[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: 94-29821]


[[Page Unknown]]

[Federal Register: December 2, 1994]


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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630

RIN 3206-AG 43

 

Absence and Leave; Sick Leave for Adoption

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management is issuing interim 
regulations to permit employees to use sick leave for purposes related 
to the adoption of a child.

DATES: The interim rules are effective on December 2, 1994. Comments 
must be submitted on or before January 31, 1995.

ADDRESSES: Comments may be sent or delivered to Donald J. Winstead, 
Acting Assistant Director for Compensation Policy, Personnel Systems 
and Oversight Group, U.S. Office of Personnel Management, Room 6H31, 
1900 E Street NW., Washington, DC 20415.

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

SUPPLEMENTARY INFORMATION: Section 629 of Public Law 103-329, The 
Treasury, Postal Service and General Government Appropriations Act for 
fiscal year 1995, September 30, 1994, made two significant changes in 
leave entitlements for Federal employees. Section 629(a) added section 
6327 to title 5, United States Code, to provide employees with an 
entitlement to 7 days of paid leave each calendar year (in addition to 
annual and sick leave) to serve as a bone-marrow or organ donor. The 
law provides that an employee is entitled to use this leave without 
loss of or reduction in pay, leave to which otherwise entitled, credit 
for time or service, or performance or efficiency rating. The Office of 
Personnel Management (OPM) does not believe regulations are needed to 
administer section 6327. Agencies are responsible for notifying 
employees of this new entitlement to paid leave.
    The length of absence for such purposes will vary depending upon 
the medical circumstances of each case. For medical procedures and 
recuperation requiring absences longer than 7 days, agencies are 
encouraged to continue to accommodate employees by granting additional 
time off in the form of excused absence, accrued sick leave and/or 
annual leave, as appropriate; leave without pay; and advanced sick and/
or annual leave.
    Section 629(b) amended 5 U.S.C. 6307 to permit an employee to use 
sick leave for purposes related to the adoption of a child. (Conforming 
technical changes were also made in 5 U.S.C. 6129.) This change was 
recommended in the Report of the National Performance Review on 
September 7, 1993. Section 629(b) also directs OPM to prescribe 
regulations to allow an employee to substitute sick leave retroactively 
for all or any portion of any annual leave used by an employee for 
adoption-related purposes between September 30, 1991, and September 30, 
1994. (September 30, 1991, was the ending date of the former 1-year 
experimental program created by Public Law 101-509 to test the 
feasibility of granting sick leave for adoption-related purposes.) If 
an employee elects to make this substitution, the employing agency must 
adjust the employee's leave accounts to reflect the amount of annual 
leave and sick leave, respectively, that would remain had sick leave 
been used instead of all or any portion of the annual leave actually 
used, as designated by the employee.

Sick Leave for Adoption

    OPM's sick leave regulations at 5 CFR 630.401 have been amended to 
permit employees to use accrued or accumulated sick leave for purposes 
relating to the adoption of a child. In addition, Sec. 630.402 has been 
revised to require employees to request, to the extent possible, 
advance approval to use sick leave for adoption-related purposes. This 
is consistent with current requirements related to the advance approval 
of sick leave for medical, dental, and optical examination or treatment 
and to provide care for a family member. When required by the 
exigencies of the situation, an agency may advance up to 30 days of 
sick leave for adoption-related purposes under 5 U.S.C. 6307(c).
    The purposes of which an adoptive parent may request sick leave 
include appointments with adoption agencies, social workers, and 
attorneys; court proceedings; required travel; and any other activities 
necessary to allow the adoption to proceed. Since adoption procedures 
and requirements differ among jurisdictions and adoption agencies, the 
interim regulations do not attempt to specify all of the circumstances 
in which the use of sick leave would be appropriate. For example, sick 
leave may be granted 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 are reminded that 
this new entitlement to use sick leave for purposes relating to the 
adoption of a child is in addition to an employee's entitlement to 
unpaid leave for the placement of a child with an employee for adoption 
under the Family and Medical Leave Act of 1993 (FMLA) (Pub. L. 103-3, 
February 5, 1993). (See 5 CFR 630.1203.)
    The same limitations apply in the case of adopted children as in 
the case of biological children with regard to the use of sick leave 
for the purpose of providing care for an adopted child as a result of 
physical or mental illness, injury, impairment, pregnancy, or 
childbirth. These limitations are set forth in Sec. 630.401 (b) through 
(d).
    Under Sec. 630.403, agencies may require employees to provide 
evidence that is administratively acceptable to the agency in support 
of an employee's request for sick leave for adoption-related purposes. 
To ensure consistency between the treatment of these employees and 
employees who may elect to invoke their entitlement to unpaid leave 
under the FMLA for purposes relating to adoption, Sec. 630.1206 has 
been revised to allow an agency to require an employee to provide 
evidence that is administratively acceptable to the agency in support 
of an employee's notification of his or her intent to use FMLA leave 
for adoption-related purposes.

