37234 Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Rules and Regulations

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 630

RIN 3206–AI76

Sick Leave for Family Care Purposes

AGENCY: Office of Personnel

Management.

ACTION: Final rule.

SUMMARY: The Office of Personnel

Management is issuing final regulations

to expand the use of sick leave for

family care purposes. Under the final

regulations, an employee may use a total

of up to 12 weeks of accrued sick leave

each year to care for a family member

with a serious health condition. This

benefit broadens the options available

for employees to meet their family

responsibilities.

EFFECTIVE DATE: June 20, 2000.

FOR FURTHER INFORMATION CONTACT:

Sharon Herzberg, (202) 606–2858, FAX

(202) 606–0824, or email to

payleave@opm.gov.

SUPPLEMENTARY INFORMATION: On May

24, 1999, President Clinton issued a

memorandum directing the Office of

Personnel Management (OPM) to

expand the use of paid sick leave for

family care purposes. On February 9,

2000, OPM issued proposed regulations

consistent with the President’s goal of

eliminating ‘‘a significant barrier to

caring for a family member with a

serious health condition.’’ The

regulations proposed to permit full-time

employees to use a total of up to 12

administrative workweeks of accrued

sick leave each leave year to care for a

family member with a serious health

condition. The definition of ‘‘family

member’’ includes the following

relatives of the employee: (a) Spouse

and parents thereof; (b) children,

including adopted children, and

spouses thereof; (c) parents; (d) brothers

and sisters, and spouses thereof; and (e)

any individual related by blood or

affinity whose close association with the

employee is the equivalent of a family

relationship. ‘‘Serious health condition’’

has the same meaning as found in

OPM?s regulations at 5 CFR 630.1202

for administering the Family and

Medical Leave Act of 1993 (FMLA).

The 45-day comment period ended on

March 27, 2000. OPM received 151

comments, 134 from individuals, 14

from agencies, 2 from employee

associations, and 1 from a labor

organization. The comments were

overwhelmingly positive. The labor

organization stated that these changes

were long awaited and quite welcome.

Many of the commenters who supported

the adoption of the new regulations

mentioned a previous experience

dealing with a family member with a

long-term or terminal illness and

expressed gratitude that other

employees would now have an

opportunity to use their accrued sick

leave in similar situations. Others

mentioned current family medical

situations that have caused them to

exhaust their annual leave and the

currently available 13 days of sick leave

for family care. One commenter stated

that if the employee were the one who

was sick or injured, using up to 12

weeks of sick leave would be a nonissue and that the use of sick leave

should remain a non-issue when an

employee’s family member requires the

employee’s care for an extended period.

One commenter stated that the

proposed change would reassure

employees that efforts to conserve sick

leave are beneficial. Another individual

noted that employees with sufficient

amounts of sick leave to make use of the

new program obviously have not been

abusing their sick leave and are

dedicated employees. One commenter

pointed out that since family health

crises occur only a few times in our

lives, this time off would not adversely

affect an agency’s long-term goals. An

employee association commented that

employees and family members

stationed overseas often must be

evacuated for medical conditions and

that the new regulations would allow an

employee to accompany a family

member for what may turn out to be a

protracted course of treatment.

Nine commenters opposed the

concept of allowing Federal employees

to use additional sick leave for family

care purposes. Two agencies expressed

concern that the regulations as proposed

would give employees more flexibility

in the use of sick leave than a literal

reading of the President’s memorandum

of May 24, 1999, would indicate.

The President intended to make the

expanded use of sick leave available to

employees to use to care for all family

members with a serious health

condition. Limiting this benefit to caring

for a spouse, son or daughter, or parent

with a serious health condition would

impose a significant hardship on

employees who need to care for

additional, but equally important, loved

ones in their time of need. For example,

the expanded use of sick leave would

permit an employee to care for a

grandchild who is suffering from

leukemia or to care for an adult child

receiving kidney dialysis or in the final

stages of a terminal disease.

Seven agencies were concerned that

the proposed regulations would permit

an employee to use 12 weeks of sick

leave each year to care for a family

member with a serious health condition

and then use an additional 12 weeks of

leave without pay under the FMLA to

care for a spouse, son or daughter, or

parent with a serious health condition.

The agencies stated that 24 weeks of

leave would be a tremendous hardship

on a manager’s ability to manage the

work of the organization. One agency

expressed the belief that the current sick

leave provisions and FMLA

entitlements provide sufficient

flexibility to employees. Another agency

concluded that while being able to meet

the mission of the agency while

balancing work and family needs of

employees is of utmost importance,

managers have expressed concern that

this expanded entitlement to time off

may diminish an organization’s ability

to efficiently and effectively accomplish

the mission of the agency.

OPM believes only a small number of

employees would have a need and/or be

able to use significant amounts of paid

and unpaid leave to care for a family

member with a serious health condition.

Based on our experience with the

current sick leave program, we believe

less than 0.5 percent of the Federal

workforce with 5 or more years of

Federal service would actually use the

maximum 12 weeks of sick leave.

