[Federal Register Volume 59, Number 231 (Friday, December 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29820]


[[Page Unknown]]

[Federal Register: December 2, 1994]


      
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Part X





Office of Personnel Management





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5 CFR Part 630




Absence and Leave; Sick Leave for Adoption; Final Rule and Interim Rule
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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AE95

 
Absence and Leave; Sick Leave

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management is issuing final 
regulations on the use and recredit of sick leave for Federal 
employees. Consistent with the recently enacted Federal Employees 
Family Friendly Leave Act, the final regulations expand the use of sick 
leave by permitting most employees to use a total of up to 104 hours of 
sick leave each leave year (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 during a leave year) to provide care for a 
family member as a result of physical or mental illness; injury; 
pregnancy; childbirth; or medical, dental, or optical examination or 
treatment; or to make arrangements necessitated by the death of a 
family member or attend the funeral of a family member. The final 
regulations also remove the 3-year break-in-service limitation on the 
recredit of sick leave for former employees who are reemployed on or 
after December 2, 1994.

EFFECTIVE DATE: December 2, 1994.

FOR FURTHER INFORMATION CONTACT: Jo Ann Perrini, (202) 606-2858.

SUPPLEMENTARY INFORMATION: On May 11, 1994 (59 FR 24560), the Office of 
Personnel Management (OPM) published proposed regulations to amend 5 
CFR 630.401 to provide that employees may use a total of up to 5 days 
of sick leave per leave year to provide care for a child, spouse, or 
parent as a result of sickness, injury, pregnancy, or childbirth; to 
make arrangements necessitated by the death of a family member; or to 
attend the funeral of a family member. In addition, OPM proposed to 
amend 5 CFR 630.502 and 630.504 to remove the 3-year brake-in-service 
limitation on the recredit of sick leave and permit employees who 
separate from Federal service to have their unused sick leave 
recredited in full to their sick leave accounts upon return to Federal 
service on or after the effective date of the final regulations. These 
changes were recommended in the Report of the National Performance 
Review on September 7, 1993. The proposed regulations also included 
conforming changes in Secs. 630.402 (Application for sick leave), 
630.403 (Supporting evidence), and 630.405 (Use of sick leave during 
annual leave).
    During the comment period, OPM received comments from 1 Member of 
Congress, 29 Federal agencies, 1 labor organization, 13 professional 
organizations and associations, and 99 individuals, for a total of 143 
comments. Thirty-four commenters supported the proposed revisions in 
the sick leave regulations without change. Five individuals opposed the 
proposed sick leave regulations. These individuals believed sick leave 
should be granted only for an employee's personal illness or injury and 
that Federal employees earn and accrue sufficient annual leave to 
provide care for family members.
    After the close of the comment period, Congress passed and the 
President signed into law the Federal Employees Family Friendly Leave 
Act, Public Law 103-388, on October 22, 1994. The Act authorizes the 
use by all covered full-time employees of a total of up to 40 hours (5 
workdays) of sick leave per year to (1) give care or otherwise attend 
to a family member having an illness, injury, or other condition which, 
if an employee had such a condition, would justify the use of sick 
leave by the employee; or (2) make arrangements or attend the funeral 
of a family member. In addition, a covered full-time employee who 
maintains a balance of at least 80 hours of sick leave may use an 
additional 64 hours (8 workdays) of sick leave per year for these 
purposes, bringing the total amount of sick leave available for family 
care and bereavement purposes to a maximum of 104 hours (13 workdays) 
per year for employees who satisfy this condition.
    The Federal Employees Family Friendly Leave Act will become 
effective on December 22, 1994. As discussed below, however, we have 
determined that regulatory provisions consistent with the entitlements 
provided by this legislation should be made effective immediately under 
the regulatory authority granted to OPM by the current sick leave 
statute (5 U.S.C. 6311).
    A summary of the comments received by OPM on the proposed sick 
leave regulations and a description of the revisions made in the 
regulations as a result of the comments are presented below.

