This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

26977

Vol. 60, No. 98

Monday, May 22, 1995

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 630

RIN 3206–AG43

Absence and Leave; Sick Leave for

Adoption

AGENCY: Office of Personnel

Management.

ACTION: Final rule.

SUMMARY: The Office of Personnel

Management is issuing final regulations

to permit employees to use sick leave

for purposes related to adoption of a

child.

EFFECTIVE DATE: June 21, 1995.

FOR FURTHER INFORMATION CONTACT:

Sharon Herzberg, (202) 606–2858.

SUPPLEMENTARY INFORMATION: On

December 2, 1994, the Office of

Personnel Management (OPM)

published interim regulations (59 FR

62272) implementing section 629(b) of

Public Law 103–329, the Treasury,

Postal Service and General Government

Appropriations Act for fiscal year 1995,

September 30, 1994. Section 629(b)

amended 5 U.S.C. 6307 to permit

employees to use sick leave for purposes

related to the adoption of a child.

Section 629(b) also directed OPM to

prescribe regulations to allow an

employee to substitute sick leave

retroactively for all or any portion of

annual leave used by an employee for

adoption-related purposes between

September 30, 1991, and September 30,

1994.

The 60-day comment period ended on

January 31, 1995. OPM received

comments from six individuals and two

organizations that supported adoptive

families. Following is a summary of the

comments.

Use of Sick Leave for Bonding With the

Child

All commenters supported the use of

sick leave for adoption-related purposes.

One commenter applauded OPM’s

philosophy of not attempting to specify

all of the circumstances in which the

use of sick leave for adoption-related

activities would be appropriate and

opposed any greater specificity in the

final rule. However, many other

commenters were concerned about the

limitations on using sick leave for

bonding with the adopted child. The

commenters believed that adoptive

parents should be provided the same

maternity benefits as those accorded

birth parents.

Three commenters noted that it is

important to the health and well-being

of an adoptive child to allow adoptive

parents a period of absence from work

after the child arrives in the home to

assist the adopted child in acclimating

to new surroundings and adjusting to

new family members. The commenters

believe this is particularly important

when the adopted child is not a

newborn, has not previously bonded

with an adult, and is going through a

period of tremendous confusion and

upheaval.

One commenter stated that by

permitting sick leave to be used only for

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 sends a message to adoptive

parents and their children that they are

different and should be accorded

disparate treatment. An organization

stated that adoption agencies are turning

away from requiring an adoptive parent

to be home to care for a newly adopted

child, recognizing that this imposes a

hardship on the family and restricts the

pool of eligible families for children

waiting for adoption. However, the

organization further stated that although

adoption agencies recognize that it may

be impossible to require new adoptive

parents to stay home, they encourage

them to do so.

Some of the commenters believe

adoptive mothers are treated in a

discriminatory manner because they are

not entitled to maternity leave as are

biological mothers. One commenter

stated that it is routine practice for the

birth mother to be granted weeks or

months of ‘‘maternity’’ sick leave

without requiring strict medical

justification. The commenter noted that

requiring an adoptive parent to justify

each court, agency, or social-worker

visit imposes a stricter standard. One

commenter suggested that OPM should

recognize the reality of maternity leave

for biological mothers—i.e., while sick

leave would appear to be granted for the

welfare of the mother, it is in fact used

for the welfare of the child. Another

commenter believed the absence of a

provision to afford sick leave to birth

fathers, and by extension to adoptive

fathers, for maternity/bonding purposes

is discriminatory and should be

corrected.

Contrary to the belief of most of the

commenters, Federal employees,

including birth mothers, do not have an

automatic entitlement to ‘‘maternity

leave.’’ Sick leave is granted to a birth

mother only for the period of

incapacitation as a result of physical or

mental illness, injury, pregnancy,

childbirth, or medical examinations or

treatments. Agencies may grant sick

leave only when supported by evidence

that is administratively acceptable.

When determined necessary, an agency

may require medical certification. The

birth mother must use annual leave and/

or leave without pay for absences from

work beyond the period of

incapacitation—e.g., for care of the

newborn, bonding with the child, and

other childcare responsibilities.