Federal employees accrue 13 days of

sick leave each year. Although it is

possible for an employee not to use any

sick leave for 5 years so that he or she

would accumulate 65 days (more than

12 weeks) of sick leave to use for family

care purposes, this is highly unlikely. It

is possible that an employee could be

entitled to a maximum of 12 weeks of

sick leave for family care and 12 weeks

of unpaid leave under the FMLA to care

for a spouse, son or daughter, or parent

with a serious health condition.

However, we believe it is highly

unlikely that many employees would

take more than 12 weeks off for family

care purposes. In OPM’s June 1997

‘‘Report to Congress on the Family

Friendly Leave Act,’’ we found that less

than one-half of one percent of the

Federal workforce used even the full 13

days of sick leave that was available for

family care purposes at that time. In

addition, the purpose for which the sick

leave may be used—i.e., a serious health

condition—will limit the circumstances

in which employees can use sick leave

under the new policy. We believe this

expanded entitlement will provide the

greatest benefit to employees who

would otherwise be forced to use leave

Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Rules and Regulations 37235

without pay under the FMLA to care for

their family members. The expanded

use of sick leave will permit these and

other employees facing similar

situations to maintain an income for

part or all of the time they must be

absent from work.

In addition, the expanded use of sick

leave for family care purposes will

provide many benefits. Agencies will

retain valuable employees and benefit

from reduced costs (including training

costs) to replace employees forced to

separate from Federal service because of

family responsibilities. Employees will

have greater incentive to conserve their

sick leave, which will be available for

future personal and family medical

needs. There will be less need for

employees to obtain donated leave

through the voluntary leave transfer and

leave bank programs, since a potential

leave recipient faced with a family

medical emergency will be required to

use up to 12 weeks of his or her own

sick leave before receiving any donated

annual leave from other Federal

employees.

Entitlement to Sick Leave

Two commenters questioned whether

the granting of sick leave to care for a

family member with a serious health

condition would be done at the

discretion of the agency. An employee

is entitled to sick leave for family care,

just as he or she is entitled to sick leave

for his or her own incapacitation. If the

employee complies with the agency’s

notification and medical evidence/

certification requirements, the agency

must grant sick leave.

The labor organization requested

clarification of an employee’s appeal

rights if his or her request for sick leave

is denied. If an employee believes he or

she has been unjustly denied the use of

sick leave for family care purposes, he

or she may file a grievance under

applicable agency administrative

procedures or negotiated grievance

procedures. Agency personnel offices

can provide information to employees

concerning the administration of the

grievance procedures. In addition, OPM

has authority to settle claims involving

Federal employees’ compensation and

leave. OPM’s regulations at 5 CFR part

178 provide procedures for filing

written claims. However, 5 CFR

178.101(b) states that OPM’s authority

does not apply to claims concerning

matters that are subject to negotiated

grievance procedures under collective

bargaining agreements.

One commenter was concerned that

part-time employees might not be

included in this new initiative.

However, the regulations make clear

that both part-time employees and

employees on uncommon tours of duty

are entitled to pro-rated amounts of sick

leave for family care purposes based on

the number of hours in their regularly

scheduled workweek. A Federal

firefighter questioned whether leave

accrual and use was truly proportional

for employees on uncommon tours.

Employees on uncommon tours earn

and use leave in direct proportion to the

leave-earning rate of a full-time

employee who accrues and uses leave

on the basis of an 80-hour biweekly tour

of duty. An agency must charge one

hour (or appropriate fraction thereof) of

leave for each hour (or appropriate

fraction thereof) of absence from the

uncommon tour of duty.

Another individual questioned

whether an employee is entitled to sick

leave when ‘‘caring’’ for a family

member who is hospitalized. OPM has

always maintained that care of a family

member includes psychological comfort

as well as physical care, including being

with the family member during a

hospital stay or while being examined

in a doctor’s office. In response to this

comment and frequent questions we

have received on this subject, we are

revising § 630.401 of the final

regulations to make clear that an

employee may use sick leave to attend

to a family member who is receiving

medical, dental, or optical examination

or treatment. In addition, we have

added a new paragraph (c) to § 630.403

to permit agencies to require a statement

from an employee concerning a family

member’s need for psychological

comfort and/or physical care. The

statement from the health care provider

must certify that (1) the family member

requires psychological comfort and/or

physical care, (2) the family member

would benefit from the employee’s care

or presence, and (3) the employee is

needed to care for the family member

for a specified period of time.

Three commenters felt that 12 weeks

was too long a time for employees to be

away from their jobs. In contrast, one

commenter felt that 12 weeks was not

enough time and that an employee

should be entitled to use all of his or her

sick leave for family care purposes. We

do not believe allowing employees to

use more than 13 days of their own sick

leave each year for family care purposes

will greatly increase absenteeism. Many

employees who must care for family

members currently do so by using leave

without pay under the FMLA. The final

regulations will allow these employees

to maintain an income and better

balance their work and family

responsibilities. We also believe the

entitlement to use 12 weeks of sick

leave to care for a family member with

a serious health condition will meet the

needs of most employees.