Use of Sick Leave To Care for Family Members

    A large proportion of the commenters (65) opposed limiting the use 
of sick leave to provide care only for certain family members--i.e., a 
child, spouse, or parent. The commenters believed the proposed rule was 
unfair and discriminatory to many Federal employees who share close 
family responsibilities in a family group broader than a traditional 
nuclear family. Further, they suggested this policy would be 
inconsistent with the intent of many other OPM initiatives designed to 
assist Federal employees in balancing work and family needs. For 
example, one agency suggested that if the purpose of the proposed sick 
leave regulations is to be sensitive to the needs of all employees, 
some consideration should be given to those individuals who have legal 
responsibility for other family members or significant others. One 
commenter recommended that OPM's definition of family member be changed 
so that the Federal Government could set an example as an employer of a 
diverse workforce.
    One agency and 11 individuals recommended that the phrase ``son or 
daughter'' be substituted for the term ``child.'' The definition of 
``child'' in the proposed rule includes individuals over the age of 18 
only if they are disabled. The agency was concerned that the term 
``child'' may be perceived as connoting a lack of maturity and 
suggested that this connotation is not appropriate to individuals over 
18 who are disabled because it may reinforce negative stereotypes about 
individuals with disabilities. The agency stated that the phrase ``son 
or daughter,'' as used in the Family and Medical Leave Act of 1993 
(FMLA) and in OPM's implementing regulations under the Act, is less 
likely to connote immaturity, since the phrase identifies the 
relationship rather than a stage of development.
    Many commenters pointed out that the definition of ``child'' in the 
proposed rule would prohibit parents from using sick leave to arrange 
for or attend the funeral of an adult son or daughter who is over 18 
years old and is not disabled.
    One agency noted that some agencies provide broader coverage for 
benefits under the FMLA by allowing additional family members to be 
covered (as encouraged in OPM's interim regulations implementing Title 
II of the FMLA) and that these agencies will be put in the awkward 
position of having different coverage for two leave programs that OPM 
recognizes as having a ``similarity of purpose.''
    Most of the commenters recommended that OPM use the broader 
definition of ``family member'' found in the Voluntary Leave Transfer 
Program. One commenter noted that this definition is more accommodating 
to the needs of a wide variety of family compositions. Another 
suggested that the broader definition would more faithfully fulfill the 
Federal Government's purpose of being a responsive, competitive, and 
model employer. One agency noted that the broader definition is 
consistent with the intent of the National Performance Review 
recommendations. Furthermore, the agency noted that the broader 
definition recognizes that in today's society there are both 
traditional and nontraditional families and that the responsibilities 
placed on the employee are the same in both cases.
    In response to these comments and consistent with the requirements 
of the Federal Employees Family Friendly Leave Act, the final 
regulations include the broader definition of ``family member'' that is 
used in the Federal leave sharing program. For these purposes, ``family 
member'' means (a) spouse and parents thereof; (b) children, including 
adopted children, and spouses thereof; (c) parents; (d) brother 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. The term ``children, including adopted 
children, and spouses thereof,'' as used in this definition, covers 
adult sons and daughters, whether disabled or not, and therefore 
permits an employee to use sick leave to arrange for or attend the 
funeral of an adult son or daughter who is over 18 years old and is not 
disabled.

