for each separate serious 

injury or illness begins a new single 12- 

month period. 

(3) An employee may not take leave 

under this paragraph to care for a former 

member of the Armed Forces, a former 

member of the National Guard or 

Reserves, or a member on the permanent 

disability retired list. 

(c)(1) An employee may take only the 

amount of family and medical leave that 

is necessary to manage the 

circumstances that prompted the need 

for leave under paragraph (a) or (b) of 

this section. 

(2) An employee’s entitlement to the 

use of leave under paragraphs (a) and (b) 

of this section is applied in accordance 

with § 630.1205. 

(d) Each agency must inform its 

employees of their entitlements and 

responsibilities under this subpart, 

including the requirements and 

obligations of employees. 

§ 630.1204 Invoking FMLA entitlement. 

(a) An employee must invoke his or 

her entitlement to family and medical 

leave under § 630.1203(a) or (b), subject 

to the notification and medical 

certification requirements in 

§§ 630.1209, 630.1210, or 630.1211. 

(b) An employee may not retroactively 

invoke his or her entitlement to family 

and medical leave. However, if an 

employee and his or her personal 

representative are physically or 

mentally incapable of invoking the 

employee’s entitlement to FMLA leave 

during the entire period in which the 

employee is absent from work for an 

FMLA-qualifying purpose under 

§ 630.1203(a) or (b), the employee may 

retroactively invoke his or her 

entitlement to FMLA leave within 2 

workdays after returning to work. In 

such cases, the incapacity of the 

employee must be documented by a 

written medical certification from a 

health care provider. In addition, the 

employee must provide documentation 

acceptable to the agency, explaining the 

inability of his or her personal 

representative to contact the agency and 

invoke the employee’s entitlement to 

FMLA leave during the entire period in 

which the employee was absent from 

work for an FMLA-qualifying purpose. 

(c) When an employee invokes his or 

her entitlement to FMLA leave for a 

circumstance which could qualify under 

both § 630.1203(a)(3) and § 630.1203(b), 

then the FMLA leave must be 

designated as being taken under 

§ 630.1203(b). The higher 26-week 

entitlement applies in this case. The 

single 12-month period starts upon first 

use of leave for this purpose. Leave to 

care for a covered servicemember is to 

be applied on a per-covered 

servicemember, per-serious injury or 

illness basis, as described under 

§ 630.1203(b)(2). Once the single 12- 

month period for leave to care for a 

covered servicemember is exhausted in 

accordance with 630.1205(b), leave for 

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any necessary subsequent care may be 

taken under § 630.1203(a)(3) subject to 

all requirements relating to use of such 

leave. 

(d) An agency may not place an 

employee on family and medical leave 

and may not subtract leave from an 

employee’s entitlement to leave under 

§ 630.1203(a) or (b) unless the agency 

has obtained confirmation from the 

employee or his or her personal 

representative of the employee’s intent 

to invoke his or her entitlement to leave 

under paragraph (a) or (b) of this 

section. An employee’s notice of his or 

her intent to take leave under § 630.1209 

may suffice as the employee’s 

confirmation. 

§ 630.1205 Application of the 12-month 

FMLA periods. 

(a) 12-week entitlement for basic 

FMLA leave. The 12-month period 

referred to in § 630.1203(a) begins on 

the date an employee first takes leave 

under this subpart for a family or 

medical need specified in § 630.1203(a) 

and continues for 12 months. 

(1) An employee is not entitled to 12 

additional administrative workweeks of 

leave until the previous 12-month 

period ends and an event or situation 

occurs that entitles the employee to 

another period of family or medical 

leave. (This may include a continuation 

of a previous situation or circumstance.) 

(2) The entitlement to leave under 

§ 630.1203(a)(1) and (2) expires at the 

end of the 12-month period beginning 

on the date of birth or placement. Leave 

for a birth or placement must be 

concluded within this 12-month period. 

Leave taken under § 630.1203(a)(1) and 

(2) may begin prior to, or on the actual 

date of, birth or placement for adoption 

or foster care, and the 12-month period 

referred to in § 630.1203(a) begins on 

that date. 

(b) 26-week entitlement for FMLA 

leave to care for a covered 

servicemember. The single 12-month 

period described in § 630.1203(b) begins 

on the first day the employee takes 

FMLA leave to care for a covered 

servicemember and ends 12 months 

after that date. 

(1) Any leave used under 

§ 630.1203(a) prior to the first use under 

§ 630.1203(b) does not count towards 

the single 12-month period under this 

paragraph. 

(2) If an employee does not take all of 

his or her 26 administrative workweeks 

of leave entitlement to care for a covered 

servicemember during this single 12- 

month period, the remaining part of his 

or her 26 administrative workweeks of 

leave entitlement to care for the covered 

servicemember is forfeited. 

(3) When an employee takes leave to 

care for more than one covered 

servicemember or for a subsequent 

serious injury or illness of the same 

covered servicemember, and the single 

12-month periods corresponding to the 

different leave entitlements to care for a 

covered servicemember overlap, the 

employee is limited to taking a 

combined total of no more than 26 

administrative workweeks of leave in 

each single 12-month period. 

