[Federal Register Volume 61, Number 235 (Thursday, December 5, 1996)]
[Rules and Regulations]
[Pages 64441-64454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30810]



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  Federal Register / Vol. 61, No. 235 / Thursday, December 5, 1996 / 
Rules and Regulations  

[[Page 64441]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 630 and 890

RIN 3206-AH 10


Family and Medical Leave

AGENCY: Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management is issuing final 
regulations on family and medical leave consistent with Title II of 
Family and Medical Leave Act of 1993. The final regulations provide 
covered Federal employees a total of 12 administrative workweeks of 
unpaid leave during any 12-month period for certain family and medical 
needs. The employee may continue health benefits while he or she is on 
leave and is entitled to be returned to the same position or to an 
equivalent position with equivalent benefits, pay, status, and other 
terms and conditions of employment.

EFFECTIVE DATE: January 6, 1997.

FOR FURTHER INFORMATION CONTACT: For information on the Family and 
Medical Leave Act of 1993, contact Jo Ann Perrini (202) 606-2858, or 
FAX (202) 606-0824. For information on the Federal Employees Health 
Benefits Program, contact Margaret Sears, (202) 606-0004.

SUPPLEMENTARY INFORMATION: On July 23, 1993, the Office of Personnel 
Management (OPM) published interim regulations (58 FR 39596) to 
implement the requirements set forth in sections 6381 through 6387 of 
title 5, United States Code, as added by Title II of the Family and 
Medical Leave Act of 1993 (FMLA) (Public Law 103-3, February 5, 1993). 
The FMLA became effective on August 5, 1993. The FMLA provides eligible 
Federal employees a total of 12 administrative workweeks of unpaid 
leave during any 12-month period for (a) the birth of a son or daughter 
and care of the newborn; (b) the placement of a child with the employee 
for adoption or foster care; (c) the care of the employee's spouse, 
son, daughter, or parent with a serious health condition; or (d) a 
serious health condition of the employee that makes the employee unable 
to perform the essential functions of his or her position. OPM's 
regulations implementing the FMLA are found in subpart L of part 630 of 
title 5, Code of Federal Regulations.
    Title I of the FMLA covers non-Federal employees and certain 
Federal employees not covered by Title II. The Secretary of Labor 
issued final regulations implementing Title I of the FMLA in 29 CFR 
part 825 (60 FR 2180, January 6, 1995). The Department of Labor's final 
regulations became effective on April 6, 1995. OPM's final regulations, 
as set forth below, are, to the extent appropriate, consistent with the 
final regulations issued by the Department of Labor (DOL), as required 
by 5 U.S.C. 6387. In the discussion that follows, we have noted those 
provisions that were revised to be consistent with DOL's final 
regulations.
    The House Committee Report for Titles I and II of the Family and 
Medical Leave Act of 1993 (Rept. No. 103-8, 103d Cong., 1st Sess., 
Parts 1 and 2, February 2, 1993) (hereinafter referred to as the 
``legislative history'') provides additional information on the intent 
of Congress in enacting the FMLA. In some cases where the language of 
the FMLA is not determinative, we have drawn from the legislative 
history for guidance in developing the regulations.
    During the comment period, OPM received comments from 14 Federal 
agencies, 4 labor organizations, 2 professional associations, and 3 
individuals, for a total of 23 comments. A summary of the comments 
received and a description of the revisions made in the regulations as 
a result of the comments are presented below.

Employees Covered

    Three agencies commented on the scope of employees covered by OPM's 
regulations. In the interim regulations, OPM delegated responsibility 
for issuing regulations to implement sections 6381 through 6387 of 
title 5, United States Code, to the Secretary of Veterans Affairs for 
physicians, dentists, and nurses in the Veterans Health Administration 
appointed under section 7401(1) of title 28, United States Code. The 
Department of Veterans Affairs noted that the scope of 38 U.S.C. 
7401(1) has been expanded to cover other occupations in addition to 
those currently listed in Secs. 630.1201(b)(1)(ii)(B) and 
630.1201(b)(3)(i). The agency requested that the regulations be 
modified to include all employees in the Veterans Health Administration 
of the Department of Veterans Affairs who are appointed under 38 U.S.C. 
7401(1). OPM agrees and has revised the regulations to be consistent 
with 38 U.S.C. 7401(1).
    In addition, since employees of the Library of Congress are covered 
under 5 U.S.C. 6301(2) and Title II of the FMLA, DOL has revised its 
regulations in 29 CFR 825.109 to exclude employees of the Library of 
Congress from coverage under Title I of the FMLA. However, effective 1 
year after transmission to the Congress of a study required under 
Public Law 104-1, Section 230, dated January 23, 1995, the coverage of 
the employees of the Library of Congress for purposes of FMLA leave 
will be made in accordance with Public Law 104-1, section 202.
    An agency recommended that temporary and intermittent service 
should be deemed creditable toward the 12-month service requirement for 
coverage under Title II of the FMLA if the employee later receives a 
permanent appointment. However, under 5 U.S.C. 6381(1)(B), temporary 
and intermittent service is specifically excluded as creditable service 
for determining the 12-month service requirement. Therefore, the 
recommendation cannot be adopted.

Definitions

    The following definitions were revised, deleted, or added in the 
final regulations:
    Continuing treatment by a health care provider. The term was 
deleted as a separate definition because it was incorporated in the 
expanded definition of ``serious health condition'' in the final 
regulations. This is consistent with DOL's final regulations.
    Essential functions. The Equal Employment Opportunity Commission 
recommended that the citation used in defining essential functions be 
revised to reference only the applicable provisions--i.e., 29 CFR 
1630(n), rather

[[Page 64442]]

than the whole section--i.e., 29 CFR 1630. We agree. In addition, the 
revised definition states that if an employee must be absent from work 
to receive medical treatment for a serious health condition, the 
employee is considered to be unable to perform the essential functions 
of the position during the absence for treatment. This is consistent 
with DOL's regulations.
    Foster care. This term was clarified by adding a statement that 
removal of a child from parental custody must be the result of State 
action even if the placement for foster care is with relatives. This is 
consistent with DOL's regulations.
    Health Care Provider. Several commenters recommended revising the 
definition to include health care providers who are recognized by the 
Federal Employees Health Benefits Program or health care providers who 
are licensed by a State. OPM agrees and has revised the regulations to 
include health care providers who are recognized by the Federal 
Employees Health Benefits Program or who are licensed or certified 
under Federal or State law to provide the service in question.
    Two agencies recommended that the definition of ``health care 
provider'' be broadened to include traditional healing practitioners--
i.e., healer, shaman, or medicine man--who are recognized by Native 
American traditional religious leaders to perform traditional healing 
methods. The agencies were concerned that denial of leave under the 
FMLA for purposes of traditional healing could give rise to complaints 
of discrimination based on race or religion or litigation based on a 
perceived violation of the Native American Religious Freedom Act. The 
Act states that it ``shall be the policy of the United States to 
protect and preserve for American Indians their inherent right of 
freedom to believe, express, and exercise the[ir] traditional religions 
. . . , including but not limited to access to sites, use and 
possession of sacred objects, and the freedom to worship through 
ceremonials and traditional rights.''
    Under 5 U.S.C. 6381(2)(B), OPM is authorized to designate any other 
health care provider who is determined by OPM to be capable of 
providing health care services. In response to these comments, OPM has 
revised the definition of ``health care provider'' to include a Native 
American, including an Eskimo, Aleut, and Native Hawaiian, who is 
recognized as a traditional healing practitioner by native traditional 
religious leaders and who practices traditional healing methods as 
believed, expressed, and exercised and in Indian religions of the 
American Indian, Eskimo, Aleut, and Native Hawaiians, consistent with 
the Native American Religious Freedom Act.
    In addition, the definition of ``health care provider'' has been 
expanded to include health care providers who practice in a country 
other than the United States. This change ensures coverage under the 
FMLA for an employee or his or her spouse, son, daughter, or parent who 
becomes eligible for leave under the FMLA while abroad or residing in a 
foreign country. This is consistent with DOL's final regulations.
    One commenter suggested that the definition of ``health care 
provider'' should provide more specificity as to who is an acceptable 
health care provider. We believe that the broad scope of the revised 
definition of ``health care provider'' should minimize the need for an 
exhaustive listing of health care providers.
    Incapacity. A definition of ``incapacity'' was added because the 
term is used within the expanded definition of ``serious health 
condition'' in the final regulations. ``Incapacity'' means the 
inability to work, attend school, or perform other regular daily 
activities because of a serious health condition or treatment for or 
recovery from a serious health condition.
    Intermittent leave or reduced leave schedule. An agency noted that 
the interim regulations state that intermittent leave may include time 
periods of less than 1 hour. The agency stated that this would obligate 
agencies to grant leave in increments of less than 1 hour, even though 
the agency's policy for granting all other leave is in increments of 
full hours. The regulations have been revised to permit agencies to 
grant leave under the FMLA in the same increments as all other leave is 
granted. Leave under the FMLA may be taken for a period of less than 1 
hour if agency policy provides for a minimum charge for leave of less 
than 1 hour.
    Parent, Son or Daughter, and Spouse. Four commenters stated that 
the definition of ``family'' in OPM's interim regulations is too narrow 
and does not reflect the reality of today's family arrangements. The 
commenters recommended that the definition of ``family'' be broadened 
to include individuals in other than traditional nuclear families. One 
commenter suggested adopting the definition of ``family member'' used 
in the Voluntary Leave Transfer Program.
    Under 5 U.S.C. 6382 and in the legislative history, Congress 
specifically defined ``family'' to include only a spouse, son or 
daughter, and parent. Accordingly, the recommendation to broaden the 
definition of ``family'' cannot be adopted. This is consistent with 
DOL's final regulations.
    An agency requested that the citation used in defining 
``disability'' in the definition of ``son or daughter'' be changed to 
29 CFR 1630.2(h), instead of 29 CFR 1630.2(g). The agency stated that 
paragraph (g), ``disability,'' includes individuals who have ``a record 
of such an impairment'', but who may not be affected currently by the 
impairment. Paragraph (h), ``physical or mental impairment,'' limits 
the coverage to those individuals with actual disabilities and omits 
individuals who have a record of or are regarded as individuals with 
disabilities. The citation has been revised as suggested to restrict 
coverage to individuals with actual disabilities who require assistance 
or supervision to provide daily self-care. This is consistent with 
DOL's final regulations.
    The same agency pointed out that the use of the term ``child'' in 
the definition of ``parent'' may be perceived as connoting a lack of 
maturity, is not appropriate for individuals over 18 years old who are 
disabled, and may reinforce negative stereotypes about individuals with 
disabilities. In the final regulations, the definition of ``parent'' 
has been revised to include the term ``son or daughter.'' This is 
consistent with DOL's final regulations.
    A commenter requested that the definition of ``parent'' be revised 
to allow the claim of in loco parentis only if the individual has 
served in this capacity for a major portion of the employee's 
childhood. Section 6381(3) of title 5, United States Code, specifically 
defines the term ``parent'' to mean ``the biological parent of an 
employee or an individual who stood in loco parentis to an employee 
when the employee was a son or daughter'' and does not include any such 
limitation. Therefore, no change was made in the definition.
    The definition of ``spouse'' has been revised to be consistent with 
the definition of ``spouse'' in the Defense of Marriage Act (Public Law 
104-199, September 21, 1996). The Act defines ``marriage'' as ``a legal 
union between one man and one woman as husband and wife'' and 
``spouse'' as ``a person of the opposite sex who is a husband or a 
wife.''
    Serious Health Condition. Three commeters suggested extending the 
qualifying period of incapacity from ``more than 3 calendar days'' to 5 
days or longer. They contended that 3 days of incapacity is normal for 
very minor