Definition of ‘‘Family Member’’

Several commenters were pleased that

the regulations use the same definition

of ‘‘family member’’ that is used in the

current regulations on sick leave for

family care purposes. However, some

individuals requested that OPM be more

specific as to who is covered by the

phrase ‘‘any individual related by blood

or affinity whose close association with

the employee is the equivalent of a

family relationship.’’ Three commenters

specifically questioned whether

grandparents are covered by the

definition, and another requested that

stepchildren also be included. The

intent of the regulation is to be familyfriendly and to provide a benefit that

goes beyond the traditional nuclear

family. We believe a grandparent or a

stepchild clearly is covered by the

definition of ‘‘family member.’’ An

agency is responsible for interpreting

the definition to ensure that all

employees are treated fairly and

consistently.

Definition of ‘‘Serious Health

Condition’’

Most individuals and agencies

supported the use of the definition of

‘‘serious health condition’’ that is found

in the FMLA regulations at § 630.1202.

However, one agency expressed the

belief that the term ‘‘catastrophic

illness’’ implies a level of devastation to

health and finances that would warrant

the provisions included in the proposed

regulations, while the term ‘‘serious

health condition’’ does not. One

commenter expressed appreciation for

the regulations and hoped they would

assist parents of ‘‘special needs’’

children in meeting their

responsibilities. If the child’s condition

qualifies as a ‘‘serious health condition’’

under the definition at § 630.1202, a

parent would be entitled to use sick

leave on an intermittent basis to care for

the child when other services are not

available. However, this new

entitlement does not permit an

employee to use sick leave for routine

childcare or to care for children with

minor childhood ailments. The

definition of ‘‘serious health condition’’

at § 630.1202 includes a list of what is

not considered a serious health

condition. An agency may require

certification from a healthcare provider

that the child has a qualifying medical

condition before granting sick leave.

An individual urged OPM to include

severe mental illness, including

schizophrenia, bi-polar disorder (manic

37236 Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Rules and Regulations

depression), and other traumatic mental

conditions requiring hospitalization or

constant care as a ‘‘serious health

condition.’’ The definition of ‘‘serious

health condition’’ at § 630.1202 includes

a ‘‘mental condition’’ that requires

inpatient care or continuing treatment

by a health care provider. All of the

conditions enumerated by the

commentor are covered by this

definition.

Several commenters questioned

whether childbirth and its recuperation

would qualify as a ‘‘serious health

condition’’ under § 630.1202. Some

commenters interpreted the reference to

pregnancy and childbirth in

§ 630.401(3)(i) to mean that the amount

of sick leave that can be used to care for

a family member during and after

childbirth is limited to 13 days. An

individual requested that we consider

deleting the reference to childbirth at

§ 630.401(3)(i) and specifically include

childbirth and recovery in the definition

of ‘‘serious health condition’’ in

§ 630.1202. We agree that such a change

would make clear that childbirth and

recovery are considered serious health

conditions, since they generally result

in a period of incapacitation that

exceeds 13 days. Therefore, we have

removed the specific reference to

pregnancy and childbirth from

§ 630.401(a)(3)(i). The final regulations

provide that an agency must grant sick

leave to an employee who provides care

for a family member who is

incapacitated by a medical or mental

condition or who receives medical,

dental, or optical examination or

treatment. In addition, we have

amended the definition of ‘‘serious

health condition’’ in § 630.1202(1)(ii)(B)

of the FMLA regulations to include

childbirth as a serious health condition.

Commenters questioned how much

sick leave a new mother would be able

to use and whether family members

such as her husband or parent would be

entitled to use sick leave to care for her.

A new mother will continue to be

entitled to use sick leave for the period

of incapacitation certified by the health

care provider following the birth—

generally about 6 weeks. Her husband or

parent would be entitled to use sick

leave to care for her during that entire

period of incapacitation. In the case of

both the new mother and her caregiver,

the entitlement to use sick leave is

limited to the period of incapacitation of

the new mother. We encourage agencies

to request documentation as to the

period of incapacitation for any serious

health condition.

Bonding With a Child

We received many comments from

individuals who mistakenly believe new

mothers and fathers will be able to use

12 weeks of sick leave following

childbirth for bonding with the newborn

child. Other commenters requested that

OPM change the regulations to permit

this. Care for a family member with a

‘‘serious health condition’’ does not

include care for a healthy newborn

child. Once the new mother’s period of

incapacitation ends, there is no further

entitlement to use sick leave to ‘‘care for

a family member with a serious health

condition.’’

Both parents would continue to be

entitled to use up to 13 days of sick

leave each year to care for the child

when he or she is ill or to take the child

to medical appointments.