(c) Limit of combined total of 26 

weeks. During any single 12-month 

period described in paragraph (b) of this 

section, an employee’s FMLA leave 

entitlement is limited to a combined 

total of 26 administrative workweeks of 

FMLA leave for any reason under 

§ 630.1203 (a) and (b). 

§ 630.1206 Non-standard workschedules 

and holidays. 

(a) Part-time and uncommon tours of 

duty. Leave under § 630.1203(a) and (b) 

is available to full-time and part-time 

employees. The appropriate total of 

administrative workweeks (12 if taken 

under § 630.1203(a), and 26 if taken 

under § 630.1203(b)) will be made 

available equally for a full-time or parttime employee in direct proportion to 

the number of hours in the employee’s 

regularly scheduled administrative 

workweek. The appropriate number 

(i.e., 12 or 26) of administrative 

workweeks of leave will be calculated 

on an hourly basis and will equal 12 or 

26 times the average number of hours in 

the employee’s regularly scheduled 

administrative workweek. If the number 

of hours in an employee’s 

administrative workweek varies from 

week to week, a weekly average of the 

hours scheduled over the 12 or 26 

weeks prior to the date leave 

commences must be used as the basis 

for this calculation. 

(b) Holidays. Any holidays authorized 

under 5 U.S.C. 6103 or by Executive 

order and nonworkdays established by 

Federal statute, Executive order, or 

administrative order that occur during 

the period in which the employee is on 

family and medical leave may not be 

counted toward the employee’s 12 or 

26-week entitlement to family and 

medical leave. 

(c) Change in schedule. If the number 

of hours in an employee’s regularly 

scheduled administrative workweek is 

changed during the 12-month period of 

family and medical leave, the 

employee’s entitlement to any 

remaining family and medical leave will 

be recalculated based on the number of 

hours in the employee’s current 

regularly scheduled administrative 

workweek. 

§ 630.1207 Intermittent leave or reduced 

leave schedule. 

(a) Leave under § 630.1203(a)(1) or (2) 

may not be taken intermittently or on a 

reduced leave schedule unless the 

employee and the agency agree to do so. 

(b) Leave under § 630.1203(a)(3) or (4) 

may be taken intermittently or on a 

reduced leave schedule when medically 

necessary, subject to §§ 630.1209 and 

630.1210(b)(6). Leave under 

§ 630.1203(b) may be taken 

intermittently or on a reduced leave 

schedule when medically necessary, 

subject to §§ 630.1209, 630.1211(b)(7) 

and (8) and 630.1211(e)(1) and (2). 

(c) If an employee takes leave under 

§ 630.1203(a)(3) or (4) or § 630.1203(b) 

intermittently or on a reduced leave 

schedule that is foreseeable based on 

planned medical treatment, recovery 

from a serious health condition, or care 

of a covered servicemember, the agency 

may place the employee temporarily in 

an available alternative position for 

which the employee is qualified and 

that can better accommodate recurring 

periods of leave. Upon returning from 

leave, the employee is entitled to be 

returned to his or her permanent 

position or an equivalent position, as 

provided in § 630.1212(a). 

(d) For the purpose of applying 

paragraph (c) of this section, an 

alternative position need not consist of 

equivalent duties, but must be in the 

same commuting area and must 

provide— 

(1) An equivalent grade or pay level, 

including any applicable locality 

payment under 5 CFR part 531, subpart 

F; special rate supplement under 5 CFR 

part 530, subpart C; or similar payment 

or supplement under other legal 

authority; 

(2) The same type of appointment, 

work schedule, status, and tenure; and 

(3) The same employment benefits 

made available to the employee in his 

or her previous position (e.g., life 

insurance, health benefits, retirement 

coverage, and leave accrual). 

(e) The agency must determine the 

available alternative position that has 

equivalent pay and benefits consistent 

with Federal laws, including the 

Rehabilitation Act of 1973 (29 U.S.C. 

701) and the Pregnancy Discrimination 

Act of 1978 (42 U.S.C. 2000e). 

(f) Only the amount of leave taken 

intermittently or on a reduced leave 

schedule, as these terms are defined in 

§ 630.1202 of this part, may be 

subtracted from the total amount of 

leave available to the employee under 

§ 630.1206 (a) and (c). 

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43078 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Proposed Rules 

§ 630.1208 Substitution of paid leave. 

(a) Except as provided in paragraph 

(b) of this section, leave taken under 

§ 630.1203(a) or (b) must be leave 

without pay. 