[[Page 64443]]

health conditions and that such conditions should be covered under the 
rules and remedies related to short-term absences because of illnesses. 
One commenter suggested that Congress had very serious health 
conditions in mind and that the term ``serious health condition'' was 
not intended to cover short-term conditions for which treatment and 
recovery are very brief and it is expected that such conditions will 
fall within the scope of an agency's normal sick leave policy. Another 
commenter noted that the serious nature of the condition should be 
stressed by presenting some specific examples, such as cancer treatment 
and kidney dialysis. One commenter opposed relying on the provisions in 
5 U.S.C. 8117 relating to workers' compensation programs to support the 
requirement of ``more than 3 calendar days'' of incapacity because the 
rationale and application of these two programs are different.
    Conversely, three organizations remarked that although duration may 
be a factor in determining whether a condition is a serious health 
condition, there cannot be a threshold duration in order to qualify for 
leave. The organizations expressed the view that seriousness and 
duration do not necessarily correlate, particularly for individuals 
with disabilities for whom a health condition may be considered serious 
long before a similar health condition would be considered serious for 
the average person.
    The organizations also stated that although OPM's definition of 
``serious health condition'' includes chronic or long-term health 
conditions that require treatment to prevent longer-term illness or 
injury or a more severe disability, it does not cover acute or episodic 
conditions of shorter duration, which also require immediate treatment 
to prevent aggravation into a long-term injury or illness.
    The legislative history states that the term ``serious health 
condition'' is not intended to cover short-term conditions for which 
treatment and recovery are very brief. Sick leave policies should 
address minor illnesses that last only a few days and surgical 
procedures that typically do not involve hospitalization and require 
only a brief recovery period. We believe the established duration 
period clarifies congressional intent within the regulations. In 
addition, DOL has concluded that the ``more than 3 days'' test 
continues to be appropriate. However, we have revised the regulations 
to specify that ``more than 3 days'' means ``more than 3 consecutive 
calendar days.'' This revision is consistent with DOL's final 
regulations.
    An agency recommended adding a paragraph to the definition stating 
that cosmetic or other treatments that are not medically necessary are 
not to be covered unless overnight inpatient hospital care is required. 
Others recommended that conditions that are not considered serious 
health conditions should be specifically included in the regulations. 
We agree and have added a paragraph at the end of the definition of 
``serious health condition'' to address those treatments and conditions 
that are not considered a serious health condition. For example, the 
common cold, the flu, earaches, upset stomach, headaches (other than 
migraines), routine dental or orthodontia problems, etc., are not 
serious health conditions unless complications arise. In addition, a 
regimen of continuing treatment involving the taking of over-the-
counter medications, bed-rest, exercises, and other similar activities 
that can be initiated without a visit to the health care provider is 
not, by itself, sufficient to meet the definition of continuing 
treatment for purposes of FMLA leave.
    An agency questioned the need for OPM's supplemental guidance on 
the treatment of substance abuse. The agency stated that it believes 
the guidance is inappropriate, especially in assuming that an 
employee's drug abuse problems may affect his or her job performance. 
However, OPM believes the guidance is appropriate to acknowledge 
concerns expressed by many agencies about the treatment of substance 
abuse as a serious health condition, as well as the interplay between 
the various rules concerning adverse actions, performance-based 
actions, and reasonable accommodation. We restate that the treatment of 
substance abuse may be included as a condition covered by the FMLA, but 
absence because of the employee's use of the substance, without 
treatment, does not qualify for leave under the FMLA. Also, the 
exercise of an employee's right to take leave under the FMLA for 
treatment of substance abuse does not prevent an agency from taking 
action against the employee, provided the agency complies with the 
Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), where appropriate.
    Consistent with DOL's final regulations, the definition of 
``serious health condition'' has been significantly revised. The 
criteria used to determine whether a condition may be considered a 
serious health condition have been grouped into two major categories--
i.e., inpatient care or continuing treatment by a health care provider. 
A major change is the addition of chronic conditions, such as asthma, 
diabetes, and epilepsy, that continue over an extended period of time 
(i.e., from several months to several years), often without affecting 
day-to-day activities, but may cause episodic periods of incapacity of 
less than 3 days.
    Another change is the addition of serious health conditions that 
are not ordinarily incapacitating (at least at the current state of the 
patient's condition), but for which multiple treatments are being given 
because the condition would likely result in a period of incapacity of 
more than 3 consecutive calendar days in the absence of medical 
intervention or treatment (e.g., chemotherapy or radiation for cancer 
dialysis for kidney disease, physical therapy for severe arthritis, or 
multiple treatments for restorative surgery after an accident or other 
injury). The definition of long-term, chronic conditions such as 
Alzheimer's or a severe stroke has been modified to delete the 
reference to the condition being incurable and to require instead that 
the condition involve a period of incapacity that is permanent or long-
term and for which treatment may not be effective. Other changes 
involve clarifying terms and providing information on the types of 
conditions that are not considered serious health conditions.

Leave Entitlement

    Section 630.1203(a)(4) of the interim regulations provides that an 
employee is entitled to a total of 12 administrative workweeks of 
unpaid leave during any 12-month period for a serious health condition 
of the employee that makes the employee unable to perform the essential 
functions of his or her position. A commenter suggested revising 
Sec. 630.1203(a)(4) to extend the determination of whether an employee 
is able to perform the essential functions of his or her position to 
include whether an employee is able to perform in an available 
alternative position or to be detailed to a temporary light duty 
assignment. The statute does not provide for placing an employee in an 
alternative or light-duty position in lieu of his or her entitlement 
under the FMLA. Therefore, the regulations were not revised.
    An agency should not confuse an employee's entitlement to leave 
under the FMLA with its ongoing obligation to provide reasonable 
accommodation under the Rehabilitation Act of 1973. While an agency 
cannot require an employee to accept an alternative position offer, an 
employee continues to maintain the right to request light duty

[[Page 64444]]