Two commenters objected that the

regulations do not allow adoptive

parents at least 6 weeks of sick leave for

bonding purposes, pointing to the 6

weeks of sick leave that birth parents

will be able to use. Adoptive parents

may request sick leave for adoptionrelated purposes, including, but not

limited to, appointments with adoption

agencies, social workers, and attorneys;

court proceedings; required travel; and

for any periods during which an

adoptive parent is ordered or required

by the adoption agency or by a court to

be absent from work to care for the

adopted child. There is no limitation on

the amount of sick leave that may be

used for these purposes. Agencies may

require employees to provide evidence

that is administratively acceptable to the

agency in support of a request for sick

leave for adoption-related purposes. In

addition, adoptive parents are entitled

to use up to 13 days of sick leave each

year to care for the child when he or she

is ill or to take the child to medical

appointments.

As stated above, sick leave is granted

to birth parents only for the period of

the mother’s incapacitation. The birth

parents must use annual leave and/or

leave without pay for absences from

work beyond the mother’s period of

incapacitation—e.g., for care of the

newborn, bonding with the child, and

other child care responsibilities. There

is no provision in law or regulation that

permits the use of sick leave by birth

parents or adoptive parents who

voluntarily choose to be absent from

work to bond with a birth or adopted

child.

Interaction With Current Use of Sick

Leave for Family Care Purposes

Several commenters asked how the

new entitlement to 480 hours of sick

leave to care for a family member with

a serious health condition interacts with

the current entitlement to use 13 days

of sick leave each year for general family

care and bereavement purposes. One

agency urged OPM to consider making

these two separate entitlements and

permitting employees to use both 13

days of sick leave for general family care

and bereavement purposes and 12

weeks (480 hours) of sick leave to care

for a family member with a serious

health condition each year. The agency

felt this approach would simplify

administration and reduce confusion

about the two entitlements. The agency

also felt that tracking sick leave in more

than one category is burdensome to the

manager and confusing to the employee.

Similarly, an individual suggested that

there be two entitlements, but that the

use of sick leave to care for a family

member with a serious health condition

be limited to 10 weeks. Another agency

recommended that OPM extend the

amount of sick leave an employee may

use for all family care purposes, instead

of introducing a new entitlement.

The intent of the expanded sick leave

regulations is to permit employees who

are faced with caring for a family

member with a serious health condition

to use more than 13 days of sick leave.

If an employee has previously used 13

days of sick leave in a leave year for

family care purposes, the 13 days must

be subtracted from the 12-week

entitlement. If an employee has

previously used 12 weeks of sick leave

in a leave year to care for a family

member with a serous health condition,

he or she would not be entitled to an

additional 13 days of sick leave for

family care or bereavement purposes.

We have revised § 630.401 to make clear

that an employee is entitled to a

maximum of 12 weeks of sick leave for

all family care purposes.

Interaction With Family and Medical

Leave

Several commenters questioned how

the broadened use of sick leave for

family care purposes would work with

the use of leave without pay under the

Family and Medical Leave Act (FMLA).

One commenter expressed the belief

that an employee already has an

entitlement to use 12 weeks of sick

leave under the FMLA to care for a

spouse, son or daughter, or parent with

a serious health condition. An

individual was concerned that 12 weeks

of sick leave for family care plus 12

weeks of leave without pay under the

FMLA would result in an employee

being absent from work for up to 6

months.

Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Rules and Regulations 37237

The FMLA provides most employees

with an entitlement to use a total of up

to 12 weeks of leave without pay during

any 12-month period for certain family

and medical needs. An employee may

choose to substitute sick leave for FMLA

leave without pay consistent with

current law and regulations for using

sick leave. (See § 630.1205(b)(1).) Until

now, employees who invoked their

entitlement to FMLA leave were limited

to substituting up to 13 days of sick

leave for FMLA leave without pay each

year to care for a spouse, son or

daughter, or parent with a serious health

condition. Under the final regulations,

an employee is entitled to substitute up

to 12 weeks of sick leave each year for

FMLA leave without pay if he or she is

caring for a spouse, son or daughter, or

parent with a serious health condition.

Or, an employee may use up to 12

weeks of sick leave each year to care for

a family member with a serious health

condition and then invoke his or her

entitlement to 12 weeks of FMLA leave

without pay to care for his or her

spouse, son or daughter, or parent with

a serious health condition.

Another individual suggested that the

regulations limit an employee to 12

weeks of sick leave in any 12-month

period, similar to the requirements

under the FMLA. However, the new

entitlement is a broadening of the

current regulations, not a change in the

entitlements under the FMLA. Limiting

the use of sick leave for family care by

leave year is consistent with the current

sick leave regulations and will provide

for simpler administration of the current

sick leave program.

Interaction With the Leave Transfer

and Leave Bank Programs

One commenter asked how the

expanded use of sick leave for family

care will affect an employee’s

opportunity to receive donated annual

leave from the agency’s leave transfer

and/or leave bank program. The

commenter expressed the belief that an

employee who has a substantial sick

leave balance, but has used all the sick

leave he or she is entitled to use for

family care purposes, would be

disqualified from the leave transfer

program because he or she still had

available paid sick leave. An employee

may receive donated annual leave from

other Federal employees if he or she is

affected by a personal or family medical

emergency and has exhausted his or her

available paid annual and sick leave.