(b) An employee may elect to 

substitute the following paid leave for 

any or all of the period of leave without 

pay to be taken under § 630.1203(a) or 

(b): 

(1) Accrued or accumulated annual or 

sick leave under subchapter I of chapter 

63 of title 5, United States Code, 

consistent with current law and 

regulations governing the granting and 

use of annual or sick leave under 

subparts C and D of this part; 

(2) Advanced annual leave under 5 

U.S.C. 6302(d) or sick leave under 5 

U.S.C. 6307(d) and § 630.402 approved 

under the same terms and conditions 

that apply to any other agency employee 

who requests advanced annual or sick 

leave; and 

(3) Leave made available to an 

employee under the Voluntary Leave 

Transfer Program or the Voluntary 

Leave Bank Program consistent with 

subparts I and J of this part. 

(c) An agency may not deny an 

employee’s right to substitute paid leave 

under paragraph (b) of this section for 

any or all of the period of leave without 

pay to be taken under § 630.1203(a) or 

(b), consistent with current law and 

regulations. 

(d) An agency may not require an 

employee to substitute paid leave under 

paragraph (b) of this section for any or 

all of the period of leave without pay to 

be taken under § 630.1203(a) or (b). 

(e) An employee must notify the 

agency of his or her intent to substitute 

paid leave under paragraph (b) of this 

section for the period of leave without 

pay to be taken under § 630.1203(a) or 

(b) prior to the date such paid leave 

commences. An employee may not 

retroactively substitute paid leave for 

leave without pay previously taken 

under § 630.1203(a) or (b). 

§ 630.1209 Notice of leave. 

(a) If the need for leave taken under 

§ 630.1203(a) or (b) is foreseeable based 

on an expected birth, placement for 

adoption or foster care, planned medical 

treatment for the serious health 

condition of employee or of a family 

member, or the planned medical 

treatment for a serious injury or illness 

of a covered servicemember, the 

employee must provide notice to the 

agency of his or her intention to take 

leave not less than 30 calendar days 

before the date the leave is to begin. If 

30 calendar days notice is not 

practicable (e.g., due to lack of 

knowledge of approximately when leave 

will be required to begin, a change in 

circumstances, a medical emergency, or 

the date of birth or placement or 

planned medical treatment requires 

leave to begin within 30 calendar days), 

the employee must provide such notice 

as soon as is practicable. 

(b) If the need for leave taken under 

§ 630.1203(a)(3) or (4) or (b) is 

foreseeable based on planned medical 

treatment, the employee must consult 

with the agency and make a reasonable 

effort to schedule medical treatment so 

as not to disrupt unduly the operations 

of the agency, subject to the approval of 

the health care provider. The agency 

may, for justifiable cause, request that 

an employee reschedule medical 

treatment, subject to the approval of the 

health care provider. 

(c) If the need for leave taken under 

§ 630.1203(a) or (b) is not foreseeable 

(e.g., a medical emergency, the serious 

injury of a covered servicemember, or 

the unexpected availability of a child for 

adoption or foster care), and the 

employee cannot provide 30 calendar 

days’ notice of his or her need for leave, 

the employee must provide notice 

within a reasonable period of time 

appropriate to the circumstances 

involved. If necessary, notice may be 

given by an employee’s personal 

representative (e.g., a family member or 

other responsible party). If the need for 

leave is not foreseeable and the 

employee is unable, due to 

circumstances beyond his or her 

control, to provide notice of his or her 

need for leave, the leave may not be 

delayed or denied. 

(d) If the need for leave taken under 

§ 630.1203(a) or (b) is foreseeable, and 

the employee fails to give 30 calendar 

days’ notice with no reasonable excuse 

for the delay of notification, the agency 

may delay the taking of leave under 

§ 630.1203(a) or (b) until at least 30 

calendar days after the date the 

employee provides notice of his or her 

need for family and medical leave. 

(e) An agency may waive the notice 

requirements under paragraph (a) of this 

section and instead impose the agency’s 

usual and customary policies or 

procedures for providing notification of 

leave. The agency’s policies or 

procedures for providing notification of 

leave must not be more stringent than 

the requirements in this section. 

However, an agency may not deny an 

employee’s entitlement to leave under 

§ 630.1203(a) or (b) if the employee fails 

to follow such agency policies or 

procedures. 

(f) An agency may require that a 

request for leave under § 630.1203(a)(1) 

and (2) be supported by evidence that is 

administratively acceptable to the 

agency. 

§ 630.1210 Medical certification for basic 

FMLA leave for serious health condition of 

the employee or family member. 

(a) An agency may require that a 

request for leave under § 630.1203(a)(3) 

or (4) be supported by written medical 

certification issued by the health care 

provider of the employee or the health 

care provider of the spouse, son, 

daughter, or parent of the employee, as 

appropriate. An agency may waive the 

requirement for an initial medical 

certificate in a subsequent 12-month 

period if the leave under 

§ 630.1203(a)(3) or (4) is for the same 

chronic or continuing condition. 