assignment in lieu of unpaid leave under the FMLA.
    Section 630.1203(a) has been clarified to state that an employee is 
eligible to take FMLA leave because of a serious health condition if he 
or she is unable to perform any one or more of the essential functions 
of his or her position. This revision is consistent with DOL's final 
regulations.
    Three organizations objected to requiring an employee to conclude 
FMLA leave taken for the birth or placement of a child within 12 months 
after the birth or placement. The organizations recommended revising 
the regulations to provide that an employee must commence FMLA leave, 
but not complete it, within 1 year of the birth or placement. Section 
6382(a) states that the entitlement to leave for a birth or placement 
for adoption or foster care expires at the end of the 12-month period 
beginning on the date of such birth or placement. In addition, the 
legislative history states that in cases of birth or placement of a 
child, family leave must be taken within 12 months following the event. 
DOL, in its final regulations, also upholds that FMLA leave ``must 
conclude within one year of the birth or placement.''
    In the interim regulations, Sec. 630.1203(c) provides that the 12-
month period of entitlement to FMLA leave begins on the date an 
employee first takes FMLA leave and continues for 12 months. In 
addition, Sec. 630.1203(d)(1) and (d)(2) provides that an employee may 
begin FMLA leave prior to the date of birth or placement for adoption 
or foster care and that FMLA leave must be concluded within 12 months 
after the date of birth or placement.
    An agency commented that these two provisions read together may 
imply that a new 12-month period with a new 12-week entitlement cannot 
begin until 12 months after the date of the birth or placement, even if 
the employee begins FMLA leave prior to the date of birth or placement. 
The agency believed this provision could be discriminatory and 
potentially in violation of the Pregnancy Discrimination Act (Pub. L. 
95-555, October 31, 1978). Another agency believed that the provisions 
covering the entitlement to FMLA leave for a birth or placement implied 
that the employee may be entitled to more than 12 weeks of unpaid 
leave.
    The legislative history clearly states that it was not the 
committee's intent to require that FMLA leave because of a birth or 
placement for adoption or foster care begin on the date of the birth or 
placement. Congress recognized that employees may need to begin FMLA 
leave prior to a birth or placement. At the same time, 5 U.S.C. 
6382(a)(2) states that entitlement to a total of up to 12 workweeks of 
FMLA leave based on a birth or placement expires at the end of the 12-
month period beginning on the date of such birth or placement. The 
result of combining these provisions is that the time period in which 
an employee may use FMLA leave because of a birth or placement for 
adoption or foster care may extend into a succeeding 12-month period.
    For example, if an employee invokes his or her entitlement to FMLA 
leave before the birth or placement for adoption or foster care, the 
12-month period begins on that date and ends 12 months later (e.g., 
June 2, 1996, through June 1, 1997). In addition, the statutory 
entitlement to FMLA leave for 1-year after the actual birth or 
placement may permit an employee to use some FMLA leave in a second 12-
month period for the birth or placement (e.g., June 14, 1996, through 
June 13, 1997). The second 12-month period begins immediately after the 
expiration of the first 12-month period. The employee may use up to a 
total of 12 weeks of FMLA leave during the first 12-month period for 
the birth or placement. During the second 12-month period, the employee 
would be entitled to use FMLA leave for care of the newborn or adopted 
child but only for the time period between the end of the first 12-
month period and the expiration of the 12-month period after the date 
of birth or placement (e.g., June 2, 1997, through June 13, 1997). 
During any 12-month period an employee may use no more than 12 weeks of 
FMLA leave. The final regulations have been clarified to state that 
leave taken for the birth of a child or placement for adoption or 
foster care may begin prior to or on the actual date of birth or 
placement.
    Four commenters recommended changes that would place limitations on 
the rights of an employee under the FMLA. One commenter suggested that 
leave without pay not formally requested under the FMLA, but granted 
for purposes appropriate under the FMLA, should count against the FMLA 
entitlement, especially if the same condition or situation prompted 
both the non-FMLA and FMLA leave requests. Another commenter stated 
that a limitation should be placed on foster care benefits because 
participating in foster care programs may result in individuals 
becoming foster care parents for numerous children over the years. The 
commenter believes this would permit individuals to invoke FMLA leave 
year after year, placing a terrible hardship on the agency, especially 
when such individuals are employed in critical positions (e.g., health 
care occupations). Finally, a commenter expressed concern that an 
agency's missing could be disrupted seriously because the beginning and 
ending dates of the 12-month period of entitlement would allow the 
``stacking'' of FMLA leave. The agency recommended adopting a provision 
that would not allow, or at least minimize, the possibility of stacking 
one 12-week period onto a second 12-week period.
    The legislative history clearly states that the 12 workweeks of 
unpaid leave under the FMLA is a new entitlement in addition to any 
annual leave, sick leave, or other leave or compensatory time off 
available to an employee. An employee may choose to take FMLA leave in 
combination with any other available leave. However, an employee must 
obtain approval and/or meet statutory and regulatory requirements to 
take additional leave or other periods of paid time off. Under 5 U.S.C. 
6382(a)(1)(b), an employee is entitled to FMLA leave for the placement 
of a son or daughter with the employee for adoption or foster care. 
This entitlement does not limit the number of times an employee may 
invoke FMLA leave for foster care.
    Another commenter requested that the regulations requiring the 
employee to take only the amount of family leave and medical leave that 
is necessary to manage the circumstances that prompted the need for 
FMLA leave should not apply to a birth or adoption, since these 
purposes should not be limited to a subjective definition of what is 
necessary. We believe an employee must be responsible for taking only 
the amount of family and medical leave that is necessary for any of the 
purposes for which FMLA leave may be taken.
    We have not adopted any of these recommendations. We believe a 
leave program built on open communication between managers and 
employees should alleviate many of the concerns that have been 
expressed. The regulations acknowledge that the manager and the 
employee have responsibilities and obligations in preparing and 
planning for FMLA leave, as well as in following procedures for 
invoking and taking FMLA leave.
    Three of the organizations and two individual commenters were 
concerned that many agencies have not fully informed their employees of 
their entitlements and responsibilities under the FMLA. In addition, it 
is apparent from the numerous telephone inquiries and letters received 
by OPM that many employees are not aware of the provisions of the FMLA. 
In response, we have clarified Sec. 630.1203(g) to require

[[Page 64445]]

agencies to inform employees of their entitlements and responsibilities 
under the FMLA. To meet this requirement, agencies may wish to provide 
employees access to the FMLA and OPM's implementing regulations or 
agency policies or guidance on implementing the FMLA. Also, agencies 
may provide employees access to OPM's fact sheet and brochure, 
``Federal Employee Entitlements Under the Family and Medical Leave Act 
of 1993'' or ``Family-Friendly Leave Policies for Federal Employees.'' 
These publications are available on OPM's Mainstreet and PayPerNet 
electronic bulletin boards. In addition, these final regulations will 
be posted on OPM's World Wide Web site at www.opm.gov in the near 
future.
    Consistent with all other Federal leave programs and policies, an 
employee who chooses to take leave under the FMLA must initiate the 
action to take such leave. Therefore, to eliminate misunderstandings 
between supervisors and employees, Sec. 630.1203(b) has been clarified 
to state that an employee must invoke his or her entitlement to family 
and medical leave, subject to the notification and medical 
certification requirements in Secs. 630.1206 and 630.1207. An employee 
may not retroactively invoke his or her entitlement to leave under the 
FMLA for a previous absence from work. The legislative history 
establishes an intent to authorize the use of leave ``to be taken'' 
under the FMLA on a prospective basis. In addition, both the law and 
OPM's regulations require that if the need for leave is foreseeable, 
the employee must provide the employing agency with not less than 30 
days notice, before the date the leave is to begin, of the employee's 
intention to take family and medical leave. If the need for leave is 
not foreseeable, the employee must provide such notice as is 
practicable. We believe the employee remains responsible for providing 
his or her agency as much notice as is practicable to allow the agency 
ample opportunity to plan the work during the employee's absence.

Intermittent Leave or Reduced Leave Schedule

    Section 630.1204(b) states that if an employee takes leave 
intermittently or on a reduced leave schedule for planned medical 
treatment or recovery, the agency may place the employee in an 
available alternative position. A commenter recommended that OPM add 
that an alternative position is not required to have duties that are 
equivalent to those of the employee's original position. We agree and 
have added this statement, consistent with DOL's final regulations.
    Section 630.1204(f) has been clarified to state that only the 
amount of leave taken intermittently or on a reduced leave schedule, as 
these terms are defined in Sec. 630.1202, can be subtracted from the 
total of 12 weeks of FMLA leave available to the employee. This will 
ensure that FMLA leave is subtracted from the total 12-week entitlement 
in the same increments that it is taken, consistent with the revised 
definition of ``intermittent leave or reduced leave schedule'' in 
Sec. 630.1202.
    Another commenter requested that the term ``reduced leave 
schedule'' be changed to ``reduced work schedule,'' because the hours 
of work are reduced and supplemented by FMLA leave. ``Reduced leave 
schedule'' is the term used in the statute, and we do not believe it is 
necessary to make this change. ``Reduced leave schedule'' means a work 
schedule under which the usual work per workday or workweek of an 
employee is reduced. The number of hours by which the daily or weekly 
tour of duty is reduced are counted as FMLA leave.
    In response to numerous calls, we restate that an employee must 
obtain approval from his or her employing agency to take FMLA leave on 
an intermittent basis or reduced leave schedule for the birth of a 
child or for placement for adoption or foster care.

Substitution of Paid Leave

    Section 630.1205(b)(1) states that an employee may elect to 
substitute annual or sick leave for unpaid leave under the FMLA, 
``consistent with current law and regulations governing the granting 
and use of annual and sick leave.'' Three organizations believe the 
legislative history of the FMLA shows that Congress intended that 
employees would be entitled 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. Other commenters recommended that unlimited sick 
leave be allowed for bonding following childbirth or adoption and for 
the care of a family member.
    Under 5 U.S.C. 6382(d), an employee may elect to substitute 
``accrued or accumulated annual or sick leave'' for unpaid leave under 
the FMLA, ``except that nothing in this subchapter shall require an 
employing agency to provide paid sick leave in any situation in which 
such employing agency would not normally provide any such paid leave.'' 
On December 2, 1994, OPM issued final regulations on the use of sick 
leave for Federal employees (59 FR 62266). The final regulations expand 
the use of sick leave by permitting most full-time employees to use a 
total of up to 104 hours (13 workdays) of sick leave each 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. In addition, OPM issued interim and final 
regulations on the use of sick leave for adoption-related purposes (59 
FR 62272 and 60 FR 26977). Under Sec. 630.401(a)(6), sick leave may be 
used for purposes relating to the adoption of a child--e.g., 
appointments with adoption agencies, court proceedings, and required 
travel. Sick leave may be granted for any period 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. However, 
sick leave may not be used either by birth or adoptive parents who 
voluntarily choose to be absent from work to bond with a birth or 
adopted child.
    If an 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. OPM has addressed comments on the issue of unlimited 
substitution of sick leave for unpaid leave under the FMLA in its final 
sick leave regulations published on December 2, 1994 (59 FR 62266), and 
the final regulations on sick leave for adoption published on May 22, 
1995 (60 FR 26977). In addition, 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 unpaid leave 
under the FMLA. (Also, see DOL's final regulations published on January 
6, 1995 (60 FR 2180).) There is nothing in the FMLA or its legislative 
history that would allow agencies to permit the use of paid sick leave 
for the care of a family member in any situation in which the agency 
would not otherwise permit the use of such paid sick leave.
    Several commenters requested additional clarification on the 
substitution of paid leave for leave without pay under the FMLA. 
Specifically, the commenters questioned whether the substitution of 
paid leave can be done retroactively and whether an agency may deny an 
employee's request to substitute annual leave for leave without pay.
    The substitution of paid leave must be consistent with current law 
and regulations for granting and using annual and sick leave. Once an

[[Page 64446]]

employee has invoked his or her entitlement to FMLA leave and has 
provided all the necessary notifications and certifications for agency 
approval, an agency may not deny an employee's request to substitute 
annual leave. However, an employee cannot substitute any more annual 
leave than he or she has available. Likewise, an agency may not deny 
the employee's request to substitute sick leave if the use of sick 
leave is consistent with current law and regulations.
    The right to substitute paid leave for leave without pay under the 
FMLA applies only to leave that is to be taken in the future. The 
legislative history provides an intent to authorize the use of leave 
``to be taken'' under the FMLA. Therefore, the substitution of paid 
leave for unpaid FMLA leave can be accomplished only on a prospective 
basis. Section 630.1205(e) has been clarified to state than an employee 
who has invoked his or her entitlement to FMLA leave may not 
retroactively substitute paid leave for any leave without pay 
previously taken under the FMLA.
    Several commenters requested an explanation of the relationship 
between the FMLA and the voluntary leave transfer and leave bank 
programs. We provide the following example:

    Example: An employee invokes his entitlement to FMLA leave as a 
result of a medical emergency. The employee does not have any paid 
leave available and therefore applies for donated leave under his 
agency's leave transfer program. Approximately 2-3 weeks later, the 
employee is approved as a leave recipient and receives donated 
annual leave. Under the voluntary leave transfer and leave bank 
programs, the employee may retroactively substitute paid leave for 
leave without pay beginning on the date the emergency began, 
consistent with Secs. 630.906(d) and 630.1009(d). The 12-month 
period and the 12-week entitlement to leave under the FMLA begins on 
the date the employee first invoked FMLA leave. The employee 
receives the benefits and protections of both the FMLA and the 
voluntary leave transfer program simultaneously.