Limitation on Use of Sick Leave for Family Care or Bereavement

    A significant number of the commenters (42) opposed OPM's proposed 
5-day limitation on the amount of sick leave to be used each leave year 
for family care or bereavement purposes. One commenter questioned 
whether 5 days of sick leave each leave year realistically would be 
sufficient to enable an employee to provide care for family members, 
especially in situations of terminal or serious illness. One commenter 
stated that the current move to ``empower'' employees assumes that 
employees are able to exercise good judgment about their jobs. 
Therefore, it was suggested, OPM should assume that employees can make 
a fair judgment about their own usage of leave. One agency commented 
that if the absence represents an appropriate use of sick leave, the 
amount should be determined by the circumstances of each case, not by 
an arbitrary ceiling.
    A professional association commented that the proposed 5-day limit 
on the use of sick leave to care for a family member is unnecessary and 
too restrictive and that it contravenes the FMLA, which imposes no such 
limit. The association believes the FMLA already permits Federal 
employees to substitute their accrued or accumulated sick leave for any 
or all of the 12 weeks of unpaid FMLA leave to care for a family 
member. Under 5 U.S.C. 6382(d), an employee may elect to substitute 
paid accrued or accumulated annual or sick leave for any part of the 
12-week period of FMLA leave, ``except that nothing in this subchapter 
shall require an employing agency to provide paid sick leave in any 
situation in which such employer would not normally provide any such 
paid leave.''
    The association believes the legislative history of the FMLA shows 
that Congress intended that employees would be entitled to unlimited 
substitution of sick leave for unpaid leave provided by the FMLA. The 
association raised these same objections in its comments to the 
Department of Labor (DOL) on its Notice of Proposed Rulemaking (58 FR 
13394, March 10, 1993) requesting assistance in developing interim 
regulations implementing Title I of the FMLA and to OPM on its interim 
regulations implementing Title II of the FMLA (58 FR 39596, July 23, 
1993). The association further stated that since OPM has not yet issued 
final regulations on the FMLA and has not resolved the issue of 
substitution of sick leave, it is premature for OPM to promulgate a 
sick leave rule that may contradict OPM's final FMLA regulations.
    DOL addressed the professional association's objections in its 
interim regulations implementing Title I of the FMLA in 29 CFR part 825 
(58 FR 31794, June 4, 1993). DOL stated that ``the history of this 
provision lacks an explanation that it is so intended and cannot, 
therefore, overcome the clearer reading of the statutory language.'' 
OPM agrees with DOL's assessment that the legislative history does not 
support the idea that Congress intended unlimited substitution of paid 
sick leave for FMLA leave without pay. In addition, Sec. 630.1205(b)(1) 
of OPM's interim regulations implementing Title II of the FMLA 
specifically states that an employee may elect to substitute annual or 
sick leave for unpaid FMLA leave, ``consistent with current law and 
regulations governing the granting and use of annual and sick leave.''
    Most of the agencies commenting on the 5-day limitation suggested 
that OPM impose no limit on the amount of sick leave that an employee 
may use to provide care for an ill or injured family member. Two 
agencies recommended that, because of the similarity of purpose between 
this initiative and the Family and Medical Leave Act, the sick leave 
regulations should be amended to permit employees to substitute sick 
leave for any or all of the 12 weeks of unpaid leave provided by the 
FMLA. One agency noted that by aligning the sick leave regulations with 
the FMLA, OPM could reduce the need for another set of tracking systems 
covering time off to care for family members. Several agencies reported 
that tracking and monitoring the proposed 5-day limit would impose an 
additional administrative burden on their payroll and timekeeping 
functions because they would be required to track two types of sick 
leave--sick leave used for the employee's own medical needs and sick 
leave used for family needs. One agency stated that the potential for 
abuse appears high, since an employer may have difficulty verifying the 
medical status of family members.
    A professional organization stated that limiting the use of sick 
leave to 5 days per year for family care or bereavement purposes is 
both inadequate and impractical to administer and would send a mixed 
message to Federal employees that family-friendly programs are 
encouraged but only minimally supported. The organization objected to 
what it characterized as OPM's patronizing tone in expressing a need to 
exercise caution in making changes in the sick leave regulations that 
might allow for abuse or harm the employee's ability to save enough 
sick leave for his or her own personal use. The organization suggested 
that employees should be viewed as fully responsible for accommodating 
their own personal and family needs and recommended allowing employees 
to use an unlimited amount of sick leave for family care purposes.
    As noted above, the Federal Employees Family Friendly Leave Act 
establishes a maximum limitation of 104 hours (13 workdays) of sick 
leave that may be used by most employees to care for a family member or 
for bereavement purposes. Consistent with the limitations established 
by this legislation and in response to the comments described above, 
the final regulations provide that all covered full-time employees may 
use a total of up to 40 hours (5 workdays) of sick leave each year for 
family care or bereavement purposes. In addition, a covered full-time 
employee who maintains a balance of at least 80 hours of sick leave may 
use an additional 64 hours (8 workdays) of sick leave per year for 
these purposes, bringing the total amount of sick leave available for 
family care and bereavement purposes to a maximum of 104 hours (13 
workdays) per year for employees who satisfy this condition. (See 
Sec. 630.401 (b) through (d).)
    For a part-time employee or an employee with an uncommon tour of 
duty, the final regulations provide that the basic amount of sick leave 
to be made available for family care or bereavement purposes shall be 
equal to the average number of hours of work in the employee's 
scheduled tour of duty each week. In addition, a part-time employee or 
an employee with an uncommon tour of duty who maintains a sick leave 
balance equal to at least twice the average number of hours of work in 
the employee's scheduled tour of duty each week may use an amount equal 
to the number of hours of sick leave normally accrued by the employee 
during a leave year for these purposes. These limitations are 
consistent with the amendments made by the Federal Employees Family 
Friendly Leave Act, which authorizes OPM to prescribe limitations for 
such employees that are proportional to those applicable to full-time 
employees with a tour of duty of 40 hours per week.
    OPM believes an annual limit of 104 hours (13 workdays) of sick 
leave to provide care for an ill or injured family member will be an 
ample amount of time for most employees to give care and attendance to 
family members for illness or injury when viewed in the context of 
other available options and entitlements. The entitlement to use a 
total of up to 104 hours of sick leave, in conjunction with a generous 
annual leave system, advanced annual leave, the leave transfer and 
leave bank programs, flexible work schedules, flexiplace, unpaid leave 
under the FMLA, and compensatory time off will further assist the vast 
majority of employees to meet their sickness-related family care needs.