(b) The written medical certification 

must include— 

(1) The date the serious health 

condition commenced; 

(2) The probable duration of the 

serious health condition or a statement 

that the serious health condition is a 

chronic or continuing condition with an 

unknown duration, including whether 

the patient is presently incapacitated 

and the likely duration and frequency of 

episodes of incapacity; 

(3) The appropriate medical facts 

within the knowledge of the health care 

provider regarding the serious health 

condition, including a general statement 

as to the incapacitation, examination, or 

treatment that may be required by a 

health care provider; 

(4) For the purpose of leave taken 

under § 630.1203(a)(3)— 

(i) A statement from the health care 

provider that the spouse, son, daughter, 

or parent of the employee requires 

psychological comfort and/or physical 

care; needs assistance for basic medical, 

hygienic, nutritional, safety, or 

transportation needs or in making 

arrangements to meet such needs; and 

would benefit from the employee’s care 

or presence; and 

(ii) A statement from the employee on 

the care he or she will provide and an 

estimate of the amount of time needed 

to care for his or her spouse, son, 

daughter, or parent; 

(5) For the purpose of leave taken 

under § 630.1203(a)(4), a statement that 

the employee is unable to perform one 

or more of the essential functions of his 

or her position or requires medical 

treatment for a serious health condition, 

based on written information provided 

by the agency on the essential functions 

of the employee’s position or, if not 

provided, discussion with the employee 

about the essential functions of his or 

her position; and 

(6) In the case of certification for 

intermittent leave or leave on a reduced 

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leave schedule under § 630.1203(a)(3) or 

(4) for planned medical treatment, the 

dates (actual or estimates) on which 

such treatment is expected to be given, 

the duration of such treatment, and the 

period of recovery, if any, or specify that 

the serious health condition is a chronic 

or continuing condition with an 

unknown duration and whether the 

patient is presently incapacitated and 

the likely duration and frequency of 

episodes of incapacity. 

(c) The information on the medical 

certification must relate only to the 

serious health condition for which the 

current need for family and medical 

leave exists. The agency may not require 

any personal or confidential information 

in the written medical certification 

other than that required by paragraph 

(b) of this section. If an employee 

submits a completed medical 

certification signed by the health care 

provider, the agency may not request 

new information from the health care 

provider. However, a health care 

provider representing the agency, 

including a health care provider 

employed by the agency or under 

administrative oversight of the agency, 

may contact the health care provider 

who completed the medical 

certification, with the employee’s 

permission, for purposes of clarifying 

the medical certification. 

(d) If the agency doubts the validity of 

the original certification provided under 

paragraph (a) of this section, the agency 

may require, at the agency’s expense, 

that the employee obtain the opinion of 

a second health care provider 

designated or approved by the agency 

concerning the information certified 

under paragraph (b) of this section. Any 

health care provider designated or 

approved by the agency may not be 

employed by the agency or be under the 

administrative oversight of the agency 

on a regular basis unless the agency is 

located in an area where access to 

health care is extremely limited—e.g., a 

rural area or an overseas location where 

no more than one or two health care 

providers practice in the relevant 

specialty, or the only health care 

providers available are employed by the 

agency. 

(e) If the opinion of the second health 

care provider differs from the original 

certification provided under paragraph 

(a) of this section, the agency may 

require, at the agency’s expense, that the 

employee obtain the opinion of a third 

health care provider designated or 

approved jointly by the agency and the 

employee concerning the information 

certified under paragraph (b) of this 

section. The opinion of the third health 

care provider is binding on the agency 

and the employee. 

(f) To remain entitled to family and 

medical leave under § 630.1203(a)(3) or 

(4), an employee or the employee’s 

spouse, son, daughter, or parent must 

comply with any requirement from an 

agency that he or she submit to 

examination (though not treatment) to 

obtain a second or third medical 

certification from a health care provider 

other than the individual’s health care 

provider. 

(g) If the employee is unable to 

provide the requested medical 

certification before leave begins, or if 

the agency questions the validity of the 

original certification provided by the 

employee and the medical treatment 

requires the leave to begin, the agency 

must grant provisional leave pending 

final written medical certification. 

(h) An employee must provide the 

written medical certification required by 

paragraphs (a), (d), (e), and (g) of this 

section, signed by the health care 

provider, no later than 15 calendar days 

after the date the agency requests such 

medical certification. If it is not 

practicable under the particular 

circumstances to provide the requested 

medical certification no later than 15 

calendar days after the date requested 

by the agency despite the employee’s 

diligent, good-faith efforts, the employee 

must provide the medical certification 

within a reasonable period of time 

under the circumstances involved, but 

no later than 30 calendar days after the 

date the agency requests such medical 

certification. 

(i) If, after the leave has commenced, 

the employee fails to provide the 

requested medical certification, the 

agency may— 

(1) Charge the employee as absent 

without leave (AWOL); or 

(2) Allow the employee to request that 

the provisional leave be charged as 

leave without pay or charged to the 

employee’s annual and/or sick leave 

account, as appropriate. 

(j) At its own expense, an agency may 

require subsequent medical 

recertification on a periodic basis, but 

not more than once every 30 calendar 

days, for leave taken for purposes 

relating to pregnancy, chronic 

conditions, or long-term conditions, as 

these terms are used in the definition of 

serious health condition in § 630.1202. 