    A commenter stated that an agency should be allowed to apply the 
same requirements for requesting annual and sick leave to requests for 
leave under the FMLA; e.g., agency policy may require medical 
certification for sick leave of more than 6 weeks to be used in 
connection with a pregnancy. Section 630.1207 already permits an agency 
to request a medical certification for the serious health condition of 
the employee--e.g., pregnancy or illnesses related to pregnancies. 
Therefore, we do not believe additional changes are needed.
    In its final regulations, DOL addressed the issue of permitting the 
substitution of compensatory time off under the Fair Labor Standards 
Act (FLSA) for unpaid leave under the FMLA. DOL stated that the use of 
compensatory time off is severely restricted under the FLSA in ways 
that are not compatible with the substitution of paid leave provisions 
under the FMLA. Compensatory time off is not a form of accrued paid 
leave mentioned in the FMLA or legislative history for purposes of 
substitution of leave. Rather, it is an alternative form of payment for 
overtime hours worked. An agency's right to deny an employee's request 
for compensatory time off under the FLSA, if it would be unduly 
disruptive to the agency's operations, is inconsistent with the 
provision in the FMLA authorizing the employee to elect to substitute 
paid leave for unpaid leave under the FMLA. An agency may not 
simultaneously charge the FLSA compensatory time hours taken against 
the employee's separate FMLA leave entitlement. DOL states that ``to do 
so would amount to charging (debiting) two separate entitlements for a 
single purpose.''
    We believe DOL's argument applies to any compensatory time off 
earned under 5 U.S.C. 5543. Similarly, we believe this restriction 
should also apply to any credit hours accrued under a flexible work 
schedule under 5 U.S.C. 6122. Therefore, Sec. 630.1205 has been revised 
to state that only annual leave, sick leave, and advanced annual leave 
and sick leave may be substituted for leave without pay under the FMLA. 
An employee may continue to use earned compensatory time off and credit 
hours in addition to his or her entitlement to leave under the FMLA.

Notice of Leave

    Section 630.1206(d) of the interim regulations provides that when 
leave is foreseeable, and the employee fails to give 30 days' notice 
with no reasonable excuse for the delay of notification, the agency may 
delay the taking of FMLA leave until at least 30 days after the date 
the employee provides notice of his or her need for FMLA leave. Three 
organizations believe an agency should be allowed to penalize an 
employee only if the agency has been adversely affected. This is to 
guard against employers denying leave on mere technicalities and 
penalizing employees for failure to give timely notice.
    The legislative history states that an employee who intends to take 
leave for the birth or placement of a child shall provide 30 days' 
notice, or such notice as is practicable, of his or her intention to 
take such leave. If the employee intends to take leave to care for a 
family member with a serious health condition, the employee, subject to 
the approval of the health care provider, must make a reasonable effort 
to schedule treatment so as not to unduly disrupt the operations of the 
agency and must provide 30 days notice, or such notice as is 
practicable, of his or her intention to take such leave.
    Congressional intent clearly indicates that the responsibility to 
give notice abides with the employee, and with that, the accountability 
for fulfilling the notification requirement. DOL has stated, ``[A]s 
this is an affirmative responsibility of the employee it would be 
inappropriate to require the employer to show any prejudice resulting 
from an employee's failure to provide adequate notice.''
    Another organization believes strict interpretation of the 
regulation would result in undue hardships for employees in 
circumstances where leave must be taken sooner than 30 days after the 
date of notification, without regard to whether the need for leave is 
foreseeable. The commenter recommended mandatory exceptions from the 
waiting requirement in circumstances where leave cannot reasonably be 
delayed for 30 days.
    We believe the regulations already accommodate situations in which 
30 days notice for unforeseen medical emergencies is not possible. In 
cases where leave is foreseeable, we believe it is appropriate to 
require an employee to provide notice 30 days prior to the date leave 
is to begin or such notice as is practicable. Therefore, the 
regulations have not been revised.
    A commenter requested that employees to required to keep 
supervisors informed of their intentions on the kinds and amounts of 
leave planned if extended absence is likely either before or after 
beginning FMLA leave. The regulations require a 30-day notice of intent 
to take FMLA leave and allow an agency to require an employee to report 
periodically on his or her status and intention to return to work. 
Also, the regulations allow agencies to require periodic 
recertification of a serious health condition. We do not believe any 
additional requirements are necessary.
    Section 630.1206(c) requires that if the need for leave is not 
foreseeable and an employee cannot provide 30 days notice, he or she 
must provide notice within a reasonable period of time appropriate to 
the circumstances involved. One commenter suggested that a time limit 
for such notification be established similar to the time limit set by 
DOL--i.e., 1 or 2 working days after

[[Page 64447]]

learning of the need for leave. Agencies are responsible for the 
administration of the FMLA and may establish such time limitations in 
their agency policies. Therefore, the regulations have not been 
changed.
    An agency requested guidance on the appropriate documentation to 
support a request for FMLA leave for a birth, adoption, or foster care. 
Section 630.1206(f) has been revised to permit agencies to require an 
employee to provide evidence that is administratively acceptable to the 
agency in support of his or her intent to use FMLA leave for the birth 
of a child or placement of a child for adoption or foster care.

Medical Certification

    A commenter asked what information may be submitted for the medical 
certification to be considered sufficient to justify leave taken under 
the FMLA. Section 6838 of title 5, United States Code, lists what 
information is sufficient in determining the appropriateness of the 
medical certification. The law also provides for action to be taken if 
an agency doubts the validity of the certification by permitting 
agencies to request a second and a third opinion. To prevent a 
stalemate from happening, the opinion of the third health care provider 
is deemed binding. To assist agencies and employees, OPM's regulations 
have been revised to permit a health care provider representing the 
agency to contact the health care provider of the employee, with the 
employee's permission, to clarify medical information pertaining to the 
condition. The information on the medical certification must relate 
only to the serious health condition for which the current need for 
family and medical leave exists. No additional personal or confidential 
information may be requested. This is consistent with DOL's 
regulations.
    An agency objected to OPM's exception in Sec. 630.1207(d), which 
permits an agency to designate, for the second opinion, a health care 
provider employed or under the administrative oversight of the agency 
in areas where access to health care is extremely limited. This 
provision is an important and reasonable alternative in rural areas and 
overseas locations where it may be extremely difficult to locate a 
health care provider that is not employed or under the administrative 
oversight of the agency. However, an agency's suggestion that, given 
tight budgets, it would be reasonable to permit agencies to use a 
health care provider with whom the agency had developed a relationship 
cannot be adopted because such a change is prohibited by law. 
Permitting an agency to designate for the second opinion a health care 
provider employed or under the administrative oversight of the agency 
in areas where access to health care is extremely limited is consistent 
with DOL's regulations.
    Other commenters stated that the guidance presented in OPM's 
Supplementary Information on provisional leave was incorrect in stating 
that if an employee does not submit the required medical certification, 
an agency should charge the employee's appropriate paid leave account. 
In the Supplementary Information, OPM was restating guidance from the 
legislative history. Section 630.1207(h) specifically states that if an 
employee is unable to provide the requested medical certification after 
leave has commenced, the agency may charge the employee as absent 
without leave (AWOL) or allow the employee to request that the 
provisional leave be charged as leave without pay or to the employee's 
annual and/or sick leave account, as appropriate.
    A commenter questioned the need to provide information to the 
health care provider on the essential functions of the employee's 
position. Although appropriate in some cases, the commenter stated 
that, in many instances, the need for leave will be based on an 
employee's need for treatment or continuous medical supervision and not 
on his or her inability to perform the essential functions of the 
position. We believe the health care provider must first determine that 
the condition or illness qualifies as a serious health condition. 
Secondly, the health care provider must be aware of the essential 
functions of the employee's position in order to make a determination 
that if treatment or supervision is not provided, the employee cannot 
perform the essential functions of his or her position. If an employee 
must be absent from work to receive medical treatment for a serious 
health condition, the employee is considered to be unable to perform 
the essential functions of the position during the absence for 
treatment.
    The regulations require that the written medical certification 
include the date the serious health condition commenced, the probable 
duration of the serious health condition, and the appropriate medical 
facts within the knowledge of the health care provider. However, in the 
situations described, the dates of treatment and duration are unknown. 
In response to these comments, we have revised the regulations to 
permit the health care provider to specify that the serious health 
condition is a chronic or continuing condition with an unknown 
duration. The health care provider must also specify whether the 
patient is currently incapacitated and the likely duration and 
frequency of episodes of incapacity.
    Section 630.1207(i) has been revised to provide that an agency may 
waive the requirement for an initial medical certification in a 
subsequent 12-month period if leave for a serious health condition is 
for the same chronic or continuing condition. Also, the regulations 
have been revised to stipulate that for most serious health conditions 
(excluding pregnancy, chronic conditions, or permanent or long-term 
conditions under the continuing supervision of a health care provider), 
if the health care provider has specified on the medical certification 
a minimum duration of the period of incapacity, the agency may not 
request recertification until that minimum duration has passed. Section 
630.1207(i) continues to permit agencies to require more frequent 
medical recertification if an employee requests that the original leave 
period be extended, the circumstances described in the original medical 
certification have changed significantly, or the agency receives 
information that casts doubt upon the continuing validity of the 
medical certification. These revisions are consistent with DOL's final 
regulations.
    A commenter suggested that OPM incorporate DOL's provision that an 
employee must submit a medical certification within the time frame set 
by the employer (i.e., allowing at least 15 days for an employee to do 
so). We believe the establishment of time limitations is at an agency's 
discretion. Therefore, this change was not made.
    Four agencies requested that OPM develop a standardized, user-
friendly medical certification form that can be used Governmentwide. 
Three organizations recommended that OPM not adopt DOL's medical 
certification form because it is unnecessarily detailed and confusing. 
In the Supplementary Information accompanying its interim regulations, 
OPM suggested that agencies use DOL's medical certification form or 
develop their own form for obtaining medical certification from a 
health care provider. DOL has extensively revised its medical 
certification form. The new form design is easier to use. Agencies have 
had experience using DOL's medical certification form or their own 
medical certification form for more than 3 years. We do not believe it 
would be cost-

[[Page 64448]]

 effective to develop a duplicate medical certification form for use by 
Federal agencies. We will, however, make the DOL medical certification 
form available to agencies on OPM electronic bulletin boards. OPM 
Mainstreet may be reached on (202) 606-4800, and PayPerNet may be 
reached on (202) 606-2675. The medical certification form will also be 
posted on OPM's World Wide Web site at www.opm.gov.