The birth father is allowed up to 13

days of sick leave each leave year to

provide care for a family member under

OPM’s final sick leave regulations

published in Federal Register on

December 2, 1994 (59 FR 62266). OPM’s

regulations are consistent with the

Federal Employees Family Friendly

Leave Act (Public Law 103–388, October

22, 1994). The birth father may use sick

leave to care for the birth mother during

pregnancy and recovery from childbirth.

This may include accompanying the

birth mother to doctor’s appointments,

attending to the birth mother in the

hospital or other health care facility, or

caring for the birth mother during the

period of incapacitation. Again, the

agency may grant sick leave only when

supported by evidence that is

administratively acceptable, including

medical certification when required.

Adoptive parents may request sick

leave for adoption-related purposes

including, but not limited to,
26978 Federal Register / Vol. 60, No. 98 / Monday, May 22, 1995 / Rules and Regulations

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. 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.

There is no provision in law or

regulation to permit 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. In addition, we believe

granting sick leave to an adoptive

mother for bonding purposes for a

period of the time equal to that received

by a birth mother for incapacitation as

a result of childbirth would

discriminate against adoptive fathers.

The adoptive mother would receive a

greater entitlement to use sick leave for

bonding purposes than would an

adoptive father. We believe the

administration of the sick leave program

in no way discriminates against either

birth or adoptive parents. The Equal

Employment Opportunity Commission

found OPM’s interim regulations on sick

leave for adoption to be ‘‘consistent

with Federal equal employment

opportunity law and policy.’’

Another commenter declared that

OPM’s interim rule is inconsistent with

the intent of the Family and Medical

Leave Act of 1993 (FMLA). The

commenter believes the FMLA intends

for adoption and childbirth to be treated

in the same manner and that employees

should receive the same amount of leave

for these purposes.

The FMLA provides an employee

with a total of up to 12 workweeks of

unpaid leave during any 12-month

period for the birth of a son or daughter;

the adoption/foster care of a son or

daughter; or the serious health

condition of the employee or his or her

spouse, son, daughter, or parent. By law,

an employee may elect to substitute

paid leave for unpaid leave under the

FMLA, but such substitution must be

consistent with current laws and

regulations. OPM believes the

regulations are consistent with the

FMLA in that employees are entitled to

12 weeks of unpaid leave for either the

birth or adoption of a child. If the

employee chooses to substitute paid

sick leave for unpaid leave under the

FMLA, he or she may do so, but only

in those situations where the use of sick

leave would otherwise be permitted by

law or regulation.

A commenter maintained that since

the law (5 U.S.C. 6307) permits agencies

to advance a maximum of 30 days of

sick leave for purposes relating to the

adoption of a child, Congress intended

adoptive parents to have entitlement to

6 weeks (30 days) of sick leave for

adoption and bonding. However, the

legislative history of the 1-year

experimental program created by Public

Law 101–509 to test the feasibility of

granting sick leave for adoption-related

purposes does not support the

contention that Congress intended an

entitlement to sick leave for bonding

purposes. Congress did recognize the

time-consuming aspects of adoption and

wished to make sick leave available for

adoption-related purposes.

Representative Frank Wolf, sponsor of

the program, spoke of eliminating ‘‘an

impediment to adoption faced by

Federal workers—the fact that current

Federal leave policies require adoptive

parents to take annual leave, their

vacation time, when arranging an

adoption. This measure would simply

put adoptive parents in the Federal

work force on an equal footing with

biological parents, who are currently

allowed to take sick leave for prenatal

doctor visits.’’ (See Congressional

Record, Extension of Remarks, May 24,

1990, page E1757.) There is no

indication that Congress intended to

entitle adoptive parents to more paid

leave than is available to birth parents.

We recognize the importance of and

need for bonding time for both birth and

adoptive parents and their new

children. However, we continue to

believe annual leave and leave without

pay are the appropriate means to secure

time with the newborn or newlyadopted child. In addition, agencies

have the authority to advance annual

leave to employees. The new

entitlement to use sick leave to fulfill

the legal and administrative

requirements for adoption will allow an

adoptive parent to conserve his or her

annual leave and ensure the availability

of annual leave for the period of

bonding with the child. In addition, the

FMLA provides 12 weeks of leave

without pay for childbirth or adoption

and can be used alone or in conjunction

with annual and sick leave, where

appropriate, to provide adequate time

off for both birth and adoptive parents.