For leave taken for all other serious 

health conditions and including leave 

taken on an intermittent or reduced 

leave schedule, if the health care 

provider has specified on the medical 

certification a minimum duration of the 

period of incapacity, the agency may not 

request recertification until that period 

has passed. An agency may require 

subsequent medical recertification more 

frequently than every 30 calendar days, 

or more frequently than the minimum 

duration of the period of incapacity 

specified on the medical certification, if 

the employee requests that the original 

leave period be extended, the 

circumstances described in the original 

medical certification have changed 

significantly, or the agency receives 

information that casts doubt upon the 

continuing validity of the medical 

certification. 

(k) To ensure the security and 

confidentiality of any written medical 

certification under §§ 630.1210 or 

630.1212(h), the medical certification 

shall be subject to the provisions for 

safeguarding information about 

individuals under subpart A or part 293 

of this chapter. 

§ 630.1211 Medical and other certification 

for leave to care for a covered 

servicemember. 

(a) An agency may require that a 

request for leave under § 630.1203(b) be 

supported by a written medical 

certification issued by an authorized 

health care provider of the covered 

servicemember. For purposes of leave 

taken to care for a covered 

servicemember under § 630.1203(b), any 

one of the following health care 

providers may complete such a 

certification: 

(1) A United States Department of 

Defense (DOD) health care provider; 

(2) A United States Department of 

Veterans Affairs (VA) health care 

provider; 

(3) A DOD TRICARE network 

authorized private health care provider; 

or 

(4) A DOD non-network TRICARE 

authorized private health care provider. 

(b) Required information from health 

care provider. An agency may request 

that the health care provider provide 

any or all of the information listed 

below. (If the authorized health care 

provider is unable to make certain 

military-related determinations outlined 

below, the authorized health care 

provider may rely on determinations 

from an authorized DOD representative, 

such as a DOD recovery care 

coordinator): 

(1) The name, address, and 

appropriate contact information 

(telephone number, fax number, and/or 

e-mail address) of the health care 

provider, the type of medical practice, 

the medical specialty, and which of the 

categories listed in paragraph (a) of this 

section describes the health care 

provider; 

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(2) Whether the covered 

servicemember has incurred a serious 

injury or illness; 

(3) Whether the covered 

servicemember’s serious injury or 

illness was incurred in the line of duty 

on active duty; 

(4) The approximate date on which 

the serious injury or illness commenced, 

and its probable duration; 

(5) A statement or description of 

appropriate medical facts regarding the 

covered servicemember’s health 

condition for which FMLA leave is 

requested. The medical facts must be 

sufficient to support the need for leave. 

Such medical facts must include 

information on whether the serious 

injury or illness may render the covered 

servicemember medically unfit to 

perform the duties of the covered 

servicemember’s office, grade, rank, or 

rating and whether the member is 

receiving medical treatment, 

recuperation, or therapy; 

(6) Information sufficient to establish 

that the covered servicemember is in 

need of care, (i.e., requires 

psychological comfort and/or physical 

care; needs assistance for basic medical, 

hygienic, nutritional, safety, or 

transportation needs or in making 

arrangements to meet such needs; and 

would benefit from the employee’s care 

or presence) and whether the covered 

servicemember will need care for a 

single continuous period of time, 

including any time for treatment and 

recovery, and an estimate as to the 

beginning and ending dates of this 

period of time; 

(7) If an employee requests leave on 

an intermittent or reduced schedule 

basis for planned medical treatment 

appointments for the covered 

servicemember, whether there is a 

medical necessity for the covered 

servicemember to have such periodic 

care and an estimate of the treatment 

schedule of such appointments; and 

(8) If an employee requests leave on 

an intermittent or reduced schedule 

basis to care for a covered 

servicemember other than for planned 

medical treatment (e.g., episodic flareups of a medical condition), whether 

there is a medical necessity for the 

covered servicemember to have such 

periodic care, which can include 

assisting in the covered 

servicemember’s recovery, and an 

estimate of the frequency and duration 

of the periodic care. 

(c) Required information from 

employee and/or covered 

servicemember. In addition to the 

information that may be required under 

§ 630.1211(b), an agency may also 

require that such certification set forth 

the following information provided by 

an employee and/or covered 

servicemember: 

(1) The name and address of the 

employing agency of the individual 

requesting leave to care for a covered 

servicemember, the name of the 

employee requesting such leave, and the 

name of the covered servicemember for 

whom the employee is requesting leave 

to care; 

(2) The relationship of the employee 

to the covered servicemember for whom 

the employee is requesting leave to care; 

(3) Whether the covered 

servicemember is a current member of 

the Armed Forces or the National Guard 

or Reserves, and the covered 

servicemember’s military branch, rank, 

and current unit assignment; 

(4) Whether the covered 

servicemember is assigned to a military 

medical facility as an outpatient or to a 

unit established for the purpose of 

providing command and control of 

members of the Armed Forces receiving 

medical care as outpatients (such as a 

medical hold or warrior transition unit), 

and the name of the medical treatment 

facility or unit; 

(5) Whether the covered 

servicemember is on the temporary 

disability retired list; and 

(6) A description of the care to be 

provided to the covered servicemember 

and an estimate of the amount of leave 

needed by the employee to provide the 

care. 