Protection of Employment and Benefits

    One commenter recommended that the regulations include a statement 
that restoration to an ``equivalent position'' does not extend to 
intangible, unmeasurable aspects of the job, such as perceived loss of 
potential for future promotional opportunities.'' We agree that an 
``equivalent position'' does not extend to intangible, unmeasurable 
aspects of the job and have revised Sec. 630.1208(b)(5) to include this 
statement. However, additional clarification may be needed. There may 
be significant aspects of a previous position that an ``equivalent 
position'' must retain--e.g., if the previous position was a 
supervisory or team leader position or had an established career 
ladder. Although an ``equivalent position'' must have the same career-
ladder promotion potential, an employee returning from FMLA leave 
enjoys no greater privileges or protections than other employees and 
must still meet the agency's requirements for receiving a promotion.
    Several commenters asked for clarification and guidance in dealing 
with probationary employees, adverse actions, and performance-based 
actions and questioned whether agencies can proceed with such actions 
if an employee invokes FMLA leave.
    If an employee is in an LWOP status during the probationary period, 
the probationary period will be extended by the amount of LWOP in 
excess of 22 days. Therefore, depending upon the duration of the LWOP, 
the length of an employee's probationary period could be extended by 
the FMLA leave. If so, the employee would still be in a probationary 
status upon his or her return to work. However, an employee who invokes 
his or her entitlement to leave under the FMLA is not protected from 
termination during probation if the agency decides to terminate the 
individual's employment during probation. For example, if an agency 
notified a probationary employee with 10 months of service that he or 
she was to be removed due to misconduct, and the employee invoked his 
or her FMLA entitlement, the agency would not need to wait until the 
FMLA leave was exhausted (and the employee completed probation) before 
taking action.
    Pending adverse actions or performance-based actions may be taken 
and made effective even if the employee is taking FMLA leave. For 
example, if an employee was unsuccessful in improving his or her 
performance during an opportunity period to improve and invoked his 
FMLA entitlement immediately following the opportunity period, the 
agency may issue the proposal and decision notices for removal based on 
unacceptable performance and effect the action just as if normally 
would. There is no obligation to wait until the employee has returned 
from FMLA leave in order to proceed with an otherwise valid adverse or 
performance-based action. Of course, agencies cannot remove or 
otherwise discipline an employee based on his or her use of leave under 
the FMLA.
    In response to the comments and numerous inquiries on the 
appropriate application of the FMLA in these matters, Sec. 630.1208(k) 
has been added to state that an employee's request for and/or use of 
leave under the FMLA does not prevent an agency from taking appropriate 
action under 5 CFR part 432 or 5 part CFR 752. Also it remains the case 
that an employee who invokes his or her entitlement to FMLA leave is 
not immune from the impact of a reduction in force before, during, or 
after the period of FMLA leave.

Medical Certification to Return to Work

    OPM received written and telephone comments from several agencies 
that advocated requiring medical certification to return to work when 
an employee's serious health condition represented a danger to the 
employee or coworkers. The commenters strongly objected to OPM's 
interim regulations limiting medical certification to return to work 
only to those employees who occupy a position that has medical 
standards or physical requirements. The agencies believe this 
restriction is in conflict with 5 U.S.C. 6384(d). In addition, an 
agency commented that in any other situation where there is a question 
as to whether an employee's presence at work may present a danger to 
the employee or to others, or when an employee appears to be too ill to 
work, management has the right to request medical documentation to 
ascertain whether it is appropriate to allow the employee to return to 
work. The agency does not believe the intent of the FMLA is to relieve 
management of this right.
    Section 6384(d) of title 5 states, ``As a condition of restoration 
* * *, the employing agency may have a uniformly applied practice or 
policy that requires each such employee to receive certification from 
the health care provider of the employee that the employee is able to 
resume work.'' After careful analysis and review of the law and 
legislative history, OPM agrees that Congress intended to provide 
agencies the authority to establish a uniform policy to require medical 
certification to return to work from each employee who invokes FMLA 
leave for his or her own serious health condition. Therefore, 
Sec. 630.1208(h) has been revised to permit agencies to establish a 
uniformly applied practice or policy that covers all similarly-situated 
employees (e.g., same occupation, same serious health condition, or 
same duration of absence from work) to obtain medical certification 
from the health care provider of the employee that the employee is able 
to perform the essential functions of his or her position. The 
information on the medical certification to return to work must relate 
only to the serious health condition for which FMLA leave was taken.
    The statute permits an agency to require an employee to provide 
medical certification from his or her health care provider that the 
employee is able to resume work. In most circumstances, an agency must 
return to work an employee who has provided a completed medical 
certification. An agency may not require a second or third opinion on 
the medical certification to return to work. If an employee submits 
medical certification but an agency believes that the employee is not 
fully recovered when he or she returns to work, may be a danger to 
himself or herself or others, or is a disruptive force in the worksite, 
the agency may take action under 5 CFR part 752 or other appropriate 
authority. If the agency believes that additional medical documentation 
would be helpful in determining appropriate action, the agency may 
offer a medical or psychiatric examination under 5 CFR 339.302.
    If an employee returns to work without the required documentation, 
an agency may delay the return of an employee until acceptable medical 
certification is provided. During this period of delay, an agency may 
grant the employee's request for appropriate leave. If the employee 
refuses to request leave until the medical certification is provided, 
or does not provide the required medical certification, the agency may 
use the procedures provided under 5 CFR part 752 to place the employee 
on enforced leave,

[[Page 64449]]

suspend the employee, or remove the employee, as appropriate.
    One commenter disagreed with OPM's requirement that agencies notify 
employees before leave commences of the employee's obligation to 
provide medical certification to return to work. The agency noted that 
this requirement under the FMLA is not appropriate where employees are 
already on a standing notice that all absences due to illness of a 
certain duration will require a medical certification to return to 
work. The statute and legislative history specify the medical 
certification that may be required under the FMLA. If an agency's 
policy requiring medical certification, including certification to 
return to duty, is more stringent than that required under the FMLA, 
the agency may not apply its own policy to an employee invoking leave 
under the FMLA. However, to accommodate situations in which the need 
for leave is not foreseeable--e.g., a medical emergency--
Sec. 630.1208(i) has been revised to state that an agency must notify 
an employee of the requirement to provide medical certification to 
return to work before the leave commences, or to the extent practicable 
in emergency medical situations.
    A commenter objected to the requirement that the agency must pay 
for the medical certification to return to work. Since the request for 
medical certification to return to work is at the discretion and 
direction of the agency, the agency assumes the responsibility to pay 
for the expenses.

Relationship to Other Entitlements

    Nothing in the FMLA modifies or affects any Federal law prohibiting 
discrimination on the basis of race, religion, color, national origin, 
sex, age, or disability. An agency must comply with whichever statute 
provides the greater rights to the employee.
    For example, in the case of an employee with a serious health 
condition under the FMLA who is also qualified individual with a 
disability under the Rehabilitation Act of 1973 (29 U.S.C. 701 et 
seq.), the FMLA and the Rehabilitation Act are to be applied 
simultaneously and in a manner that assures the most generous 
provisions of both Acts for the employee. Satisfying the requirements 
under the FMLA by granting 12 weeks of leave and restoring the employee 
to the same or equivalent position does not absolve an agency of any 
potential responsibilities to that employee under the Rehabilitation 
Act.
    If an employee is a qualified individual with a disability under 
the Rehabilitationn Act, the agency must make reasonable 
accommodations, etc., barring undue hardship. The Equal Employment 
Opportunity Commission has advised DOL that employers may consider FMLA 
leave already taken when deciding whether granting leave in excess of 
12 weeks as an accommodation under the Rehabilitation Act poses an 
undue hardship. This does not mean, however, that more than 12 weeks of 
leave automatically poses an undue hardship under the Rehabilitation 
Act. Agencies must apply the full undue hardship analysis under the 
Rehabilitation Act to each individual case to determine whether leave 
in excess of 12 weeks poses an undue hardship.
    An employee's right to be returned to the same or equivalent 
position under the FMLA applies to the position held at the time the 
employee commences FMLA leave. If an employee is unable to perform the 
essential functions of the same or equivalent position because of a 
disability, even with reasonable accommodation, the Rehabilitation Act 
may require the agency to make a reasonable accommodation when the 
employee returns. An agency may not change the essential functions of 
an employee's position in order to deny an employee's rights under the 
FMLA. However, an employee may voluntarily accept an alternative 
position (e.g., ``light-duty'' position) rather than use leave under 
FMLA. Additional questions on the Rehabilitation Act should be 
addressed to the Equal Employment Opportunity Commission.
    An employee may receive workers' compensation and be absent from 
work due to an on-the-job illness or injury that also qualifies as a 
serious health condition under the FMLA. The absence on workers' 
compensation and FMLA leave may run concurrently. At some point, the 
health care provider managing care pursuant to the workers' 
compensation injury may certify that the employee is able to return to 
work in a ``light duty'' position. If the agency offers such a 
position, the employee is permitted, but not required, to accept the 
position. If the employee refuses the offer, the employee may no longer 
qualify for payments under the workers' compensation program, but the 
employee is entitled to continue on unpaid FMLA leave up to a total of 
12 administrative workweeks as long as the employee is affected by a 
serious health condition that makes the employee unable to perform the 
essential functions of his or her position. If the employee returning 
from the workers' compensation injury is a qualified individual with a 
disability, he or she has certain rights under the Rehabilitation Act. 
For additional information on workers' compensation benefits, agencies 
are encouraged to contact the Office of Workers' Compensation, 
Department of Labor.