Retroactive Substitution of Sick Leave for Annual Leave

    Section 629(b)(3) of Public Law 103-329 permits an employee to 
substitute his or her accrued and accumulated sick leave for all or any 
portion of any annual leave used for purposes relating to the adoption 
of a child between September 30, 1991, and September 30, 1994. If an 
employee elects to make this substitution, the law requires the 
employee to submit a written application to his or her employing agency 
to have his or her annual and sick leave accounts adjusted accordingly.
    By law, an employee's written application to substitute sick leave 
retroactively for annual leave used for adoption-related purposes must 
be submitted within 1 year after enactment of section 629 of Public Law 
103-329--i.e., September 30, 1995--or such later date as OPM may 
prescribe. We believe additional time may be needed to notify affected 
employees of this benefit and permit employees to submit a written 
application to their employing agencies. Therefore, in Sec. 630.409, 
OPM has extended the time period to September 30, 1996, for an employee 
to submit a written application to have his or her annual and sick 
leave accounts adjusted.
    The employee's written request must specify the period(s) and the 
amount(s) of annual leave involved and the amount(s) of accrued or 
accumulated sick leave to be substituted. The written request must 
include copies of available documentation described in the regulations 
that specify the period(s) and amount(s) of annual leave that were used 
by the employee for adoption-related purposes between September 30, 
1991, and September 30, 1994. If an employee is unable to provide a 
written request that meets the requirements in the regulations, no 
substitution of sick leave may be approved. The law does not permit the 
substitution of sick leave for leave without pay. In addition, advanced 
sick leave may not be used for this purpose.
    After receiving an employee's written request for substitution of 
sick leave for annual leave, the employing agency will deduct from the 
employee's sick leave account any amount of sick leave the employee 
elects to substitute for any annual leave used for adoption-related 
purposes after September 30, 1991. The employing agency also will 
credit the employee's annual leave account with an amount of annual 
leave equal to the amount of sick leave the employee elects to 
substitute. If an agency determines that insufficient written 
documentation exists to honor the employee's request, the employing 
agency must inform the employee of this determination in writing.
    The annual leave credited to an employee's annual leave account 
shall be available for use by the employee on or after the date the 
annual leave is credited in the same manner and for the same purposes 
as the employee's current accrued and accumulated annual leave.
    The retroactive substitution of sick leave for annual leave will 
result in additional amounts of annual leave being credited to an 
employee's current annual leave account. If the credit of annual leave 
to an employee's current annual leave account occurs just prior to the 
end of a leave year, the employee may be at risk of exceeding the 
maximum annual leave ceiling established by 5 U.S.C. 6304. Therefore, 
OPM encourages agencies to advise employees that any annual leave in 
excess of the maximum annual leave carry-over ceiling that results from 
such an adjustment may be forfeited under 5 U.S.C. 6304, unless the 
annual leave is subject to restoration under the conditions specified 
in 5 U.S.C. 6304(d).

Waiver of Notice of Proposed Rule Making and Delay in Effective 
Date

    Section 629 of Public Law 103-329 became effective on September 30, 
1994. The authority to substitute sick leave for all or any portion of 
any annual leave taken for purposes relating to the adoption of a child 
is retroactive to September 30, 1991. In order to give practical effect 
to this legislation, I find good cause exists to waive the general 
notice of proposed rulemaking pursuant to 5 U.S.C. 553(b)(3)(B). Also, 
I find that good cause exists for making this rule effective in less 
than thirty days. The delay in the effective date is being waived to 
give affected employees the benefit of these new provisions at the 
earliest practical date.