Sick Leave for Exposure to a Communicable Disease

    A labor organization, an agency, and some individuals commented 
that the 5-day limit on the use of sick leave for family care purposes 
would restrict, rather than expand, entitlement to use sick leave in 
the case of employees who provide care for a family member who is 
afflicted with a contagious disease. The labor organization pointed out 
that Sec. 630.401(c) of the current regulations places no limit on the 
amount of sick leave that may be used under these circumstances and 
suggested that the 5-day limit would impose an unfair hardship when 
compared to the current policy.
    The current regulatory provision authorizing the use of sick leave 
to care for ``a member of [the employee's] immediate family who is 
afflicted with a contagious disease'' is based primarily on the need to 
prevent the spread of contagion in the workplace. When the health 
authorities having jurisdiction or a health care provider determines 
that an employee's exposure to a communicable disease would jeopardize 
the health of other employees, we continue to believe it is appropriate 
to grant sick leave to the employee for the entire period of time 
during which the danger to the health of other employees exists. 
However, when it cannot be determined that an employee's exposure to a 
communicable disease would jeopardize the health of other employees, we 
do not believe there is any justification for allowing the employee to 
use more sick leave than would be available to other employees who wish 
to provide care for a family member whose illness or incapacitation is 
not the result of a communicable disease. In such cases, employees may 
request annual leave or leave without pay to provide additional care 
and may also be eligible for participation in the Federal leave sharing 
program.
    The determination as to whether an employee's exposure to a 
communicable disease would jeopardize the health of other employees 
necessarily is a matter of judgment. Supervisors should rely on the 
expertise of the health authorities having jurisdiction or a health 
care provider in determining the period of time for which sick leave 
should be authorized and may require the employee to submit medical 
documentation to support the use of sick leave under these 
circumstances for an extended period of time.
    OPM also received five comments relating to other aspects of the 
proposed regulation on the use of sick leave in cases of communicable 
disease. Some asked for additional clarification concerning what 
constitutes a ``severe communicable disease.'' One agency recommended 
that the word ``severe'' be deleted. The agency reasoned that if the 
local health authorities or health care provider has determined that a 
person so exposed is required to be isolated for a specified period of 
time, the communicable disease must be ``severe.'' The agency suggested 
that using the modifier ``severe.'' may put management in the difficult 
position of second-guessing health authorities. We find this 
observation compelling and have deleted the word ``severe.'' We have 
not attempted to define the term ``communicable disease,'' however, 
because the key determination that has to be made is not whether a 
particular illness constitutes a ``communicable disease,'' but whether 
an employees's exposure to the illness would jeopardize the health of 
other employees. This determination can be made only by the health 
authorities having jurisdiction or a health care provider.
    A labor organization objected to the characterization of a ``severe 
communicable disease'' as one that requires ``isolation for a specified 
period.'' It suggested that this characterization implies that if the 
health authorities or health care provider does not, or cannot, 
identify a ``specified period'' of isolation, an application for sick 
leave will be denied. We agree that this characterization is 
unnecessary and have revised Sec. 630.401(a)(5) to remove the reference 
to ``isolation'' altogether. In addition, we have removed the 
definition of ``contagious disease'' in Sec. 630.201(b)(3). In response 
to another comment, we have also provided a definition of ``health care 
provider'' in Sec. 630.201(b)(5).
    As a result of these changes, employees will be permitted to use 
sick leave for the entire period of time during which the health 
authorities having jurisdiction or a health care provider determines 
that an employee's exposure to a communicable disease would jeopardize 
the health of other employees. Full-time employees will be limited to a 
total of 13 days of sick leave per year (subject to the requirement in 
Sec. 630.401(c) to maintain 80 hours of sick leave in their account) 
when it cannot be determined that an employee's exposure to a family 
member's communicable disease would jeopardize the health of other 
employees.

Calculation of Sick Leave

    The proposed regulations would permit employees to use a total of 
up to 5 days of sick leave each year (or, in the case of a part-time 
employee or an employee with an uncommon tour of duty, the average 
number of hours of work in the employee's scheduled tour of duty each 
week) to provide care for a family member or for bereavement purposes. 
Several agencies requested guidance on how to calculate the 5 days of 
sick leave for part-time employees or employees working compressed work 
schedules. They asked what period of time an agency should use to 
determine the average number of hours of work in an employee's tour of 
duty each week. One agency suggested that OPM use either days or hours, 
but not both. The agency further recommended the use of hours to 
calculate the entitlement to sick leave to care for a family member 
because granting 5 days of sick leave to a full-time employee on a 
compressed work schedule amounts to 50 hours for an employee with a 10-
hour daily tour of duty (and represents more that 1 week).
    OPM agrees that it would be desirable to express these entitlements 
in terms of ``hours'' rather than ``days.'' As a result, 5 CFR 630.401 
has been revised accordingly. If the number of hours of work in an 
employee's tour of duty is changed during the leave year, the 
employee's entitlement to use sick leave to care for a family member or 
for bereavement purposes must be recalculated based on the new tour of 
duty. As provided in 5 CFR 630.206, employees may take sick leave to 
care for a family member in increments of less than 1 hour if the 
agency's leave policies allow the granting of leave in increments of 
less than 1 hour.