(d) No information may be required 

beyond that specified in this section. In 

all instances, the information on the 

certification must relate only to the 

serious injury or illness for which the 

current need for leave exists. An agency 

may seek authentication and/or 

clarification of the certification. 

However, second and third opinions 

such as those outlined in § 630.1210(d) 

and (e) or recertifications such as those 

outlined in § 630.1210(j) are not 

permitted for leave to care for a covered 

servicemember. 

(e) An agency requiring an employee 

to submit a certification for leave to care 

for a covered servicemember must 

accept as sufficient certification 

‘‘invitational travel orders’’ (ITOs) or 

‘‘invitational travel authorizations’’ 

(ITAs) issued to any family member to 

join an injured or ill covered 

servicemember at his or her bedside. An 

ITO or ITA is sufficient certification for 

an employee entitled to take FMLA 

leave to care for a covered 

servicemember regardless of whether 

the employee is named in the order or 

authorization. 

(1) An ITO or ITA is sufficient 

certification for the duration of time 

specified in the ITO or ITA. During that 

time period, an employee may take 

leave to care for the covered 

servicemember in a continuous block of 

time or on an intermittent basis. 

(2) An employee who provides an ITO 

or ITA to support his or her request for 

leave may not be required to provide 

any additional or separate certification 

that leave taken on an intermittent basis 

during the period of time specified in 

the ITO or ITA is medically necessary. 

(3) If an employee will need leave to 

care for a covered servicemember 

beyond the expiration date specified in 

an ITO or ITA, an agency may request 

that the employee have one of the 

authorized health care providers listed 

under § 630.1211(a) complete the 

required certification form as 

certification for the remainder of the 

employee’s necessary leave period. 

(4) An agency may seek 

authentication and clarification of the 

ITO or ITA. 

(5) An agency may not use a second 

or third opinion process such as those 

outlined in § 630.1210(d) and (e), or the 

recertification process such as that 

outlined in § 630.1210(j), for the period 

of time in which leave is supported by 

an ITO or ITA. 

(f) If the employee is unable to 

provide the requested medical 

certification before leave begins, or if 

the agency questions the validity of the 

original certification provided by the 

employee and the medical treatment 

requires the leave to begin, the agency 

must grant provisional leave pending 

final written medical certification. 

(g) An employee must provide the 

written medical certification required by 

paragraphs (a), (b), and (f) of this 

section, signed by the health care 

provider, no later than 15 calendar days 

after the date the agency requests such 

medical certification. If it is not 

practicable under the particular 

circumstances to provide the requested 

medical certification no later than 15 

calendar days after the date requested 

by the agency despite the employee’s 

diligent, good-faith efforts, the employee 

must provide the medical certification 

within a reasonable period of time 

under the circumstances involved, but 

no later than 30 calendar days after the 

date the agency requests such medical 

certification. 

(h) If, after the leave has commenced, 

the employee fails to provide the 

requested medical certification, the 

agency may— 

(1) Charge the employee as absent 

without leave (AWOL); or 

(2) Allow the employee to request that 

the provisional leave be charged as 

leave without pay or charged to the 

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employee’s annual and/or sick leave 

account, as appropriate. 

(i) To ensure the security and 

confidentiality of any written medical 

certification under § 630.1211, the 

medical certification shall be subject to 

the provisions for safeguarding 

information about individuals under 

subpart A of part 293 of this chapter. 

§ 630.1212 Protection of employment and 

benefits. 

(a) Any employee who takes leave 

under § 630.1203(a) or (b) is entitled, 

upon return to the agency, to be 

returned to— 

(1) The same position held by the 

employee when the leave commenced; 

or 

(2) An equivalent position with 

equivalent benefits, pay, status, and 

other terms and conditions of 

employment. 

(b) For the purpose of applying 

paragraph (a)(2) of this section, an 

equivalent position must be in the same 

commuting area and must carry or 

provide at a minimum— 

(1) The same or substantially similar 

duties and responsibilities, which must 

entail substantially equivalent skill, 

effort, responsibility, and authority; 

(2) An equivalent grade or pay level, 

including any applicable locality 

payment under 5 CFR part 531, subpart 

F; special rate supplement under 5 CFR 

part 530, subpart C; or similar payment 

or supplement under other legal 

authority; 

(3) The same type of appointment, 

work schedule, status, and tenure; 

(4) The same employment benefits 

made available to the employee in his 

or her previous position (e.g., life 

insurance, health benefits, retirement 

coverage, and leave accrual); 

(5) The same or equivalent 

opportunity for a within-grade increase, 

performance award, incentive award, or 

other similar discretionary and nondiscretionary payments, consistent with 

applicable laws and regulations; 

however, the entitlement to be returned 

to an equivalent position does not 

extend to intangible or unmeasurable 

aspects of the job; 

(6) The same or equivalent 

opportunity for premium pay consistent 

with applicable law and regulations 

under 5 CFR part 550, subpart A, or 5 

CFR part 551, subpart E; and 

(7) The same or equivalent 

opportunity for training or education 

benefits, consistent with applicable laws 

and regulations, including any training 

that an employee may be required to 

complete to qualify for his or her 

previous position. 