Federal Employees Health Benefits Program

    On July 22, 1996, OPM issued interim regulations in the Federal 
Register (61 FR 37807) that reorganized 5 CFR 890.502 (Employee 
withholdings and contributions) and made conforming changes in the 
paragraph on direct payment of premiums during periods of LWOP status 
in excess of 365 days. The conforming changes were based on policy 
changes previously published in the Federal Register. On December 27, 
1994, OPM issued final regulations in the Federal Register that 
delegated from OPM to Federal agencies the authority to reconsider 
disputes about coverage and enrollment issues. On June 1, 1995, OPM 
issued final regulations in the Federal Register that eliminated the 
requirement for the use of certified mail, return receipt requested, 
when notifying certain enrollees that their enrollment will be 
terminated because of nonpayment of premiums unless the payments is 
received within 15 days. The interim regulations published on July 22, 
1996, reflected both of these policy changes, and the pertinent 
paragraph is reproduced in these final regulations.

Greater Leave Entitlement

    Some commenters asked about the effect of FMLA on current agency 
leave policies and collective bargaining agreements--e.g., whether 
leave under the FMLA is considered to be the minimum within the labor-
management agreement or is in addition to an existing contract 
provision already available through the labor-management agreement. 
Agencies must observe any employment policies or collective bargaining 
agreements that provide greater family or medical leave rights to 
employees than those established under the FMLA. Conversely, the rights 
established by the Act may not be diminished by any agency leave 
policies or collective bargaining agreement. However, nothing in the 
FMLA prevents an agency from amending existing leave and entitlement 
benefit programs, provided the changes comply with the FMLA. We have 
revised Sec. 630.1210(a) to clarify this point.
    One commenter suggested adding references to ``reasonable 
accommodation'' and ``offers of assignment'' to Sec. 630.1210(d). Since 
the intent of Sec. 630.1210(d) is to cover all possible discriminatory 
acts, we believe

[[Page 64450]]

a broad statement is required, such as is currently provided in 
Sec. 630.1210(d)--i.e., ``any Federal law prohibiting discrimination.'' 
Nonetheless, the FMLA is not intended to modify or affect the 
Rehabilitation Act of 1973, as amended.

Other Changes

    On December 29, 1995, OPM issued final regulations to revise the 
format of certain regulatory provisions in title 5, United States Code, 
relating to Federal employees' compensation so that all definitions of 
terms are listed in alphabetical order, consistent with the format 
preferred by the Office of the Federal Register. In these regulations, 
the designation for paragraph (a) of Sec. 630.201 was removed, and the 
paragraph was erroneously placed within the alphabetical listing. We 
have reinstated paragraph (a) and in paragraph (b) listed the 
definitions that pertain to subparts B through G of part 630.
    Section 630.401(3) has been revised to permit the use of sick leave 
by an employee to provide care for a family member who is incapacitated 
as the result of physical or mental illness, injury, pregnancy, or 
childbirth or who receives medical, dental, or optical examination or 
treatment. The purpose of this change is to clarify the circumstances 
in which an employee is entitled to use sick leave.
    In addition, we are adding Sec. 630.911(h) and Sec. 630.1010(d) to 
the Voluntary Leave Transfer and Voluntary Leave Bank regulations to 
make it clear that when a leave recipient elects to buy back annual 
leave as a result of a claim for an employment-related injury approved 
by the Office of Workers' Compensation Programs (OWCP), and the annual 
leave was leave donated under the voluntary leave transfer or leave 
bank programs, the amount of annual leave brought back by the leave 
recipient must be restored to the leave donor or returned to the leave 
bank as provided in Sec. 630.911 and Sec. 630.1010. We are also using 
this opportunity to make a clarifying amendment to Sec. 630.1210(c) and 
correct typographical and grammatical errors in Sec. 630.905 and 
Sec. 630.907(d)(2) respectively.

Reports and Records

    We received many requests from agencies to revise the SF-71, 
Application for Leave, and the SF-1150, Record of Leave Data. As a 
result, OPM has established an interagency working group that has 
volunteered to assist in revising the leave forms. This work is in 
progress. We will provide agencies information on the availability of 
any revised leave forms through OPM's electronic bulletin boards and 
OPM's World Wide Web site at www.opm.gov.

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 this regulation will not have a significant economic 
impact on a substantial number of small entities, since it applies only 
to Federal employees and agencies.

List of Subjects

5 CFR Part 630

    Government employees.

5 CFR 890

    Administrative practice and procedure, Government employees, Health 
facilities, Health insurance, Health professions, Hostages, Iraq, 
Kuwait, Lebanon, Reporting and recordkeeping requirements, Retirement.

U.S. Office of Personnel Management.
James B. King,
Director.

    Accordingly, the interim rule amending parts 630 and 890 of title 5 
of the Code of Federal Regulations, which was published at 58 FR 39596, 
is adopted as a final rule with the following changes:

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 Pub. L. 
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. 
6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-337, 
108 Stat. 2663; subpart D also issued under Pub. L. 103-329, 108 
Stat. 2423; Sec. 630.501 and subpart F also issued under E.O. 11228, 
30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5 
U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I 
also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834, 
and Pub. L. 103-103, 107 Stat. 1022; subpart J also issued under 5 
U.S.C. 6362, Pub. L. 100-566, and Pub. L. 103-103; subpart K also 
issued under Pub. L. 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. Section 630.201 is revised to read as follows:


Sec. 630.201  Definitions.

    (a) In section 6301(2)(iii) of title 5, United States Code, the 
term temporary employee engaged in construction work at an hourly rate 
means an employee hired on a temporary basis solely for the purpose of 
work on a specific construction project and paid on an hourly rate.
    (b) In subparts B through G of this part:
    Accrued leave means the leave earned by an employee during the 
current leave year that is unused at any given time in that year.
    Accumulated leave means the unused leave remaining to the credit of 
an employee at the beginning of the leave year.
    Employee means an employee to whom subchapter I of chapter 63 of 
title 5, United States Code, applies.
    Family member means the following relatives of the employee:
    (1) Spouse, and parents thereof;
    (2) Children, including adopted children and spouses thereof;
    (3) Parents;
    (4) Brothers and sisters, and spouses thereof; and
    (5) Any individual related by blood or affinity whose close 
association with the employee is the equivalent of a family 
relationship.
    Health care provider has the meaning given that term in 
Sec. 630.1202.
    Leave year means the period beginning with the first day of the 
first complete pay period in a calendar year and ending with the day 
immediately before the first day of the first complete pay period in 
the following calendar year.
    Medical certificate means a written statement signed by a 
registered practicing physician or other practitioner certifying to the 
incapacitation, examination, or treatment, or to the period of 
disability while the patient was receiving professional treatment.
    Uncommon tour of duty means a tour of duty that exceeds 80 hours of 
work in a biweekly pay period, including hours of actual work plus 
hours in a standby status for which the employee is compensated by 
annual premium pay under 5 U.S.C. 5545(c)(1) and part 550 of this 
chapter.
    United States means the several States and the District of 
Columbia.

Subpart D--Sick Leave

    3. In Sec. 630.401, paragraph (a)(3) is revised to read as follows:


Sec. 630.401  Grant of sick leave.

    (a) * * *

[[Page 64451]]

    (3) Provides care for a family member who is incapacitated as the 
result of physical or mental illness, injury, pregnancy, or childbirth 
or who receives medical, dental or optical examination or treatment;
* * * * *

Subpart I--Voluntary Leave Transfer Program


Sec. 630.905  [Amended]

    4. In Sec. 630.905, paragraph (c) is amended by removing the term 
party-time and inserting in its place part-time.
    5. In Sec. 630.907, paragraph (d)(2) is revised to read as follows:


Sec. 630.907  Accrual of annual and sick leave.

* * * * *
    (d)* * *
    (2) The employee shall continue to accrue annual leave while in a 
shared leave status to the extent necessary for the purpose of reducing 
any indebtedness caused by the use of annual leave advanced at the 
beginning of the leave year.
* * * * *
    6. In Sec. 630.911, paragraph (h) is added to read as follows:


Sec. 630.911  Restoration of transferred annual leave.

* * * * *
    (h) If a leave recipient elects to buy back annual leave as a 
result of claim for an employment-related injury approved by the Office 
of Workers' Compensation Programs under 20 CFR 10.202 and 10.310, and 
the annual leave was leave transferred under Sec. 630.906, the amount 
of annual leave bought back by the leave recipient shall be restored to 
the leave donor(s).

Subpart J--Voluntary Leave Bank Program

    7. In Sec. 630.1010, paragraph (d) is added to read as follows:


Sec. 630.1010  Termination of medical emergency.

* * * * *
    (d) If a leave recipient elects to buy back annual leave as a 
result of a claim for an employment-related injury approved by the 
Office of Workers' Compensation Programs under 20 CFR 10.202 and 
10.310, the amount of annual leave withdrawn from the leave bank that 
is bought back by the leave recipient shall be restored to the leave 
bank.

Subpart L--Family and Medical Leave

    8. In Sec. 630.1201, paragraphs (b)(1)(ii)(B) and (b)(3)(i) are 
revised to read as follows:


Sec. 630.1201  Purpose, applicability, and administration.