Recredit of Sick Leave

    Nineteen commenters supported OPM's proposal to remove the 3-year 
break-in-service limitation on the recredit of sick leave; one 
individual opposed the change, believing that there should be a penalty 
for voluntary separation. Many agencies and individuals believe the 
elimination of the 3-year limitation on the recredit of sick leave 
would be an incentive for employees under the Federal Employees 
Retirement system (FERS) to save their sick leave as insurance for 
possible future use. However, several individual employees objected to 
OPM's intent to make this change prospective. These individuals thought 
our proposal unfairly discriminated against employees who had forfeited 
sick leave as a result of returning to Federal service prior to the 
effective date of the rule change.
    OPM agrees that the proposed change in the rules on the recredit of 
sick leave fosters the conscientious use of sick leave. Employees will 
no longer feel forced to use their sick leave prior to separating from 
the Federal Government because there will no longer be a risk of 
forfeiting accrued sick leave when they return to Federal employment. 
However, OPM does not believe it is feasible to give this change 
retroactive effect.
    Under the Administrative Procedure Act, retroactivity is not 
favored where it could work an inequity. OPM believes retroactivity 
could create as many inequities as it alleviates, since any effective 
date that OPM selects (except an indefinite retroactive effective date) 
will be perceived as unfair by employees who do not benefit from the 
change. An indefinite retroactive effective date for the recredit of 
sick leave would cause administrative problems for Federal agencies 
because it may be difficult to identify all employees who were 
adversely affected. In addition, it may be difficult, if not 
impossible, to reconstruct affected employees' sick leave records.
    Based on the comments we received, there appears to be confusion as 
to whether the removal of the 3-year break-in-service limitation on the 
recredit of sick leave applies to an employee who resigns before the 
effective date of the regulations and returns after the effective date. 
(OPM also received numerous telephone inquiries on this matter.) 
Therefore, we have revised Sec. 630.502(b) to state that a former 
employee is entitled to a recredit of sick leave (without regard to the 
date of his or her separation) if reemployed in the Federal Government 
on or after the effective date of these regulations, unless the sick 
leave was forfeited upon reemployment in the Federal Government before 
the effective date of these regulations. Similar revisions have also 
been made in Secs. 630.502(c), (e), and (f) and 630.504(b).
    Reemployed annuitants also are entitled to a recredit of sick 
leave. However, the elimination of the 3-year restriction on sick leave 
recredit does not affect the sick leave the reemployed annuitant had at 
the time of retirement if that sick leave was creditable in the annuity 
computation. That sick leave balance became part of the annuity 
computation and is no longer available for use as sick leave. 
Recredited sick leave will be added to the reemployed annuitant's 
current sick leave account for use in his or her current employment. If 
the reemployed annuitant qualifies for a supplemental or redetermined 
annuity under the Civil Service Retirement System, 5 U.S.C. 8344, any 
unused sick leave in his or her sick leave account upon separation 
after reemployment may be included in the computation of the 
supplemental or redetermined benefit.

Voluntary Leave Transfer and Leave Bank Programs

    Three agencies noted that an employee who applies to become a leave 
recipient under the voluntary leave transfer or leave bank programs to 
care for a family member with a medical emergency must exhaust all 
available leave (excluding advanced leave) before he or she becomes 
eligible for any donated leave. Since an employee was previously not 
permitted to use sick leave to care for a family member (except in 
cases of contagious disease), there was no requirement to exhaust 
available sick leave before requesting donated leave in such cases. The 
agencies suggested that an employee be required to use the sick leave 
provided under Sec. 630.401(b) to care for a family member before he or 
she can become eligible for donated leave. OPM agrees that an employee 
is required to use the sick leave available under Sec. 630.401(b) 
through (d) before becoming eligible for donated leave to care for a 
family member. The regulations have been revised to clarify this matter 
in the case of applications to become a leave recipient that are 
approved on or after the effective date of these regulations. (See 
Sec. 630.405(b).) In addition, the regulations have been revised to 
require an employee who is in a shared leave status on the effective 
date of these regulations to use the sick leave available under 
Sec. 630.401(b) through (d) before he or she can continue using donated 
leave. (See Sec. 630.405(c).)