(c) As a result of taking leave under 

§ 630.1203(a) or (b), an employee must 

not suffer the loss of any employment 

benefit accrued prior to the date on 

which the leave commenced. 

(d) Except as otherwise provided by 

or under law, a restored employee is not 

entitled to— 

(1) The accrual of any employment 

benefits during any period of leave; or 

(2) Any right, benefit, or position of 

employment other than any right, 

benefit, or position to which the 

employee would have been entitled had 

the employee not taken the leave. 

(e) For the purpose of applying 

paragraph (d) of this section, the same 

entitlements and limitations in law and 

regulations that apply to the position, 

pay, benefits, status, and other terms 

and conditions of employment of an 

employee in a leave without pay status 

apply to any employee taking leave 

without pay under this part, except 

where different entitlements and 

limitations are specifically provided in 

this subpart. 

(f) An employee is not entitled to be 

returned to the same or equivalent 

position under paragraph (a) of this 

section if the employee would not 

otherwise have been employed in that 

position at the time the employee 

returns from leave. 

(g) An agency may not return an 

employee to an equivalent position 

where written notification has been 

provided that the equivalent position 

will be affected by a reduction in force 

if the employee’s previous position is 

not affected by a reduction in force. 

(h) As a condition of returning an 

employee who takes leave under 

§ 630.1203(a)(4), an agency may 

establish a uniformly applied practice or 

policy that requires all similarlysituated employees (i.e., same 

occupation, same serious health 

condition) to obtain written medical 

certification from the health care 

provider of the employee that the 

employee is able to perform the 

essential functions of his or her 

position. An agency may delay the 

return of an employee until the medical 

certification is provided. The same 

conditions for verifying the adequacy of 

a medical certification in § 630.1210(c) 

apply to the medical certification to 

return to work. No second or third 

opinion on the medical certification to 

return to work may be required. An 

agency may not require a medical 

certification to return to work during the 

period the employee takes leave 

intermittently or under a reduced leave 

schedule under § 630.1207. 

(i) If an agency requires an employee 

to obtain written medical certification 

under paragraph (h) of this section 

before he or she returns to work, the 

agency must notify the employee of this 

requirement before leave commences or 

to the extent practicable in emergency 

medical situations, and must pay the 

expenses for obtaining the written 

medical certification. An employee’s 

refusal or failure to provide written 

medical certification under paragraph 

(h) of this section may be grounds for 

appropriate disciplinary or adverse 

action, as provided in part 752 of this 

chapter. 

(j) An agency may require an 

employee to report periodically to the 

agency on his or her status and 

intention to return to work. An agency’s 

policy requiring such reports must take 

into account all of the relevant facts and 

circumstances of the employee’s 

situation. 

(k) An employee’s decision to invoke 

FMLA leave under §§ 630.1203(a) or (b) 

and 630.1204 does not prohibit an 

agency from proceeding with 

appropriate actions under part 432 or 

part 752 of this chapter. 

(l) An employee who does not comply 

with the notification requirements in 

§ 630.1209 and does not provide 

medical certification signed by the 

health care provider that includes all of 

the information required in 

§§ 630.1210(b) and 630.1211(b) and (c), 

as applicable, is not entitled to family 

and medical leave. 

§ 630.1213 Health benefits. 

An employee enrolled in a health 

benefits plan under the Federal 

Employees Health Benefits Program 

(established under chapter 89 of title 5, 

United States Code) who is placed in a 

leave-without-pay status as a result of 

entitlement to leave under § 630.1203(a) 

or (b) may continue his or her health 

benefits enrollment while in the leavewithout-pay status and arrange to pay 

the appropriate employee contributions 

into the Employees Health Benefits 

Fund (established under section 8909 of 

title 5, United States Code). The 

employee must make such contributions 

consistent with 5 CFR 890.502. 

§ 630.1214 Greater leave entitlements. 

(a) An agency must comply with any 

collective bargaining agreement or any 

agency employment benefit program or 

plan that provides greater family or 

medical leave entitlements to employees 

than those provided under this subpart. 

Nothing in this subpart prevents an 

agency from amending such policies, 

provided the policies comply with the 

requirements of this subpart. 

(b) The entitlements established for 

employees under this subpart may not 

be diminished by any collective 

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43082 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Proposed Rules 

bargaining agreement or any 

employment benefit program or plan. 