OPM believes no change is necessary in

the interim regulations.

Retroactive Substitution of Sick Leave

for Annual Leave

As required by section 629(b) of

Public Law 103–329, OPM’s interim

regulations permit an employee to

substitute sick leave retroactively for all

or any portion of any annual leave used

by the employee for adoption-related

purposes between September 30, 1991,

and September 30, 1994. One

commenter believed permitting an

employee to substitute sick leave

retroactively for annual leave used for

purposes of adoption unfairly penalized

birth fathers because birth fathers

cannot substitute sick leave

retroactively for annual leave used for

the birth of a child.

The Federal Employees Family

Friendly Leave Act and OPM’s final sick

leave regulations permit most Federal

employees to use a total of up to 104

hours (13 days) of sick leave each leave

year to give care or otherwise attend to

a family member or to make

arrangements for or attend the funeral of

a family member. There are no

provisions in law or regulation

permitting the retroactive substitution of

sick leave for annual leave used for

these purposes. In contrast, the

retroactive substitution of sick leave for

annual leave taken for adoption-related

purposes is an entitlement under

section 629(b) of Public Law 103–329.

Another commenter suggested that

when the substitution of sick leave for

annual leave results in an annual leave

balance that exceeds the maximum

annual leave ceiling allowed for

carryover into the next leave year, OPM

should allow an employee 3 years to use

the excess annual leave. OPM addressed

this issue in the ‘‘Supplementary

Information’’ accompanying the interim

regulations. The agency and employee

should be aware of an employee’s

obligation to schedule and use excess

annual leave before the end of the year.

Forfeited annual leave may not be

restored unless the employee meets the

conditions specified in 5 U.S.C. 6304(d).

We caution employees to apply for the

substitution of sick leave for annual

leave used for adoption-related

purposes early enough in the leave year

to allow sufficient time to schedule and

use the credited annual leave before the

end of the leave year. We believe no

change is necessary in the regulations.

The same commenter recommended

that OPM indicate what is a

‘‘reasonable’’ period of time for an

agency to comply with the employee’s

request for substitution. The commenter

suggested a period of 6 weeks. The

amount of time needed to comply with

an employee’s request for retroactive

substitution will vary depending on the

number of applications received and the

quality of the documentation/evidence

submitted that specifies the period(s)

and amount(s) of annual leave that were

used. OPM extended the time period by

1 year, to September 30, 1996, for an
Federal Register / Vol. 60, No. 98 / Monday, May 22, 1995 / Rules and Regulations 26979

employee to submit a written

application to have his or her leave

accounts adjusted. We believe this will

make it possible for all affected

employees to benefit from this

provision. Therefore, OPM has not

revised the regulation in this regard.

Miscellaneous Leave Administration

Amendments

On December 2, 1994, OPM issued

final sick leave regulations to permit

most Federal employees to use a total of

up to 104 hours of sick leave each leave

year to provide care for a family member

or to make arrangements for or attend

the funeral of a family member. An

employee may use up to 40 hours of his

or her accrued sick leave for these

purposes without regard to the amount

of leave remaining in his or her sick

leave account. An employee may use up

to 64 additional hours of sick leave if he

or she maintains a balance of at least 80

hours in his or her sick leave account.

OPM received many telephone

inquiries concerning whether agencies

may advance sick leave for the purpose

of satisfying the 80-hour sick leave

balance requirement. Although this

matter was addressed briefly in the

‘‘Supplementary Information’’

accompanying the final regulations, we

are using this opportunity to further

clarify the regulation at 5 CFR

630.401(c).

The 40 hours of sick leave that may

be used for family care or bereavement

purposes may be advanced. Agencies

may not advance sick leave so that an

employee may meet the requirement to

maintain a balance of 80 hours of sick

leave in his or her account or to use

additional sick leave for these purposes.