Sick Leave for Adoption

    Five commenters noted that OPM's proposal to revise the sick leave 
regulations did not include any provisions authorizing the use of sick 
leave for purposes related to adoption, as recommended by the Report of 
the National Performance Review. Under previous law, OPM did not have 
authority to permit the use of sick leave for adoption. However, 
section 629(b) of Public Law 103-329, September 30, 1994, the Treasury, 
Postal Service, and General Government Appropriations Act for fiscal 
year 1995, amends 5 U.S.C. 6307 to permit the use of sick leave for 
purposes relating to the adoption of a child. In addition, the new law 
allows sick leave to be substituted retroactively for any annual leave 
used by an employee for adoption-related purposes between September 30, 
1991, and September 30, 1994. OPM is issuing interim regulations 
permitting the use of sick leave for adoption-related purposes at the 
same time as the final sick leave regulations are issued.

Recordkeeping and Reporting Requirements

    As required by the Federal Employees Family Friendly Leave Act, OPM 
must submit a report to Congress by June 22, 1997, to evaluate the use 
of sick leave under the Federal Employees Family Friendly Leave Act and 
make a recommendation as to whether or not the entitlements under the 
Act should continue beyond December 22, 1997. To enable OPM to have 
access to sufficient information to make such an evaluation, a new 
section has been added at 5 CFR 630.408 to require agencies to maintain 
and report to OPM information on each employee's use of sick leave to 
care for a family member or for bereavement purposes as provided under 
the final regulations. Beginning with leave year 1995, the regulations 
require agencies to maintain records on (1) the grade or pay level and 
gender of each employee; (2) the total number of hours of sick leave 
used by each employee for family care or bereavement purposes and for 
all other purposes; and (3) any additional information OPM may require.

Suggestions for Leave Reform

    Three agencies observed that opening up sick leave usage to 
situations other than the employee's own medical needs blurs the 
distinction between sick leave and annual leave. One agency suggested 
that this should be considered in future discussions on how the Federal 
leave program can be reformed to help Federal employees cope with their 
work and family responsibilities.

Miscellaneous Comments

    A labor organization requested that OPM clarify that the 5-day 
limitation on the use of sick leave to make arrangements necessitated 
by the death of a family member or attend the funeral of a family 
member does not apply to an employee's incapacitation due to sickness, 
including severe depression or emotional distress, resulting from the 
death of a family member. OPM concurs with this comment. Employees who 
are incapacitated as a result of severe emotional distress due to the 
death of a family member are entitled to use sick leave for their own 
sickness or illness. This is consistent with an opinion of the 
Comptroller General (B-207444, October 20, 1982). In response to this 
comment, Sec. 630.401(a)(2) has been clarified to state that an 
employee may use sick leave because of incapacitation for the 
performance of duties by physical or mental illness.
    A professional organization suggested that OPM consider permitting 
Federal employees to transfer their available annual leave to family 
members who are also employed by the Federal Government. This 
suggestion would require legislation. Under current law, sections 6332 
and 6362 of title 5, United States Code, specifically provide for the 
transfer of annual leave only for medical emergencies.
    Several agencies requested guidance as to whether the 5 days of 
sick leave to care for a family member or for bereavement purposes 
could be advanced and whether an employee may substitute the 5 days of 
sick leave for unpaid leave under the FMLA, when appropriate. The sick 
leave available to covered employees for these purposes under the final 
regulations may be advanced, and such employees may substitute sick 
leave for unpaid leave under the FMLA. In addition, an agency 
questioned whether the 5 days of sick leave may accumulate over the 
years without limit, like sick leave generally, even though only 5 days 
of sick leave may be used each leave year. If an employee does not use 
any or all of the amount of sick leave provided under Sec. 630.401 for 
family care or bereavement purposes in a leave year, it cannot be 
accumulated in succeeding years to be used to care for a family member 
or for bereavement purposes.
    Some agencies requested that OPM clearly define the situations in 
which an employee may use sick leave to care for a family member--e.g., 
for medical and dental appointments or for a common cold, fever, or 
vomiting, since a child care facility typically will not permit the 
attendance of a child with these symptoms. An agency questioned how the 
sick leave program will be used in conjunction with other leave 
programs--e.g., the leave sharing program, the FMLA, and advanced 
leave. Agencies have discretionary authority to administer the Federal 
leave program, consistent with current law and regulations. OPM 
encourages agencies to assist employees in balancing their work and 
family responsibilities. Agencies must apply the same criteria they 
would apply if an employee were suffering from a similar symptoms or 
receiving medical, dental, or optical examination or treatment.
    Finally, an agency requested that OPM consider revisions that would 
result in the crediting of sick leave in retirement computations for 
employees covered by FERS or allow some type of payback for sick leave. 
This comment is beyond the scope of these regulations and would require 
a legislative change.