Once an employee has exhausted his or

her entitlement to 12 weeks of sick leave

for family care purposes, the employee

has exhausted all of his or her available

paid sick leave.

We believe the expanded use of sick

leave for family care purposes will

reduce the need for obtaining donated

annual leave through the leave transfer

and leave bank programs. Currently, an

employee who is caring for a family

member with a medical emergency may

have significant amounts of

accumulated sick leave that he or she

cannot use because the employee has

already used his or her entitlement to 13

days of sick leave for family care

purposes. As a result, such employees

are using other employees’ annual leave

even though they have substantial

amounts of sick leave available in their

own sick leave accounts. We believe it

makes sense to require employees to use

their own annual and sick leave before

receiving donated annual leave. In

addition, we revised § 630.405(c) to

require an employee who is using

donated annual leave on the effective

date of these regulations to use the sick

leave available under § 630.401(a)(3) for

family care purposes before he or she

can continue to use donated annual

leave.

Requirement To Maintain a Balance of

80 Hours of Sick Leave

Two commenters questioned the need

to require employees to maintain an 80-

hour sick leave balance when using

more than 5 days of sick leave for any

family care purpose. Another individual

expressed the belief that the amount of

sick leave that must be held in reserve

should increase as the number of hours

used for family care purposes

increases—e.g., for each 30-day

increment above the basic 13-day

entitlement, an employee should have

to maintain an additional 20 hours of

sick leave (above the 80-hour

requirement).

The original intent of the 80-hour

requirement was to ensure that Federal

employees would have sufficient leave

for their own medical needs at the end

of a family member’s medical

emergency. With the possibility that an

employee will be caring for a family

member for an extended period, it is

even more important that he or she have

a reserve of sick leave for his or her own

use to cover absences due to a personal

illness. OPM believes 80 hours of sick

leave is a sufficient reserve and that to

require larger reserve balances from

employees who seek to use greater

amounts of sick leave for family care

purposes would not be equitable.

A commenter was under the mistaken

impression that an agency could

advance sick leave if an employee’s sick

leave balance falls below the 80-hour

threshold. Advancing more than the

first 5 days (40 hours) of sick leave

circumvents the intent of the regulation.

We have had many questions about the

80-hour required balance and the

restriction on the advance of more than

5 days of sick leave for family care

purposes. We are taking this

opportunity to revise § 630.401 to clarify

the requirement for an 80-hour balance

and the restriction on advancing sick

leave for family care purposes.

Medical Certification

An agency recommended that the

medical certification required by the

FMLA to care for a spouse, son or

daughter, or parent with a serious health

condition also be required when an

employee requests sick leave to care for

a family member with a serious health

condition. One individual urged that

OPM write the regulations so that this

entitlement cannot be used for anything

less than a serious health condition.

Another believes that requiring

administratively acceptable evidence of

a serious health condition or a doctor’s

confirmation will ensure that requests

for sick leave are legitimate. A third

commenter warns that unless medical

certification is required, the expanded

amounts of sick leave will be used for

minor illnesses. Another asked OPM to

make clear that an agency may request

medical documentation as to the

incapacitation of the family member,

while another commenter felt that OPM

should establish specific amounts of

sick leave that may be used for specific

types of serious health conditions. In

contrast, however, one individual

expressed the belief that

‘‘administratively acceptable evidence’’

is too broad a term and questioned who

will determine what constitutes

acceptable documentation. Another

suggests that a doctor’s statement

should be required only after 5 days of

absence from work and that a receipt for

a doctor’s visit should be sufficient

medical documentation.

We urge each agency to request

medical certification to document that a

serious health condition exists. In

addition, obtaining medical

documentation will ensure that the

appropriate amount of sick leave is

granted. We do not believe

Governmentwide guidelines can be

established assigning specified amounts

of sick leave for certain health

conditions. Individual circumstances

differ, and individuals will require

varying amounts of time off for

treatment and recuperation. A

certification from the health care

provider will determine the length of

the incapacitation for each individual

and, therefore, the duration of the

serious health condition. Agencies may

37238 Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Rules and Regulations

wish to modify the Department of

Labor’s Family and Medical Leave

medical certification form to document

the existence and probable duration of

a serious health condition, or they may

wish to establish their own medical

certification form. Each agency has the

authority to determine what constitutes

‘‘administratively acceptable evidence’’

for any use of sick leave and to request

such documentation whenever it feels

necessary.

One agency approved of OPM’s

proposal to permit agencies to limit the

amount of time given to an employee to

produce acceptable documentation,

feeling it would help to ensure that the

new entitlement is used only as

intended. We agree and are adopting as

final the revisions at § 630.403(b). We

believe agencies should establish time

limits for employees to provide required

documentation of a medical or mental

condition. This will ensure that sick

leave is being used properly and will

guarantee that all employees receive

equal treatment.