* * * * *
    (b)* * *
    (1)* * *
    (ii)* * *
    (B) An employee in the Veterans Health Administration of the 
Department of Veterans Affairs who is appointed under section 7401(1) 
of title 38, United States Code.
* * * * *
    (3)* * *
    (i) An employee in the Veterans Health Administration of the 
Department of Veterans Affairs who is appointed under section 7401(1) 
of title 38, United States Code, shall be governed by the terms and 
conditions of regulations prescribed by the Secretary of Veterans 
Affairs;
* * * * *
    9. In Sec. 630.1202, the definition of Continuing treatment by a 
health care provider is removed; the definition of Incapacity is added 
in alphabetical order, and the definitions of Essential functions, 
Foster care, Health care provider, Intermittent leave or leave taken 
intermittently, Parent, Serious health condition, Son or daughter, and 
Spouse are revised to read as follows:


Sec. 630.1202  Definitions.

* * * * *
    Essential functions means the fundamental job duties of the 
employee's position, as defined in 29 CFR 1630.2(n). An employee who 
must be absent from work to receive medical treatment for a serious 
health condition is considered to be unable to perform the essential 
functions of the position during the absence for treatment.
* * * * *
    Foster care means 24-hour care for children in substitution for, 
and away from, their parents or guardian. Such placement is made by or 
with the agreement of the State as a result of a voluntary agreement by 
the parent or guardian that the child be removed from the home, or 
pursuant to a judicial determination of the necessity for foster care, 
and involves agreement between the State and foster family to take the 
child. Although foster care may be with relatives of the child, State 
action is involved in the removal of the child from parental custody.
    Health care provider means--
    (1) A licensed Doctor of Medicine or Doctor of Osteopathy or a 
physician who is serving on active duty in the uniformed services and 
is designated by the uniformed service to conduct examinations under 
this subpart;
    (2) Any health care provider recognized by the Federal Employees 
Health Benefits Program or who is licensed or certified under Federal 
or State law to provide the service in question;
    (3) A health care provider as defined in paragraph (2) of this 
definition who practices in a country other than the United States, who 
is authorized to practice in accordance with the laws of that country, 
and who is performing within the scope of his or her practice as 
defined under such law;
    (4) A Christian Science practitioner listed with the First Church 
of Christ, Scientist, in Boston, Massachusetts; or
    (5) A Native American, including an Eskimo, Aleut, and Native 
Hawaiian, who is recognized as a traditional healing practitioner by 
native traditional religious leaders who practices traditional healing 
methods as believed, expressed, and exercised in Indian religions of 
the American Indian, Eskimo, Aleut, and Native Hawaiians, consistent 
with Public Law 95-314, August 11, 1978 (92 Stat. 469), as amended by 
Public Law 103-344, October 6, 1994 (108 Stat. 3125).
* * * * *
    Incapacity means the inability to work, attend school, or perform 
other regular daily activities because of a serious health condition or 
treatment for or recovery from a serious health condition.
    Intermittent leave or leave taken intermittently means leave taken 
in separate blocks of time, rather than for one continuous period of 
time, and may include leave periods of 1 hour to several weeks. Leave 
may be taken for a period of less than 1 hour if agency policy provides 
for a minimum charge for leave of less than 1 hour under 
Sec. 630.206(a).
* * * * *
    Parent means a biological parent or an individual who stands or 
stood in loco parentis to an employee when the employee was a son or 
daughter. This term does not include parents ``in law.''
* * * * *
    Serious health condition. (1) Serious health condition means an 
illness, injury, impairment, or physical or mental condition that 
involves--
    (i) Inpatient care (i.e., an overnight stay) in a hospital, 
hospice, or residential medical care facility, including any period of 
incapacity or any subsequent treatment in connection with such 
inpatient care; or

[[Page 64452]]

    (ii) Continuing treatment by a health care provider that includes 
(but is not limited to) examinations to determine if there is a serious 
health condition and evaluations of such conditions if the examinations 
or evaluations determine that a serious health condition exists. 
Continuing treatment by a health care provider may include one or more 
of the following--
    (A) A period of incapacity of more than 3 consecutive calendar 
days, including any subsequent treatment or period of incapacity 
relating to the same condition, that also involves--
    (1) Treatment two or more times by a health care provider, by a 
health care provider under the direct supervision of the affected 
individual's health care provider, or by a provider of health care 
services under orders of, or on referral by, a health care provider; or
    (2) Treatment by a health care provider on at least one occasion 
which results in a regimen of continuing treatment under the 
supervision of the health care provider (e.g., a course of prescription 
medication or therapy requiring special equipment to resolve or 
alleviate the health condition).
    (B) Any period of incapacity due to pregnancy, or for prenatal 
care, even if the affected individual does not receive active treatment 
from a health care provider during the period of incapacity or the 
period of incapacity does not last more than 3 consecutive calendar 
days.
    (C) Any period of incapacity or treatment for such incapacity due 
to a chronic serious health condition that--
    (1) Requires periodic visits for treatment by a health care 
provider or by a health care provider under the direct supervision of 
the affected individual's health care provider,
    (2) Continues over an extended period of time (including recurring 
episodes of a single underlying condition); and
    (3) May cause episodic rather than a continuing period of 
incapacity (e.g., asthma, diabetes, epilepsy, etc.). The condition is 
covered even if the affected individual does not receive active 
treatment from a health care provider during the period of incapacity 
or the period of incapacity does not last more than 3 consecutive 
calendar days.
    (D) A period of incapacity which is permanent or long-term due to a 
condition for which treatment may not be effective. The affected 
individual must be under the continuing supervision of, but need not be 
receiving active treatment by, a health care provider (e.g., 
Alzheimer's, severe stroke, or terminal stages of a disease).
    (E) Any period of absence to receive multiple treatments (including 
any period of recovery) by a health care provider or by a provider of 
health care services under orders of, or on referral by, a health care 
provider, either for restorative surgery after an accident or other 
injury or for a condition that would likely result in a period of 
incapacity or more than 3 consecutive calendar days in the absence of 
medical intervention or treatment (e.g., chemotherapy/radiation for 
cancer, physical therapy for severe arthritis, dialysis for kidney 
disease).
    (2) (Serious health condition does not include routine physical, 
eye, or dental examinations; a regimen of continuing treatment that 
includes the taking of over-the-counter medications, bed-rest, 
exercise, and other similar activities that can be initiated without a 
visit to the health care provider; a condition for which cosmetic 
treatments are administered, unless inpatient hospital care is required 
or unless complications develop; or an absence because of an employee's 
use of an illegal substance, unless the employee is receiving treatment 
for substance abuse by a health care provider or by a provider of 
health care services on referral by a health care provider. Ordinarily, 
unless complications arise, the common cold, the flu, earaches, upset 
stomach, minor ulcers, headaches (other than migraines), routine dental 
or orthodontia problems, and periodontal disease are not serious health 
conditions. Allergies, restorative dental or plastic surgery after an 
injury, removal of cancerous growth, or mental illness resulting from 
stress may be serious health conditions only if such conditions require 
inpatient care or continuing treatment by a health care provider.)
    Son or daughter means a biological, adopted, or foster child; a 
step child; a legal ward; or a child of a person standing in loco 
parentis who is--
    (1) Under 18 years of age; or
    (2) 18 years of age or older and incapable of self-care because of 
a mental or physical disability. A son or daughter incapable of self-
care requires active assistance or supervision to provide daily self-
care in three or more of the ``activities of daily living'' (ADL's) or 
``instrumental activities of daily living'' (IADL's). Activities of 
daily living include adaptive activities such as caring appropriately 
for one's grooming and hygiene, bathing, dressing, and eating. 
Instrumental activities of daily living include cooking, cleaning, 
shopping, taking public transportation, paying bills, maintaining a 
residence, using the telephones and directories, using a post office, 
etc. A ``physical or mental disability'' refers to a physical or mental 
impairment that substantially limits one or more of the major life 
activities of an individual as defined in 29 CFR 1630.2 (h), (i) and 
(j).
    Spouse means an individual who is a husband or wife pursuant to a 
marriage that is a legal union between one man and one woman, including 
common law marriage between one man and one woman in States where it is 
recognized.
* * * * *
    10. In Sec. 630.1203, paragraphs (a)(4), (b), (c), (d), (g), and 
(h) are revised to read as follows:


Sec. 630.1203  Leave entitlement.

    (a) * * *
    (4) A serious health condition of the employee that makes the 
employee unable to perform any one or more of the essential functions 
of his or her position.
    (b) An employee shall invoke his or her entitlement to family or 
medical leave under paragraph (a) of this section, subject to the 
notification and medical certification requirements in Secs. 630.1206 
and 630.1207. An employee may take only the amount of family and 
medical leave that is necessary to manage the circumstances that 
prompted the need for leave under paragraph (a) of this section.
    (c) The 12-month period referred to in paragraph (a) of this 
section begins on the date an employee first takes leave for a family 
or medical need specified in paragraph (a) of this section and 
continues for 12 months. An employee is not entitled to 12 additional 
workweeks of leave until the previous 12-month period ends and an event 
or situation occurs that entitles the employee to another period of 
family or medical leave. (This may include a continuation of a previous 
situation or circumstance.)
    (d) The entitlement to leave under paragraphs (a) (1) and (2) of 
this section shall expire at the end of the 12-month period beginning 
on the date of birth or placement. Leave for a birth or placement must 
be concluded within this 12-month period. Leave taken under paragraphs 
(a) (1) and (2) of this section, may begin prior to or on the actual 
date of birth or placement for adoption or foster care, and the 12-
month period, referred to in paragraph (a) of this section begins on 
that date.
* * * * *
    (g) Each agency shall inform its employees of their entitlements 
and responsibilities under this subpart, including the requirements and 
obligations of employees.
    (h) An agency may not subtract leave from an employee's entitlement 
to leave

[[Page 64453]]

under paragraph (a) of this section unless the agency has obtained 
confirmation from the employee of his or her intent to invoke 
entitlement to leave under paragraph (b) of this section. An employee's 
notice of his or her intent to take leave under Sec. 630.1206 may 
suffice as the employee's confirmation.
    11. In Sec. 630.1204, paragraphs (d) introductory text and (f) are 
revised to read as follows:


Sec. 630.1204  Intermittent leave or reduced leave schedule.