Other Changes

    The final regulations at Sec. 630.401(a)(2) have been revised to 
permit the use of sick leave by an employee who is incapacitated for 
the performance of his or her duties by physical or mental illness or 
to care for a family member incapacitated as a result of physical or 
mental illness. The purpose of this change is to clarify the 
circumstances in which an employee is entitled to use sick leave.

Waiver of Delay in Effective Date

    In the spirit of the President's memorandum of July 11, 1994, 
directing agencies to establish and support family-friendly work 
arrangements, and consistent with the recent changes in law on the 
purposes for which sick leave may be used, I find good cause exists for 
making these rules effective in less than 30 days pursuant to 5 U.S.C. 
553(d)(3). The delay in the effective date is being waived to give 
affected employees the benefit of these new provisions as of December 
2, 1994.

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 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 is revised to read as 
follows:

    Authority: 5 U.S.C. 6311; Sec. 630.303 also issued under 5 
U.S.C. 6133(a); subpart D also issued under Pub. L. 103-329 (108 
Stat. 2423); Sec. 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 Pub. L. 100-566 
(102 Stat. 2834), and 103-103 (107 Stat. 1022); subpart J also 
issued under 5 U.S.C. 6362 and Pub. L. 100-566 and 103-103; subpart 
K also issued under Pub. L. 102-25 (105 Stat. 92); and subpart L 
also issued under 5 U.S.C. 6387 and Pub. L. 103-3 (107 Stat. 23).

Subpart B--Definitions and General Provisions for Annual and Sick 
Leave

    2. In Sec. 630.201, paragraph (b)(3) is removed; paragraph (b)(4) 
is redesignated as paragraph (b)(3); paragraphs (b) (5), (6), and (7) 
are redesignated as paragraphs (b) (6), (7), and (8), respectively; and 
new paragraphs (b) (4) and (5) are added to read as follows:


Sec. 630.201  Definitions.

* * * * *
    (b) * * *
    (b) Family member means the following relatives of the employee:
    (i) Spouse, and parents thereof;
    (ii) Children, including adopted children and spouses thereof;
    (iii) Parents;
    (iv) Brothers and sisters, and spouses thereof; and
    (v) Any individual related by blood or affinity whose close 
association with the employee is the equivalent of a family 
relationship.
    (5) Health care provider has the meaning given that term in 
Sec. 630.1202.
* * * * *

Subpart D--Sick Leave

    3. In subpart D, Sec. 630.401 is revised to read as follows:


Sec. 630.401  Grant of sick leave.

    (a) Subject to paragraphs (b) through (e) of this section, an 
agency shall grant sick leave to an employee when the employee--
    (1) Receives medical, dental, or optical examination or treatment;
    (2) Is incapacitated for the performance of duties by physical or 
mental illness, injury, pregnancy, or childbirth;
    (3) Provides care for a family member as a result of physical or 
mental illness; injury; pregnancy; childbirth; or medical, dental, or 
optical examination or treatment;
    (4) Makes arrangements necessitated by the death of a family member 
or attends the funeral of a family member; or
    (5) 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.
    (b) The amount of sick leave granted to an employee during any 
leave year for the purposes described in paragraphs (a)(3) and (4) of 
this section many 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) 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 of work 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 part-time 
employee or an employee with an uncommon tour of duty, an amount equal 
to twice the average number of hours of work in the employee's 
scheduled tour of duty each week).
    (d) When sick leave is granted to an employee under the condition 
specified in paragraph (c) of this section, the amount of sick leave 
retained in the employee's sick leave account shall, in each instance, 
be at least equal to the minimum prescribed by paragraph (b) of this 
section after deducting the amount to be used for the purposes 
described in paragraphs (a)(3) and (4) of this section.
    (e) If the number of hours in the employee's tour of duty is 
changed during the leave year, the employee's entitlement to use sick 
leave for the purposes described in paragraphs (a)(3) and (4) of this 
section shall be recalculated based on the employee's new tour of duty.
    4. Section 630.402 is revised to read as follows:


Sec. 630.402  Application for sick leave.

    An employee shall file a written application for sick leave within 
such time limits as the agency may require. An employee shall request 
advance approval for sick leave for the purpose of receiving medical, 
dental, or optical examination or treatment and to the extent possible, 
for the purposes described in Sec. 630.401(a)(3) and (4).


630.403  Supporting evidence.

    An agency may grant sick leave only when supported by evidence 
administratively acceptable. 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 evidence administratively acceptable. However, 
for an absence in excess of 3 workdays, of for a lesser period when 
determined necessary by an agency, 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 
Sec. 630.401(a).
    6. Section 630.405 is revised to read as follows:


Sec. 630.405  Use of sick leave during annual leave or to become 
eligible for donated leave.