(c) An agency may adopt leave 

policies more generous than those 

provided in this subpart, except that 

such policies may not provide 

entitlement to paid time off in an 

amount greater than that otherwise 

authorized by law or provide sick leave 

in any situation in which sick leave 

would not normally be allowed by law 

or regulation. 

(d) The entitlements under sections 

6381 through 6387 of title 5, United 

States Code, and this subpart do not 

modify or affect any Federal law 

prohibiting discrimination. If the 

entitlements under sections 6381 

through 6387 of title 5, United States 

Code, and this subpart conflict with any 

Federal law prohibiting discrimination, 

an agency must comply with whichever 

statute provides greater entitlements to 

employees. 

§ 630.1215 Records and reports. 

(a) So that OPM can evaluate the use 

of family and medical leave by Federal 

employees and provide the Congress 

and others with information about the 

use of this entitlement, each agency 

must maintain records on employees 

who take leave under this subpart and 

submit to OPM such records and reports 

as OPM may require. 

(b) At a minimum, each agency must 

maintain the following information 

concerning each employee who takes 

leave under this subpart: 

(1) The employee’s rate of basic pay, 

as defined in 5 CFR 550.103; 

(2) The occupational series for the 

employee’s position; 

(3) The number of hours of leave 

taken under § 630.1203(a) and (b), 

including any paid leave substituted for 

leave without pay under § 630.1208(b); 

and 

(4) Whether leave was taken— 

(i) Under § 630.1203(a)(1), (2), or (3); 

(ii) Under § 630.1203(a)(4); or 

(iii) Under § 630.1203(b). 

(c) When an employee transfers to a 

different agency, the losing agency must 

provide the gaining agency with 

information on leave taken under 

§ 630.1203(a) or (b) by the employee 

during the 12 months prior to the date 

of transfer. The losing agency must 

provide the following information: 

(1) The beginning and ending dates of 

the employee’s 12-month period, as 

determined under § 630.1205(a) or (b); 

and 

(2) The number of hours of leave 

taken under § 630.1203(a) or (b) during 

the employee’s 12-month period or 

single 12-month period, respectively, as 

determined under § 630.1205(a) or (b), 

respectively. 

[FR Doc. E9–20610 Filed 8–25–09; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 927 

[Doc. No. AMS–FV–09–0037; FV09–927–1 

PR] 

Pears Grown in Oregon and 

Washington; Increased Assessment 

Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule would increase the 

assessment rate established for the 

Processed Pear Committee (PPC) for the 

2009–2010 and subsequent fiscal 

periods from $6.25 to $8.41 per ton for 

‘‘summer/fall’’ pears for canning. The 

PPC is responsible for local 

administration of the marketing order 

regulating the handling of pears for 

processing grown in Oregon and 

Washington. Assessments upon 

handlers of pears for processing are 

used by the PPC to fund reasonable and 

necessary expenses of the program. The 

fiscal period for the marketing order 

begins July 1 and ends June 30. The 

assessment rate would remain in effect 

indefinitely unless modified, suspended 

or terminated. 

DATES: Comments must be received by 

September 25, 2009. 

ADDRESSES: Interested persons are 

invited to submit written comments 

regarding this rule. Comments must be 

sent to the Docket Clerk, Marketing 

Order Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., STOP 

0237, Washington, DC 20250–0237; Fax: 

(202) 720–8938; or Internet: http:// 

www.regulations.gov. Comments should 

reference the docket number and the 

date and page number of this issue of 

the Federal Register and will be 

available for public inspection in the 

Office of the Docket Clerk during regular 

business hours, or can be viewed at: 

http://www.regulations.gov. All 

comments submitted in response to this 

rule will be included in the record and 

will be made available to the public. 

Please be advised that the identity of the 

individuals or entities submitting the 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Susan M. Coleman or Gary D. Olson, 

Northwest Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1220 SW., Third Avenue, 

Suite 385, Portland, OR 97204; 

Telephone: (503) 326–2724; Fax: (503) 

326–7440; or E-mail: 

Sue.Coleman@ams.usda.gov or 

GaryD.Olson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491; Fax: (202) 720–8938; or E-mail: 

Jay.Guerber@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

927, as amended (7 CFR 927), regulating 

the handling of pears grown in Oregon 

and Washington, hereinafter referred to 

as the ‘‘order.’’ The order is effective 

under the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

U.S.C. 601–674), hereinafter referred to 

as the ‘‘Act.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, Oregon and Washington pear 

handlers are subject to assessments. 

Funds to administer the order are 

derived from such assessments. It is 

intended that the assessment rate as 

proposed herein would be applicable to 

all assessable pears beginning July 1, 

2009, and continue until amended, 

suspended, or terminated. This rule will 

not preempt any State or local laws, 

regulations, or policies, unless they 

present an irreconcilable conflict with 

this rule. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. Such 

handler is afforded the opportunity for 

a hearing on the petition. After the 

hearing USDA would rule on the 

petition. The Act provides that the 

district court of the United States in any 

district in which the handler is an 

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