Reporting Requirements

Two individuals questioned what

new reporting requirements might be

involved in the administration of this

new entitlement. One agency

recommended that OPM require

agencies to report back in 1 year on the

extent to which the new sick leave

provisions are being used. When OPM

published the original regulations on

sick leave for family care purposes in

December 1994, we added § 630.408 to

require agencies to maintain records to

provide data to us on the use of sick

leave for family care purposes. We

requested the data for OPM’s June 1997

‘‘Report to Congress on the ‘Federal

Employees Family Friendly Leave Act,’

Public Law 103–388.’’ We no longer

believe the reporting requirements are

necessary and plan to propose removal

of them from the regulations later this

year. Nevertheless, our regulations

continue to require that agencies

maintain internal records on the amount

of sick leave used each leave year for

family care or bereavement purposes to

ensure that employees do not exceed the

limitations in 5 CFR 630.401(b) and (c).

Additional Use of Sick Leave

Three individuals suggested that OPM

establish programs to pay employees for

unused sick leave. They felt this would

encourage employees to conserve their

sick leave, particularly in the case of

employees covered by the Federal

Employees Retirement System (FERS),

since they do not receive credit at

retirement for unused sick leave. This

proposal would require legislative

action. In addition, OPM believes the

ability to use up to 12 weeks of sick

leave for family care purposes will be an

additional incentive for employees to

conserve their sick leave for future

needs. Since the Government has no

short-term disability insurance program,

it is important that employees conserve

sick leave to cover their own periods of

illness, as well as their family care

needs.

An individual suggested broadening

the leave transfer program to allow

employees to donate their unused sick

leave to other employees. Section

6334(a) of title 5, United States Code,

permits Federal employees to donate or

contribute annual leave, but not sick

leave, to another employee who has a

personal or family medical emergency.

Therefore, this proposal would require

legislative action. In addition, the ability

of employees to use larger amounts of

sick leave for family care purposes

should ease the demand for donated

leave, making greater amounts of

donated annual leave available to those

employees who have exhausted other

available paid leave.

Other Comments

A commenter expressed concern that

agencies would look upon employees

who use large amounts of sick leave to

care for a family member as ‘‘leave

abusers.’’ We believe agencies are aware

that the use of approved sick leave is

not leave abuse and is not a basis for an

adverse action. An agency may request

medical certification for the use of sick

leave, but if proper certification is

provided, the leave must be approved.

Another commenter argued that the

availability of 12 weeks of paid leave for

Federal employees will place the entire

burden of family care on the shoulders

of Federal employees. The commenter

felt the Government should pressure

private industry to expand its family

leave policies to relieve the burden on

Federal employees who are caretakers.

OPM hopes this program will become a

model for non-Federal employers by

demonstrating ways to help employees

balance their work and family

responsibilities.

A number of agencies and individuals

requested that OPM publish a table or

matrix of leave programs that provides

a basic overview of when and under

what circumstances employees are

entitled to leave under each of the

various leave programs. The labor

organization recommended that a

special effort be made to provide

training and resources to help agency

personnel offices answer managers’ and

employees’ questions concerning these

regulations and their interactions with

various family-friendly leave programs

in the Government. OPM currently

offers leave workshops to assist agencies

and employees in understanding and

administering the Government’s familyfriendly leave programs. Dates for future

workshops are available on OPM’s

website at www.opm.gov. In addition,

we have developed, and will continue

to develop, fact sheets and matrix tables

on the various Federal leave programs.

These materials are available on OPM’s

website at www.opm.govlocaleave. In the

near future, we will issue additional

guidance and a series of examples on

how to apply the different leave

provisions.

Two commenters thought the

Government should grant new mothers

paid maternity leave in addition to their

accrued sick leave. They pointed to

companies in the private sector that

offer this type of paid leave benefit.

Many private sector companies provide

employees with a limited amount of

sick leave each year (which may or may

not accumulate for use in succeeding

years) and short-term disability

insurance that may be used for

maternity purposes. Generally, shortterm disability insurance programs

replace only a portion—typically 60 to

70 percent—of an employee’s income

while disabled and provide coverage for

a maximum of 6 months. Like some of

the other ideas raised by other

commenters, legislative action would be

required to establish such a program.

We believe the Government’s generous

sick leave and annual leave system, in

conjunction with advanced sick and

annual leave, the leave transfer and

leave bank programs, flexible work

schedules, flexiplace, unpaid leave

under the Family and Medical Leave

Act of 1993, and compensatory time off

enable the vast majority of Federal

employees to meet their personal and

family medical needs.

One agency commented that the leave

provisions alone are confusing in

themselves and that the variations and

interworkings of these programs have

become even more complicated and

cumbersome. Several agencies

recommended that OPM take the

initiative to review Federal leave

programs and combine and streamline

where possible, including pursuing

legislative change if necessary. In an

effort to provide agencies with more

flexibility in the way employees are

compensated and to simplify

compensation administration, OPM has

embarked on a strategic compensation

initiative. The goal of the initiative is to

develop legislation to improve the

Federal compensation system. This

initiative will include recommendations

Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Rules and Regulations 37239

for improving and simplifying paid time

off programs.