    (a) Subject to Sec. 630.401(b) through (e), an agency may grant 
sick leave during a period of annual leave for any of the purposes 
described in Sec. 630.401(a).
    (b) An employee's entitlement to use sick leave to care for a 
family member under Sec. 630.401 shall be considered as available paid 
leave for the purpose of determining an employee's eligibility to 
become a leave recipient under the voluntary leave transfer and leave 
bank program established under subchapters III and IV of title 5, 
United States Code, if the medical emergency involves a family member 
of the employee. This determination shall be made for any application 
to be a leave recipient approved on or after December 2, 1994.
    (c) In the case of an employee already in a shared leave status on 
December 2, 1994, under the voluntary leave transfer or leave bank 
programs established under subschapters III and IV of title 5, United 
States Code, any sick leave available to care for a family member under 
Sec. 630.401 shall be used, if the medical emergency involves a family 
member of the employee, before continuing to use transferred annual 
leave or annual leave withdrawn from a leave bank.
    7. Section 630.408 is added to read as follows:


Sec. 630.408  Records and reports.

    (a) Beginning with leave year 1995, each agency shall maintain 
records concerning the use of sick leave to care for a family member or 
to make arrangements for or attend the funeral of a family member under 
Sec. 630.401(a) (3) and (4) and shall report such information as may be 
required by the Office of Personnel Management (OPM) for the purpose of 
evaluating the use of sick leave.
    (b) Beginning with leave year 1995, each agency shall maintain the 
following information by leave year for each employee using sick leave 
for the purpose described in Sec. 630.401(a) (3) or (4):
    (1) The grade or pay level and gender of each employee;
    (2) The total number of hours of sick leave used by each employee--
    (i) For the purposes described in Sec. 630.401(a) (3) or (4); and
    (ii) For all other purposes described in Sec. 630.401(a); and
    (3) Any additional information OPM may require.
    8. The heading for subpart E of part 630 is revised to read as 
follows:

Subpart E--Recredit of Leave

    9. In subpart E, Sec. 630.502 is revised to read as follows:


Sec. 630.502  Sick leave recredit.

    (a) When an employee transfers between positions under subchapter I 
of chapter 63 of title 5, United States Code, the agency from which the 
employee transfers shall certify his or her sick leave account to the 
employing agency for credit or charge.
    (b) Except as provided in Sec. 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 Sec. 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.
    (d) When sick leave is transferred between different leave systems 
under section 6308 of title 5, United States Code, 7 calendar days of 
sick leave are deemed equal to 5 workdays of sick leave.
    (e) An employee who transfers to a position under a different leave 
system to which he or she can transfer only a part of his or her sick 
leave is entitled to a recredit of the untransferred sick leave 
(without regard to the date of the original transfer) if the employee 
returns to the leave system under which it was earned on or after 
December 2, 1994.
    (f) An employee who transfers to a position to which he or she 
cannot transfer his or her sick leave is entitled to a recredit of the 
untransferred sick leave (without regard to the date of the original 
transfer) if the employee returns to the leave system under which it 
was earned on or after December 2, 1994.
    (g) The recredit of sick leave under this section shall be 
supported by written documentation available to the employing agency in 
its official personnel records concerning the employee, the official 
records of the employee's former employing agency, copies of 
contemporaneous earnings and leave statement(s) provided by the 
employee, or copies of other contemporaneous written documentation 
acceptable to the agency.
    (h) The sick leave to be recredited under this section must have 
been accrued under 5 U.S.C. 6307 or transferred to the employee's 
credit under 5 U.S.C. 6308 (or the corresponding provisions of prior 
statutes).
    10. Section 630.504 is revised to read as follows:


Sec. 630.504  Reestablishment of leave account after military service.

    (a) When an employee leaves his or her civilian position to enter 
the military service, the employing agency shall certify his or her 
leave account for credit or charge.
    (b) If the employee returns to a civilian position following 
military service, the agency to which the employee returns shall 
reestablish the certified leave account as a credit or charge (without 
regard to the date he or she left the civilian position) when the 
employee is--
    (1) Restored in accordance with a right of restoration after 
separation from active military duty or hospitalization continuing 
thereafter as provided by law or in accordance with the mandatory 
provisions of a statute, Executive order, or regulation; or
    (2) Reemployed in a position under subchapter I of chapter 63 of 
title 5, United States Code, on or after December 2, 1994.
    (c) For the purpose of documenting a returning employee's 
entitlement to a recredit of sick leave under this section, the 
documentation criteria established in Sec. 630.502(g) shall apply.

[FR Doc. 94-29820 Filed 2-1-94; 8:45 am]
BILLING CODE 6325-01-M