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 D--Sick Leave

    2. In Sec. 630.401, at the end of paragraph (a)(4), the word ``or'' 
is removed; at the end of paragraph (a)(5), the period is removed and 
in its place a semicolon and the word ``or'' are added; and paragraph 
(a)(6) is added to read as follows:


Sec. 630.401  Grant of sick leave.

    (a) * * *
    (6) Must be absent from duty for purposes relating to the adoption 
of a child, including appointments with adoption agencies, social 
workers, and attorneys; court proceedings; required travel; and any 
other activities necessary to allow the adoption to proceed.
* * * * *
    3. Section Sec. 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 purposes of receiving medical, 
dental, or optical examination or treatment and, to the extent 
possible, for the purposes described in Sec. 630.401(a) (3), (4), and 
(6).
    4. Section 630.409 is added to read as follows:


Sec. 630.409  Substitution of sick leave for annual leave for adoption-
related purposes.

    (a) Upon the written request of an employee under the procedures 
set forth in paragraph (b) of this section, an individual who is 
employed by the Federal Government on September 30, 1994, or who is 
reemployed by the Federal Government on or after September 30, 1994, in 
a position covered by subchapter I of chapter 63 of title 5, United 
States Code, may elect to substitute his or her accrued and accumulated 
sick leave for all or any portion of any annual leave used for purposes 
relating to the adoption of a child between September 30, 1991, and 
September 30, 1994.
    (b) An employee's written request under paragraph (a) of this 
section to substitute any accrued and accumulated sick leave for annual 
leave used for adoption-related purposes must be submitted to his or 
her employing agency by September 30, 1996. The employee's written 
request shall--
    (1) Specify the period(s) and amount(s) of annual leave involved;
    (2) Include copies of any available contemporaneous earnings and 
leave statement(s) or other contemporaneous documentation acceptable to 
the agency that specifies the period(s) and amount(s) of annual leave 
used by the employee for purposes relating to the adoption of a child 
between September 30, 1991, and September 30, 1994;
    (3) Specify the amount(s) of accrued and accumulated sick leave to 
be substituted under paragraph (b)(1) of this section; and
    (4) Include evidence of the adoption that is administratively 
acceptable to the employing agency.
    (c) In the absence of a written request by the employee that meets 
the requirements of paragraph (b) of this section, no substitution of 
sick leave may be approved under this section.
    (d) Within a reasonable period of time after receiving an 
employee's written request that meets the requirements set forth in 
paragraph (b) of this section, the employing agency shall--
    (1) Deduct from the employee's sick leave account any amount(s) of 
accrued and accumulated sick leave the employee elects to substitute 
for annual leave used for adoption-related purposes between September 
30, 1991, and September 30, 1994, that is supported by written 
documentation acceptable to the employing agency; and
    (2) Credit the employee's annual leave account with an amount of 
annual leave equal to the amount of sick leave the employee elects to 
substitute under paragraphs (a) and (b) of this section.
    (e) If the agency determines that insufficient written 
documentation exists to honor the employee's request, the employing 
agency shall inform the employee of this determination in writing.
    (f) Any annual leave credited to an employee's current annual leave 
account under paragraph (d)(2) of this section shall be available for 
use by the employee on or after the date the annual leave is credited 
in the same manner and for the same purposes as the employee's current 
accrued and accumulated annual leave. The annual leave credited to an 
employee under this section may not be substituted for any period of 
otherwise paid leave or leave without pay used prior to the date the 
annual leave is credited to the employee's annual leave account under 
paragraph (d)(2) of this section.
    5. In Sec. 630.1206, paragraph (f) is added to read as follows:

Subpart L--Family and Medical Leave


Sec. 630.1206  Notice of leave.

* * * * *
    (f) An agency may require that a request for leave under 
Sec. 630.1203(a)(2) of this part be supported by evidence that is 
administratively acceptable to the agency.

[FR Doc. 94-29821 Filed 12-1-94; 8:45 am]
BILLING CODE 6325-01-M