Effective Date of Regulations

Three commenters requested that

OPM make the final regulations

effective retroactively—on the date of

President Clinton’s memorandum (May

24, 1999), at the beginning of this fiscal

year (October 1, 1999), or at the

beginning of this calendar year (January

1, 2000). The labor organization

recommended that every effort be made

to ensure the changes are implemented

immediately, since employees continue

to suffer under the current limitation of

13 days of sick leave each year for

family care purposes. However, an

agency requested delaying the effective

date of the final regulations to permit

additional time for reprogramming its

payroll and accounting system to

accommodate the expanded use of sick

leave for family care purposes.

Because the implementation of a new

sick leave policy requires changes in

OPM’s Governmentwide sick leave

regulations, we must follow the

procedural requirements of the

Administrative Procedure Act (APA).

The APA generally calls for a 30-day

delay in the effective date of any

regulatory change following the

publication of final regulations. The

issuance of retroactive regulations is

neither the preferred nor usual method

for rulemaking. Retroactivity in

rulemaking is permissible where

Congress has expressly authorized it in

law, but that is not the case here. To

enable employees to use this expanded

benefit immediately, we are modifying

the requirement to delay the effective

date of the final regulations so that they

can become effective 7 days after the

date of publication in the Federal

Register.

Waiver of Delay in Effective Date

Pursuant to 5 U.S.C. 553(d)(3), I find

that good cause exists to make this rule

effective in less than 30 days. We

continue to receive inquiries from

employees, agency officials, and other

interested parties who are experiencing

a family medical emergency and need

additional paid time off. To

accommodate the pressing need for this

benefit, we are making these regulations

effective 7 days after the date of

publication.

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 affect only Federal

agencies and employees.

E.O. 12866, Regulatory Review

The Office of Management and Budget

has reviewed this rule in accordance

with Executive Order 12866.

Family Assessment Certification

I certify that these regulations would

strengthen the stability of the family,

help families meet their responsibilities,

and increase the disposable income of

families in accordance with section 654

of the Treasury and General

Government Appropriations Act, 1999,

as contained in section 101(h) of Public

Law 105–277, the Omnibus

Consolidated and Emergency

Supplemental Appropriations Act,

1999.

List of Subjects in 5 CFR Part 630

Government employees.

Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM is amending part

630 of title 5 of the Code of Federal

Regulations as follows:

PART 630—ABSENCE AND LEAVE

1. The authority citation for part 630

continues to read as follows:

Authority: 5 U.S.C. 6311; § 630.301 also

issued under Pub. L. 103–356, 108 Stat. 3410;

§ 630.303 also issued under 5 U.S.C. 6133(a);

§§ 630.306 and 630.308 also issued under 5

U.S.C. 6304(d)(3), Pub. L. 102–484, 106 Stat.

2722, and Pub. L. 103–337, 108 Stat. 2663;

subpart D also issued under Pub. L. 103–329,

108 Stat. 2423; § 630.501 and subpart F also

issued under E.O. 11228, 30 FR 7739, 3 CFR,

1974 Comp., p. 163; subpart G also issued

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

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

under 5 U.S.C. 6332, Pub. L. 100–566, 102

Stat. 2834, and Pub. L. 103–103, 107 Stat.

1022; subpart J also issued under 5 U.S.C.

6362, Pub. L. 100–566, and Pub. L. 103–103;

subpart K also issued under Pub. L. 105–18,

111 Stat. 158; subpart L also issued under 5

U.S.C. 6387 and Pub. L. 103–3, 107 Stat. 23;

and subpart M also issued under 5 U.S.C.

6391 and Pub. L. 102–25, 105 Stat. 92.

Subpart B—Definitions and General

Provisions for Annual and Sick Leave

2. In § 630.201(b), a new definition of

serious health condition is added in

alphabetical order to read as follows:

§ 630.201 Definitions.

* * * * *

Serious health condition has the

meaning given that term in § 630.1202.

* * * * *

Subpart D—Sick Leave

3. In § 630.401, the introductory text

of paragraph (a) and paragraphs (a)(3)

and (b) are revised; paragraphs (c)

through (e) are redesignated as

paragraphs (e) through (g), respectively;

in newly redesignated paragraph (f),

‘‘(c)’’ is removed and ‘‘(d)’’ is added in

its place wherever it appears; and new

paragraphs (c) and (d) are added to read

as follows:

§ 630.401 Grant of sick leave.

(a) Subject to paragraphs (b) through

(f) of this section, an agency must grant

sick leave to an employee when the

employee—

* * * * *

(3)(i) 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; or

(ii) Provides care for a family member

with a serious health condition.

* * * * *

(b) The amount of sick leave granted

to an employee during any leave year

for the purposes described in

paragraphs (a)(3)(i) and (4) of this

section may not exceed a total of 104

hours (or, in the case of a part-time

employee or an employee with an

uncommon tour of duty, the number of

hours of sick leave normally accrued by

that employee during a leave year).

