[Federal Register Volume 60, Number 98 (Monday, May 22, 1995)]
[Rules and Regulations]
[Pages 26977-26979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12411]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 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.
 
 ========================================================================
 

  Federal Register / Vol. 60, No. 98 / Monday, May 22, 1995 / Rules and 
Regulations  

[[Page 26977]]

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, [[Page 26978]] 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 newly-adopted 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 [[Page 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; Sec. 630.301 also issued under Public 
Law 103-356 (108 Stat. 3410); Sec. 630.303 also issued under 5 
U.S.C. 6133(a); Secs. 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); 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 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


Sec. 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 Sec. 630.401, paragraph (c) is revised to read as follows:


Sec. 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 part-time 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

Sec. 630.907  [Amended]

    3. In Sec. 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


Sec. 630.1101  [Amended]

    4. In Sec. 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:

Secs. 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]

BILLING CODE 6325-01-M