The intent of the statutory 80-hour

minimum sick leave balance

requirement is that an employee should

retain at least 80 hours of accrued sick

leave in his or her account for use in the

event of the employee’s own

incapacitation for duty—i.e., without

the necessity of requesting advanced

leave or shared leave. To advance an

additional amount of sick leave (beyond

the 40 hours every employee is entitled

to use for family care or bereavement

purposes) would circumvent the intent

of the law. Therefore, we are amending

section 630.401(c) to state that leave

may not be advanced for the purpose of

meeting the requirement to retain a

minimum sick leave balance or using

additional sick leave for family care or

bereavement purposes.

OPM is also using this opportunity to

make a technical correction in 5 CFR

630.201, Definitions. In the interim

regulations to incorporate certain

incentive awards and pay and leave

administration rules contained in the

provisionally retained Federal

Personnel Manual material published in

the Federal Register on December 28,

1994 (59 FR 66629), the numbering of

paragraphs (7) through (9) of 5 CFR

630.201(b) was incorrect. The

numbering of paragraphs (7) through (9)

has been corrected as follows: (7)

Medical certificate; (8) Uncommon tour

of duty; and (9) United States.

Regulatory FlexibilityAct

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

employees and agencies.

List of Subjects in 5 CFR Part 630

Government employees.

U.S. Office of Personnel Management.

James B. King,

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 Public Law 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. 6403(d)(3), Public Law 103–

337 (108 Stat. 2663); subpart D also issued

under Public Law 103–329 (108 Stat. 2423);

§ 630.501 and subpart F also issued under

E.O. 11228, 30 FR 7739, June 16, 1965, 3 CFR

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

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

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

U.S.C. 6332 and Public Laws 100–566 (102

Stat. 2834) and 103–103 (107 Stat. 1022);

subpart J also issued under 5 U.S.C. 6362 and

Public Laws 100–566 and 103–103; subpart

K also issued under Public Law 102–25 (105

Stat. 92); and subpart L also issued under 5

U.S.C. 6387 and Public Laws 103–3 (107 Stat.

23).

Subpart D—Sick Leave

§ 630.201 [Amended]

2. Section 630.201 is amended by

redesignating the first paragraph (b)(8)

as paragraph (b)(9), paragraph (b)(7) as

new paragraph (b)(8), and the existing

second paragraph (b)(8) as paragraph

(b)(7).

3. In § 630.401, paragraph (c) is

revised to read as follows:

§ 630.401 Grant of sick leave.

* * * * *

(c) To be granted any sick leave for

the purposes described in paragraphs (a)

(3) or (4) of this section during any leave

year in an amount exceeding a total of

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 the employee’s

scheduled tour of duty each week), the

employee concerned shall retain in his

or her sick leave account a balance of at

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

uncommon tour of duty, an amount

equal to twice the average number of

hours in the employee’s scheduled tour

of duty each week). No sick leave may

be advanced under 5 U.S.C. 6307(d) for

the purpose of meeting the requirement

to retain a minimum sick leave balance

or for using additional sick leave for the

purposes described in paragraphs (a) (3)

and (4) of this section when such use

would otherwise cause the employee’s

sick leave balance to fall below the

minimum required.

* * * * *

Subpart I—Voluntary Leave Transfer

Program

§ 630.907 [Amended]

3. In § 630.907 paragraph (c)

introductory text, remove the words ‘‘of

chapter I’’; in paragraph (d)(2), remove

the second occurrence of the word ‘‘by’’

and add in its place the word ‘‘to’’.

Subpart J—Voluntary Leave Bank

Program

§ 630.1101 [Amended]

4. In § 630.1011 paragraph (b)(2),

remove the word ‘‘affect’’ and add in its

place the word ‘‘effect’’.

5. In addition to the amendments set

forth above, in 5 CFR part 630, subparts

I and J, remove the words ‘‘or work’’ in

the following places:

§§ 630.905, 630.907, 630.1007, 630.1008

[Amended]

(a) Section 630.905 (b) and (c);

(b) Section 630.907(a)(1), (a)(2), and

(d)(1);

(c) Section 630.1007 (b) and (c); and

(d) Section 630.1008(a)(1), (a)(2), and

(d)(1).

[FR Doc. 95–12411 Filed 5–19–95; 8:45 am]

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