* * * * *
    (d) For the purpose of applying paragraph (c) of this section, an 
alternative position need not consist of equivalent duties, but must be 
in the same commuting area and must provide--
* * * * *
    (f) Only the amount of leave taken intermittently or on a reduced 
leave schedule, as these terms are defined in Sec. 630.1202, shall be 
subtracted from the total amount of leave available to the employee 
under Sec. 630.1203 (e) and (f).
    12. In Sec. 630.1205, paragraph (b) is amended by revising the 
introductory text, removing paragraphs (b)(4) and (b)(5), adding the 
word ``and'' to paragraph (b)(2) after the semicolon and removing the 
semicolon after the word ``chapter'' in paragraph (b)(3) and adding a 
period in its place; and paragraphs (c), (d), (e) are revised to read 
as follows:


Sec. 630.1205  Substitution of paid leave.

* * * * *
    (b) An employee may elect to substitute the following paid leave 
for any or all of the period of leave without pay to be taken under 
Sec. 630.1203(a)--
* * * * *
    (c) An agency may not deny an employee's right to substitute paid 
leave under paragraph (b) of this section for any or all of the period 
of leave without pay to be taken under Sec. 630.1203(a), consistent 
with current law and regulations.
    (d) An agency may not require an employee to substitute paid leave 
under paragraph (b) of this section for any or all of the period of 
leave without pay to be taken under Sec. 630.1203(a).
    (e) An employee shall notify the agency of his or her intent to 
substitute paid leave under paragraph (b) of this section for the 
period of leave without pay to be taken under Sec. 630.1203(a) prior to 
the date such paid leave commences. An employee may not retroactively 
substitute paid leave for leave without pay previously taken under 
Sec. 630.1203(a)
    13. In Sec. 630.1206, paragraph (f) is revised to read as follows:


Sec. 630.1206  Notice of leave.

* * * * *
    (f) An agency may require that a request for leave under 
Sec. 630.1203(a) (1) and (2) be supported by evidence that is 
administratively acceptable to the agency.
    14. In Sec. 630.1207, paragraphs (a), (b)(2), (b)(5), (b)(6), (c), 
and (i) are revised to read as follows:


Sec. 630.1207  Medical certification.

    (a) An agency may require that a request for leave under 
Sec. 630.1203(a) (3) or (4) be supported by written medical 
certification issued by the health care provider of the employee or the 
health care provider of the spouse, son, daughter, or parent of the 
employee, as appropriate. An employee shall provide the written medical 
certification to the agency in a timely manner. An agency may waive the 
requirement for an initial medical certificate in a subsequent 12-month 
period if the leave under Sec. 630.1203(a) (3) or (4) is for the same 
chronic or continuing condition.
    (b) * * *
    (2) The probable duration of the serious health condition or 
specify that the serious health condition is a chronic or continuing 
condition with an unknown duration and whether the patient is presently 
incapacitated and the likely duration and frequency of episodes of 
incapacity;
* * * * *
    (5) For the purpose of leave taken under Sec. 630.1203(a)(4), a 
statement that the employee is unable to perform one or more of the 
essential functions of his or her position or requires medical 
treatment for a serious health condition, based on written information 
provided by the agency on the essential functions of the employee's 
position or, if not provided, discussion with the employee about the 
essential functions of his or her position; and
    (6) In the case of certification for intermittent leave or leave on 
a reduced leave schedule under Sec. 630.1203(a) (3) or (4) for planned 
medical treatment, the dates (actual or estimates) on which such 
treatment is expected to be given, the duration of such treatment, and 
the period of recovery, if any, or specify that the serious health 
condition is a chronic or continuing condition with an unknown duration 
and whether the patient is presently incapacitated and the likely 
duration and frequency of episodes of incapacity.
    (c) The information on the medical certification shall relate only 
to the serious health condition for which the current need for family 
and medical leave exists. The agency may not require any personal or 
confidential information in the written medical certification other 
than that required by paragraph (b) of this section. If an employee 
submits a completed medical certification signed by the health care 
provider, the agency may not request new information from the health 
care provider. However, a health care provider representing the agency, 
including a health care provider employed by the agency or under 
administrative oversight of the agency, may contact the health care 
provider who completed the medical certification, with the employee's 
permission, for purposes of clarifying the medical certification.
* * * * *
    (i) For leave taken for the purposes of pregnancy, chronic 
conditions, or long-term conditions under the continuing supervision of 
a health care provider, as these terms are defined in Sec. 630.1202 in 
the definition of ``serious health condition'' under paragraphs 
(2)(ii), (iii), and (iv), the agency may require, at the agency's 
expense, subsequent medical recertification from the health care 
provider on a periodic basis, but not more than every 30 calendar days. 
For leave taken for all other serious health conditions and including 
leave taken on an intermittent or reduced leave schedule, if the health 
care provider has specified on the medical certification a minimum 
duration of the period of incapacity, the agency may not request 
recertification until that period has passed. An agency may require 
subsequent medical recertification more frequently than every 30 
calendar days, or more frequently than the minimum duration of the 
period of incapacity specified on the medical certification, if the 
employee requests that the original leave period be extended, the 
circumstances described in the original medical certification have 
changed significantly, or the agency receives information that casts 
doubt upon the continuing validity of the medical certification.
* * * * *
    15. In Sec. 630.1208, paragraphs (b)(5), (h), and (i) are revised, 
and paragraph (k) is added to read as follows:


Sec. 630.1208  Protection of employment and benefits.

* * * * *
    (b) * * *
    (5) The same or equivalent opportunity for a within-grade increase, 
performance award, incentive award, or other similar discretionary and 
non-discretionary payments, consistent with

[[Page 64454]]

applicable laws and regulations; however, the entitlement to be 
returned to an equivalent position does not extend to intangible or 
unmeasurable aspects of the job;
* * * * *
    (h) As a condition to returning an employee who takes leave under 
Sec. 630.1203(a)(4), an agency may establish a uniformly applied 
practice or policy that requires all similarly-situated employees 
(i.e., same occupation, same serious health condition) to obtain 
written medical certification from the health care provider of the 
employee that the employee is able to perform the essential functions 
of his or her position. An agency may delay the return of an employee 
until the medical certification is provided. The same conditions for 
verifying the adequacy of a medical certification in Sec. 630.1207(c) 
shall apply to the medical certification to return to work. No second 
or third opinion on the medical certification to return to work may be 
required. An agency may not require a medical certification to return 
to work during the period the employee takes leave intermittently or 
under a reduced leave schedule under Sec. 630.1204.
    (i) If an agency requires an employee to obtain written medical 
certification under paragraph (h) of this section before he or she 
returns to work, the agency shall notify the employee of this 
requirement before leave commences, or to the extent practicable in 
emergency medical situations, and pay the expenses for obtaining the 
written medical certification. An employee's refusal or failure to 
provide written medical certification under paragraph (h) of this 
section may be grounds for appropriate disciplinary or adverse action, 
as provided in part 752 of this chapter.
* * * * *
    (k) An employee's decision to invoke FMLA leave under 
Sec. 630.1203(a) does not prohibit an agency from proceeding with 
appropriate actions under part 432 or part 752 of this chapter.
    16. Sec. 630.1210, paragraphs (a) and (c) are revised to read as 
follows:


Sec. 630.1210  Greater leave entitlement.

    (a) An agency shall comply with any collective bargaining agreement 
or any agency employment benefit program or plan that provides greater 
family or medical leave entitlements to employees than those provided 
under this subpart. Nothing in this subpart prevents an agency from 
amending such policies, provided the policies comply with the 
requirements of this subpart.
* * * * *
    (c) An agency may adopt leave policies more generous than those 
provided in this subpart, except that such policies may not provide 
entitlement to paid time off in an amount greater than that otherwise 
authorized by law or provide sick leaved in any situation in which sick 
leave would not normally be allowed by law or regulation.
* * * * *
    17. In Sec. 630.1211, paragraph (b)(3) is revised to read as 
follows:


Sec. 630.1211  Records and reports.

* * * * *
    (b) * * *
    (3) The number of hours of leave taken under Sec. 630.1203(a), 
including any paid leave substituted for leave without pay under 
Sec. 630.1205(b); and
* * * * *

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

    18. The authority citation for part 890 continues to read as 
follows:

    Authority: 5 U.S.C. 8913, Sec. 890.803 also issued under 50 
U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued 
under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended.

    19. In Sec.  890.502, paragraph (e) is revised to read as follows:


Sec. 890.502  Employee withholdings and contributions.

* * * * *
    (e) Direct payment of premiums during periods of LWOP status in 
excess of 365 days.
    (1) An employee who is granted leave without pay under subpart L of 
part 630 of this chapter which exceeds the 365 of continued coverage 
under section 890.303(e) must pay the employee contributions directly 
to the employing office on a current basis.
    (2) Payment must be made after the pay period in which the employee 
is covered in accordance with a schedule established by the employing 
office. If the employing office does not receive the payment by the 
date due, the employing office must notify the employee in writing that 
continuation of coverage depends upon payment being made within 15 days 
(45 days for employees residing overseas) after receipt of the notice. 
If no subsequent payments are made, the employing office terminates the 
enrollment 60 days (90 days for enrollees residing overseas) after the 
date of the notice.
    (3) If the enrollee was prevented by circumstances beyond his or 
her control from making payment within the timeframe specified in 
paragraph (e)(2) of this section he or she may request reinstatement of 
the coverage by writing to the employing office. The employee must file 
the request within 30 calendar days from the date of termination and 
must include supporting documentation.
    (4) The employing office determines whether the employee is 
eligible for reinstatement of coverage. If the determination is 
affirmative, the employing office reinstates the coverage of the 
employee retroactive to the date of termination. If the determination 
is negative, the employee may request a review of the decision from the 
employing agency as provided under Sec. 890.104.
    (5) An employee whose coverage is terminated under paragraph (e)(2) 
of this section may register to enroll upon his or her return to duty 
in a pay status in a position in which the employee is eligible for 
coverage under this part.
* * * * *
[FR Doc. 96-30810 Filed 12-4-96; 8:45 am]
BILLING CODE 6325-01-M