(c)(1) An employee who is caring for

a family member with a serious health

condition under paragraph (a)(3)(ii) of

this section may use not more than a

total of up to 480 hours of sick leave (or,

in the case of a part-time employee or

an employee with an uncommon tour of

duty, an amount of sick leave equal to

12 times the average number of hours in

his or her scheduled tour of duty each

week) during a leave year, subject to the

limitation found in paragraph (c)(2) of

this section.

(2) If, at the time an employee uses

sick leave to care for a family member

with a serious health condition under

paragraph (c)(1) of this section, he or

she has used any portion of the sick

leave authorized under paragraph (b) of

this section during that leave year, the

agency must subtract that amount from

the maximum number of hours

authorized under paragraph (c)(1) of this

section to determine the total amount of

sick leave that may be used during the

remainder of the leave year to care for

a family member with a serious health

condition. If the employee previously

has used the maximum amount of sick

leave permitted under paragraph (c)(1)

of this section in a leave year, he or she

is not entitled to use additional sick

leave under paragraph (b).

(3) A full-time employee may use not

more than a total of 480 hours of sick

37240 Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Rules and Regulations

leave (or, in the case of a part-time

employee or an employee with an

uncommon tour of duty, an amount of

sick leave equal to 12 times the average

number of hours in his or her scheduled

tour of duty each week) for all family

care purposes under paragraphs (a)(3)

and (4) of this section.

(d) For family care purposes as

described in paragraphs (a)(3) and (4) of

this section—

(1) A full-time employee may use a

total of up to 40 hours (or, in the case

of a part-time employee or an employee

with an uncommon tour of duty, the

average number of hours in his or her

regularly scheduled administrative

workweek) of accrued and accumulated

sick leave without further regard to his

or her sick leave balance.

(2) A full-time employee may use

more than 40 hours of his or her accrued

and accumulated sick leave up to the

maximum provided by paragraphs (b)

and (c)(1) of this section only if he or

she maintains a sick leave balance of at

least 80 hours (or, in the case of a parttime employee or an employee with an

uncommon tour of duty, two times the

average number of hours in his or her

regularly scheduled administrative

workweek). An employee must maintain

this balance during any period of time

during which the employee is using

more than his or her basic entitlement

to sick leave under paragraph (d)(1) of

this section.

(3) An agency may advance only the

initial 40 hours of sick leave under

paragraph (d)(1) of this section, or a

proportional amount for an employee

with a part-time or uncommon tour of

duty. An agency may not advance sick

leave for the purpose of meeting the

requirement to retain a minimum sick

leave balance under paragraph (d)(2) of

this section or, if the employee has the

required minimum sick leave balance,

for using additional sick leave as

provided in paragraphs (b) and (c) of

this section.

* * * * *

4. Section § 630.403 is revised to read

as follows:

§ 630.403 Supporting Evidence.

(a) An agency may grant sick leave

only when supported by

administratively acceptable evidence.

Regardless of the duration of the

absence, an agency may consider an

employee’s certification as to the reason

for his or her absence as

administratively acceptable evidence.

For an absence in excess of 3 workdays,

or for a lesser period when determined

necessary, the agency may also require

a medical certificate or other

administratively acceptable evidence as

to the reason for an absence for any of

the purposes described in § 630.401(a).

(b) An agency may establish a

uniformly applied policy that requires

employees to provide administratively

acceptable evidence or medical

certification for a request for sick leave

within a specified time period. An

employee who does not provide the

required evidence or medical

certification within the specified time

period is not entitled to sick leave.

(c) An agency may require an

employee requesting sick leave to care

for a family member under

§ 630.401(a)(3)(ii) to provide an

additional written statement from the

health care provider concerning the

family member’s need for psychological

comfort and/or physical care. The

statement must certify that—

(1) The family member requires

psychological comfort and/or physical

care;

(2) The family member would benefit

from the employee’s care or presence;

and

(3) The employee is needed to care for

the family member for a specified

period of time.

§ 630.405 Use of sick leave during annual

leave or to become eligible for donated

leave.

5. In § 630.405, paragraph (a) is

amended by removing ‘‘(e)’’ and adding

in its place ‘‘(f),’’ by removing the last

sentence in paragraph (b), and by

revising paragraph (c) to read as follows:

* * * * *

(c) In the case of an employee already

in a shared leave status (i.e., using

donated annual leave) on June 20, 2000

under the voluntary leave transfer or

leave bank programs established under

subchapters III and IV of chapter 63 of

title 5, United States Code, any sick

leave available to care for a family

member under § 630.401 must be used

before continuing to use transferred

annual leave or annual leave withdrawn

from a leave bank.

Subpart L—Family and Medical Leave

§ 630.1202 Definitions.

6. In § 630.1202, paragraph (1)(ii)(B)

of the definition of serious health

condition is revised to read as follows:

* * * * *

Serious health condition. (1) * * *

(ii) * * *

(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.

* * * * *

[FR Doc. 00–14857 Filed 6–12–00; 8:45 am]

BILLING CODE 6325–01–P